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Diana L. Skaggs
Louisville, KY
Diplomate,American College of Family Trial Lawyers
Recent Activity
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
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