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Diana L. Skaggs
Louisville, KY
Fellow, American Academy of Matrimonial Lawyers
Recent Activity
CHADWICK V. FLORA, ET AL. Grandmother appealed an order finding she was not a de facto custodian of her grandchild. The order also denied her motion for custody and visitation. Grandmother’s first argument on appeal is that the trial court erred in finding she did not met the KRS 403.270(1)(a) standard for a de facto custodian. The Court of Appeals agrees with the trial court and holds Grandmother was not a de facto custodian because she was not the child’s primary caregiver. “A grandparent who co-parents a child with the natural mother or father does not make the grandparent the... Continue reading
Posted 10 hours ago at Divorce Law Journal
WEDDING V. HARMON, ET AL. Father shared private co-parenting emails between the parties (Mother and Father) with teachers, other parents, and relatives. After holding a hearing, the trial court entered an injunction ordering Father not to forward others private email communications between the parties. Father appealed arguing the order unconstitutionally infringed his right to freedom of speech. The Court of Appeals applies the analysis set forth in Hill v. Petrotech Resources Corp., 325 S.W.3d 302 (Ky. 2010) and affirmed the trial court because the injunction on Father’s speech was 1) narrowly tailored, 2) made after a final adjudication, 3) prohibited... Continue reading
Posted Apr 19, 2016 at Divorce Law Journal
BROOKS V. BYRD Mother filed an appeal from a custody order while a post-judgment motion was pending. After the filing of the appeal, the trial court ruled on the post-judgment motion entering findings of facts, conclusions of law, and a custody/visitation order. Mother did not amend her notice of appeal and the post-judgment documents were not included in the certified record. Therefore, the Court of Appeals declined to enter a ruling on the merits and dismissed the appeal for noncompliance with CR 73.02(1)(e) (ii) which states “A party intending to challenge a post-judgment order listed in this rule, or a... Continue reading
Posted Apr 19, 2016 at Divorce Law Journal
EVANS V.HESS, ET AL. The Kentucky Court of Appeals addressed three appeals stemming from the same Boone Family Court post-dissolution case: 2013-CA-002072-ME The first appeal filed by Father challenges the court’s subject-matter jurisdiction, custody modification, and child support modification. Father first argues the Kentucky court lacked subject-matter jurisdiction because the Petition was filed in Kentucky before the Montana court determined Kentucky was the more convenient forum. Prior to the current appeal, Father filed a writ of prohibition and the Court of Appeals held Kentucky had subject-matter jurisdiction. As the “law of the case” doctrine provides that a decision of an... Continue reading
Posted Apr 11, 2016 at Divorce Law Journal
E.Y. V. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, ET AL. Mother appealed trial court’s dependency adjudication arguing that as dependency was not alleged in the Petition, the trial court did not have the authority to make a finding of dependency. The mother did not raise the issue at the trial court level, so the Court of Appeals reviews under the palpable error standard, holding that a Judge has the authority to find dependency in a neglect hearing as long as the statutory requirements for dependency are met. The Court of Appeals views dependency as “a lesser-included offense... Continue reading
Posted Mar 15, 2016 at Divorce Law Journal
WELLS, ET AL. V. TOYE Foster parents appealed from a Circuit Court decision finding they lacked standing to qualify as de facto custodians. The Appellate Court affirms the Circuit Court holding that the rule set forth in Swiss applies in this case. Swiss v. Cabinet for Families and Children, 43 S.W.3d 796, 797 (Ky. App. 2001). Foster parents “may not use the de facto custodian statutes to challenge the cabinet’s custody of the child where the child was placed with the foster parents by the cabinet.” Digested by Elizabeth M. Howell Continue reading
Posted Feb 29, 2016 at Divorce Law Journal
A. H. V. W.R.L. AND M.L. “Questions Presented: Family Law. Custody. Same-Sex Relationship. Step-Parent Adoption. Intervention of Right. Trial court properly allowed the child’s biological mother’s ex-partner, who allegedly co-parented the child for seven years and has a pending custody petition, to intervene in the step-parent adoption case that would have declared mother’s husband to be the child’s second legal parent.” Same sex parent (“Amy”) filed a motion to intervene in a step-father’s adoption proceeding. The Appellate Court held that Amy did not have standing to intervene in the custody case appeals. The Supreme Court accepted discretionary review and reversed... Continue reading
Posted Feb 25, 2016 at Divorce Law Journal
LINDA DAVIS V. KAREN DAVIS, ET AL. “Questions Presented: Family Law. Marital Dissolution. Property Settlement Agreements. Whether a lack of reference to a filed property settlement agreement in a dissolution decree voids such an agreement.” Husband and wife (“Linda”) entered into a Marital Settlement Agreement, but the Decree of Dissolution failed to incorporate the Agreement. A portion of the Agreement required Husband to maintain his life insurance policy with Linda as the beneficiary. Husband subsequently changed the beneficiary to his new wife (Karen) and then died. Linda and Karen filed competing claims against Husband’s life insurance. The Supreme Court starts... Continue reading
Posted Feb 25, 2016 at Divorce Law Journal
W. L.C. V. COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES, ET AL. Mother appealed the court order terminating rights to daughter after court terminated her parental rights for daughter and son, arguing the termination was not based on substantial evidence and the trial should have been delayed to allow her an opportunity to secure negative drug test results essential to her defense. The Appellate Court found that because the termination order was made pursuant to KRS 625.090, there had already been multiple continuances, and CHFS stipulated to some of the missing evidence, there simply was no grounds for... Continue reading
Posted Feb 15, 2016 at Divorce Law Journal
CRABTREE V. CRABTREE The Trial Court did not abuse its discretion in finding domestic violence occurred and was likely to occur again where husband threatened suicide multiple times in front of his wife and children. Husband argued that threatening to kill himself was insufficient to establish that he committed domestic violence and abuse. The Appellate Court cites an unpublished case that while a suicide threat is “not directed at hurting any family members, the inevitable consequence of such a statement is to terrorize the recipients of the information.” The Appellate Court held that the Trial Court’s DVO was proper and... Continue reading
Posted Feb 15, 2016 at Divorce Law Journal
T.W. V. CABINET FOR HEALTH AND FAMILY SERVICES Mother and father's parental rights were terminated involuntarily by trial court after a hearing. While Mother and Father had counsel present at the hearing, counsel believed he had a conflict of interest and did not participate in the hearing. Although counsel asked to withdraw, the trial court did not allow his withdrawal and permitted the hearing to continue. The witnesses testifying on behalf of the Cabinet were not cross-examined. While counsel subsequently withdrew and separate counsel was appointed for mother and father, the witnesses were never subject to cross-examination. The Court of... Continue reading
Posted Jan 26, 2016 at Divorce Law Journal
PATTERSON V. WINCHESTER A DVO was entered by Fayette Family Court preventing father from exercising his parenting time as ordered by Whitley Circuit Court, the court with jurisdiction and venue over custody and visitation. Father filed a motion in the Whitley Court case requesting sole custody and for restoration of his visitation rights. Mother responded by filing an original action in the Court of Appeals asking for writs of prohibition pursuant to CR 76.36. Mother asked for writs preventing the Whitley Court from enforcing its parenting time order, preventing the Whitley Court from “modifying, amending, vacating or reversing” the DVO,... Continue reading
Posted Jan 26, 2016 at Divorce Law Journal
SHOWN V. SHOWN In a previous related case, the Supreme Court held that Husband’s Kentucky teacher’s retirement account was considered marital property under KRS 403.190(1). Shown v. Shown, 233 S.W.3d 718 (Ky. 2007). Subsequently, the trial court divided the marital portion of husband’s retirement without consideration of the complex financial calculations used to make the distribution. In fact, the court took no proof on the issue and granted wife 50% of the marital portion of the account. Husband appealed arguing it was inequitable for the trial court to divide his teacher’s retirement account without considering its unique characteristics, primarily the... Continue reading
Posted Dec 21, 2015 at Divorce Law Journal
RUTH ANN SADLER V. BARBARA LOIS VAN BUSKIRK Husband died many years after his divorce, but despite his remarriage, he had not removed his former wife as the beneficiary of his IRA. In the parties’ marital settlement agreement they had agreed to make “no claim upon any interest owned by the other, now or in the future” of their Individual Retirement Accounts. The court looks to the holdings made in Ping, Hughes and Napier and extends their precedent to the retirement account context. The Supreme Court holds a divorce alone does not give rise to a presumption an ex-spouse is... Continue reading
Posted Dec 21, 2015 at Divorce Law Journal
CABINET FOR HEALTH AND FAMILY SERVICES V. J.M.G., ET AL. In the midst of a lengthy dependency, neglect, and abuse, case the family court held CHFS in contempt for failure to file the required case progress report per KRS 620.240 and failure to immediately obtain a pretrial conference date per FCRPP 34(1). The Supreme Court begins its opinion with a lengthy explanation clarifying difference between civil and criminal contempt. Civil contempt is generally a sanction sought by the adverse party and subject to purgation through compliance. On the other hand, criminal contempt is imposed primarily to vindicate the authority of... Continue reading
Posted Dec 21, 2015 at Divorce Law Journal
CABINET FOR HEALTH AND FAMILY SERVICES V. S.H,; V.N.M.J.R.N., A CHILD, ET AL. The family court held a termination of parental rights hearing allowing a social worker to testify on behalf of CFHS with no prior notice to Mother. Mother objected arguing FCRPP 7(1) applied to a termination of parental rights hearing and she should have received 14 days-notice of the witnesses and their testimony. The family court ruled the termination hearing was not a permanent custody hearing and allowed the social worker to testify. Mother appealed the order terminating her parental rights arguing FCRPP 7(1) applied. The Court of... Continue reading
Posted Dec 21, 2015 at Divorce Law Journal
JONES-SWAN v. LUTHER Biological parents voluntarily placed children in Appellants' care during a custody dispute in which biological father was seeking sole custody in an action for dissolution of marriage. Father was granted sole custody of the children. Appellants returned children to biological father and filed a petition requesting status as de facto custodians under KRS 403.270. The Court of Appeals held the trial incorrectly interpreted KRS 403.270 as requiring the de facto custodians to have possession of the children when filing a petition for de facto status. A person asking for status as a de facto custodian need not... Continue reading
Posted Nov 20, 2015 at Divorce Law Journal
PAISLEY V. TALLEY An unmarried couple owned a home in joint names with a right of survivorship. Boyfriend made the majority of payments on the home mortgage and down payment. The couple’s relationship ended and the boyfriend filed a complaint asking the court to divide the equity in the home in proportion to each parties’ contributions. The trial court found that the parties had no agreement as to the disbursement of the property and divided the equity equally between boyfriend and girlfriend. The Court of Appeals reversed the trial court’s order holding Kentucky law allows joint tenants to be reimbursed... Continue reading
Posted Nov 13, 2015 at Divorce Law Journal
LAMBERT V. LAMBERT Maternal grandfather who resided in Kentucky took possession of grandchildren whose mother resided in Pennsylvania, after mother took the children for a visit and never returned to retrieve the children. Grandfather filed a dependency, neglect, and abuse proceeding and was granted temporary custody of the children. Grandfather subsequently filed a petition for child custody. After a hearing, the court granted custody to grandfather. Mother appealed arguing the court did not have jurisdiction, erred by granting custody without permitting her to present her case, considered inadmissible hearsay, and erred by ordering her to pay child support without evidence... Continue reading
Posted Nov 13, 2015 at Divorce Law Journal
GLODO v..EVANS, ET AL. Grandparents assumed care of children, with the exception of a special needs child, after biological mother and biological father were both incarcerated. The special needs child was placed with friend of grandparents equipped to deal with his special medical needs. Grandparents filed motion to be designated as de facto custodians and for permanent custody of all three children. Biological father consented to grandparent’s motion for permanent custody and waived his right to appear at the hearing. After a hearing on the matter, the family court awarded grandparents permanent custody, finding biological father had waived his rights,... Continue reading
Posted Nov 2, 2015 at Divorce Law Journal
RYAN V. RYAN Mother filed a motion to suspend father’s summer visitation time after daughter reported smelling marijuana in the home. Father submitted to a urine test which was negative for all substances, and a hair follicle test which tested positive for marijuana. There was no mechanism for determining the date of marijuana use. At a hearing in front of a domestic relations commissioner, father testified he did not smoke marijuana and rarely drank alcohol. The commissioner recommended Father’s timesharing be reinstated, but the trial court entered an order requiring father’s visitation to be supervised until he had six months... Continue reading
Posted Nov 2, 2015 at Divorce Law Journal
S. E.A. v. R. J.G. Child was temporarily removed from Mother’s custody in a DNA action. Father filed separate custody action in which mother stipulated to dependency for the purposes of temporary custody. At a subsequent DNA hearing, the family court determined the child should remain in father’s temporary custody with timesharing to be determined in the custody action. The court-appointed G.A.L. issued a report after the DNA hearing. Then, the family court issued an order giving father sole custody and ordering temporarily removal from mother. The family court stated all further orders would be entered in the custody action.... Continue reading
Posted Nov 2, 2015 at Divorce Law Journal
RIEHLE V. RIEHLE Husband, previously adjudicated to be disabled and incompetent, filed for divorce from his wife, who was also his guardian and conservator. The trial court entered an order dismissing husband’s Petition for Dissolution, as “an incompetent person cannot bring or maintain an action for dissolution of marriage” in the Commonwealth of Kentucky. Husband appealed arguing he has standing to bring the dissolution action and should not be limited by the finding of disability and incompetence. Husband argues that the “lucid interval” doctrine used in certain probate cases should be extended to enable an incompetent individual to dissolve his... Continue reading
Posted Nov 2, 2015 at Divorce Law Journal
PETTINGILL V. PETTINGILL Questions Presented: Domestic Violence. Appellate Procedure. Issues involve the use of “lethality factors” in a domestic violence determination and the interplay between CR 75.07(4) and CR 98 when the trial videotape is omitted from the record on appeal. Wife was granted DVO against husband by family court. The family court entered a DVO on Court Form 275.3 and noted further findings of fact, nine out of twelve lethality factors, on its docket sheet. Husband appealed and the Court of Appeals affirmed the family court’s DVO. The Supreme Court granted discretionary review. Husband first argues that he was... Continue reading
Posted Oct 30, 2015 at Divorce Law Journal