Kentucky Law Blog.

This is our/my plan, on the blog for postings - - -

• MONDAY:  All published decisions from COA and SC.
• TUESDAY:  Links only to Sixth Circuit Published Decisions for week before.
• WEDNESDAY: Links only to Workers Compensation cases from the week before.
• THURSDAY: Links only to Family Law cases from the week before.
• FRIDAY: Links only to  tort, insurance, and procedural cases from week before.
• Throughout the week, any interesting news notes, charitable events, newsworthy items.
• MONTHLY: Short synopsis from the Kentucky Trial Court Review of the biggest verdict and other verdicts.
• AS PUBLISHED: Tables of contents to LBA Bar Briefs, Kentucky Bench and Bar, and law reviews from each of the 3 state law schools.
• WHEN THE MOOD HITS ME: One-minute CLEs, commentary on news articles in the on-line editions that are law related.

Mom appealed TC’s decision awarding primary physical custody of minor child to Dad.  After they had entered a Marital Settlement Agreement providing that they would have joint custody of their child with Mom having primary physical residence, Mom was called to active duty with the Kentucky National Guard.  Mom and Dad entered an Agreed Order that Daughter would reside primarily with Dad “until further Orders of the Court,” with both parties intending that Daughter would return to Mom’s primary physical possession on her return from active duty.  When Mom’s active duty ended, she stayed an additional four months to attend mandatory officers’ school.  When Mom returned, Dad refused to return Daughter to Mom.  Mom filed a Motion with TC for return of her daughter.  After hearing on Mom’s motion, TC ruled that the Agreed Order modified the terms of the Settlement Agreement, and that the criteria to be met were those of KRS 403.270(2) as if it were making an initial custody determination.  TC found that it was in the “best interests of the child” to stay with Dad.  Mom brought this Appeal.

CA found that, first, the intent of the parties in entering the Agreed Order was for the child to return to Mom; but more importantly, Dad never moved the court for a change of custody. Although the Agreed Order contemplated “further orders of the court,” since the parties had a settlement agreement giving physical custody to Mom and the parties had an understanding that Mom would resume physical custody, Dad was required to move for modification if he wanted a change. KRS 403.340 sets forth the procedure for modification of a permanent custody order. The statutory scheme requires that a party file a motion for modification which is submitted with supporting affidavits pursuant to KRS 403.350. Dad made no motion for modification of custody nor did he file any affidavit. Without a motion to modify before it, TC effectively modified the custodial arrangement on its own motion. The statutory requirements are a matter of subject matter jurisdiction, and if they are not met TC is without authority to modify.

Furthermore, TC did not employ the correct standard in its ruling.  TC decided the custody determination anew under KRS 403.270 as if there had been no permanent custody order in place. The appropriate standard for modification of custody may be found in KRS 403.340.

CA affirms TC interpretation of insurance policy that insurance company was not required to defend insureds in an action for damages resulting from sexual molestation of child.

Child's step-grandfather sexually molested child and pled guilty to sexual abuse. Mother sued perpetrator and grandmother, alleging grandmother knew of perpetrator's criminal history and deviant sexual and aggressive propensity and that she failed to warn and failed to supervise and protect child. Defendants demanded a defense from their homeowners' carrier. Carrier prevailed in a declaratory judgment action based upon the exclusion for intentional acts. On appeal, grandmother argues the policy's severability provision should allow her a defense on the negligence claims against her.

CA holds that the policy language excluding an act or omission that is intended "by any of you [insureds]" clearly excludes coverage for both insureds. The presence of a severability provision does not make a clearly worded exclusion ambiguous.

The Plaintiff was awarded a 20% disability based on a back injury. The Defendant argued that the Plaintiff had a pre-existng back problem based on an injury several years previous, and that the Plaintiff's doctor who had assessed the 20% impairment rating had not been adequately informed about the previous injury. Citing Cepero v. Fabricated Metals, it argued that the doctor's opinion was not substantial evidence. In that case, a plaintiff had lied about a previous injury and surgery, and the Supreme Court held that if a doctor has been provided with an inacurrate history, his opinion cannot be considered substantial evidence. The Court rejected this argument, however, citing evidence which showed that the doctor was aware of the previous injury, but did not consider it significant to his impairment rating and testimony regarding causation. How accurate does the history have to be, and does the defense have an obligation to question the history by cross-examination rather than bringing up the issue on records alone?

Affirmed trial court's determination of damages in  breach of employment agreement by employer against employer for soliciting customers and obtaining business.  No dispute on appeal regarding liability.  However, damages was an issue.  No error for trial judge to calculate damages based upon five-year period prior to breach to calculate net profit from gross sales and then awarding the employer the difference now based upon the lost sales post-breach.  

Upon reconviction, there is no absolute bar to a more severe sentence.  Affirmed.

Defendant's claim founded on a clerical mistake was rectified.  Affirmed.

Black Letter Law a la Judge Taylor:  It is well-established that a valid consent to search must be given voluntarily. Baltimore v. Commonwealth, 119 S.W.3d 532 (Ky.App. 2003). The question of whether consent to search was voluntary must be determined based upon the circumstances of each specific case. Commonwealth v. Sebastian, 500 S.W.2d 417 (Ky. 1973). However, this question is to be resolved by “an objective evaluation of police conduct and not be defendant’s subjective perception of reality.” Farmer v. Commonwealth, 6 S.W.3d 144, 146 (Ky.App. 1999)(quoting Cook v. Commonwealth, 826 S.W.2d 329, 331 (Ky. 1992)). 

Defendant entitled to evidentiary hearing on 11.42 resulting in vacating and remand.

11.42 was not appropriate vehicle for lodging complaint on no sua sponte order by trial judge for a competency evaluation.

Black Letter Law a la Judge Rosenblum: In Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983), the Supreme Court of Kentucky emphasized that the “structure provided in Kentucky for attacking the final judgment of a trial court in a criminal case is not haphazard and overlapping, but is organized and complete.” After exhausting the remedies available by direct appeal, a defendant aggrieved by a judgment in a criminal proceeding must utilize the procedure set out in RCr 11.42. Pertinent to appellant’s current RCr 11.42 complaint is the following directive concerning the contents and effect of such motions:  Final disposition of that motion [an RCr 11.42 motion], or waiver of the opportunity to make it, shall finally conclude all issues that reasonably could have been presented in that proceeding. The language of RCr 11.42 forecloses the defendant from raising any questions under CR 60.02 which are “issues that could reasonably have been presented” by RCr 11.42 proceedings.

COA disagreed and reversed the trial court's division of property.  The separation agreement dividing pension was not vague and ambiguous, and the trial judge should not have permitted parol evidence.

Affirmed trial court which found wife solely responsible for credit card debts incurred while separated from husband.