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Diana L. Skaggs
Louisville, KY
Diplomate,American College of Family Trial Lawyers
Recent Activity
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
Crews v. Shofner Child custody may be established only after conducting a hearing even when party is otherwise entitled to a default judgment. Continue reading
Posted Mar 10, 2014 at Divorce Law Journal
Bell v. Bell Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result. Cabinet for Health and Family Services v. K.H., Sr. Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore... Continue reading
Posted Feb 21, 2014 at Divorce Law Journal
Erwin v. Cruz Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within 5/2/13 motion to vacate the DVO, Appeals court lacks jurisdiction to consider appeal of the denial of the 2013 motion to vacate. Continue reading
Posted Jan 31, 2014 at Divorce Law Journal
Ellis v. Ellis Where Ky did not issue original custody decree, neither child currently resides in issuing state and that state declines to exercise exclusive continuing jurisdiction, and one child lives with father in Ky and other child resides with mother in AZ, Ky is clearly the home state of one child and AZ is clearly the home state of the other child. The only issue is whether Ky should decline to exercise jurisdiction to modify because AZ is a more appropriate forum. While splitting jurisdictions should generally be avoided, in this case trial court was reversed because AZ has... Continue reading
Posted Jan 24, 2014 at Divorce Law Journal
Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs. D.L.B. v. Cabinet for Health and Family Services, et al Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion. Murry v. Murry Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and... Continue reading
Posted Jan 3, 2014 at Divorce Law Journal
Fortwengler v. Fortwengler A prior appeal affirmed the 50/50 division of debt to husband’s father. Husband sought to garnish wife’s maintenance to satisfy her half of the debt. Trial court’s denial of this request and trial court’s subsequent denial of husband’s father’s motion to intervene for a judgment and payment schedule was affirmed on appeal. Proper procedure is for husband’s father to attempt to collect the debt in a separate action against wife. C.J.M. v. Cabinet for Health and Family Services Termination of parental rights affirmed. Continue reading
Posted Dec 20, 2013 at Divorce Law Journal
Masters v. Masters Failure to file two affidavits in support of motion to modify child custody inside two years from final decree does not divest the court of subject matter jurisdiction, overruling Petrey v. Cain. While motion may have lacked requisite number of affidavits, because party did not raise the issue before trial court she cannot raise deficiency on appeal. Continue reading
Posted Dec 19, 2013 at Divorce Law Journal
Fairhurst et al v. Moon Even though parent had never completely denied grandparent visitation, court may not presume grandparent visitation is in children’s best interest. Rather, court must presume parents have the right to limit visitation with grandparents and grandparent retains burden of proving that court-ordered visitation is in children’s best interests. Continue reading
Posted Dec 2, 2013 at Divorce Law Journal
Sadler v. Buskirk Where MSA awarded each spouse his/her own IRAs and each waived any claim to the IRA of the other, but husband failed to change his beneficiary designation to someone other than former spouse, Ky Court of Appeals affirmed trial court’s denial of new wife’s request to declare that former spouse had no rights as beneficiary. Continue reading
Posted Nov 22, 2013 at Divorce Law Journal
Smyrichinsky v. Smyrichinsky http://opinions.kycourts.net/coa/2013-CA-000181.pdf Where both parties and the child have moved from the state issuing original child support order, trial court properly applied Kentucky law. The Court noted that the mother did not object to the application of Ky law until the third time the Ky court modified support. Trial court allocation of income tax dependency exemptions to father for three specific years affirmed. Continue reading
Posted Nov 15, 2013 at Divorce Law Journal
Nesselhauf v. Haden, et al, Where appellants’ claim for attorney fees was in ad damnum clause and no statement of why he or she is legally entitled to the request was made, no separate claim for relief was before the court. Once court entered custody directed verdict and more than 10 days passed with no motion to alter or amend, the court lost jurisdiction. Award of attorney fees made months following the final judgment was reversed. Continue reading
Posted Oct 4, 2013 at Divorce Law Journal
Ruby v. Scherzer, attorney fee lien statute (KRS 376.460) is not applicable in dissolution actions. Digest to follow. Continue reading
Posted Oct 1, 2013 at Divorce Law Journal
Penner v. Penner. Ky trial court reversed for including stock options in income for support while dividing options as assets. Double dipping. Also reversed for failing to include gifts from her parents in wife’s income for child support purposes. And, reversed for failing to give husband credit for payment of mortgage deficiency caused by wife’s failure to make mortgage payments as ordered. Affirmed on all other grounds raised. Digest to follow. Continue reading
Posted Sep 30, 2013 at Divorce Law Journal
M.L.C. v. Cabinet for Health and Family Services. Termination of parental rights reversed where findings did not cite any evidence supporting what reunification efforts were made nor how termination was in children’s best interest and appeared to rely on incarceration alone. Continue reading
Posted Sep 16, 2013 at Divorce Law Journal
McFella v. McFella - Court may take into account parents’ timesharing in deciding the amount of child support to be paid, but it is not mandatory. http://opinions.kycourts.net/sc/2012-SC-000737-DGE.pdf - Where appeal of DVO not timely filed trial court’s denial of CR60.02 motion affirmed. Digests of these two opinions from Ky Supreme Court to follow. Continue reading
Posted Aug 30, 2013 at Divorce Law Journal
Ciampa v. Ciampa Trial Court’s findings supported reduction of child support by only 3% following emancipation of older child where income substantially exceeded guidelines. Trial court included private high school tuition as part of child’s needs. Digest to follow. Continue reading
Posted Aug 16, 2013 at Divorce Law Journal
Bjelland v. Bjelland, where mother did not request court to make additional findings, order requiring her to share in cost of non-mandatory field trip cost was affirmed. Digest to follow. Continue reading
Posted Aug 12, 2013 at Divorce Law Journal
There were only a couple of changes within the July 26, 2013 Opinion that differ from the withdrawn April 12, 2013 Opinion so we will not post a new digest. The replacement Opinion directs that on remand the trial court also determine whether the GRAT checking account should be included within the marital estate. The replacement Opinion also addresses the valuation of a parcel of real estate and the court held that the factual finding was not clearly erroneous. Continue reading
Posted Aug 8, 2013 at Divorce Law Journal
From July 26, 2013: Ensor v. Ensor. The Opinion of April 12, 2013 was withdrawn and this opinion substitued. This is the case concerning the Grantor Retained Annuity Trust (GRAT). Muir v. Muir. Restoration of nonmarital property, division of mailital property in just proportions, attorney fees. There were no published family law opinions released on August 2, 2013. Digests to follow. Eventually. Continue reading
Posted Aug 6, 2013 at Divorce Law Journal
Triplett v. Triplett, coverture fraction of pension upheld where appellant failed to preserve subtraction or bright line arguments in trial court. Ipock v. Ipock, et al, CR60 may be used to disestablish paternity with the results of a completed DNA test in which case the results of the test shall be the predominant factor in the trial court’s decision. Order allowing CHFS and GAL to intervene in divorce action affirmed. Seay v. Seay, Emancipation of one child triggers review of child support without regard as to whether the new amount is 15% greater or lower. Digests to follow. Eventually. Running... Continue reading
Posted Jul 5, 2013 at Divorce Law Journal
We will be following this one closely. Here is the Ky Court of Appeals opinion. Continue reading
Posted Jun 20, 2013 at Divorce Law Journal