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07 Jun Less Gossip, More Shop Talk: Court of Appeals Round Up

To wrap up the month of May, the Court of Appeals issued a cool four Opinions on Family Court cases. The cases in the Round Up of May 31 focused more on the law part of “family law” and less on the theatrics often found in Family Court cases. While the facts of the cases may be less gossip-worthy, there’s knowledge to glean from this week’s shop talk. Check out the next Round Up (linked here) to read how the drama ramps back up.

Christopher Torn v. Angela Castro, 2023-CA-0766

In a parenting time and custody case, the Kentucky Court of Appeals affirmed a decision of Warren County Family Court. In this case, Chris and Angela were married and had a child together. The marriage failed, and the parties separated. There was an incident of domestic violence, and Angela obtained a Domestic Violence Order with supervised visitation for Chris. In September 2019, the Parties agreed on joint custody, with unsupervised visitation for Chris.

However, the Family Court modified the visitation portion. It mandated that Chris have an additional five supervised parenting sessions before “graduating” to unsupervised in a period of approximately three months. For reasons unclear in the Opinion, Chris never did those remaining sessions. He claimed that he attempted to contact the Family Enrichment Center in Bowling Green but could not get the sessions scheduled. Chris did not file a motion to compel Angela to show up or otherwise cooperate. Angela did nothing to facilitate contact. 

When Angela filed a Motion to Relocate and a Motion for Sole Custody, Chris objected. He argued that the relief was contrary to the child’s best interests, but the Family Court disagreed. Additionally, he also claimed that KRS 403.340(5) required the Family Court to set a new timesharing schedule. As practitioners know, the statute created a presumption of equal timesharing, or at least a schedule that “maximizes the time each parent . . . has with the child and is consistent with ensuring the child’s welfare.” Both the Family Court and the Court of Appeals disagreed with Chris and said that he would need to file a Motion for the Court to set a schedule.

In the end, the Kentucky Court of Appeals stated that it believed that Chris sincerely desires a relationship with the child and encourages him to do so by filing another motion with the Family Court. Unreported.

Mikayla Ratcliff v. Kevin and Christine Wethington, 2023-CA-0837

When is a custody order final? In this appeal from Meade County Circuit Court, a mother appealed the order granting temporary custody to de facto custodians, Mr. and Mrs. Wethington. The original recommendations were from a report of the Domestic Relations Commissioner and were formalized in a temporary order. 

Although there were Motions to Alter, Amend, or Vacate the judgment, nothing in the order indicated it was a final judgment. Nonetheless, the mother appealed. The Court of Appeals admitted that “determining finality in custody actions is often difficult,” but the lack of the “final and appealable” language controlled. There was some discussion of the substantial compliance that only true law nerds will appreciate. The appeal was dismissed. Our prediction is that the mother will appeal again when and if a final judgment is entered. Unreported.

Faye Carll v. Kenneth Carll, III, 2023-CA-0893

In an appeal from a relocation issue, the Kentucky Court of Appeals reversed an order from Judge Brent Hall of Hardin County Circuit Court. The Court of Appeals provided a summary of the history of the case, including a litany of facts involving domestic violence, anger management, therapy, and the like. 

Following an evidentiary hearing on the proposed relocation to Germany, the trial court issued a “rather succinct order” that denied the motion to leave the country. A motion to alter was filed, and the trial court again denied the motion. While the Court of Appeals might have tolerated the decision, the appellate court did not take kindly to the fact that the trial court did not identify the proper standard and failed to include any findings that might support its conclusion. In fact, according to the Court of Appeals, the trial court “failed to include in its order any conclusion of law to indicate how these findings supported a modification.” The Court of Appeals exercised some restraint and stopped just short of calling the trial judge a numbskull. Unreported.

William Buell, Jr. v. Billie Jan Buell, 2023-CA-1182

In this appeal from the Madison County Family Court, the Kentucky Court of Appeals affirmed a finding that there was no contempt of court. In this case, the husband (hereinafter “William”) filed for divorce from “Billie” in 2019. They had been already separated twice, but had reconciled. In this case, they finished the divorce — however, the process moved at a glacial pace. The final hearing occurred in August of 2022, and the final decree of dissolution was not entered until almost a year later in August 2023. 

During the final hearing, William argued that Billie had violated a status quo order and should be punished for the same. Unfortunately, the order had never been entered, and the order that he referenced was a mere notation on the court’s docket sheet. That notation was from the Motion Hour when a Motion for a Status Quo Order and a Motion for Non-dissipation Order. The “Order” written in full was  “Non-diss. order to enter.”  No additional orders or details ever followed.  In analyzing this, the Court of Appeals found that

“Before contempt can be found, the first requirement is a valid court order. William paints this non-existent status quo order as an “agreed order.” An agreed order, if properly entered, is a contract. Cagata v. Cagata, 475 S.W.3d 49, 56 (Ky. App. 2015). “The fundamental elements of a valid contract are offer and acceptance, full and complete terms, and consideration. For the terms to be considered complete they must be definite and certain and must set forth the promises of performance to be rendered by each party.” Waggoner v. Waggoner, -11- 644 S.W.3d 548, 552 (Ky. App. 2022) (citing Energy Home, Div. of Southern Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 834 (Ky. 2013)).”

pg 11

In this case, Judge Combs found that none of the elements for an enforceable court order were present. Further, the Court of Appeals ruled that, even with a valid order, the Family Court could have elected NOT to hold the wife in contempt. It reasoned that contempt is for the Court to decide; it is not a weapon to be used by the parties. In fact, the Court of Appeals reasoned that the husband’s appeal was likely frivolous, but it declined to issue sanctions to allow the parties to FINALLY move on with their lives. Unreported.

Click here for the previous Round Up!