26 Jan Court of Appeals Round Up
After a slow winter, the Court of Appeals has cranked up the production. There are a number of cases worth noting. Without further ado, here is the weekly Round Up:
Monroe v. Wright, 2022-CA-001254
A fascinating case out of the Jefferson Family Court that practitioners will want to read. James and Emily were once in love with a house and a child together. However, the parties’ relationship, in the words of Judge Caldwell, “had soured.” Judge Lauren Ogden was tasked with sorting out the issues between the parties, which included legal custody, timesharing, as well as the house and furniture issues – despite the fact the parties had not been married. The Court of Appeals affirmed the issues related to the child. However, the father claimed that a Family Court judge did not have subject matter jurisdiction over the house and furniture issues. Unfortunately, the Court of Appeals failed to address the jurisdictional matter directly. Instead, the Family Court reversed some of the claims based on “lack of notice.” The most important portion of the Opinion is a footnote on page 17 in which it tends to side with the Family Court having jurisdiction in these matters. (Is this an invitation for the Appellant’s lawyer to ask the Supreme Court? Readers will want to stay tuned.) Unreported, for now. http://opinions.kycourts.net/COA/2022-CA-001254.PDF
Weis v. Weis, 2022-CA-001312
A worthwhile case on attorney fees. In this one, following a divorce and an agreement of joint custody and a parenting schedule, the father pointed a loaded gun at the mother in the presence of the child. He also shot the tire of her vehicle. Unsurprisingly, the acts resulted in more court involvement – including an abuse case. The Mother sought attorneys’ fees of $20,000 for the cases; however, Judge Brown declined to grant the award. Judge Karem agreed with the Family Court, stating that Kentucky courts generally apply the “American Rule,” in which case each party pays their own fees. While Kentucky courts can shift fees – the rule is not designed to be punitive or sanctioning. Therefore, the denial of fees was affirmed. Unreported. http://opinions.kycourts.net/COA/2022-CA-001312.PDF
Thompson v. Thompson, 2022-CA-001211
The parents agreed to a provision of “make-up” time for missed visitation. After a hearing on whether the mother was in contempt for failure to permit the “make-up” time, Judge Simms decided to eliminate that provision, sua sponte. Judge Caldwell agreed with the trial judge. The holding was that the General Assembly did not say that a motion must be filed before a court can modify visitation. This Opinion would seem to grant the Family Court judges a new amount of control over cases; however, the Court of Appeals does reiterate a warning to judges to avoid ruling on important matters, sua sponte, if they are wholly unrelated to the questions presented. Thankfully, this case is Unreported. http://opinions.kycourts.net/COA/2022-CA-001211.PDF
B.N.P. v. D.L.V. and B.P.V., 2023-CA-000922
An adoption from Bullitt County was reversed. In this case from Bullitt County, a great aunt and great uncle sought an adoption of a child. However, they didn’t file an adoption action, at least not at first. Initially, they filed a de facto custody case and then changed it to a custody case based on unfitness/waiver. Later, the Family Court terminated the rights of the parent, although Judge Meredith noted that the case had not proceeded in a traditional manner. The Court of Appeals outlined the deficiencies more clearly and referenced the statute. The aunt and uncle did not have standing to file a TPR and the child was not a party and did not have a GAL. An easy and predictable case to result in a reversal. UNREPORTED. http://opinions.kycourts.net/COA/2023-CA-000922.PDF
Williams v. CHFS, 2022-CA-0935
Commonwealth of Kentucky and CHFS v. Williams, 2022-CA-1360
Although not a family law case, an appeal from Boone Circuit Court is worth a look. In that case, a supervisor for the Cabinet for Health and Family Services alleged wrongful acts by the Cabinet. The worker sought relief based on the Open Records Act and the Kentucky Whistleblower Act. After a 4-day bench trial, the judge sided significantly with Cabinet on the open records claim. This was followed with a jury trial on the whistleblower claim with the verdict in favor of the worker and awarding $2 million dollars in punitive damages. The Cabinet worker was not so lucky with the judges at the Court of Appeals as they reversed the award. Judge Goodwine wrote that while the failure to investigate numerous claims of neglect and abuse of children is an inexcusable violation of the duties of the CHFS, it does not relate to the damages in this case. The matter was remanded for a new trial on the Whistleblower action. Reported. http://opinions.kycourts.net/COA/2022-CA-000935.PDF
Criminal Tally
Prosecutors 2, Defendants 2
You can view the previous Round Up here.