05 Apr Making a Ruckus in the Court of Appeals Round Up
The third and final Round Up posted this week ends the barrage of cases with a bang! With several substantive cases – including one with a feature of your favorite Round Up-authoring law firm – you’ve got a good read ahead of you. Happy Friday!
Timothy Ward v. Courtney Ward, 2021-CA-1235
The H+A team ropes in a win in this week’s Round Up! The Opinion is “one for the dogs”—and “pet parents” everywhere. The Court of Appeals considered three issues: appellate jurisdiction and the “relation forward” doctrine, failure to preserve an objection to entry of evidence, and the proper factors to determine an award of a pet (here, “Ruckus” the dog) as marital property. The Court of Appeals takes all three issues seriously and missed a golden opportunity to raise the question of whether this dog is worth all the ruckus. The Opinion lacks any reference to Timothy’s repeated attempts to argue Ruckus’s best interests, including getting statements from a vet, to justify his refusal to follow Hon. Lauren Ogden’s order to return Ruckus to Courtney. The Court of Appeals did not even note that Timothy was held in contempt and served three (3) days in jail because he would not cooperate with Operation: Habeas Ruckus. After two and a half years of waiting for this affirming Opinion, our opinion is that the Court of Appeals missed a real opportunity to play into the April Fool’s season when addressing this case. Shout out to the Hon. Courtney Kellner, co-counsel in the case and fearless leader of Operation: Habeas Ruckus at the trial court level. Unreported. http://opinions.kycourts.net/COA/2021-CA-001235.PDF
Morgan Gilbert v. John Gilbert, 2022-CA-0012
The Court of Appeals affirms a divorce decision that was litigated in Fayette County Family Court. While there are multiple issues raised on appeal, one stands out. In this case, John Gilbert was employed as a brain surgeon. Dr. Gilbert was of the belief that his was a “high risk speciality” and sometimes doctors get sued beyond malpractice limits. Dr. Gilbert had a scheme for “asset protection.” Specifically, he was going to place the title of his premarital home in Morgan’s name. This turned out to be a mistake. When the Gilberts began the divorce action, Morgan claimed the house for herself. She stated that the residence was a gift or a fraudulent conveyance, and Dr. Gilbert should get nothing. The Family Court agreed. The Court of Appeals explained that a person who conveys property to avoid the reach of the creditor is at the mercy of the grantee as to whether he will ever get the property back. In short, Dr. Gilbert rolled the dice and lost. Unreported. http://opinions.kycourts.net/COA/2022-CA-000012.PDF
Larry Sweat v. Crystal Polk, 2023-CA-0193
The Court of Appeals affirmed a decision to deny grandparent visitation. In a routine Opinion authored by Judge Cetrulo, the Court found that the wishes of the parent trumped the desires of a grandparent. This Opinion is a tidy recitation of the current state of affairs in GP visitation cases. Unreported. http://opinions.kycourts.net/COA/2023-CA-000193.PDF
A.M. v. CHFS, Commonwealth of Kentucky, J.M.; and L.M., a minor child, 2023-CA-0393 and related cases
In an appeal from a child abuse case, Judge Jones tackles some important constitutional due process issues regarding the right to confront witnesses at trial. The case originated in Boone County Circuit Court where Judge Jennifer Dusing permitted a child witness to testify in chambers without counsel for the father physically present. The Court of Appeals discussed whether the statute (KRS 421.350(2)) was applicable to a child who is twelve (12) years of age or older, thus allowing the trial court to decide the place and manner in which the child can testify. The Court of Appeals found that it was applicable because much of the abuse occurred when the child was twelve (12) or younger. However, the Court also found trial courts are required to find whether the need for protection of child witnesses was compelling enough to allow testimony outside the courtroom. In this case, both the trial and appellate courts found that the need was compelling as the abuse was sexual in nature. Next, Judge Jones was faced with whether the protections met the minimum for statutory or due process rights. The appellate opinion found that strict confrontation clause application was not necessitated. Unreported. http://opinions.kycourts.net/COA/2023-CA-000393.PDF
S.C. v. CHFS; N.C., a minor child; and J.C., biological father, 2023-CA-1270 and related cases
In an appeal from an abuse/neglect case, Judge Karem affirms most of the findings of Anderson County Family Court. According to the mother, the trial court committed reversible error in a variety of ways. Specifically, Mother stated that “the family court had taken the case ‘off the rails’ for Mother and Father, leaving them with no counsel, no return court date, and no ongoing path toward reunification that they can reasonably achieve.” Much of these arguments seem to have merit, in the opinion of the Round-Up crew. However, Judge Karem found that they were not adequately preserved by the Mother and her counsel and, thus, the meritorious arguments were waived. The Court did find that the murky nature of the custody orders and the fact that the case was removed from the Family Court’s active docket merited a reversal on those grounds. The case was remanded to the trial court which will likely fix its errors – but leave the parents in the same lurch. Unreported. http://opinions.kycourts.net/COA/2023-CA-001270.PDF
Travis Taylor v. Rachel Phelps, 2023-CA-0872
The Kentucky Court of Appeals affirmed the issuance of a protective order. The decision by Judge Goodwine discussed the differences between a DVO and an IPO, but ultimately finds that they are “nearly identical.” The Court of Appeals finds that the behavior of the Appellant (including “flicking” the Appellee, following her around, and showing up with a baseball bat to fight someone associated with her) was sufficiently menacing to warrant the protective order. Unreported. http://opinions.kycourts.net/COA/2023-CA-000872.PDF
K.S. v. Commonwealth of Kentucky, CHFS; K.G.H., a minor child; and R.H., 2023-CA-1214
In a Termination of Parental Rights case, the Court of Appeals affirmed a Jackson County trial judge. The mother, who struggled with alcohol issues, didn’t do herself any favors in the original abuse/neglect case—not showing up for court, getting arrested again, etc. While her counsel in the TPR (Sharon Allen of McKee, KY, again) raised legitimate grounds that the mother should have had counsel appointed in the abuse case, it was impossible for Ms. Allen to show that the grounds had been preserved—in part, due to the Mother’s failure to appear. Additionally, counsel argued that the Cabinet’s procedure unfairly biases the proceeding in favor of termination. Judge Thomposon, citing the Oakes case, states that “every presumption is in favor of the correctness of the trial court.” This language might prove the bias that Mother’s counsel argues. Unreported. http://opinions.kycourts.net/COA/2023-CA-001214.PDF
Criminal Tally
And this week’s criminal tally is no surprise. The prosecutors scored 2 wins while the defendants had none. Stay tuned to see if the Kentucky Court of Appeals will fully reverse a conviction this year.
Bonus Tip from the good folks at Federal Crime of the Day: 16 USC §1338(a)(6) & 43 CFR §9264.7(a)(8) make it a federal crime to take a wild free-roaming horse off federal land and use it in a rodeo. Good to know if you are inspired by the Round Up’s theme and thinking of doing some rustling and rodeoing.
Header Image from the Denver Post.
Click here to read the previous Round Up. Thanks for reading!