May 13, 2005 - COA Decisions - Kentucky 2005/22

Around the Circuit

Here is an interesting little note I found on LawReader about a KBA legal research project I had not heard about yet. To read the entire note, click here: http://www.lawreader.com/index.php/browse/node/4326.html

"The KBA casemaker project to increase dues

Justice Wintersheimer published an article in the April edition of the Lex Loci magazine of the No. Ky. Bar Association detailing a project by the Ky. Bar Association to establish a case law data base on the KBA web site, and to finance this project by imposing a dues increase of all l4,700 Kentucky lawyers. The dues increase will raise some $150,000 a year from Kentucky lawyers for the CaseMaker project.

Justice Wintersheimer states that the project is known as the CaseMaker project. CaseMaker is a company that provides access to case law data bases to some 20 states.

The Bench and Bar published a story in February which mentioned the project. After learning about the project LawReader contacted the KBA Board and asked to be given an opportunity to demonstrate its product. While they acknowledged our letter and invited us to submit a bid....we were not given an opportunity to demonstrate our product.

On May 16, 2005 Bruce Davis of the KBA announced that the contract had been awarded to Casemaker. The company predicts it will take nine months to compile a data base of Ky. cases, and then the program will be implemented in Ky.

It is known that a second company (Versuslaw) made a bid to provide a far superior product (i.e. cases of all 50 states instead of just 20 states) and to match the price of CaseMaker. The Versulaw database allows access to the decisions of all fifty states from one screen and to conduct a 50 state search in one submission.

The Casemaker program requires you to access each of the 20 + states individually."

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Interestingly enough, I will be curious about the dues increase for this project since it will be 'caselaw' only. LawReader is already plowing new vistas in Kentucky legal research materials with on-line key word search for Kentucky decisions PLUS all 50 states and federal courts too.

Although it has many links to all of the standard on-line stuff we link to (eg., AOC, KyCourts, etc), it also is developing a unique library of Kentucky materials with Kentucky-specific forms, motions, instructions, etc. garnered from actual cases and Kentucky attorneys. The topical listing is something Casemaker will not have I am sure. But, we will see. Cha-ching.$$ /////Michael Stevens, LouisvilleLawWire, Editor.

Kentucky Court of Appeals Decisions
May 13, 2004 - 46 Decisions

AOC LINKS - FULL TEXT

SUMMARIES OF DECISIONS

*PUBLISHED DECISIONS FROM KY COURT OF APPEALS FOR MAY 13, 2005*
2004-CA-000314.pdf Judge: BUCKINGHAM AFFIRMING Date: 5/13/2005 PUBLISHED	MATTINGLY V. MATTINGLY FAMILY LAW - Support (College Expense Obligation, Bankruptcy) Dad appealed TC�s order enforcing the the college education expense provision of a property settlement agreement as a child support obligation nondischargeable in bankruptcy. Dad first argued to CA that since a trial court could not have ordered post-majority child support on its own, it necessarily followed that TC would be precluded from finding post-majority support to be in the nature of child support and thus nondischargeable under 11 U.S.C. � 523(a)(5). CA held that the obligation to support a post-majority child is limited by the statutes unless the parties agree otherwise in writing, as Dad did in his Marital Settlement Agreement. Dad next argued that the property settlement agreement requiring him to pay for his children�s college education expense did not create �an obligation in the nature of child support,� which would make it non-dischargeable in bankruptcy, and thus Mom was required to challenge the discharge of this obligation/debt in the bankruptcy proceedings rather than in the family court. Following In re Smither, 194 B.R. 102 (Bankr. W.D. Ky. 1996), CA found that the following elements of a debt must be met to find that it is nondischargeable under 11 U.S.C. � 523(a)(5): 1. It is owed to a spouse, former spouse, or child of the debtor; 2. It has not been assigned to another entity, except pursuant to section 402 of the Social Security Act; 3. It arose in connection with a divorce decree, separation agreement, property settlement agreement, order of a court of record, or determination made by a governmental unit with state or territorial law; and 4. It is �in the nature of alimony, maintenance or support.� CA held that the first 3 elements were met without dispute. CA held that the debt also met the fourth element, because the section containing the college expense provision fell within the �Child Support� section of the agreement and the obligation was included with other items in the agreement that fell within the nature of child support. TC�s order affirmed.
*NON-PUBLISHED DECISIONS FROM KY COURT OF APPEALS FOR MAY 13, 2005*
2003-CA-001610.pdf Judge: JOHNSON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	CLEVINGER V. MINE SAFETY REV. COMM. ADMINISTRATIVE LAW - Review Affirms dismissal of Appellant's administrative appeal for failure to include the Office and Mine Safety and Licensing�s name and address in Complaint and failure to serve a copy of the complaint on the OMSL. The Court of Appeals relied upon the rule in Kentucky Unemployment Insurance Commission v. Providian Agency Group, Ky. App., 981 S.W.2d 138 (1998): "when an appeal is brought in circuit court by grant of statute, the parties must strictly comply with the dictates of the statute."
2004-CA-000354.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	EST. OF KENNETH PRICE V. TOWNSEND APPEALS - Appellate Record (Burden of Completeness) In this appeal from a summary judgment, the Court of Appeals held that the record was insufficient for it to make a determination. Thus, since it was the appellant's burden to provide a sufficient record, the appellant lost and the summary judgment was affirmed.
2003-CA-000637.pdf Judge: VANMETER DISMISSING Date: 5/13/2005 NOT PUBLISHED	RUCKER V . BARNES APPEALS - Notice of Filing, Late, and Jurisdiction Livingston Circuit Court, Case No. 98-CI-00148, Hon. Bill Cunningham Rucker filed medical malpractice action against Defendant doctor and hospital in 1999 alleging he was exposed to Hepatitis C by way of a blood transfusion. In September 2000, the TC granted summary judgment to hospital by non-final Order. On December 17, 2002, the TC entered final and appealable Order granting summary judgment to doctor and dismissing action. Rucker filed a motion to amend, alter or vacate, which was denied by the TC by Order dated February 10, 2003. Thereafter, TC entered an amended Order on February 21, 2003 correcting a typo in the initial Order. Rucker filed notice of appeal on March 19, 2003. Held: Notice of appeal was not timely, as it was filed some 37 days after the entry of the original Order on February 10, 2003. The COA noted that the time for appeal from the underlying judgment begins to run from the original entry of judgment and not entry of an amended judgment. United Tobacco Warehouse v. Southern States Frankfort Co-op, Inc., 737 S.W.2d 708 (Ky. App. 1987). Thus, the February 21st Order correcting a typo could not operate to reset the running of the period for appeal. Maslow Cooperage Corp. v. Jones, 316 S.W.d 860 (Ky. App. 1958).
2003-CA-001709.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	COM. TRANSPORTATION CAB. V. MILBY BOARD OF CLAIMS - Subrogation Offset Not Include Life Insurance CA affirms TC entry of judgment affirming Board of Claims award of $50,000 to Milby as executor of his wife's estate. Ms. Milby was killed when she drove into a flooded area of KY Hwy 61 and was swept into a creek. Mr. Milby filed a claim against the Transportation Cabinet alleging its failure warn or correct the problem. The Board initially dismissed the claim because the family had received life insurance and private funds in excess of the then statutory maximum of $100,000. Mr. Milby appealed and the circuit court reversed and remanded. Following an evidentiary hearing, the Board again dismissed the claim; Milby again appealed; and again the circuit court reversed and remanded. The Board thereafter issued a final order finding that the Cabinet had notice of the flooding, that the flooding made the highway dangerous, and the no adequate safeguards were taken or warnings given. The award was $50,000. The Cabinet appeals. CA notes that "it is apparently conceded and is recognized by this court that, after a lengthy battle by both the estate and the Cabinet, the Board ultimately reached the correct result. After the circuit court entered its interlocutory order, the Supreme Court rendered Boarman v. Commonwealth, a case that directly addresses the issue of offsetting collateral source payments in excess of the maximum statutory award." No error.
2003-CA-000094.pdf Judge: BUCKINGHAM REVERSING Date: 5/13/2005 NOT PUBLISHED	PROVIDIAN NAT'L BANK V. WOODS BUSINESS - Contract (Breach) Woods fails to abide by the terms of a post Judgment payment plan. Then he made up the arrearage. The Bank garnished him and he got the lower court to relieve him of the Bank's garnishment. CA says wrong. Woods breached the contract when he failed to make two payments. This permitted the Bank to collect, even though Woods got current prior to the garnishment.
2003-CA-000778.pdf Judge: Emberton AFFIRMING Date: 5/13/2005 NOT PUBLISHED	GEORGE V. GEORGE CIVIL PROCEDURE - Res Judicata (Claim Preclusion); Lack of Jurisdictio Affirming Boyd Circuit Court, Hon. Lewis D. Nicholls Son and mom dispute ownership of land belonging to dad/husband. Before his dad's death, son was his guardian, and an inventory filed with the district court included the disputed land and stated that the dad was the sole owner of such. After dad died, mom renounced the will and filed for 1/3 interest in the disputed parcel. While the CA agreed with son's argument that the mere fact an inventory was filed had no res judicata effect in a subsequent proceeding to quiet title. However, it noted that an individual is not required to defend his title until another asserts title against the property, and title remains in the record title owner until a judgment is rendered establishing title in another. During dad's life, son did not file a quiet title action, and so title remained in dad's name upon his death. Thus, the property was properly included in the estate, and mom, pursuant to KRS 392.080, had the right to renounce the will and claim 1/3 interest in the property.
2003-CA-002356.pdf Judge: SCHRODER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	BEALL V. EQUINE TRANSITIONAL TRAINING ALLIANCE, INC. CIVIL PROCEDURE - Trial (Hearing on Damages, Nonparties) Affirming Bourbon Circuit Court, Hon. Robert Overstreet Pro se plaintiffs appealed dismissal of a counterclaim. The plaintiffs had complained throughout a lengthy litigation about actions taken by individuals within and outside the named defendant Alliance; however, the only parties to the counterclaim were the plaintiffs and Alliance, and the plaintiffs never joined or served an individual to make him or her a party to the counterclaim. Only if the individuals had been made parties, or had individuals been substituted for Alliance, would the trial court have jurisdiction over any individual in this suit. The CAs noted this case illustrates the dangers of representing oneself without legal training.
2003-CA-001867.pdf Judge: 26 Date: 5/13/2005 NOT PUBLISHED	ISON V. ASHLAND HOSP. CORP. D/B/A KINGS' DAUGHTER MED CTR. CIVIL PROCEDURE - Expert Disclosures and Treating Physicians Testimony Boyd Circuit Court, Case No. 00-CI-01027, Hon. Marc I. Rosen Ison sued Defendant hospital alleging that she suffered personal injury when she was dropped by hospital personnel when being transferred from her vehicle to a wheelchair. Case went to trial and jury return verdict for hospital. Ison appealed, arguing that the jury was deprived of necessary information by way of the TC's exclusion of medical proof from her treating physician. Essentially, the issue boiled down to the sufficiency of Ison's pre-trial disclosure of the purported opinions of her treating physician that the condition he subsequently diagnosed and treated her for (spinal fracture) were causally related to subject fall. Defendant filed a motion in limine to exclude physician's testimony regarding causation arguing, among other things, unfair surprise and Ison's failure to properly disclose physician as an expert witness. The TC granted the motion and excluded the testimony. Held: The standard for review of the TC's decision as to admissibility of evidence is abuse of discretion. The COA noted that Ison did not disclose this opinion to be offered by the treating physician in her discovery responses nor in her expert witness disclosures. Rather, she merely gave generic disclosure of physician's opinion on causation that did not specifically state his intent to relate the spinal fracture to the accident. This opinion was also never disclosed at any time during the extensive discovery deposition of the physician taken by the hospital even though the existence of the fracture was clearly noted in the voluminous medical records produced by Ison in discovery. The COA held that the TC did not abuse its discretion in excluding the physician's expected testimony on causation concerning the fracture. The facts of this case are rather lengthy, but it appears what happened is that Ison initially intended on relying on the physician to merely confirm the general deterioration of her medical condition after this accident. She apparently was obese and had a lengthy medical history even before this accident for which she treated with this same physician. However, it was only after suit had been filed and the initial opinion disclosed that the fracture was discovered through an MRI by this same physician. At some point after the majority of medical proof and discovery had been taken, Ison sought to use the physician as an expert witness on causation with specific regard to the fracture. However, this more specific intended testimony was never disclosed to the hospital, with Ison arguing that the hospital should have discovered this on its own since the fracture and the physician's notes regarding same were contained in the voluminous medical records. The TC didn't buy the argument since it felt Ison had an ample opportunity to make her claim of a causal link between the fracture and the fall known to the hospital, but failed to do so.
2004-CA-000618.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	BENNINGTON V. COM CRIMINAL - 11.42 (Evidentiary Hearing) COA affirmed trial court's denial without evidentiary hearing on RCr 11.42 relief from a judgment revoking defendant's probation and ordering him to community service since the record was adequate to dispose of all issues.
2003-CA-002743.pdf Judge: BARBER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	COM. V. GEVORGIYAN CRIMINAL - 60.02 (Reducing Felony to Misdemeanor) This case was an appeal by the prosecutor. COA held the Commonwealth failed to show that lower court's decision granting CR 60.02 relief reducing felony to misdemeanor was an abuse of discretion and thus affirmed. Defendant Gevorgiyan argued that it would be improper and inequitable to deprive his wife and son of his financial and emotional support and to have him deported to face certain discrimination and possible death far from his family. He showed the court that deportation and a risk of death or injury is too serious a penalty for the offense charged.
2004-CA-000902.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	DUNCAN V. COM CRIMINAL - 60.02 (Direct Appeal, 11.42) Defendant raised ineffective assistance of counsel by CR60.02 motion, and COA held CR 60.02 relief is precluded by the rationale set out in Gross v. Commonwealth regarding successive post-conviction motions. The structure provided in Kentucky for attacking the final judgment of the trial court in a criminal case is not haphazard and overlapping, but organized and complete. CR 60.02 is for relief that is not available by direct appeal and not available under RCR 11.42.
2004-CA-000713.pdf Judge: SCHRODER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	GOBLE V. COM CRIMINAL - Ineffective Assistance of Counsel (Guilty Plea) Affirmed conviction holding appellant's counsel on the guilty plea did not render ineffective assistance in advising his client to plead guilty.
2004-CA-001543.pdf Judge: SCHRODER Affirming Date: 5/13/2005 NOT PUBLISHED	GRAHAM V. COM CRIMINAL - Crimes (PFO, Persistent Felony Offender) Persistent felony offender (PFO) statute does not create a new and separate crime, but rather it is a status offense which enhances a sentence on a subsequent offense. See Hardin v. Commonwealth, 573 S.W.2d 657, 661 ( Ky. 1978).
2004-CA-000685.pdf Judge: SCHRODER DISMISSING APPEAL Date: 5/13/2005 NOT PUBLISHED	HURLEY V. GREEN CRIMINAL - Prison Discipline (Appeal) This is an appeal by the Western Kentucky Correctional Complex from an order of the Lyon Circuit Court remanding a prison disciplinary action finding that appellee tested positive for marijuana in the course of a random drug test. Because the order was not a final order pursuant to CR 54.01, it is not appealable and must be dismissed.

2003-CA-002350.pdf Judge: JOHNSON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	LAWSON V. COM CRIMINAL - 11.42 CA affirmed the trial court's denial of Lawson's 11.42 motion. No evidentiary hearing was necessary because all claims were refuted by the record.
2003-CA-002076.pdf Judge: JOHNSON REVERSING IN PART, VACATING IN PART AND REMANDING Date: 5/13/2005 NOT PUBLISHED	MAGOLIS V. COM CRIMINAL - Search and seizure (Exclusionary Rule) CA reversed in part, vacated in part, and remanded Magolis's case for the trial court to reconsider his suppression motion and to determine, if necessary, whether Magolis should be allowed to withdraw his guilty plea. The trial judge erroneously concluded that some items that were not in plain view during the "safety search" were admissible as evidence against Magolis.
2004-CA-000926.pdf Judge: BUCKINGHAM AFFIRMING IN PART, VACATING IN PART, AND REMANDING Date: 5/13/2005 NOT PUBLISHED	O.V. MILLS V. COM CRIMINAL - 11.42 CA affirmed in part, vacated in part, and remanded Mills's case for an evidentiary hearing on his allegation that trial counsel was ineffective for failing to request a jury instruction on Second-Degree Manslaughter.
2002-CA-001350.pdf Judge: MCANULTY REVERSING AND REMANDING Date: 5/13/2005 NOT PUBLISHED	MILLS V. COM. CRIMINAL - Drunk Driving CA reversed and remanded Mills's DUI conviction because the trial court erroneously concluded that Mills could not present evidence of his field sobriety tests and traffic-stop video at trial to challenge the reliability of his breath test. Commonwealth v. Mattingly, 98 S.W.3d 865 (Ky.App. 2002).
2004-CA-000178.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	PEAK V. COM CRIMINAL - 11.42 CA affirmed the trial court's denial of Peak's 11.42 motion. No evidentiary hearing was necessary because all claims were refuted by the record.
2004-CA-000852.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	RIGGS V. COM CRIMINAL - Guilty Plea (Effects of) CA affirmed the trial court's denial of Riggs' CR 60.02 motion because his guilty plea effectively waived the issue on which he sought appellate review. Hughes v. Commonwealth, 875 S.W.2d 99 (Ky. 1994).

2003-CA-002212.pdf Judge: MCANULTY AFFIRMING Date: 5/13/2005 NOT PUBLISHED	SMITH V. COM CRIMINAL - Directed Verdict (Failure to state specific Grounds) COA affirmed assault 1^st and robbery 1^st conviction following trial. D claimed he should have been given a directed verdict at trial, but D made only a general directed verdict motion, thus such was not preserved pursuant to CR 50.01 which requires specific grounds to be argued. COA says that under Blockburger elements test, the assault and robbery convictions did not violate double jeopardy.
2003-CA-001842.pdf Judge: MCANULTY AFFIRMING Date: 5/13/2005 NOT PUBLISHED	SPALDING V. COM CRIMINAL - Intent COA affirmed D's conviction at trial of assault 3^rd, PFO 2^nd. Only ground argued on appeal was insufficient proof to convict.
2004-CA-001796.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	TURNER V. COM CRIMINAL - Crimes (Murder) TC denied D's RCr 10.10 motion in which he claimed that his judgement following conviction at trial should have reflected "wanton murder" instead of "murder." COA said that KY has one murder statute that encompasses both intentional murder and wanton murder. Appeal denied.
2004-CA-000672.pdf Judge: VANMETER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	WHITE V. COM CRIMINAL - 60.02 (Appeals, Separate Avenue of Relief) COA affirmed denial of D's pro se 60.02 motion. D claimed double jeopardy as to some of the offenses he pled guilty to. COA held that D's guilty plea waived any defenses to the charges other than the indictment did not state an offense.
2004-CA-001224.pdf Judge: SCHRODER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	WOOSLEY V. COM CRIMINAL - Bond (Non-cash conditions, revocation, forfeiture) D convicted of felony non-support. 75 year-old widowed mom posted $10,000 appeal bond for D. D appeared for sentencing but violated conditions of appeal bond by testing positive for methamphetamine. Bond revocation and forfeiture upheld.
2004-CA-001137.pdf Judge: BARBER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	YOUNG V. COM CRIMINAL - 60.02 COA affirmed TC denial of 60.02 motion in rape case.
2004-CA-000556.pdf Judge: MILLER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING Date: 5/13/2005 NOT PUBLISHED	STATHIS V. UNIVERSITY OF KENTUCKY COLLEGE OF MEDICINE EDUCATION - Student Suspension (Due Process, Discipline) Subsequent to a confrontation with another student, and following a disciplinary hearing, Appellant was dismissed from UK's College of Medicine. Following his dismissal, Appellant filed an action in circuit court, which entered summary judgment in favor of UK on all claims. On appeal, the former student alleged due process violations, erroneous limitation of discovery, so-called "reverse" racial discrimination, gender discrimination, disability discrimination and breach of implied contract. The Court of Appeals upheld summary judgment on all claims except breach of implied contract, holding a material issue of fact existed as between the conflicting versions of the confrontation between Appellant and the other student and whether Appellant's conduct breached the College's code of conduct. The Court of Appeals remanded that sole issue to the circuit court for further proceedings.
2004-CA-000508.pdf Judge: KNOPF AFFIRMING Date: 5/13/2005 NOT PUBLISHED	WANTLAND V. KY STATE BOARD OF ELECTIONS ELECTIONS - Reapportionment (Discrimination, Population Equality) Held: the General Assembly's 2002 reapportionment of the state House of Representatives did not violate Section 33 of the state constitution. Bullitt County was divided into four different legislative districts, only one of which was contained solely within Bullitt County. In upholding, summary judgment in favor of the Board of Elections, the Court of Appeals held that multiple districts were necessary to ensure all districts contained substantially equal populations. The Court of Appeals also rejected the Appellants' argument that District 18 violated Section 33's district-contiguity requirement, ruling that the federal enclave for Fort Knox did not divide the district into two non-contiguous portions.
2004-CA-000906.pdf Judge: BUCKINGHAM AFFIRMING Date: 5/13/2005 NOT PUBLISHED	KIDD V. KY UNEMPLOYMENT INS. COMM. EMPLOYMENT - Jurisdiction (Verified Complaint, Unemeployment) COA upheld Circuit Court's dismissal of Appellant's claim and denial of her motion to file an amended complaint. Appellant filed but failed to verify her complaint as required by KRS 341.450(1). On appeal, the COA held verification was mandatory, the attorney's signature did not substantially comply with the verification requirement, and strict compliance with the statute is required,
2004-CA-000273.pdf Judge: HUDDLESTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	SEEBREE V. KY STATE POLICE EMPLOYMENT - Government (Resignation, one year sick leave) COA affirms TC's grant of summary judgment in favor of Appellees. Appellant, who suffered from depression, had requested indefinite sick leave from his employer. The COA held Appellant's civil rights claim against his employer failed because indefinite sick leave is not a reasonable accomodation. Appellant also claimed his supervisor violated his civil rights by attempting to discriminate against him because of his disability. COA found Appellant was diagnosed after his last day of work. Therefore, discrimination from his supervisor was not possible. Finally, COA affirmed the TC's order on Appellant's remaining claims, holding the record revealed the reasons for denial were unrelated to the Appellant's disability.
2004-CA-000369.pdf Judge: EMBERTON AFFIRMING IN PART, VACATING IN PART AND REMANDING Date: 5/13/2005 NOT PUBLISHED	CONLEY V. CONLEY FAMILY LAW - Property (Marital Home) CA affirms in part, vacates in part and remands TC dissolution and award of home and business to husband. CA affirms that real property was a nonmarital gift to husband and that TC did not err in awarding him same and assigning him business and its debt. CA vacates and remands, however, TC failure to address the issue of restoration wife's maiden name.
2003-CA-000814.pdf Judge: EMBERTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	FORGIE V. FORGIE FAMILY LAW - Marital Property (Military Retirement; Poe Formula) COA found no error in the methodology used by the trial court in following Poe v. Poe formula for dividing disposable military retired pay. Editor's Note: I must confess as a former and retired soldier that I have never quite accepted or understood the arbitrary application of the Poe formula. Although the Poe formula mirrors the percentage discussed in the Uniformed Services Former Spouses Protection Act, it assumes that the USFSPA formula is the absolute number to apply rather than what the federal law really says - that the percentage derived is the maximum percentage allowed to be awarded to the non-military spouse. The Poe formula fails to recognize that military service retirement pensions are not the same as a civilian retirement such that an equal division of marital property may not be a 'just' division per KRS 403.190. Other factors not factored into the formula and the resultant burden or obligations placed on the military spouse are as follows (to name just a few): a. The soldier must still serve the full 20 years in order to vest the retirement such that the soldier has a continuing obligation to serve and risk his life in order for the retirement to vest while the spouse just waits. b. Other benefits may accrue and benefit the spouse contemporaneously with the retirement such as medical, commissary, PX and other privileges. c. The SBP (Survivor's Benefit Plan) if ordered results in the soldier ending up paying part of the premium for the annuity to protect the spouse's property interest. d. The value of that retirement increases based upon the soldier's continued service in the form of promotions, pay raises, and longevity raises. For example, the soldier was an E-5 at divorce but serves 10 more years and retires as an E-8. Major increases in value. e. Of course, in all fairness there is a flip-side to this issue since upon retirement, all soldiers are examined for possible VA disabilities and any such VA percentage is excluded from the formula for marital property division under Poe etc. This explains why some agreements reflect a concommitant increase or maintenance provision to reflect that possible loss in marital property. Eg., if the soldier receives a 50% VA disability, then the spouse is awarded a proportion award or even increase in maintenance. However, I have not noted any court decisions in Kentucky addressing this point. Please note these are just the rambling thoughts of an old soldier. Mike Stevens, LTC, USAR (Retired), JAGC.
2004-CA-000610.pdf Judge: BUCKINGHAM AFFIRMING Date: 5/13/2005 NOT PUBLISHED	G.D. V. CABINET FOR FAMILIES AND CHILDREN FAMILY LAW - Child Neglect (Incarceration, Abandonment) Dad appealed from TC�s findings of fact, conclusions of law, order and judgment terminating his parental rights in his daughter. Dad argued that TC based its finding of neglect on the sole fact that he was incarcerated. Dad pointed to the facts that prior to being incarcerated, he lived with the child and her mother and had provided the child with a home; that although he had tried to maintain contact with the child while he was in prison, Mom�s transient lifestyle, the Cabinet�s failure to name him in neglect actions against Mom, and the Cabinet�s refusal to allow him permission to contact his daughter once he located her in foster care, all served to limit his ability to maintain a relationship with her. He also offered an alternative placement that would facilitate his ability to maintain a relationship with her. CA found that although Dad was not notified of the neglect actions in either the district or circuit courts, he was properly notified and made a party to his termination proceeding in TC. CA agreed with Dad that law prohibits a finding of neglect based solely on the incarceration of the parent. However, CA recognized that it was a factor to be considered, especially where incarceration was caused by the dedication of the parent to a criminal lifestyle. CA found that the factual record supported the TC�s finding that Dad led a criminal lifestyleand that the resulting incarceration led to his lack of parental care for I.S. and the subsequent determination of neglect. TC�s order affirmed.
2003-CA-002185.pdf Judge: SCHRODER AFFIRMING Date: 5/13/2005 NOT PUBLISHED	MCCLOUD V. MCCLOUD FAMILY LAW - Maintenance (Not Modifiable Per Agreement) Held the maintenance award was not modifiable since a provision in the separation agreement incorporated into the decree expressly stated that the agreement could not be modified without the written agreement of both parties.
2004-CA-000835.pdf Judge: HUDDLESTON AFFIRMING Date: 5/13/2005 NOT PUBLISHED	ROSS V. HENNIES FAMILY LAW - Custody (Relocating Children, Fenwick v. Fenwick)) CA affirms TC grant of father's motion to be designated primary residential custodian. As part of dissolution agreement couple agreed to joint custody with mother as primary residential custodian, equal parenting time and a restriction that