Articles Posted in Family Law

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The Supreme Court vacated the issuance of a domestic violence order (DVO) and remanded this case for additional proceedings, holding that the trial court’s receipt of extrajudicial evidence was structural error and that the trial court’s use of extrajudicial evidence from an undisclosed source was improper. Plaintiff petitioned the family court for a DVO against Defendant. The trial judge granted the DVO. Defendant appealed, challenging the trial court’s extrajudicial research concerning his criminal record. The court of appeals affirmed, holding that the trial court committed error in conducting the extrajudicial investigation but that the error was harmless. The Supreme Court reversed, holding that the trial judge’s undertaking to obtain and use as evidence extrajudicial information relating to a party in the case caused her disqualification from proceeding further as the presiding judge, and her failure to recuse was structural error undermining the integrity of the resulting DVO. View "Marchese v. Abersold" on Justia Law

Posted in: Family Law

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In 2011, Husband filed a petition for dissolution of his marriage to Wife. The family court entered a decree of dissolution in 2013 that divided the parties’ marital assets, awarded the parties joint custody of their two children, and ordered Husband to pay maintenance to Wife in the amount of $7,300 per month for a period of nine years. The court of appeals reversed in part, finding that the family court erred by including a portion of the children’s living expenses in its calculation of Wife’s maintenance award and by failing to make findings that justified its award of maintenance for a period of nine years. The Supreme Court affirmed in part and reversed in part, holding (1) the family court’s decision to include the children’s living expenses in its calculation of Wife’s reasonable living expenses was neither clearly erroneous nor an abuse of discretion; (2) the family court acted within its discretion in awarding Wife maintenance for nine years; (3) the court of appeals did not err in affirming the family court’s calculation of Husband’s income; and (4) the court of appeals properly found the family court did not abuse its discretion in denying Wife’s request that Husband pay the entirety of her attorney’s fees. View "Weber v. Lambe" on Justia Law

Posted in: Family Law

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The circuit court entered an amended decree of dissolution dissolving the marriage of Husband and Wife and dividing the marital property. At issue in this appeal was the monthly disability benefits Husband received from the Connecticut State Employees Retirement System. The trial court determined that, because Kentucky was the domicile of both parties at the time of dissolution, Kentucky law governed the classification and distribution of the benefits. The court of appeals reversed after applying the “most significant relationship” test from Sections 258 and 259 of the Restatement (Second) of Conflict of Laws, concluding that Connecticut had the most significant relationship to the asset and that the classification and distribution of those benefits should be determined under Connecticut law. The Supreme Court reversed, holding that the classification and division of all property in dissolution cases is governed by the law of forum - i.e., Kentucky. View "Kirilenko v. Kirilenko" on Justia Law

Posted in: Family Law

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The circuit court dissolved the marriage of Husband and Wife and awarded Wife child support, reserving several other issues, including maintenance and property division, for later disposition. After those issues were decided, Husband appealed. The court of appeals affirmed the trial court’s judgment in its entirety. The Supreme Court affirmed, holding that the trial court (1) did not abuse its discretion in determining that the equity in the residence was marital property; and (2) abused its discretion in designating all household goods and furnishings as marital property and ordering those items divided by a random drawing. View "Barber v. Bradley" on Justia Law

Posted in: Family Law

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Husband petitioned for dissolution of his marriage from Wife. Previous to filing this action, however, Husband was declared incompetent and Wife was appointed as his guardian and conservator. The trial court dismissed Husband’s petition on the basis that a person who has been declared incompetent cannot bring a legal action in Kentucky. The court of appeals affirmed. Both courts relied exclusively on the 1943 case of Johnson v. Johnson. The Supreme Court affirmed, holding (1) there is not a Johnson issue in this case because the guardian was not bringing this action as required by Civil Rule 17.03(1); and (2) it necessarily follows that this case was procedurally flawed. View "Riehle v. Riehle" on Justia Law

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Pennie and John DuBarry were divorced in 2013. Pennie was represented by Thomas Stone during the divorce proceedings. The family court entered a decree of dissolution incorporating a property settlement agreement. Stone subsequently filed a motion seeking leave to withdraw as counsel for Pennie and a notice of attorney’s lien and intent to hold property liable, listing the marital residence as the property subject to the lien. John, in turn, asked the court to release the lien, arguing that the lien was improper because he had been awarded the marital residence under the settlement agreement. The trial court granted John’s motion and set aside the lien. The court of appeals affirmed. The Supreme Court affirmed, holding (1) the attorney’s fees lien statute does not apply to property assigned or divided in divorce proceedings; but (2) an attorney may obtain a contractual lien through his contract of employment with a client, and that lien may be upheld against assets held by his client after entry of the decree if the employment contract so provides. View "Stone v. Bubarry" on Justia Law

Posted in: Family Law

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Rebekah McCarty and Kenneth Faried had a daughter together but never married and never cohabitated. McCarty later filed a motion for child support. After an evidentiary hearing, the trial court established joint custody and ordered Faried to pay $4,250 a month in child support. The court of appeals, considering the issue a matter of first impression, vacated and remanded the trial court’s award of child support, holding that the amount was arbitrary. The Supreme Court reversed and reinstated the trial court’s order establishing child support, holding that the order was not arbitrary, unreasonably, erroneous, or an abuse of discretion. View "McCarty v. Faried" on Justia Law

Posted in: Family Law

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Ian was removed from his mother shortly after his birth, and neither parent was closely involved in Ian’s life. Ian currently resides with Larry Massie, his paternal uncle, and Larry's wife, Christina Massie. Deborah Navy, Ian’s maternal grandmother, instituted a grandparent visitation action. The circuit court denied Deborah’s request for visitation rights. The Court of Appeals reversed, concluding that the circuit court did not consider all of the necessary factors required under Kentucky law. The Supreme Court reversed, holding (1) Deborah failed to preserve her argument that the trial court erred in applying the heightened clear and convincing evidence standard under Walker v. Blair; and (2) the trial court’s factual findings were not clearly erroneous, nor was its application of those facts to the relevant law. View "Massie v. Navy" on Justia Law

Posted in: Family Law

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Mother and Father were not married when Mother gave birth to their daughter in 2010. In 2012, Mother filed a motion for child support. After an evidentiary hearing in 2013, the trial court established joint custody and directed Father to pay $4,250 a month in child support. The order made the monthly amount retroactive to 2012 and calculated back child support to be $24,100. The Court of Appeals vacated and remanded the trial court’s award of child support, concluding that the trial court abused its discretion by not basing its award on the child’s reasonable needs as set out in the court’s “specific supporting findings” and that some of Mother’s requests for support were speculative. The Supreme Court reversed the Court of Appeals and reinstated the circuit court’s orders, holding (1) the Court of Appeals imposed an overly burdensome standard; (2) child support in the amount of $4,250 is reasonable and in the child’s best interest; and (3) the trial court did not err in making the order retroactive. View "McCarty v. Faried" on Justia Law

Posted in: Family Law

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One year after their son was born with Down Syndrome and other serious health issues Lance Carver filed for divorce from Michelle Carver. The parties settled the division of their property and custody, support and visitation, but neither the decree nor the property settlement agreement stated a specific amount of child support. Michelle later asked the court to set a specific amount according to the statutory guidelines. The Boyd County Domestic Relations Commissioner (DRC) deviated from the guidelines and set Lance’s child support obligation at $60 per month based on his living expenses. The circuit court and court of appeals affirmed. The Supreme Court (1) affirmed the court of appeals’ conclusion that a deviation from the guidelines was appropriate under the facts of this case; but (2) reversed of portion of the opinion holding that the DRC did not abuse her discretion in setting Lance’s child support at $60 per month based on Lance’s living expenses, as the trial court should first ascertain what is a reasonable amount of support for the child and then determine how much of that support should be the responsibility of each parent. Remanded. View "Carver v. Carver" on Justia Law

Posted in: Family Law