Vol. 2003/18         

•  KBA Proposed Advertising Regulations

  • Deadline for filing written comments to the Attorneys Advertising Commission is September 1, 2003.
  • All comments should be sent to the Attorneys' Advertising Commission, c/o Bruce K. Davis, KBA Executive Director, 514 West Main Street, Frankfort, KY 40601-1883.
  • Copies of the proposed regulations are available from Susan Adams, Advertising Commission Paralegal, at 502-564-3795, ext. 238 or by email at sadams@kybar.org.
  • Proposed Rule Changes - In PDF  <<<--- Here's a link to the proposed changes. 
     

• KENTUCKY  STATE  APPELLATE  DECISIONS  FOR 
  WEEK of JUNE 13-20, 2003 
  Adobe Reader Required AOC Kentucky Decisions (www.Adobe.com)
   
• Kentucky SUPREME COURT Decisions 
  PUBLISHED - June 13-20, 2003
  None
   

• Kentucky SUPREME COURT Decisions
  NOT TO BE PUBLISHED - June 13-20, 2003
  None
   

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - June 13, 2003

  2000-CA-001735.pdf Size: 18 kb Date: 6/12/2003	Smith v. Com. Criminal, Polygraph  On remand from SC, Court of Appeals reversed and remanded for new trial in light of Rogers v. Commonwealth, Ky., 86 S.W.3d 29 (2002), which held Defendant is entitled to introduce evidence that confession was obtained only after police lied about failed polygraph test.
  2001-CA-000687.pdf Size: 21 kb Date: 6/12/2003	Porter v. Com. Criminal, Search & Seizure  CA affirmed Trial Court's denial of motion to suppress.  Defendant did not meet burden of demonstrating search warrant was based upon information the police knew to be false.
  2001-CA-001055.pdf Size: 36 kb Date: 6/12/2003	Ashby v. Ashby Family Law, Divorce, Multiple Issues - No Atty Fees, Dissipation, Retroactive Maintenace, Property Division all affirmed CA quickly concluded this was a complicated and convoluted factual situation.  However, the CA did affirm FC ruling that wife did not dissipate business assets while managing their liquor store since to hold otherwise would be speculation; affirmed FC ruling of no award of attorneys fees to wife since there was an equal distribution of marital property/assets; affirmed FC ruling that business be sold to achieve an equitable division of marital property since no other way and hostile relationship of the parties; affirmed FC ruling that granted a retroactive reduction in maintenance for the period of time from the filing of the motion to the entry of judgment. Comment:  This was long drawn out case in which the parties had new lawyers and were unrepresented on occasion with the first judge recusing himself.  It did contain some interesting 'black letter' rules which are at the end of this page for your information.
  2001-CA-002006.pdf Size: 24 kb Date: 6/12/2003	Krauser v. PSC Appeals, Administrative Law Dismissed appeal of PSC decision because appellant failed to comply with the mandatory jurisdictional requirement of timely and properly designating the record under KRS 278.410.
  2001-CA-002317.pdf Size: 24 kb Date: 6/12/2003	Cabinet for Families and Children v. PLO Termination of Parental Rights Affirmed TC's dismissal of suit to terminate parental rights.  Nunc pro tunc order removed from consideration any other events since it was retroactive to a specified date.
  2001-CA-002518.pdf Size: 27 kb Date: 6/12/2003	Bledsoe v. Com. Criminal  CA affirmed Defendant's convictions for 1st Degree Trafficking in Controlled Substance and 1st Degree PFO.  Defendant not entitled to mistrial; no prosecutorial misconduct during voir dire; officer's bolstering of informant was not reversible error and issue was not preserved; Defendant not entitled to entrapment instruction; no entitlement to directed verdict; no cumulative error.
  2002-CA-000110.pdf Size: 27 kb Date: 6/12/2003	Board of Trustees, KRS v. Goodpaster Administrative Law, Disability Retirement The standard of judicial review on appeal from an administrative agency differs depending on whether the agency grants or denies the claimant’s request.  CA viewedcase as simply one of conflicting medical evidence. The testimony of the treating physicians differed from that of the reviewing physicians. As in workers’ compensation proceedings, the question of which evidence to believe is within the exclusive province of the fact finder (citing Square D Co. v. Tipton, Ky., 862 S.W.2d 308, 309 (1993); and Staples, Inc. v. Konvelski, Ky., 56 S.W.3d 412, 416 (2001)).  The fact finder in this case chose to believe the evidence of the reviewing physicians, and CA concluded that the circuit court erred when it rejected the Board’s determination. The evidence did not compel a result in claimant's favor.
  2002-CA-000408.pdf Size: 19 kb Date: 6/12/2003	Bendingfield v. Com. Criminal  CA affirmed Circuit Court's denial of pro se Defendant's CR 60.02 and RCr 10.26 motions to correct the final judgment and sentence in his criminal trial.
  2002-CA-000413.pdf Size: 20 kb Date: 6/12/2003	Hall v. Hall Wills and Estates, Fiduciary Duty of Personal Representative Decedent named second wife as executrix of estate leaving her a life estate in all of his property. When she recorded a previously signed deed granting her a joint and survivior deed to certain real property, the decedent's children claimed that the deed had never been delivered and that the executrix breached her fiduciary duty to them by recording it. The Court of Appeals upheld summary judgment based on the presumption of delivery created by possession of the deed and the stepchildrens' failure to produce any evidence to the contrary. Once the Court of Appeals found that the stepchildren had no interest in the real property, it held that the executrix's recording of the deed was not a breach of her fiduciary duty to them.
  2002-CA-000558.pdf Size: 18 kb Date: 6/12/2003	McGuffin v. Com. Criminal  CA affirmed Circuit Court's denial of pro se Defendant's CR 60.02 motion to vacate or correct judgment entered in 1988.  Petition not timely filed.
  2002-CA-000653.pdf Size: 21 kb Date: 6/12/2003	Knight v. University of Louisville Hospital Medical Negligence, Dismissal CA affirmed trial court's dismissal of med-mal claim for failure to diagnose back injury when plaintiff failed to comply with discovery requests. Plaintiff claimed unable to respond due to mental problems; TC found evidence otherwise and CA agreed.
  2002-CA-000775.pdf Size: 27 kb Date: 6/12/2003	Hayden v. Com. Criminal  CA affirmed Circuit Court's denial of Defendant's 11.42 motion alleging ineffective assistance of counsel following guilty plea.
  2002-CA-000795.pdf Size: 22 kb Date: 6/12/2003	Cohen v. Dept. of Insurance Insurance, Non-renewal of Policy Affirmed insurer's decision to non-renew driver's insurance policy which  was based upon reasons other than 'acts of God'.   KRS  304.20-040 (4)(c).
  2002-CA-000806.pdf Size: 21 kb Date: 6/12/2003	Gregory v. Gregory Family Law, Divorce CA reversed TC's denial of CR 60.02 motion.  Husband claimed he was either given wrong time or wrote down wrong time of hearing and thus arrived with his newly acquired counsel 2 hours after the hearing.  Husband also claimed substantial property issues were unresolved. CR 60.02(f) (“any other reason of an extraordinary nature justifying relief”). Coupling the fact of mistake or excusable neglect with the sound policy reasons disfavoring default judgments, CA believed that this case should have been given the opportunity for a hearing and that the failure of the trial court to set aside its judgment under these rather unique circumstances amounted to an abuse of discretion.
  2002-CA-000853.pdf Size: 26 kb Date: 6/12/2003	Hermanson v. Com. Criminal  CA affirmed Circuit Court's denial of pro se Defendant's RCr 11.42 and CR 60.02 motions following conviction for murder.
  2002-CA-000889.pdf Size: 21 kb Date: 6/12/2003	Eagle Executive Employment v. Estes Contracts Estes, a civil engineering firm, sued Eagle, an executive placement firm, for breach of a business agreement, when Eagle supplied Estes with a civil engineer that was not a registered land surveyor and had restraining orders against him in other states to prohibit him from surveying land. Summary Judgment was granted by the trial court and Eagle appealed. The Court of Appeals said summary judgment was premature. Remanded to Trial Court.
  2002-CA-000961.pdf Size: 32 kb Date: 6/12/2003	McManus v. Ky Retirement System Administrative Law, Government Employment, Retirement CA affirmed the denial of application for disability retirement benefits by the Board of Trustees of the Kentucky Retirement Systems. The hearing officer found that McManus’s diabetes mellitus pre-existed his re-employment and was the direct or indirect cause for his disabling conditions based in part on a clear clinical association between diabetes and coronary artery disease. He recommended that McManus’s application be denied because he failed to sustain his burden of proof of establishing the requirements to qualify for retirement disability.
  2002-CA-000989.pdf Size: 20 kb Date: 6/12/2003	Conner v. Kentucky Highlands Investment Corp. Interrogatories, Damages, Fratzke Issue  Affirmed trial court's dismissal of plaintiff's claims since failed to list damages in response to CR 8.01 interrogatories regarding unliquidated damages citing Fratzke v. Murphy, Ky., 12 S.W.3d 269 (1999) and Lafleur v. Shoneys, Inc., Ky.,
  2002-CA-001017.pdf Size: 26 kb Date: 6/12/2003	ARLINGHAUS BUILDERS, INC. v. KENTUCKY PUBLIC SERVICE COMMISSION Administrative Law, Public Necessity CA found appellant had complied with CR 3.01 (action"is commenced by the filing of a complaint with the court and the issuance of summons in good faith.").   Appeal of PSC decision must strictly comply with statute regarding filing petition in circuit court.  Here, party filed petition but did not serve the proper persons.  Service of the summons and petition on the PSC was to be on the Attorney General or an Assitant AG and not a PSC attorney; and service on the corporation was to be on registered agent and not an attorney designated at the hearing.  However, defective summonses were nevertheless issued in "good faith" and that they were thus sufficient to commence an action."
  2002-CA-001460.pdf Size: 29 kb Date: 6/12/2003	Gaines v. Gaines Divorce, Support and Property TC made a 50/30 split of marital net marital property to wife/husband, joint custody of children (one disabled and mother worked reduced hours to be with child).  Police retirement divisible as marital property.  $20,000 difference in net distribution of marital property reversed and returned to trial court.
  2002-CA-001465.pdf Size: 22 kb Date: 6/12/2003	Frazier v. Com. Criminal  CA affirmed Defendant's conviction for Theft and PFO 1st.  Trial Court did not err in refusing to strike juror for cause.
  2002-CA-001516.pdf Size: 24 kb Date: 6/12/2003	Preston v. Com. Criminal  CA affirmed Circuit Court's denial of Pro Se Defendant's CR 60.02 motion to vacate convictions for Theft offenses.
  2002-CA-001518.pdf Size: 24 kb Date: 6/12/2003	Crick v. Com. Criminal  CA affirmed Circuit Court's denial of Pro Se Defendant's CR 60.02 motion to vacate conviction and sentence for murder.
  2002-CA-001555.pdf Size: 21 kb Date: 6/12/2003	Chaz Concrete Co., LLC v. Lechner Summary Judgment Verified response to motion for summary judgment can create a genuine issue of material fact sufficient to defeat SJ motion. MLS
  2002-CA-002116.pdf Size: 28 kb Date: 6/12/2003	Heavner v. Com. Criminal  CA affirmed Circuit Court's denial of Pro Se Defendant's RCr 11.42 motion to vacate conviction and sentence for murder alleging ineffective assistance of counsel.
  2002-CA-002621.pdf Size: 19 kb Date: 6/12/2003	Louisville Remodeling and Painting v. Muller Workers Compensation - Age and Education in PTD Analysis    Muller, 36 years old, with an 8th grade education, injured his back on January 23, 2001.  After weighing the factors set forth in Ira A. Watson Department Store v. Hamilton, Ky., 34 S.W.3d 48 (2000), and Muller's age and education, ALJ King found him to be permanently totally disabled. On appeal to the Board and Court of Appeals, the employer argued that, because the July, 2000 amendment which created KRS 342.730(1)(c)(3), came after the Supreme Court decision in Watson,the amendment effectively modified Watson so that age and education can only be considered as enhancements to a PPD award based on an AMA Guidelines impairment rating,and not as part of a second step to consider "other factors" relevant to a PTD award.  The Board's rejection of this argument was affirmed by the Court of Appeals. Age and education should be taken into consideration when determining whether a worker is PTD in addition to whether enhancement of a PPD award is required.

   

• Kentucky COURT OF APPEALS Decisions
  PUBLISHED - June 20, 2003

  2001-CA-002669.pdf Size: 27 kb Date: 6/18/2003	Stewart v. Burton Family Law, Child Support CA affirmed TC's finding that gratuitous financial resources presently offered to appellant by his parents while he was attending college to cover transportation and living expenses constituted gross income within the statutory definition. However, the loans appellant obtained to pay for his educational expenses should not be included as income under the statutory guidelines since these amounts must be repaid, and there was no showing that these loans were allocated for anything other than appellant’s education.
  2002-CA-000365.pdf Size: 19 kb Date: 6/18/2003	Olson v. Olson Family Law, Reduction of Child support The trial court was not required to follow the 15% threshold as to modification of child support because child care expenses is an amount required to be paid in addition to the assessed child support. Trial court may properly modify the allocation of child care costs in a situation where a change in circumstances caused the need for child care to end or decrease. Appellee showed that because the oldest child was able to watch the younger children for short periods of time, appellant did not incur child care during the school year.
  2002-CA-001716.pdf Size: 24 kb Date: 6/18/2003	Arnold v. Com. Criminal, Concealed Weapon, Writ CA affirmed Jefferson Circuit Judge Barry Willett's grant of writ of prohibition.    Defendant was charged in District Court with the misdemeanor offense of Carrying a Concealed Deadly Weapon.  Defendant filed motion to dismiss, arguing the gun was not operable due to mechanical defect.  District Court subsequently ruled that Commonwealth could not proceed unless it proved the gun was operable.  Commonwealth then moved Circuit Court for writ of prohibition arguing it should not bear this burden.  Circuit Court granted the writ, prohibiting District Court from requiring the Commonwealth to prove during its case-in-chief the gun was operable.   CA affirmed grant of writ.  First, writ of prohibition was proper avenue for relief as Defendant would receive directed verdict, and therefore, Commonwealth had no remedy by appeal.  Second, Circuit Court did not abuse its discretion by failing to defer to the findings of District Court.  District Court issued no findings but made its ruling as a matter of law.  Finally, in Kentucky, the operability of a firearm is not an element of the offense of carrying a concealed deadly weapon.  Instead, its inoperability is an affirmative defense, and that burden rested with the Defendant.

   

• Kentucky COURT OF APPEALS Decisions
  NOT TO BE PUBLISHED - June 20, 2003

  2000-CA-000684.pdf Size: 30 kb Date: 6/18/2003	Simpson v. Com. Criminal  Circuit Court order assessing Defendant as high risk sex offender affirmed in part and reversed and remanded in part by CA.  Sex Offender Registration statute is not an ex post facto law nor does it violate double jeopardy.  However, assessment order reversed because Circuit Court failed to provide Defendant with Daubert hearing as requested, and this violated Defendant's procedural due process rights.
  2000-CA-002700.pdf Size: 60 kb Date: 6/18/2003	Fitch v. Com. Criminal CA reversed and remanded Defendant's convictions for 1st Degree Sexual Abuse and 2nd Degree PFO.   Trial Court erred by permitting inadmissible hearsay statements by examining physician, grandmother, and investigating detective bolstering the credibility of the complaining witness.  Statements were not KRE 801A(a)(2) -- prior consistent statements -- exceptions to the hearsay rule. Errors were not harmless.    On retrial, statement vouching for victim's credibility should be excluded from medical report.  Defense opened the door to introduction of specific felony convictions of Defendant.  Trial Court properly excluded proffered impeachment of physician as impeachment on collateral issue.  Sex Offender Registration statute is not ex post facto application of law.
  2002-CA-000098.pdf Size: 28 kb Date: 6/18/2003	Lucas v. Com. Criminal CA affirmed Defendant's conviction for Obtaining Controlled Substance by Fraud and Criminal Attempt to Obtain Controlled Substance.  Trial Court properly denied Defendant's Motion to Suppress evidence obtained via KASPER (Kentucky All Schedule Prescription and Electronic Reporting System) Report.  Defendant did not demonstrate contents of KASPER Report were disclosed.  There was no violation of statutory requirement relating to KASPER disclosure.  Police procurement of KASPER Report was not unreasonable search and seizure.  Defendant's statement was not obtained in violation of Miranda.
  2002-CA-000376.pdf Size: 19 kb Date: 6/18/2003	Turnstall v. Com. Criminal  CA affirmed Circuit Court's denial of Pro Se Defendant's CR 60.02 motion to vacate conviction for Carjacking and Robbery.  Notably, Defendant submitted affidavit from co-Defendant who served out sentence stating his testimony at trial against Defendant was perjury.  CA rejected argument, stating allegation of perjury was not specific, and Defendant failed to demonstrate verdict would be different absent alleged perjury.
  2002-CA-000564.pdf Size: 30 kb Date: 6/18/2003	Halfhill v. KRS Administrative Law, Discrimination CA held 105 KAR 1:205 violates the age discrimination prohibitions of KRS 344.040, and appellant was entitled to disability benefits.  County employee over 55 claimed disability retirement but was denied since statute provided that he was eligible for normal retirement (and which resulted per his claim to reduced benefits).  The CA held that the rationale, as set out in the regulation itself, for denying those over 55 enhanced benefits is that disability benefits are meant to be “gap fillers” to cover an employee from the time of his disability until the time when he could retire without penalty. However, the enhanced disability benefits, in fact, extend beyond the time full retirement accrues and result in a permanent advantage to those able to qualify for disability retirement benefits. Under these circumstances we believe that the anti-discrimination provisions of KRS 344.040 were violated. Claimant was denied a substantial and permanent benefit solely because of his age. Further, adding another category to those excluded by the age exclusion does not make it less discriminatory.
  2002-CA-000785.pdf Size: 32 kb Date: 6/18/2003	Baird v. Newsome Damages, Substantial Performance, Contract, New Trial Contractor was entitled to payment of full contract price due to doctrine of substantial performance even though work was defective. Also, court did not err in awarding homeowner's expert fees against contractor. At issue here is the language "costs" and "costs of litigation". KRS 198B.130(1) is applicable to this case and allows for an award including the "cost of litigation" which has been defined to include expert fees (see KRS 350.250(2)). This is different from a mere award of "costs" which is discussed in CR 54.04 and KRS 453.040.
  2002-CA-001111.pdf Size: 37 kb Date: 6/18/2003	Kentucky Unemployment Comm. v. Topa Unemployment Insurance E'ee who was assigned to work that was too difficult and labor intensive for her, and who received doctor statement that she needed to be reassigned to different job, with no lifting over 10 lbs, was entitled to unemployment benefits after E'er told her to continue job that was too difficult for her. Court of Appeals held she was entitled to unemployment benefits after she exhausted her adminstrative remedies and went to Franklin Circuit Court. Court of Appeals affirmed Franklin Circuit Court ruling and held that KRS 341.450(1) provides that a complaint must be filed within 20 days in the Circuit Court in the county where the claimant was last employed, only after exhausting his/her remedies before the commission. (The time period in which the Complaint was filed was one of the issues discussed in this case - KRS 341.450 v. 787 KAR 1:110, sec. 3(6)(b)).
  2002-CA-001331.pdf Size: 23 kb Date: 6/18/2003	Adams v. Com. Criminal CA affirmed Defendant's conviction and 13 year sentence for 1st Degree Assault.  Commonwealth's comments during closing argument did not render the trial fundamentally unfair.  Trial Court sustain Defendant's objections and there was not request for additional relief.

   

• Western District Court - Kentucky
  June 21 - 29, 2003 (these opinions are from official site and require opening or saving the 'pl' files and editing with MS Word).
  

  REGIONAL AIRPORT AUTHORITY OF LOUISVILLE AND JEFFERSON COUNTY V. LFG, LLC. et al.   LFG brought a motion for judgment on the pleadings to dismiss RAA's claims against it for private nuisance, public nuisance, and negligence per se. These claims arose from environmental contamination left behind on land RAA acquired from LFG by condemnation. RAA's complaint cannot be maintained on these grounds. GEORGE M. LAWSON, et al. v. ADVANCED EQUITIES, et al.   Plainiffs, investors in Pixelon, assert that defendants, two law firms that drafted offering documents for the sale of Pixelon stock, violated Section 10(b) of the Securities and Exchange Act of 1934 and SEC Rule 10b-5 by failing to include certain information about the company and the company's president. This information was unknow to the law firms at the time these documents were drafted. Absent proof that defendants knew, or with reasonable dilegence should have known that the statements they were making were false, plaintiffs have failed to allege that they acted with the requisite scienter. The complaint is dismissed. THEODORE M. SCHLECTER V. UNITED STATES DEPARTMENT OF THE ARMY   The United States Department of the Army moved to dismiss plaintiff Schlechter?s complaint for lack of jurisdiction over the subject matter pursuant to Fed.R.Civ.P. 12(b)(1). Defendant?s motion will be granted because the Civil Service Reform Act provides the exclusive remedy for plaintiff?s complaint against the defendant. RES-CARE, INC. V. AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE CO.   Defendant's motion to transfer venue pursuant to 29 U.S.C. 1404(a) is granted. SCOTT AND TAMMY ISERT V. FORD MOTOR COMPANY   Plaintiff has not stated a claim for intentional infliction of emotional distress when he was intentionally poisoned. He could have alleged assault or battery. Further, an employer is not liable for the intentional torts of its employees.

   

• Sixth Circuit Court of Appeals from Kentucky
  June 21 - 29,  2003 (opinions on official site in html)
  

  03a0211p.06 01-5926 2003/06/25  Clifford v. Chandler     Eastern District of Kentucky at Covington

The last of the BTB (back to basics) on insurance policy/contract construction.

Insurance, Contract Construction, Coverages Liberally Construed in Favor of Insured

• Wolford v. Wolford, Ky., 662 S.W.2d 835, 838 (1984)
  If a contract is capable of two constructions or if its language is ambiguous then it must be liberally construed in order to resolve any doubts in favor of the insured.
• Snyder v. Travelers' Fire Ins. Co., 138 S.W.2d 1036 (Ky.App. 1940)
  Insurance contracts should be construed so as to prevent forfeitures, in whole or in part, and ambiguous and repugnant provisions interpreted in favor of the insured (not a motor vehicle insurance policy case).
• State Auto. Mut. Ins. Co. v. Ellis, 700 S.W.2d 801 (Ky.App.,1985)
  If insurance contract allows for two reasonable constructions, one most favorable to insured prevails; ambiguities in the contract language are resolved in the insured's favor. In cases of ambiguity specific clauses in insurance policies control general clauses. Doubts concerning construction of insurance contracts are to be liberally construed in favor of the insured, and exclusions are to be strictly construed to make insurance effective.
• True v. Raines,99 S.W.3d 439 (Ky., Mar 20, 2003) 
  "The reasonable expectation doctrine is based on the premise that policy language will be construed as laymen would understand it and applies only to policies with ambiguous terms --e.g., when a policy is susceptible to two (2) or more reasonable interpretations. Under the reasonable expectations doctrine, when such an ambiguity exists, the ambiguous terms should be interpreted "in favor of the insured's reasonable expectations. However, "[t]he mere fact that [a party] attempt[s] to muddy the water and create some question of interpretation does not necessarily create an ambiguity.   Only actual ambiguities, not fanciful ones, will trigger application of the doctrine."

Insurance, Contract Construction,  Exclusions Strictly Construed

• State Auto. Mut. Ins. Co. v. Ellis, 700 S.W.2d 801 (Ky.App.,1985)
  If insurance contract allows for two reasonable constructions, one most favorable to insured prevails; ambiguities in the contract language are resolved in the insured's favor. In cases of ambiguity specific clauses in insurance policies control general clauses. Doubts concerning construction of insurance contracts are to be liberally construed in favor of the insured, and exclusions are to be strictly construed to make insurance effective.

Insurance, Contract Construction, Court Should Not Add Terms to Policy

• Old Reliable Ins. Co. v. Brown, 558 S.W.2d 190 (Ky.App. 1977)
  Court may not read into a policy of insurance conditions and terms which are not incorporated therein citing United States Fidelity and Guarantee Co. v. Lairson, Ky., 271 S.W.2d 897 (1954). 

Insurance, Contract Construction, The "Deemer" Exception for Adding Terms

• KRS 304.39-100(2)
  "An insurer authorized to transact or transacting business in this Commonwealth . . . shall be deemed to provide the basic reparation benefits coverage and minimum security for tort liabilities required by this subtitle, except a contract which provides coverage only for liability in excess of required minimum tort liability coverage."
• Meridian Mut. Ins. Co. v. Siddons, 451 S.W.2d 831 (Ky.,1970)
  Insurance policy is deemed to include uninsured motorist coverage mandated by statute even though policy was silent on such coverage unless rejected by insured in writing since "provisions required by statute are treated as being a part of the policy the same as if expressly written therein. Tharp v. Security Insurance Company of New Haven, Ky., 405 S.W.2d 760; Maryland Casualty Company v. Baker, 304 Ky. 296, 200 S.W.2d 757; Prudential Insurance Company of America v. Ragen, 184 Ky. 359, 212 S.W. 123."

Family Law, Dissipation of Assets

• Brosick v. Brosick, Ky. App., 974 S.W.2d 498, 502 (1998)
  The party alleging dissipation must prove dissipation and the value of the property . . . . Once the party alleging dissipation establishes a prima facie case, the burden of proof shifts to the party charged with the dissipation to produce evidence sufficient to show that the expenditures were appropriate. 
• Bratcher v. Bratcher, Ky. App., 26 S.W.3d 797 (2000)
  Evidence of dissipation must show a clear intent on the part of the dissipator to deprive the spouse of marital assets.
• Vanover-May v. Marsh, Ky. App., 793 S.W.2d 852 (1990).
  The applicable standard of review requires appellate court to uphold the trial court’s factual determinations unless there was an abuse of discretion. 

Family Law, Attorneys Fees

• Lampton v. Lampton, Ky. App., 721 S.W.2d 736 (1986)
  A trial court may award attorney’s fees in a dissolution action only when there is an imbalance in the parties’ financial resources.

Family Law, Maintenance, Retroactive Reduction

• Mudd v. Mudd, Ky. App., 903 S.W.2d 533 (1995)
  Law does not prohibit a trial court from granting a retroactive reduction in maintenance for the period of time from the filing of the motion to the entry of judgment.

Family Law, Marital Property

• KRS 402.190
  The court was required to divide the marital property in just proportions after considering all
  relevant factors. 
• Johnson v. Johnson, Ky. App., 564 S.W.2d 221, 222 (1978)
  Trial court vested with wide discretion in the division of the marital property.
• Glidewell v.Glidewell, Ky. App., 859 S.W.2d 675 (1993)
  After taking notice of the fact that the legislature specifically did not include an exemption for the police and firefighter’s retirement plan similar to the one contained in KRS 161.700 for the school teachers’ retirement plan, CA concluded that the police and firefighter’s pension was properly classified as marital property.
• Gross v. Gross, Ky. App., 8 S.W.3d 56 (1999)
  Non-prospective social security benefits may be considered in the division of marital property.

Family Law, Appellate Standard of Review

• Adams v. Adams, Ky., 412 S.W.2d 857 (1967)
  CA may not disturb the findings of the trial court in a case involving dissolution of marriage unless those findings are clearly erroneous.

Family Law, Child Support, Guidelines

• Downing v. Downing, Ky. App., 45 S.W.3d 449 (2001)
  The trial court may deviate from the child support guidelines upon making a finding that their application would be unjust or inappropriate. See also KRS 403.211(2). Trial courts are given broad discretion in considering a parent’s assets and in setting the appropriate amount of child support, and  “[a]s long as the trial court’s discretion comports with the guidelines, or any deviation is adequately justified in writing, this Court will not disturb the trial court’s ruling in this regard.”
  

• Court rejects requiring release forms for spectators
• Priest guilty of abusing two brothers
• Ohio lawyer may decide on abuse payments
• Lawyer- Conner could still face charges
• Judge known for lectures to soon learn about retirement
• Jefferson suit is expected to proceed
• June 15 - Commencement speaker's message draws candidate's ire - by David Hawpe
• Patton adds to execution debate
• Pardons lead some to question Patton's power

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