08 Jan Dec 5 Round Up: Procedural Reminders

Charli Tamika Sparks v. Gareth John Sparks, 2024-CA-1370

This week’s Round Up brings a critical (and unfortunately, common) procedural reminder from the Court of Appeals in a custody dispute out of Wolfe County Family Court. The Opinion, authored by Judge Eckerle, serves as a textbook example of why bare-bones orders will not survive on appeal, no matter how sound the underlying decision may be.

The Problem: Summarizing Evidence is Not Fact-Finding

The Family Court entered an order granting joint custody and equal timesharing despite the Wife’s serious allegations of alcohol abuse and lack of interaction by the Husband. The Family Court’s order dedicated two paragraphs to summarizing the Wife’s evidence and two paragraphs to summarizing the Husband’s contradictory denial. It concluded by simply stating, “The Court finds that it is in the best interest of the minor child to be in the joint care, custody, and control of the parties, with equal timesharing between the parties.”

The Court of Appeals held this was legally insufficient because:

1. No Credibility Determinations (CR 52.01)
   • The order failed to constitute proper fact-finding under Kentucky Rule of Civil Procedure (CR) 52.01. Merely transcribing or summarizing the conflicting evidence does not indicate the trial court’s credibility determinations. The appellate court was left guessing: Did the judge disbelieve the Wife? Or did the judge believe the allegations but find them insufficient to rebut the presumption? This renders meaningful appellate review impossible.
2. No Analysis of KRS 403.270(2)
   • The order failed to discuss, or even cite, the eleven statutory factors a court must consider when determining a child’s best interests in a custody matter under KRS 403.270(2). The Court reiterated that a bare legal conclusion (like “best interests”) is inadequate without supporting findings. The citation to Hicks v. Halsey confirms that simply stating the factors were considered is insufficient; here, the Family Court didn’t even go that far.
3. The Keifer Rule
   • The Court cited Keifer v. Keifer, reminding the Family Court bench and bar that a “bare-bone, conclusory order setting forth nothing but the final outcome, is inadequate and will enjoy no presumption of validity on appeal.”

Unreported. http://opinions.kycourts.net/COA/2024-CA-001370.PDF

Anna Wood v. William Huber, 2024-CA-1547

The Court of Appeals dropped a heavy dose of procedural reality this week, reminding the Family Court bench that the lack of proper notice is a death knell for even the most well-intentioned custody order. In a case that perfectly demonstrates why the rules of civil procedure exist, the Court reversed the denial of a CR 60.02 motion and vacated a sole custody award.

The Procedural Snafu

Mother (pro se) failed to appear at a motion hour and an evidentiary hearing regarding Father’s motion to modify custody, which was ultimately granted to Father. Mother later filed a CR 60.02 motion, arguing she was not properly served with court orders and notices due to an illegible address and a delay in receiving the documents until she requested the file.

The Family Court denied her motion, finding that Father’s counsel took appropriate steps to serve Mother with it. Crucially, the Family Court noted the poor quality of the copy of the envelope Mother provided, making it impossible to confirm the illegibility claim.

The Appellate Hammer: The Uncontroverted Record

The Court of Appeals didn’t necessarily disagree that Father’s counsel may have properly served the motion. But the panel (Caldwell, Combs, and Easton, JJ.) found a palpable error by examining the clerk’s log attached to Mother’s motion.

• Clerical Error Found: Despite Mother being pro se after her previous attorneys withdrew in 2023, the clerk’s log showed that the orders scheduling the hearing and modifying custody were sent to Mother’s former attorney and not to Mother herself.
• Abuse of Discretion: Sending orders to a former counsel, even if Mother might have been partially at fault for not providing an updated address, is an immaterial error here. The undisputed record showed that the court’s orders were never mailed to Mother, depriving her of proper notice and an opportunity to be heard.
• The Big Picture: Citing precedents such as Kurtsinger v. Board of Trustees of Kentucky Retirement Systems and Hoffman v. Hoffman, the Court reiterated that a clerical error preventing notice is a valid basis for CR 60.02 relief. They weren’t shy about noting that Dull v. George even allows relief in custody cases where the party’s own actions contribute to the lack of notice, as default judgments are not favored in custody matters.

Unreported. http://opinions.kycourts.net/COA/2024-CA-001547.PDF

P.B. v. Commonwealth of Kentucky, CHFS, J.B., J.D., and L.B., 2025-CA-0509

The Court of Appeals dropped a wake-up call this week for Family Court practitioners in Dependency, Neglect, and Abuse (DNA) cases. While the Appellant (Father) focused his argument on the Cabinet’s alleged failure to make reasonable efforts, the Court (per Judge Caldwell) didn’t just stop there. It vacated the permanent custody order based on two glaring procedural faults that undermine the required statutory analysis.

The Problem: A Lack of Statutory Scrutiny

The Bullitt County Family Court awarded permanent custody of the Child to the paternal Grandmother (L.B.). Father appealed, arguing that the Cabinet failed to exercise the required “ordinary diligence and care” in pursuing reunification. The Court of Appeals found the Family Court’s order lacking in two major areas:

1. Incomplete Analysis of KRS 620.023 Factors
   • The Evidence was Contradictory: The social worker testified Father had not completed his case plan, but admitted she sometimes failed to maintain the required monthly contact with him. Father testified he was confused and needed more guidance to complete his tasks.
   • Missing Credibility Findings: The Family Court relied on the social worker’s belief that Father hadn’t “even begun to work his case plan,” despite evidence that he had completed mental health and substance abuse assessments. The Court of Appeals noted that the Family Court is the factfinder and determines credibility. Still, it made no explicit findings resolving the conflicting evidence or addressing how the Cabinet’s admitted failures affected Father’s ability to address the factors that led to removal.
   • The Statutory Miss: By not addressing the parties’ concerns about the Cabinet’s reasonable efforts, the Family Court’s analysis of the relevant KRS 620.023 factors—which must be considered in DNA permanent custody decisions—was incomplete.
2. The Unwilling Grandparent Problem (KRS 403.270(2) Violated)
   • This is the big shocker for local practice. The Court sua sponte (on its own review) addressed a “glaring fault” not raised by Father—the lack of evidence that the Grandmother was willing to accept permanent custody.
   • The Grandmother Was Absent: The Grandmother did not attend the permanent custody hearing, did not have counsel present, and did not verify the Cabinet’s motion for permanent custody.
   • The Statutory Obligation: KRS 620.027 requires the court, in DNA permanent custody determinations, to “utilize the provisions of KRS Chapter 403”. KRS 403.270(2) mandates that the court consider the wishes of the child, the parents, and any de facto custodian.
   • No Wishes on Record: The Family Court checked the box on the order stating it considered the wishes of the de facto custodian, but the record was utterly silent on the Grandmother’s wishes. It’s impossible to consider wishes that are not known.

The Court held it was palpable error to award permanent custody to a non-parent when the record contains no reflection of a willingness to accept the permanent and significant obligations involved.

Unreported. http://opinions.kycourts.net/COA/2025-CA-000509.PDF

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