25 Aug August 8 Round Up: Quality Over Quantity
Low numbers, high in quality. Just a couple of cases this week, but both are absolutely worth reading. The unreported case is the real gem — and may be a candidate for Unreported Case of the Year honors.
M.D. v. M.S.; A.D.-S., a child; and Commonwealth of Kentucky, Cabinet for Health and Family Services, 2024-CA-0892; and associated cases
Well, chalk up another reversal for Jefferson County Family Court. This time, Judge Gatewood got corralled by the Court of Appeals in a sprawling dependency/neglect/abuse (DNA) case involving seven children, years of litigation, and a procedural misstep that proved fatal. The Opinion may be “Not to Be Published,” but it’s a must-read—especially the section on criminal vs. civil contempt. The Opinion by Judge Eckerle outlines a host of legal issues and spans 26 pages of facts and analysis. Louisville lawyer Bethanni Forbush-Moss represented the appellant mother in this case.
The Setup
M.D., the mother, had her children removed after a police chase, criminal charges, claims of poor home conditions, and alleged educational neglect. Over the next two years, hearings were delayed, lawyers came and went, the mother’s behavior stayed combative, and at one point, several children went missing entirely. By the time the dust settled, the Cabinet had custody of all the kids, permanency goals were shifting toward adoption, and the Family Court had slapped the mother with a 180-day jail sentence for contempt.
The Procedural Trouble
Kentucky law (KRS 620.090(5)) says that a child can’t stay in temporary custody longer than 45 days unless the Court makes written findings that an extension is necessary and in the child’s best interest. The Family Court never made those findings. In fact, it didn’t even check the “yes/no” box on the standard DNA form. The Court of Appeals made clear: no findings, no lawful extension. Result? The continued removal of Child 6 and Child 7 was reversed. The language from Judge Eckerle’s Opinion is worth noting here. The Opinion notes as follows:
“The neglected box-checking procedure is secondary to the purpose of the 45-day statutory requirement. Forms are provided not just for convenience and routine, but they are crafted to ensure that Judges are prompted to make required findings in crowded, stressful dockets. The real problem (that the forms exist to avert) lies in the failure of the Family Court here to note that the initial removal of the child from the home is temporary by nature and design. If it is to be extended for more than 45 days, judicial action and findings are both required. As the statute mandates, there must be written findings for an extension, the extension must be necessary, and the extension must be in the child’s best interest. KRS 620.090(5).”
Educational Neglect? Not Here.
The Family Court also found the mother guilty of educational neglect, but both children in the surviving appeals were under the compulsory school age. The appellate court deemed that that one was unsupported by substantial evidence and reversed it as well.
Contempt Misfire
The contempt portion is worth savoring slowly, like a sip of coffee. The Family Court ruled that its contempt ruling was “civil” (coercive) but waited until it was too late for the mother to purge the contempt before imposing a 180-day jail sentence. That turned it into criminal contempt, without giving her the constitutional due process such a sentence requires. As the panel noted, you can’t call it civil contempt if there’s no way out except serving time. Judge Eckerle’s Opinion references another Cabinet case (J.M.G.) on the nuances of contempt. That case and this opinion should be required reading for Family Court Judges and lawyers addressing contempt matters. The bottom line: contempt sentence vacated.
The Round Up Take
This case serves as a cautionary tale in procedural terms. The 45-day limit in KRS 620.090(5) isn’t a suggestion—it’s a mandate. And if you’re going to jail someone for contempt, you’d better be clear whether it’s civil or criminal and follow the proper process for each.
Unreported. http://opinions.kycourts.net/COA/2024-CA-000892.PDF
James Lawrence Davis v. Ann Marie Davis, 2024-CA-0513
The Kentucky Court of Appeals handed down a published decision in Davis v. Davis out of Knox County, and the result won’t surprise anyone who’s been riding this trail for long. Judge Lucas Joyner’s ruling mostly held, but the appellate panel reined him in on one key point—retroactive child support.
The Backstory
James and Ann Davis split after about seven years of marriage, with three young children in tow. Early in the case, the Court gave James exclusive possession of the marital home and ordered neither party to pay child support. James picked up the mortgage; Ann paid higher rent elsewhere. Two years later, James was still in the house, the divorce was still pending, and his request for child support (filed back in 2021) still hadn’t been resolved.
The Property Fight
James argued he should get a $27,764.80 credit for the post-separation reduction in the mortgage balance before splitting the sale proceeds of the house. The Court of Appeals said “nope.” Why? James had sole use of the home, denied Ann access, and during that time, Ann was paying more for housing. The trial court’s decision to divide proceeds equally without a credit was well within its discretion.
The Child Support Snag
Here’s where the reversal comes in. The trial court ordered James to pay child support—$681.85/month—retroactive nearly three years to the date he filed his motion. Problem? Ann never filed her motion or clearly demanded support until she said so in her trial testimony. The Court of Appeals held that you can’t backdate support to a time before the recipient party actually makes a clear, unequivocal request for it. Awarding nearly $22,000 in arrears under those circumstances was palpable error and fundamentally unfair.
The Round Up Take
Nothing groundbreaking here, but a few useful reminders:
- Post-separation mortgage payments aren’t an automatic ticket to a credit—especially if you’ve had exclusive possession.
- Retroactive child support has limits. Without a motion or apparent pretrial demand from the recipient, there’s no basis to saddle the payor with a surprise arrearage.
Reported. http://opinions.kycourts.net/COA/2024-CA-000513.PDF
Criminal Tally
The weekly criminal tally contained no surprises. The prosecutors scored two wins, the defendants none.
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