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Diana L. Skaggs
Louisville, KY
Fellow, American Academy of Matrimonial Lawyers
Recent Activity
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
MIX V. PETTY Appellant appeals the decision of the family court to terminate child support on May 30, 2014 for a home-schooled child remaining in high school after his 18th birthday. Appellant argued child support should either terminate on June 30, 2014, or extend until the child completed his senior year in November 2014. The Appellate Court affirmed in part, upholding the family court’s decision not to extend child support through November 2014, given the trial court’s discretion and the circumstances of the case. The Appellate Court reversed in part, holding the plain language of KRS 158.050 sets June 30... Continue reading
Posted Mar 27, 2015 at Divorce Law Journal
HOLT V. HOLT The appellant appealed a Bullitt County DVO, arguing the court lacked jurisdiction to enter a DVO. The petition for a DVO was originally filed in Nelson County. It was transferred to Bullitt County after the Nelson District Court determined Bullitt County would be more appropriate, as the court was already familiar with the parties. The Appellant Court first addresses subject matter jurisdiction holding that the Kentucky Family Courts all have jurisdiction to preside of matters involving domestic violence. The Court then turns to venue and finds that both the county where the victim resides, in this case... Continue reading
Posted Mar 27, 2015 at Divorce Law Journal
COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES V. C.L.H., ET AL. The Appellate Court affirms the Trial Court’s grant of a directed verdict and dismissing the Cabinet for Health and Family Services’ (CHFS) petition to terminate the parental rights of father. Although the father is in Federal prison on drug charges until 2019, his prior involvement with his child was positive and beneficial. Additionally, father maintains regular prison visits with the child which are also beneficial. The father’s incarceration and length of incarceration alone are not enough to support finding of abandonment or neglect necessary to sustain the... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
K.W. V. J.S. In Family Court, father made a CR 60.02 motion more than three years after entry of a paternity judgment, arguing the biological mother made material misrepresentations to him to induce him to agree to a paternity judgment. The Family Court denied the CR 60.02 motion and discontinued child support. The Appellate Court affirmed the Family Court’s denial of father’s CR 60.02 motion. Father was equitably estopped from setting aside the paternity judgment, as the he allowed the children (twins) to call him “daddy,” maintained a relationship with the children, waited over three years to make a CR... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
J.S V. BERLA While not a family court case, as an action against a court appointed psychologist, this case is important to family law practitioners. A father filed an action against a court appointed psychologist making a custody evaluation. The father alleged slander and libel arguing the psychologist did not act in good faith in making a verbal report to the CFHFS and in her written Custodial Evaluation Report. The father also argued the psychologist breached the good faith and fair dealing contractual requirement of the Uniform Commercial Code (“UCC”). The trial court granted summary judgment in favor of the... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
MCVICKER V. MCVICKER At trial, husband made several nonmarital claims, and argued for a 70/30 split of marital property in his favor, since he cared for the parties adult disabled child. The Family Court found that Husband had nonmarital claims in the home and in a Morgan Stanley account. It also split the parties’ marital Morgan Stanley savings 70/30, did not award the wife maintenance, and did not consider the parties’ vehicles in division of the marital property. The wife appealed these findings of fact and conclusions of law, arguing on appeal the Family Court abused its discretion. The Appellate... Continue reading
Posted Feb 13, 2015 at Divorce Law Journal
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