Supreme Court News.  Although Justice Keller may have been replaced by Justice Roach, the position is still 'vacant' at the AOC web site.

Cruising the internet
 

• Got a tortfeasor and don't know if insured?  Try this for a fee.  http://www.findthepolicy.com/  
  • No promises, warranties, or assurances.
• Need to obtain your client's earnings and employment history?  Need the list certified?  Contact your friendly neighborhood Social Security.  The cost is minimal for list of employers and wages for each year certified or a certified list of total earnings for each year.  This is not that cheap and free benefits list you can get (http://www.ssa.gov/online/ssa-7050.pdf
• http://www.ssa.gov/online/ssa-7050.pdf for the form
• http://www.ssa.gov/online/ssa-7050.html for the instructions!

The Ten Commandment Cases

• CNN posted article

• FindLaw Commentary

• Full Text of Decisions

  • McCreary - Kentucky Case

  • Van Orden - Texas Case

From Your Local Courier-Journal

• Ex-Kentucky Justice James Stephenson dies at 89
  Former state Supreme Court Justice James B. Stephenson, known for his strict interpretation of the state constitution, died Tuesday night. He was 89.
  » Originally published on 06/23/05.

• Blogging toward controversy
  We weren't blown out of our shoes that an up-and-coming young Republican would write in his personal Web log, as Jason Nemes did last year, "Democrats are anti-American.
  » Originally published on 06/25/05.

• Opinions aired by new aide to chief justice draw criticism
  FRANKFORT, Ky. -- Chief Justice Joseph Lambert's new chief of staff and general counsel posted a personal blog on the Internet last year, outlining his personal opinions about Democrats and other subjects.
  » Originally published on 06/24/05.

• 'No new tax' justice isn't any better than 'no new tax' politics
  The mail just brought the latest issue of the "Greenebaum Law Letter" -- an informational brochure published by Greenebaum, Doll & McDonald to update clients and friends on developments in the legal system and at the law firm.
  » Originally published on 06/29/05.

“[the offense] is established by proof of the same or less than all the facts required to establish the commission of the offense charged.  Second-degree assault is not a lesser included offense of first-degree rape precisely because physical injury is an element of the former offense but not the latter. The same reasoning applies to fourth degree assault.

S.L., A CHILD   V.   COM
FAMILY LAW - Appeal (preserving issue in habitual truancy)

S.L.appealed from Family Court order committing her to the Department for Community Based Services (DCBS), with recommended placement at Ramey-Estep Homes.  At family court level, S.L. had cases pending for both habitual truancy and neglect. S.L. argued that by disposing of the habitual truancy case prior to the neglect case the family court committed reversible error because KRS 610.010(12) required it to dispose of the neglect case first. S.L. argued that the error committed by the family court was palpable error under RCr 10.26, since even though it was insufficiently preserved for review, it affected her substantial rights and resulted in a manifest injustice.  S.L. further claimed that the failure to properly preserve the issue on appeal may have resulted from the confusion created by different attorneys representing S.L. in the two cases and that she should not have been penalized for this error. 

CA agreed that S.L. did not properly preserve the issue for review on appeal.  S.L. argued that these matters were handled informally by the family court and that CA should review significant issues of juvenile cases even if they are not perfectly preserved by circuit court standards.   CA held that the circuit court’s enhanced appellate powers provided in KRS 610.150 did not extend to review of unpreserved errors. CA thus reviewed the issue under the palpable error rule, allowing reversal only if an obvious error is found that affects the “substantial rights” of S.L. such “that manifest injustice has resulted from the error.” KRS Chapter 620 (regarding neglect) does take jurisdictional precedent over KRS Chapter 630 (truancy) in an attempt to prevent a child from being found a status offender, when the cause of his actions stems from underlying abuse or neglect. CA held that jurisdictional issues cannot be waived, and thus, it was error for the family court not to dispose of the neglect case prior to disposing of the truancy case.  Nonetheless, only if the result of the case had differed substantially without the error would S.L. be entitled to relief. 

The family court spent two years prior to entry of its order trying to find a way to keep S.L. from missing school and was careful to point out in its opinion a history of the many alternatives that had been attempted to improve S.L.’s habitual truancy. CA thus found that disposal of the neglect case prior to that of the truancy case was unlikely to have changed the result.  S.L. had clearly shown that she could not be trusted to attend school, regardless of where she lived. Thus, the error by the family court did not result in manifest injustice.  TC affirmed.

KINSEY   V.  KINSEY
COM. V.  KINSEY
FAMILY LAW - Child Support (SSI, Gross Income, Forgiving or Excusing)

Mom appealed TC’s decision transferring PRC status to Dad, arguing, inter alia, that TC’s order was an abuse of discretion.  CA held that change in PRC status was a change in custody, requiring the movant to meet the same statutory requirements of KRS 403.340 as are required for a change of sole custody.  Because more than two years had passed since the last custody award, Dad was required to show that PRC change was in the best interests of the children, as demonstrated by the factors enumerated in KRS 403.340(3).  CA held that TC’s finding that Dad’s status as PRC was in the best interest of the children was supported by substantial evidence and thus not an abuse of discretion. 

Mom also argued that her child support obligation should not have been retroactive to the date Dad filed his motion for change of custody.  CA stated that child support may be ordered to be retroactive to date motion for modification of child support was made.  CA further held that, since Dad had possession of the children at the time of filing the custody motion, implicit in that motion was a motion for request of child support modification.  It was therefore appropriate for Mom’s CS obligation to be retroactive to the date of filing of the custody motion.  TC affirmed.

In a related case, Commonwealth appealed from TC’s order that Dad did not owe CS arrearages.  TC had ruled that any arrearage Dad owed as a result of his failure to make payments in compliance with the child-support order was forgiven on the basis that Mom had caused him to incur additional expenses as a result of her having failed to comply with TC’s visitation orders. 

Because unpaid periodical payments for maintenance of children become vested when due, each installment of child support becomes a lump sum judgment, unchangeable by TC when it becomes due and is unpaid.  Courts are without authority to forgive vested rights in accrued unpaid maintenance.  Thus, TC was without the authority to forgive or excuse any unpaid child support which had accrued.  TC reversed and remanded.

REYNOLDS   V.   REYNOLDS
FAMILY LAW - Property (Dissipation of Assets, Business)

Wife contends that TC erroneously declined to accept DRC’s finding that Husband had dissipated marital assets and improperly reduced that amount of attorney’s fees awarded by the DRC.  CA found that nothing in the record established that Husband acted in a way to intentionally deprive Wife of marital property. Husband’s decision to close the family business may have been unfavorable to Wife, but she cited no authority to support her position that his actions constituted dissipation of marital assets.  With regard to the awarding of attorney’s fees, the awarding of attorney’s fees is within the “sound discretion” of TC.  TC affirmed.

CA affirms TC denial of motion for temporary custody by appellants. (Henry Family Court, Hon. Karen A. Conrad, judge, presiding).

The Cabinet for Health & Family Services placed two half-sisters with foster parents instead of with one of the girl's grandfather and step-grandmother, for several reasons including the fact that the grandparents were already caring for three small children, two of whom displayed "sexually reactive behaviors." Grandparents appealed arguing, among other things, that Cabinet had a duty to consider relative placement first. CA held TC did not abuse its discretion in placing the children with the foster parents.

CA reverses and remands, holding that homeowner's insurance coverage is excluded for childcare business occuring in the home. (Shelby Cir. Ct., Hon. William F. Stewart, judge, presiding).

Homeowner quit work to stay home with her children and began keeping other children regularly 4-5 days per week to earn income. Several months later an infant died in her care. Homeowner sought coverage and defense; State Farm denied, citing a "business pursuit" exclusion. Some jurisdictions exempt "occasional" child care services from this exclusion; therefore, TC found the exclusion ambiguous and held coverage applied. CA held that the term "occasional" is clear and the undisputed facts were that the childcare was a regular - not occasional - business. Exclusion applies; reverse and remand.

PHILPOT ENTERPRISES V. BANKS
WORKERS COMP – OCCUPATIONAL DISEASE CAUSATION

The employer appealed from a finding by the ALJ that the employee contracted Blastomycosis, a fungal infection of the lungs, which spreads to lesions on the body, at his work while operating a bulldozer.  The employer presented evidence that the claimant might have contracted the disease elsewhere, and evidence that spores of the disease were not found upon an investigation on the job site.  However, other evidence countered the assumption that spores must be found in the soil in order for the disease to have come from there, and the Court cited other substantial evidence of work related causation in affirming the award.  

MEADE   V.  MCDOWELL APPALACHIAN REGIONAL HOSPITAL
WORKERS COMP – SUBSTANTIAL EVIDENCE

The Court of Appeals affirmed the Workers Compensation Board, which affirmed the finding of the ALJ that the claimant’s disability was due to a pre-existing active condition unrelated to her employment.  Without going into the details, the COA recited the substantial evidence standard, and used Western Baptist Hospital v. Kelly to reiterate that it would not reverse the Board where the Board had applied the law correctly and had not committed an error in assessing the evidence so flagrant as to cause gross injustice.