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Diana L. Skaggs
Louisville, KY
Fellow, American Academy of Matrimonial Lawyers
Recent Activity
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 5 days ago 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
HUDSON V.COLE Father, a Michigan resident, and Mother, a Kentucky resident, live five hours apart, but were granted joint custody. The Trial Court ordered Father to have parenting time one weekend a month in Kentucky, in line with the “Parenting Time Assessment” report submitted by an expert appointed to conduct a custody assessment. The Trial Court found expert’s parenting time schedule to be in the child’s best interest and adopted it as a Court Order. Father argued that under KRS 403.320 he should have reasonable visitation, unless it the court found his visitation would seriously endanger the child. The Appellate... Continue reading
Posted May 18, 2015 at Divorce Law Journal
W.R.L., ET AL. V. A.H. A child born out of wedlock lived with A.H. as a family member for several years. A.H. participated in co-parenting the child , until A.H.’s relationship with the child’s mother ended. A.H. continued to have visitation with the child until the child’s mother got remarried and prevented A.H. from seeing the child. Finally, the child’s step-father filed a petition to adopt the child. A.H. moved to intervene in the step-father’s adoption proceeding. The Appellate Court held that A.H. did not have standing to intervene in the custody case. The right to seek custody in another... Continue reading
Posted May 12, 2015 at Divorce Law Journal
CAGATA V. CAGATA Husband and wife entered into an agreement at the time of dissolution, as part of a Marital Settlement Agreement, providing Husband would pay the costs of the children’s tuition, books, fees and uniforms for parochial high school, unless extraordinary financial circumstances prevented him from paying for it. The Trial Court found the agreement was unambiguous, there were no extraordinary financial circumstances, and ordered Husband to pay the cost of parochial high school. The Appellate Court affirmed the Trial Court, holding the agreement was an enforceable contract and Husband failed to show an extraordinary financial circumstances. Digested by... Continue reading
Posted May 12, 2015 at Divorce Law Journal
ROBISON V. THEELE, ET AL. Mother lived with her parents (hereinafter “grandparents”), and passed away after treatment for cancer, which mother underwent during dissolution proceedings. Father exercised visitation regularly during the proceedings and mother’s cancer treatment. At the time of the Mother’s death, the Trial Court awarded Grandparents a “status quo ex parte” order to keep Father’s visitation in place. Subsequently, the Trial Court awarded de facto custodian status to Grandparents, gave Grandparents sole custody, and granted Father supervised visitation with his children. The Trial Court did not make findings supporting its Judgement. The Appellate Court vacated and remanded the... Continue reading
Posted May 12, 2015 at Divorce Law Journal
WOOD V. WOESTE Father and Mother had joint custody of child, who was living in Kentucky with Father during the school year. Mother resided in Montana. Father was given notice he was being returned to active service in the National Guard Air Force in September 2014. In December, Mother filed a motion for temporary primary residential custody citing Father’s deployment as a substantial change in circumstances. Father filed a motion to stay the proceedings under the Servicemembers Civil Relief Act (hereinafter “SCRA”). The Trial Court denied Father’s SCRA motion, and held a hearing in January 2015. The Trial Court ordered... Continue reading
Posted May 12, 2015 at Divorce Law Journal
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