26 Apr The Good, The Bad, and the Boring: Court of Appeals Round Up
The Kentucky Court of Appeals came out with a trio of Family Law cases this week that ran the gamut from must-read to ignore-at-all-costs. We’ve arranged them from best to boring for your convenience but as always you’re welcome to read them all should the Law Librarian spirit overtake you as it has us. The first case is likely to be one of the most significant cases of the year, but unfortunately the Round Up cannot yet offer CLE credits for regular readers.
Nathan Lankford v. Jessica Lankford, 2023-CA-1174
In what may be the most significant Family Court case of the year, the Court of Appeals reversed a decision to dismiss an EPO case without a hearing. Judge Gina Calvert of our own Jefferson County, after hearing an informal decision from the Cabinet, dismissed the EPO case. The Cabinet reported that this allegation had been unsubstantiated. Judge Calvert said that it was the Court’s policy to dismiss petitions when CPS stated that it was not taking steps to act on the petitions. Judge Jones stated that this policy was a violation of KY law and further characterized it as an “abdication of the family court’s decision-making duties.” This decision will have a widespread impact on cases where there are both domestic violence and child abuse issues that are intertwined. Additionally, the Opinion notes that the information received was informal in nature. No Cabinet agent appeared in court, and no evidence was formally entered. In a footnote in the Opinion, Judge Jones stated that the Parties are free to seek recusal of the trial court judge due to her ex parte communications. While this will make no difference in this case, as Judge Gina Calvert has announced her retirement, it serves as a warning to other Family Court judges who seem to have access to a wide variety of communications from the CHFS and other sources. Louis Winner and Sidney Vieck of Louisville represented the prevailing party on the appeal. To be Reported and a must-read.
Link is inoperable at present. We’ll edit this post when the issue remedied by the Court of Appeals. For now, you can access the pdf here:
C.S. and B.S. v. Commonwealth of Kentucky, B.S., S.J., and J.S., 2023-CA-0950, and associated cases
In an appeal from Kenton County Circuit Court, the Court of Appeals affirmed abuse/neglect findings. The allegations related to sexual abuse which was initially not reported to the Cabinet for Health and Family Services by the family – in clear violation of KY law regarding mandatory reports. According to the children, they were told to keep the information “in the family.” Not surprisingly, Judge Goodwine affirmed the findings of the Family Court. However, it was surprising that the Court of Appeals affirmed some of the evidentiary decisions of the trial court. Judge Goodwin acknowledged Kentucky’s long-standing rule on “wide open” cross-examination; however, the Court of Appeals permitted the Family Court to impose a rule that restricted cross to “what’s asked on direct.” The Opinion characterized this questionable ruling as “no abuse of discretion.” Similarly, the trial court ruled that the parents could not call witnesses who might show that the allegations were “implausible.” The Court of Appeals gave little attention to this meritorious argument, concluding that it was difficult to see how the outcome might have been different if it had heard from the witnesses who were not permitted to be called. (This logic defies reason, in our humble opinion.) Unreported. http://opinions.kycourts.net/COA/2023-CA-000950.PDF
Brian Michael v. Sybil Michael, 2023-CA-0425
In a pedestrian decision, the Court of Appeals upheld a decision on the conveyance of real property from Fayette County Family Court. In this case, Brian and Sybil were divorced in 2009, and Brian was obligated to convey his interest in a home to his former wife in exchange for $20K from Sybil. He never did. And Sybil didn’t do anything for 10 years when she texted him that she had the money ready. By this point, Brian was not interested in conveying the property and, thus, faced a motion to enforce the agreement. The Family Court decided the matter without a hearing in favor of Sybil. The Court of Appeals affirmed and explained that as it was a matter of contract law, an evidentiary hearing was not necessary. Brian’s argument was not helped by the fact that the Court order states that the Parties “agreed to submit this matter on the record.” Unreported. http://opinions.kycourts.net/COA/2023-CA-000425.PDF
Criminal Tally
The weekly criminal tally favors the prosecutors. The final score was two wins, no losses and a tie in a criminal non-support case.