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Diana L. Skaggs
Louisville, KY
Fellow, American Academy of Matrimonial Lawyers
Recent Activity
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
BOOTES V. BOOTES Wife argued that the Trial Court erred by failing to include Husband’s income from a second business in its child support calculation. Husband ran a second business and gifted all his proceeds to his father. The Appellate Court held that the Trial Court erred by excluding the income from its child support calculation. Income from a small business, even if given away, is still income pursuant to KRS 403.212(2)(c). The Trial Court should have calculated the gross receipts of the business and subtracted the necessary expenses to determine the gross income to include in its child support... Continue reading
Posted Sep 10, 2015 at Divorce Law Journal
Kirilenko v. Kirilenko In a KY divorce, the trial court erred in applying KY law to characterize CN state disability retirement benefits as nonmarital property. Instead, the Restatement (Second) of Conflict of Laws "most significant relationship" test should be applied and CN law is more appropriate. Continue reading
Posted Aug 21, 2015 at Divorce Law Journal
Smyrichinsky v. Smyrichinsky When Ky is exercising UIFSA jurisdiction, it lacks authority to alter the duration of child support directed by another state. As to modification of the dependent income tax exemption, Ky has authority to modify who is entitled to the exemption if it is part of a support order and not a property right. The court must articulate a sound reason why awarding the exemption to a noncustodial parent benefits the child, otherwise it should not be done.The court can only order a custodial party to sign a waiver releasing the exemption if there is a sound reason... Continue reading
Posted Aug 20, 2015 at Divorce Law Journal
C.D.G. v. N.J.S. Where child receives social security retirement dependent benefits, and child support obligation of retired child support obligor is not modified, child support payor is entitled to a credit against child support. And, where such benefits are paid retroactively so there is a fund available for recoupement, trial court did not abuse its discretion in ordering mother to reimburse father for the 22 months of dependent benefits paid in a lump sum. Continue reading
Posted Aug 20, 2015 at Divorce Law Journal
NAVY V. MASSIE, ET AL. Maternal grandparent filed a KRS 405.021(1) motion seeking grandparent’s visitation rights with minor child. Child was living with his paternal aunt and uncle. The exact custody status was unclear, as at least one parent appeared to have some visitation. The general rule regarding grandparent visitation in Kentucky is the rule the Supreme Court set forth in Troxel and clarified in subsequent Kentucky case law;there is a presumption a fit parent acts in his or her child’s best interest when denying a grandparent visitation. A grandparent seeking visitation must show by clear and convincing evidence that... Continue reading
Posted Aug 17, 2015 at Divorce Law Journal
R.P., JR. V. T. A.C., ET AL. The Trial Court entered an Order terminating Biological Father’s parental rights and granting Stepfather’s Petition for adoption of the minor child. Father appealed arguing that the Trial Court did not make sufficient findings to terminate his parental rights. Termination must be supported by clear and convincing evidence. In this case, the Trial Court found that Biological Father had abandoned the child, had not been involved in the child’s life, had not made efforts to be involved in the child’s life, and had not paid child support for several years. The Court of Appeals... Continue reading
Posted Jul 14, 2015 at Divorce Law Journal
ADDISON V. ADDISON After significant ongoing litigation over custody, the Trial Court ordered that custody be transferred to Father and that Mother have supervised visitation. The Court of Appeals reversed because of the arbitrary time limitation at trial. Upon discretionary review the Ky Supreme Court reversed the Court of Appeals and reinstated the trial court’s judgment. Time Limitations As the Trial Court judge was familiar with the case, set the time limit sufficiently in advance of trial, and had significant experience with modification hearings, six hours was a reasonable time limitation within the discretion of the Judge. Children’s Testimony Mother... Continue reading
Posted Jun 15, 2015 at Divorce Law Journal
SALLEE V. SALLEE The Appellate Court vacated and remanded the Family Court’s denial of a Motion for Contempt for Father’s failure to pay child support. The Family Court incorrectly placed the burden of proof on the Mother/obligee to prove an arrearage was owed. Once the child support obligation is established, the child support obligor, in this case Father, carries the burden of proof. The Family Court also failed to make the findings of fact required by CR 52.01. Digested by Elizabeth M. Howell Continue reading
Posted Jun 8, 2015 at Divorce Law Journal
BOONE V. BOONE The mandate for written findings of fact and conclusions of law applies to DVO cases. CR 52.01 and KRS Chapter 403, along with the holding in Keifer, require findings in family law cases be reduced to writing. DVOs affect child custody, therefore they fall within the purview of CR 52.01. In this case, although adequate findings were made orally from the bench, the Appellate Court remands the case to the Trial Court for written findings of fact and conclusions of law. Keifer v. Keifer, 354 S.W.3d 123, 126 (KY. 2011). Digested by Elizabeth M. Howell Continue reading
Posted Jun 1, 2015 at Divorce Law Journal
DANIEL E. BAILEY, JR. (M.D.) V. HON. ALLAN RAY BERTRAM, JUDGE, MARION CIRCUIT COURT, DIVISION II, ET AL. Parties filing a medical negligence claim against a physician moved to intervene in the doctor’s divorce case solely to unseal portions of the sealed divorce records. The intervening parties claimed the divorce may have impacted the doctor’s treatment of the patients in the malpractice action. The Trial Court granted the motion to intervene and ordered the divorce records to be unsealed. The doctor filed a writ of prohibition against the enforcement of the Trial Court’s Order. The Court of Appeals concluded the... Continue reading
Posted May 19, 2015 at Divorce Law Journal