25 Apr Double-Barrelled Court of Appeals Round Up
This Round-Up is double-barrelled with highlights from the minutes of the Court of Appeals from April 12 and April 19. Tune back in tomorrow for another Round Up post!
April 12
Jaswinder Singh v. Harvinder Kaur, 2022-CA-0855
In an appeal from Daviess County, the Court of Appeals affirmed decisions on division of marital property and attorney fees. Many divorce lawyers have considered “tracing” of non-marital assets to be a mild form of torture. For those practitioners, this case is surely the Pit of Despair of Tracing. Following twenty-three hearings and the appointment of a special judge, the Family Court summarized the debacle of financial dealings as:
The husband with the aid of his brother operated “numerous businesses involving millions of dollars of transactions and more than likely have taken unreported cash out of operations in large sums over many years. It is most difficult to attempt to untangle the web they have sewn. There are no financial written records except basic tax returns which are destroyed [after three years] and prepared [only] on the basis of verbal information provided to their accountant.”
In the end, the Court ordered the wife to receive a Valero gas station (which the husband argued was not even his property) and awarded some $40,000 in attorney fees. The Court of Appeals affirmed in an unpublished Opinion. http://opinions.kycourts.net/COA/2022-CA-000855.PDF
Joseph Willett v. Shannon Willet, 2023-CA-0490
Judge Eckerle affirms a Union County Family Court decision regarding Cost of Living Adjustments (“COLAs”) in a post-decree case. Joe and Shannon reached an agreement in their divorce in regards to dividing military retirement benefits; however, the Agreement was silent as to the division of COLAs. After Joe’s retirement, Shannon filed a pro se motion for her share of the COLAs which the Family Court granted. Judge Eckerle agreed. After noting that both parties’ briefs were deficient, the Court of Appeals reaffirmed the unreported decision of Applewhite with regard to his issue. Overall, this case is one to remember despite its decidedly un-sexy topic matter. Unreported. http://opinions.kycourts.net/COA/2023-CA-000490.PDF
Jason D. Mills v. E.M., a minor, 2023-CA-1230
The Court of Appeals affirmed the entry of a DVO to protect a minor from acts of abuse allegedly perpetrated by her father. The Family Court called the finding a “close call” when deciding the issue and the Court of Appeals agreed. In the DVO, there was not a no-contact order and, in fact, the Court ordered counseling for the father/daughter. Additionally, there was no prohibition against the possession of firearms. Jason’s lawyer (Alison Russell of Louisville) argued that the findings of fact were insufficient. While this argument has proven successful in numerous other cases, Judge Easton rejected it in this case. The Opinion states that a “properly completed” AOC form will suffice when it comes to findings of fact. (It will be interesting to see whether this holding is repeated in other cases.) Unreported. http://opinions.kycourts.net/COA/2023-CA-001230.PDF
Criminal Tally
On the criminal side, a defendant finally gets a win in Smith v. Commonwealth (http://opinions.kycourts.net/COA/2022-CA-000686.PDF).
In Smith, a defendant argued that he was incompetent and that a Henderson Circuit Court judge erred in finding him competent. The Court of Appeals reversed, specifically finding that an expert is required to provide an opinion as to competency. The case was reversed and remanded, where the expert and the Court will have another chance to find Smith competent and revoke his probation.
The final tally for the week is Prosecutors 3, Defendants 1.
April 19
Julie Tucker v. Wesley Tucker, 2023-CA-1230
In a case from Boyd County, the Court of Appeals affirmed the recommendations of the Domestic Relations Commissioner and the circuit Judge. In the case, Julie alleges fault on two issues, a refrigerator and a timesharing order. Not surprisingly, the Kentucky Court of Appeals in an opinion by Judge Caldwell does not seriously consider the refrigerator debt and leaves it equally divided between the parties. The fact that Julie told Wes to “do what he wanted to do” regarding the potential purchase of a new fridge did not help her cause. Similarly, the decision regarding timesharing was affirmed. Julie failed to point to any evidence of record that would support a disturbance of the trial court’s decision. Interestingly, Julie argued for a “bright line rule” that allegations of abuse would result in a temporary placement with the non-offending parent in a divorce or custody case. The Court of Appeals rejected this, stating that the proper protections for children were under the abuse/neglect chapters of the Kentucky Revised Statutes, rather than KRS 403. Unreported. http://opinions.kycourts.net/COA/2023-CA-000372.PDF
Pamela Boone v. Samuel Baldwin, 2023-CA-0542
In this divorce case from London, the Court of Appeals affirmed decisions by the Laurel Circuit Court. The heart of the case between Pam and Sam was rooted in whether certain property was inherited (and thus, Sam’s non-marital property) or whether it was marital and subject to division. The Judge found in favor of Sam on all counts. Pam’s lawyer complained that the Court adopted Sam’s proposed findings which were unfair. While the Court of Appeals has frowned on the adoption of tendered findings in other cases, it was good enough in this controversy. Additionally, Pam was unhappy in the Court’s finding regarding her testimony. The Court of Appeals rightly explained that the fact that a judge might believe one party does not mean that it has not considered the testimony of the other. Finally, Pam took exception to the fact that the Court did not specifically list certain items of personal property (a dining set, a grill and a china cabinet) in its order. Predictably, the appellate court found that a finding of “you keep what you got” is enough for a divorce order. (Family Court judges statewide will be relieved by this ruling.) Unreported, for good reason. http://opinions.kycourts.net/COA/2023-CA-000542.PDF
Criminal Tally
For the week of April 19, the Prosecutors shut out the Defendants with a final tally of 3-0. The final score was closer than the actual contests as the Defendants were really never in it.