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Diana L. Skaggs
Louisville, KY
Fellow, American Academy of Matrimonial Lawyers
Recent Activity
MOSKOVITZ V. MOSKOVITZ Appellant’s motion to modify child support was denied by the Circuit Court because Appellant could not attend a hearing in person. Appellant was a resident of Venezuela and unable to legally enter the United States. The Appellate Court reversed and remanded the Circuit Court’s decision, holding the Circuit Court abused its discretion, as the child support modification statute does not require a party’s physical presence at a hearing. The Circuit Court has an affirmative duty to apply the child support guidelines in any action to modify a child support order. Continue reading
Posted Apr 10, 2015 at Divorce Law Journal
MIX V. PETTY Appellant appeals the decision of the family court to terminate child support on May 30, 2014 for a home-schooled child remaining in high school after his 18th birthday. Appellant argued child support should either terminate on June 30, 2014, or extend until the child completed his senior year in November 2014. The Appellate Court affirmed in part, upholding the family court’s decision not to extend child support through November 2014, given the trial court’s discretion and the circumstances of the case. The Appellate Court reversed in part, holding the plain language of KRS 158.050 sets June 30... Continue reading
Posted Mar 27, 2015 at Divorce Law Journal
HOLT V. HOLT The appellant appealed a Bullitt County DVO, arguing the court lacked jurisdiction to enter a DVO. The petition for a DVO was originally filed in Nelson County. It was transferred to Bullitt County after the Nelson District Court determined Bullitt County would be more appropriate, as the court was already familiar with the parties. The Appellant Court first addresses subject matter jurisdiction holding that the Kentucky Family Courts all have jurisdiction to preside of matters involving domestic violence. The Court then turns to venue and finds that both the county where the victim resides, in this case... Continue reading
Posted Mar 27, 2015 at Divorce Law Journal
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. C.L.H., ET AL. The Appellate Court affirms the Trial Court’s grant of a directed verdict and dismissing the Cabinet for Health and Family Services’ (CHFS) petition to terminate the parental rights of father. Although the father is in Federal prison on drug charges until 2019, his prior involvement with his child was positive and beneficial. Additionally, father maintains regular prison visits with the child which are also beneficial. The father’s incarceration and length of incarceration alone are not enough to support finding of abandonment or neglect necessary to sustain the... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
K.W. V. J.S. In Family Court, father made a CR 60.02 motion more than three years after entry of a paternity judgment, arguing the biological mother made material misrepresentations to him to induce him to agree to a paternity judgment. The Family Court denied the CR 60.02 motion and discontinued child support. The Appellate Court affirmed the Family Court’s denial of father’s CR 60.02 motion. Father was equitably estopped from setting aside the paternity judgment, as the he allowed the children (twins) to call him “daddy,” maintained a relationship with the children, waited over three years to make a CR... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
J.S V. BERLA While not a family court case, as an action against a court appointed psychologist, this case is important to family law practitioners. A father filed an action against a court appointed psychologist making a custody evaluation. The father alleged slander and libel arguing the psychologist did not act in good faith in making a verbal report to the CFHFS and in her written Custodial Evaluation Report. The father also argued the psychologist breached the good faith and fair dealing contractual requirement of the Uniform Commercial Code (“UCC”). The trial court granted summary judgment in favor of the... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
MCVICKER V. MCVICKER At trial, husband made several nonmarital claims, and argued for a 70/30 split of marital property in his favor, since he cared for the parties adult disabled child. The Family Court found that Husband had nonmarital claims in the home and in a Morgan Stanley account. It also split the parties’ marital Morgan Stanley savings 70/30, did not award the wife maintenance, and did not consider the parties’ vehicles in division of the marital property. The wife appealed these findings of fact and conclusions of law, arguing on appeal the Family Court abused its discretion. The Appellate... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
BROWN V. BROWN In divorce proceedings, husband had a civil pension. The marital portion was divided equally between the parties using the deferred distribution method. Husband argued that the award should not include the cost-of-living adjustments (COLAs) he received after the divorce. The Circuit Court concluded wife was entitled to the COLAs corresponding to her share of the pension. The Appellate Court affirmed the Circuit Court’s conclusion holding the wife's portion of the marital retirement should include the COLAs, as they are not earnings attributable to the husband's post-decree efforts. Continue reading
Posted Jan 18, 2015 at Divorce Law Journal
HOSKINS V. HOSKINS The Circuit Court used the report and investigation of a Guardian Ad Litem (GAL) to make findings a custody modification was appropriate. The Appellate Court applied Morgan v. Getter, 441 S.W.3d 94 (Ky. 2014) and held the Circuit Court “erroneously appointed the GAL to represent the child and to conduct an investigation and file a report…” The appellate court emphasized the Supreme Court’s reasoning in Morgan, particularly the ethical and constitutional problems with conflating a Friend of the Court with a GAL. The Appellate Court reversed and remanded the Circuit Court Order modifying parenting custody, as the... Continue reading
Posted Jan 18, 2015 at Divorce Law Journal
E.S.L.C. v. Cabinet for Health and Family Services, et al The mother appealed from a Family Court order terminating her parental rights. She argued that she was deprived of due process because she was not notified prior to the termination hearing that the family court would apply the KRS 625.090 clear and convincing evidence standard of proof, instead of the reasonable doubt standard required by the Indian Child Welfare Act. The child had Indian heritage, specifically the Lower Brule Sioux Tribe. The Appellate Court affirmed the Family Court’s judgment terminating the parental rights of the mother. The Appellate Court held... Continue reading
Posted Dec 29, 2014 at Divorce Law Journal
Farrar v. Farrar The parties’ Settlement Agreement included a provision for the sale of the marital residence. When husband rejected an offer for the purchase of such residence and asserted he intended to buy the home, the trial court ordered wife to sign a quitclaim deed over to husband. For her equity in the home the Trial Court awarded wife the value of half of the offer for purchase of the home less hypothetical closing costs. Wife appealed the Trial Court’s calculation of equity in the home, as well as other matters. Wife first challenged the Trial Court’s jurisdiction to... Continue reading
Posted Dec 12, 2014 at Divorce Law Journal
Lambe v. Weber The Appellate Court first addresses maintenance, holding that income should not be imputed to a spouse when her underemployment is not voluntary. In this case, the child’s medical needs prevented the mother from working. The Appellate Court did find error with the Family Court’s conflation of child support and maintenance. The Appellate Court held maintenance is for the reasonable needs of a spouse. Expenses for children do not come within a spouse’s reasonable needs, as the children’s expenses are already included in the court’s child support calculation. Including children’s expenses in maintenance is inappropriate as it would... Continue reading
Posted Nov 14, 2014 at Divorce Law Journal
Danaher v. Hopkins Trial court's denial of petition to register a foreign custody judgment was affirmed. A court must enforce a foreign judgment only when the issuing state had jurisdiciton under the UCCJEA. Because North Carolina did not have initial jurisdiciton it does not have exclusive continuing jurisdiction. Trial court's finding that Kentucky is the home state of the child was affirmed. Reversal of a factual finding requires it to be clearly erroneous and not supported by substanial evidence which is not the case in this matter. Father also appealed from a second order requiring a custody action to proceed... Continue reading
Posted Oct 24, 2014 at Divorce Law Journal
Benton v. Sottingeanu An order requiring a parent to obtain a passpot for a child does not require specific findings of fact where no modification of parenting time is made. The court must consider the child's best interests. Federal law permits a court to order a passport where a joint custodian refuses consent. Court's order requiring mother to insure issuance of passport was affirmed. The court of appeals noted numerous safeguards were imposed by the trial court to monitor international travel, including that mother would retain the passport, a hearing regarding travel would be held once a prliminary interary was... Continue reading
Posted Oct 24, 2014 at Divorce Law Journal
Waddle v. Waddle Award of grandparent visitation reversed because court failed to apply the modified best interest standard to consider the objection of mother who is presumed fit. Court must presume a fit parent is making decisions in the best interest of the child. Case was remanded for a new evidentiary hearing at which grandparents must provide clear and convincing evidence that visitation is in the child’s best interest and trial court must use Walker factors and provide written findings of fact. Continue reading
Posted Oct 17, 2014 at Divorce Law Journal
Luu v. Murphy, et al Child custody award to de facto custodians reversed. Substantial evidence of record does not support the conclusion that appellees were child's primary caregivers and primary financial supporters. Trial court appears to have based its ruling on testimony of the appellees that they "believed" they were no longer just babysitting the child but that they were keeping her on a permanent basis. During three of the months appellees had the child it was clear that this was meant to be a temporary babysitting arrangement. Mother's temporary absences from West Virginia did not cout against the six-month... Continue reading
Posted Oct 17, 2014 at Divorce Law Journal
Shelton v. Shelton Trial court denied father's motion to reduce child support. Father had burden of proof to show substantial and continuing change of circumstances. Even though at time of agreement youngest child was age two and no income was imputed to mother and at time of hearing child was age four and mother was still not working, trial court was unable to find father's income from self-emloyment due to lack of documentation. The court's conclusion that there was insufficient evidence to find a change in circumstances that would justify modification was affirmed. Continue reading
Posted Oct 17, 2014 at Divorce Law Journal
A.G. v. T.B. A custody determination is separate from parenting time. A modification of parenting time, even one that changes the child's primary residence, does not alter joint custody. Two affidavits are not required for a motion to change primary residence. Trial court did not abuse its discretion in prohibiting mother from relocating the children and granting father primary residence of the children. Continue reading
Posted Oct 17, 2014 at Divorce Law Journal
BOUVETTE V. BOUVETTE The Appellate Court held the Trial Court abused its discretion by denying Appellant’s motion for a continuance of a four hour trial on financial matters. The Court used the Snodgrass factors to determine the denial was an abuse of discretion. The inconvenience a continuance would case the opposing party was minimal, and the inconvenience to the Court was unknown. The delays were not planned or purposeful. Appellant’s first request for a continuance was because she was ill and her attorneys withdrew. Her second request for a continuance was based on severe depression and supported by a letter... Continue reading
Posted Oct 14, 2014 at Divorce Law Journal
Morgan V. Getter and A.G., A Child Issue In a custody matter, can a Guardian Ad Litem (“GAL”) serve as both an attorney for the minor child involved in the custody dispute, as well as an investigator for the Family Court? Facts In 2011, Getter petitioned to modify custody for the parties’ only remaining minor child. The Family Court subsequently appointed a GAL for the minor child. The GAL filed a report based on interviews and a visit to the residence of the custodial parent, Morgan. In the report, the GAL ultimately recommended the minor child be allowed to relocate... Continue reading
Posted Sep 22, 2014 at Divorce Law Journal
Rumpel v. Rumpel The Supreme Court reaffirms the American Rule against shifting fees, recognizing CR 37.03 and KRS 403.220 as exceptions to the rule. In this case, $50,000 of attorney fees were awarded to the Wife under CR 37.03 and KRS 403.220. The Supreme Court held that the Trial Court misapplied CR 37.03 by imposing discovery sanctions on Husband for denial of a request for admission. The Trial Court should have considered Husband’s grounds for denial. As in this case, when a party reasonably believes he might prevail on a matter, or has a legitimate reason for denial of a... Continue reading
Posted Aug 21, 2014 at Divorce Law Journal
Smith v. Lurding The appellant argued that the tax exemption for a child was non-modifiable because it was a bargained-for property right. The court looked to the language of the Agreement and held that the tax exemption was indeed modifiable because of the 4 corners doctrine. The agreement about the tax exemption was within the Agreement’s paragraph on child support. The Agreement itself expressly allowed modification for the child support provision. Additionally, the court indicated that allocation of a tax exemption for a child may be modifiable in any circumstance under KRS 403.180(6) which prevents parties from limiting or precluding... Continue reading
Posted Aug 8, 2014 at Divorce Law Journal
OSTER VS. OSTER The Appellate Court reversed and remanded a Trial Court Order for reinitiation of contact between a mother and her two children. The Appellate Court first held that the Trial Court’s original order conditioning reinitiation on compliance with all therapeutic recommendations was never modified, set aside, or reversed. Therefore, the mother was bound by it. The mother’s noncompliance with the original order was enough to bar reinitiation of contact. The court reiterated the principle that when there is a previous denial of visitation, there is no presumption visitation is in the child’s best interest. The mother’s DVO prohibiting... Continue reading
Posted Jul 29, 2014 at Divorce Law Journal
Hawkins v. Hawkins The appellate court affirmed the family court’s decision to exclude income from W’s limited partnership in child support calculations. The court held that income generated from an ownership interest in a limited partnership may be considered income in calculating child support. In this case, W had no control over the distribution and there was no evidence in the record showing a cash distribution (K1 line 19), so the court found the family court properly determined the income from the partnership, while taxable income, was not disposable income. The appellate court’s dissenting opinion found the case should be... Continue reading
Posted Jun 23, 2014 at Divorce Law Journal