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30 May Take Notes on this Trifecta of Court of Appeals Cases

A trifecta of huge Family Court cases from the Kentucky Court of Appeals this week. Although they were all “unreported,” they are blockbusters. (The Round Up wonders who is making the decision on publication of cases. Is it just random?)  Without further ado, let’s go straight to the cases. 

Carter Yates v. Tesla Yates, 2023-CA-0859

In an appeal of a denied DVO, the Kentucky Court of Appeals reversed Judge Lauren Ogden of Jefferson County Family Court. In this case, the Petitioner filed a domestic violence case on his behalf and on behalf of the parties’ minor child. The Family Court denied the request to appoint a GAL on behalf of the child. As noted by the Court of Appeals, appointment is mandatory pursuant to CR 17 and the KY Supreme Court case of Smith v. Doe. It is unclear why Judge Ogden disregarded the request for the appointment on two occasions; however, the Kentucky Court of Appeals made it clear that it was an error and that the error was not harmless. In short, children in these cases have substantial rights that must be protected by the Court. Unreported. http://opinions.kycourts.net/COA/2023-CA-000859.PDF

JEB v. Commonwealth of Kentucky, CHFS, LYB, LDB and OLB, 2023-CA-0979

In a must-read TPR Opinion by Judge Lambert, the Kentucky Court of Appeals reversed a termination judgment from Meade County Circuit Court. There are a number of issues that were addressed by the Opinion of Judge Lambert. These include:

  • Use of the CHFS’s proposed findings. The Mother argued that the case must be reversed because the Family Court adopted the Cabinet’s findings.  The Court of Appeals denied this request but again stated that the Court should not abdicate its role as fact finder. It remarked that this practice has long been frowned-upon by appellate courts.
    • One must wonder: At what point will Kentucky’s judges learn this lesson?
  • Obligation for witness identification. Second, the Mother contends that the TPR should be reversed as the CHFS did not comply with its obligation to identify a witness.  While the argument had merit, the Court of Appeals stated it was not preserved.
    • Practice pointer: ALWAYS object on this one.
  • Irrelevant testimony. Third, the Mother argued that Dr. Feinberg’s testimony should have been disregarded as “stale and irrelevant.” This, too, seemed like a stone-cold winner for the mother, but it was waived at the trial court level by a failure to object in a timely manner. See above practice pointer.  
  • Lack of evidence. Finally, there were allegations that the Family Court’s decision was not supported by evidence admitted at trial. The Court of Appeals found that this argument had merit and reversed the decision.

In all candor, the Family Court Order was packed with erroneous findings – including wrong dates, whether there had been a prior stipulation by the Mother (there had NOT), and that one of the children had been abused (when there were no such allegations at all). The Court of Appeals found that many of these, while true, were harmless. However, there was a limit to the errors the appellate court would stomach.

Specifically, the Court found that the Mother had abandoned the children and was unwilling to engage in services. These findings were 100 percent false. The social worker had specifically testified that the Mother HAD complied with the case plan and HAD NOT ABANDONED the children. (What did the Family Court judge think when he got the facts so wrong on a termination case?) Matthew Durham represented the successful appellant parent. The case is unreported, but it is one that lawyers should keep on file. http://opinions.kycourts.net/COA/2023-CA-000979.PDF

Allison Wilson v. Gregory Wilson, 2023-CA-1263

In an important decision, a Mother was able to have a DVO order on behalf of her children reversed. The initial case was brought by Greg against Allison. Greg alleged that she struck him on the side of the face and the back of the head. He said that her children were present, but the parties were not sure if they saw the assault. It was not alleged that the children were victims. Notwithstanding that concession, the Family Court entered an order on behalf of the children and the husband. The Court ordered the CHFS to investigate and the mother to have a mental health assessment. She complied. The Cabinet confirmed Allison’s compliance and further stated that she did not present a risk to the children. Despite the report from the Cabinet that the judge had herself ordered, the Court ordered the mother to continue to have restricted/supervised contact with the children.

The Court of Appeals offered the following summary of the trial court’s performance in this case:

“We do not wield our supervisory authority lightly, but we must act when a family court enters “a DVO against the weight of the evidence” even when the matter comes to this Court on appeal of the denial of a CR 60.02 motion instead of on direct appeal.  Buddenberg, 304 S.W.3d at 721 (citing Wright v. Wright, 181 S.W.3d 49, 523 (Ky. App. 2005)). Though our courts must protect victims from domestic violence when supported by the evidence presented, this protection must be weighed against “the impact of having an EPO or DVO entered improperly, hastily, or without a valid basis can have a devastating effect on the alleged perpetrator.” Wright, 181 S.W.3d at 52. For a family court to allow a petitioner to use our legal system “to ‘win’ the first battle of a divorce, custody, or criminal proceeding, or in order to get ‘one-up’ on the other party is just as offensive as domestic violence itself.”    

Emphasis added.

In sum, the panel is sending a strong message to the Family Court judges on how NOT to handle these cases. The candor is refreshing and, in our opinion, the domestic bar should have this opinion in mind when counseling clients and arguing to the trial court about the dangers of unfounded domestic violence claims. Unreported. http://opinions.kycourts.net/COA/2023-CA-001263.PDF

Criminal Tally

The Criminal Tally has been cut from this week’s post as it will be featured in a special report to be posted soon. Stay tuned.

Click here for the previous Round Up.