Vol. 2006:04
Feb. 9, 2006
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COURT OF APPEALS - JAN. 20, 2006
PUBLISHED.
BAKER V. JONES
NOT PUBLISHED.
The opposing party claimed some two years after the fact that she had not received a copy of the judgment, though the Court's docket and distribution list showed it did go to her counsel. She sought to have the Court re-enter the judgment under CR 60.02. The CAs held that rule would not apply in this case, especially since (1) appellant had waited over two years to bring the matter up (CR 60.02 provides for a one-year limitation); and (2) that her attorney did find a copy of the judgment in some old papers of one of his paralegals sometime after receiving a note from the Court that final judgment had been entered. The CAs focused a bit on the differences between using 60.02(a) and (f) (mistake v. extraordinary & compelling equities).
TOKOVIC V. COM.
CRIMINAL - Escape
2004-CA-002619
Not Published
Date: 1/20/2006
No palpable error existed in that Tokovic was not entitled to a directed verdict on the charge of Attempting to Escape from a Penitentiary.
SUMPTER V. COM.Where there is a variance between the language of the body of the indictment and the language of the caption, the language of the body controls
SEARCH V. COM.
CRIMINAL
2004-CA-001819
Not Published
Date: 1/20/2006
Having concluded that the hearing officer, despite substantial evidence in the record, failed to make specific findings supporting his denial of benefits,
COA vacated the circuit court’s order affirming and remanded to the Retirement Systems for further specific findings by a hearing officer.
KRS 61.600(3)(c) requires that the person seeking benefits must have been, since his or her last day of paid employment, mentally or physically incapacitated to perform the job from which he or she received his or her last paid employment, and such proof must be based on objective medical evidence. Furthermore, the incapacity must be deemed permanent.
A claimant for disability retirement benefits has the burden of proving she satisfies the statutory criteria which entitles her to those benefits.
When a claimant is unsuccessful in obtaining administrative relief, the question on appeal is “whether the evidence was so overwhelming, upon consideration of the entire record, as to have compelled a finding in [appellant’s] favor,” and, whether the denial of the relief sought was arbitrary.
Tthe findings in this case are “woefully inadequate” despite substantial evidence in the record to support its decision, the Retirement Systems failed to provide the factual basis for its determination.
Change of Custody. The Court of Appeals vacated and remanded the trial court’s decision on the change of custody of the parties’ children because it was obvious from a review of the trial tape that the trial court did not consider KRS 403.340 in making its decision; further, the trial court did not make any of the mandatory findings under KRS 403.340 necessary to support a decision concerning a change of custody. A finding of “parties unable to cooperate, making joint custody unworkable” was the only finding made by the Court, and that is insufficient to effect a change of custody unless it rises to the statutory level required under KRS 4093.340. The Court of Appeals was emphatic that trial courts must carefully consider all of the elements of KRS 403.340 and in making their findings and conclusions must show not only that the elements were considered but how the trial court’s considerations led to the trial court’s decision.
Child support - underemployment. What the Court of Appeals, apparently, affirmed here was the trial court’s decision that mother was not underemployed and not the actual amount of child support ordered. Since the Court of Appeals vacated and remanded the trial court’s decision on custody, the actual amount of child support that may pass between these parties may change if the trial court makes a different decision after a subsequent trial or a subsequent redrafting of its opinion based on the Court of Appeals directive. Mother claimed she had to leave her well-paying factory job at Toyota because she had a long-existing shoulder injury which she felt would worsen; if it did, and left her with a permanent impairment, she would not even be able to do the only other employment for which she was qualified and which she was doing at the time of trial, which was driving a school bus for less than 25% of her Toyota income. Mother had remarried and her husband was employed; Mother’s own affidavit in support of a change of custody indicated that she left her second-shift Toyota job due to concern for her children and also her shoulder issue. Father pointed out her two-year work at Toyota without missing a day of work; her personnel’s file total absence of health related issues or requests for accommodation for her shoulder from Toyota; and her lack of health treatment for the condition for at least a year prior to the hearing. The Court of Appeals said there was substantial conflicting testimony and the trial court has considerable discretion in making its decision based on all of the evidence and the witnesses before it, upholding the decision that mother was not voluntarily underemployed.
KREITER
V. KREITER
FAMILY LAW - Child Support Guidelines
2005-CA-000445
Not Published
Date: 1/20/2006
CA held that the mere fact that TC's child support order
was in excess of extrapolation of child support guidelines did not warrant
a finding of abuse of discretion, as would be required to reverse such an
award. As a general rule, as long as TC's discretion comports with the
child support guidelines, or any deviation is adequately justified in
writing, CA will not disturb TC's child support award. As nothing in
record indicated TC's abuse of discretion in entering a child support
award of $1,500 per month on an income in the general range of $200,000
per year, CA affirmed TC's order.
CA reviewed TC's Decree of Dissolution and associated findings regarding classification of marital and non-marital property, division of marital property, maintenance, and award of attorney fees.
Standard of Review: In reviewing division of property in dissolution and the classification of property as marital or non-marital, there should be a two-tiered standard of review. Given the fact that the trial court is unquestionably in the best position to judge the weight and credibility of the evidence, the factual findings underpinning the determination of whether an item is marital or non-marital are entitled to deference and, consequently, should be reviewed under the clearly erroneous standard. Because classification is a question of law, it should be reviewed de novo.
Classification of Marital and Non-marital Property: The increase in value of Wife's non-marital stock should not be deemed marital property merely because Husband worked for the company, as Husband made no financial decisions or exerted any managerial discretion concerning the development and profitability of the company, and he received a salary for the work he did perform.
Life insurance proceeds received by Wife as Beneficiary of Wife's father's policy were Wife's non-marital property, despite the fact that during his life, premiums were made by both Wife and Husband after receiving cash gifts in those amounts from Wife's parents. Intent of the donor is the primary factor in determining whether a transfer is a gift and, if so, whether the gift is made jointly or to only one spouse. As testimony indicated that cash payments were made to Husband only to avoid gift tax penalties and only Wife was named as beneficiary of life insurance policy, logic dictates that Wife's father intended them for the benefit of Wife alone.
Forgiveness of Loan: Wife's father's forgiveness of loan was not wife's non-marital property merely because of her father's general intent to provide for his children and a generic (and suspect) note of forgiveness in his lockbox; Wife had burden of proof on this issue and this evidence was insufficient to overcome presumption that property acquired during the marriage is marital property.
Assignment of Debt: There is no presumption that debts must be divided equally or in the same proportion as marital property. Rather, debts are generally assigned on the basis of such factors as receipt of benefits and extent of participation. As Husband had signed no notes signifying his obligation to repay Husband’s father, and as Wife was unaware of the extent and nature of these alleged loans, TC did not abuse its discretion in assigning all of these debts to Husband.
Gifts Between Spouses: In determining whether a gift between spouses should be considered marital or non-marital property upon dissolution, a court must consider: the source of the money with which the "gift" was purchased, the intent of the donor at that time as to intended use of the property, status of the marriage relationship at the time of the transfer, and whether there was any valid agreement that the transferred property was to be excluded from the marital property. Wife expended non-marital funds to reimburse the IRS so that Husband would not find himself in legal trouble. The parties had not separated at the time of the gift, nor had they agreed that the gift was to be excluded from marital property. Thus, Wife's payment of non-marital funds on behalf of Husband was appropriately deemed a gift by TC and Wife should not be reimbursed for this expenditure.
Maintenance: TC did not abuse its discretion in refusing to award Husband maintenance award where Husband had received sizeable marital estate, stood to receive a substantial inheritance upon his father's death, and had the education and ability to find work as an attorney. CA found that Husband continued to enjoy the "lifestyle of the marriage" and was not in need of additional support.
WHEELER V. EVANSWheelers claimed Evan’s successor’s in interest where
encroaching. TC found against Wheelers. Wheelers appealed. COA
finds that Wheelers joined in deed that granted land to Evan’s and, thus,
argument is precluded by estoppel.
BURTON
V. OUR LADY OF BELLEFONTE HOSPITAL
TORTS - PREMISES LIABILITY -
2004-CA-002368
Not Published
Date: 1/20/2006
CA reverses and remands dismissal of slip-and-fall claim against hospital.
Appellant was driven to hospital by daughter, who parked in a marked no parking area near a driveway leading to the ER. There was snow and ice on the ground. Appellant exited the vehicle, slipped, a fell over a 13" section of retaining wall, falling to the ground on the other side 4' below. He suffered a broken neck and other serious injuries. Appellant sued alleging: 1) negligent removal of snow and ice; 2) negligent design of the driveway; and 3) failure to install a railing on the retaining wall. The TC tersely dismissed on SJ holding it "indisputable that [the hospital] owed no duty to [the appellant] to insure the safety of the no-parking zone as regards pedestrians or inclement weather."
CA reverses and remands, holding that the record showed that invitees regularly parked in the no parking zone and the hospital was aware of it and could reasonably foresee this happening. Also, TC failed to address the negligent design/construction and failure to install railing claims sufficiently.
HAMPTON
V. ISLAND FORK CONSTRUCTION CO.
WORKERS COMPENSATION - Pneumoconiosis
2003-CA-002395
Not Published
Date: 1/20/2006
COA agreed with the Board’s reasoning and concluded that
the claimant bore the burden of proving that he suffered from pneumoconiosis and that the consensus procedure was not followed.
The sole issue presented was whether the Board erred in affirming the portion of the opinion of the ALJ denying the application of the “3 multiplier” provided in
KRS 342.730(1)(c)1. "[A]n ALJ is authorized to determine which
provision is more appropriate on the facts. If the evidence indicates that a worker is unlikely to be able to continue earning a wage that equals or exceeds the wage at the time of injury for the indefinite future, the application of paragraph (c)1 is appropriate."
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