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Diana L. Skaggs
Louisville, KY
Fellow, American Academy of Matrimonial Lawyers
Recent Activity
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
Wolfe v. Wolfe Parties entered into a mediation agreement and advised the trial court that all issues had been settled with the exception of child support. The parties agreed they would supply income information for the child support worksheet. The mediation agreement was silent as to the child support arrearage. The parties dissolution of marriage was entered incorporating the mediation terms. The decree was also silent as to the child support arrearage. After the final degree was entered, the arrearage was brought to the court’s attention in a Motion for Reconsideration. The trial court denied the Motion holding the mediation... Continue reading
Posted Jun 2, 2014 at Divorce Law Journal
Smith v. Smith, Nonmarital property might still be subject to division between parties where there is a partnership, joint venture, or profit sharing agreement. In this case, the parties cohabitated prior to marriage. While the property acquired during cohabitation was nonmarital, the nonmarital property was still a jointly owned asset by agreement of the parties subsequent to a joint venture. Thus, the property lost its nonmarital characterization. The court also concluded the appellant did not properly trace the additional properties she was claiming were nonmarital, therefore there was no clear error in the finding that they were marital property. In... Continue reading
Posted May 27, 2014 at Divorce Law Journal
Hempel v. Hempel. When child support is reversed on appeal, overpaid child support cannot be recouped unless there is an accumulation of benefits not consumed for support. If the overpayments have already been expended to benefit the child, no recoupment is allowed, even when a fund equivalent to child support is available. A college fund would not be equivalent to child support even if equivalency were allowed. Continue reading
Posted May 20, 2014 at Divorce Law Journal
B.L. v. J.S., et al Lack of counsel in underlying neglect case is not considered a lack of counsel at all critical states of adoption where the biological parent was not the target of the neglect case and where biological father did not object to adoptive parents being granted full custody of child. Biological father is not a parent exercising custodial control or supervision where he was incarcerated and uninvolved with child for most of child’s life. Court was not required in adoption proceeding to consider less drastic means than adoption. Finally, relatives related only by marriage are nonetheless relatives... Continue reading
Posted May 9, 2014 at Divorce Law Journal
Curry v. Curry Residency in KY is not a requirement for continuing jurisdiction. The central inquiry is whether child maintained a substantial connection with KY. UCCJEA is concerned with child's connection to the state, not a particular county. Continue reading
Posted Apr 25, 2014 at Divorce Law Journal
N.J.S. v. C.D.G. Because the Ky child support statute does not authorize a credit against child support for child’s social security retirement dependent benefit, it was error allow such a credit and to order that payor be reimbursed for child support overpayment from the child’s retroactive lump-sum benefit. Concurring opinion underscores the need for legislative fix as is currently provided for with respect to disability dependent benefits. Continue reading
Posted Mar 21, 2014 at Divorce Law Journal
B.D. v. Cabinet for Health and Family Services, et al. Where children are removed from parent under a temporary removal order and then parent files a petition in family court for “immediate entitlement” under KRS 620.110, family court erred in dismissing the case without a hearing. The family court had held that statute is intended for appellate review and because the family court made the removal order, an appeal should be made to the court of appeals. The Court of Appeals held that the removal order was a temporary order and thus is interlocutory and not ripe for appeal. Moreover... Continue reading
Posted Mar 14, 2014 at Divorce Law Journal