Kentucky

COA 2010 Minutes July 23, 2010 (Nos. 702-728)

• Above link to minutes is full text of minutes with link to full text of each decision.
• Total number of decisions:  27
• Published Decisions:  4 (704, 707, 713, 718)
• Tort, Civil, Insurance, Workers Compensation:  8 (702, 708, 715, 718, 720, 723, 727, 728)

PUBLISHED DECISIONS WITH SHORT SYNOPSIS AND LINK TO FULL TEXT OF EACH:

705. CRIMINAL

MEYERS (KEITH EDWARD FRANCIS)

VS.

COMMONWEALTH OF KENTUCKY

OPINION AFFIRMING

VANMETER (PRESIDING JUDGE)

COMBS (CONCURS) AND KELLER (CONCURS)

2009-CA-000376-MR

TO BE PUBLISHED

HICKMAN

VANMETER, JUDGE: Keith Edward Francis Meyers appeals from the judgment of the Hickman Circuit Court sentencing him to eighteen-years? imprisonment for possession of a firearm by a convicted felon and for being a second-degree persistent felony offender (PFO). For the following reasons, we affirm.

707.  FAMILY LAW.  CHILD SUPPORT.  MODIFICATION OF CHILD SUPPORT WHEN EQUAL INCOME, PHYSICAL TIME WITH CHILDREN, EQUAL EXPENSES.

DUDGEON (MICHAEL F.) JR.

VS.

DUDGEON (LAURIE KIDD)

OPINION VACATING AND REMANDING

TAYLOR (PRESIDING JUDGE)

CLAYTON (CONCURS) AND WHITE (CONCURS)(SENIOR STATUS JUDGE)

2009-CA-000522-ME

2009-CA-001013-ME

TO BE PUBLISHED

FRANKLIN

TAYLOR, CHIEF JUDGE: Michael F. Dudgeon, Jr., brings Appeal No. 2009- CA-000522-ME from a January 7, 2009, Order made final by Order entered March 2, 2009, and Appeal No. 2009-CA-001013-ME from a May 22, 2009, Order of the Franklin Circuit Court, Family Court Division, (family court) denying motions to modify child support. We vacate and remand Appeal Nos. 2009-CA-000522-ME and 2009-CA-001013-ME.



The facts of this case invite our Court to address an increasingly relevant and onerous dilemma ? the proper standard for modification of child support where each parent enjoys nearly equal physical time with the children, each parent earns nearly equal income, and each parent pays nearly equal amounts of other expenses related to the children. We hold that these three specific circumstances are of an ?extraordinary nature? rendering the child support guidelines inapplicable under Kentucky Revised Statutes (KRS) 403.211(3)(g) and, thereby, mandating application of the standard for modification of child support found in KRS 403.213(1).



In our case, the child support guidelines of KRS 403.212 are inapplicable for two independent reasons. First, Michael and Laurie?s combined monthly adjusted parental gross income in 2008 and 2009 ($17,525 and $19,807, respectively) exceeds the uppermost level of the child support guidelines ($15,000). We believe the guidelines are inapplicable by relying upon KRS 403.211(3). *** Second, and perhaps more importantly, are the parties? particular familial circumstances ? nearly equal physical time with the children, nearly equal income, and nearly equal expenditures for child-related expenses. For the reasons that follow, we hold that these three particular circumstances are of ?an extraordinary nature? rendering application of the guidelines inappropriate and unjust under KRS 403.211(3)(g). See Downey v. Rogers, 847 S.W.2d 63 (Ky. App. 1993). ***

Under the unique familial circumstances of this case, Michael and Laurie earn nearly equal incomes and, concomitantly, exercise nearly equal physical custody of the children. Also, they share almost equally other expenses associated with the children. These three particular circumstances are of an extraordinary nature under KRS 403.211(3)(g). Indeed, it is manifestly unjust and inequitable to require Michael to pay Laurie $950 per month in child support when each earns nearly equal income, exercises nearly equal physical custody of the children, and shares nearly equal expenses associated with the children. It is beyond cavil that such inequitable result was ever intended by the General Assembly. While a determination of extraordinary circumstances is generally within the discretion of the circuit court, the circumstances of this case mandate such a result and serve as an apotheosis of extraordinary circumstances as contemplated under KRS 403.211(3)(g). See KRS 403.211(4). Thus, in this case, we conclude that application of the child support guidelines would be unjust per KRS 403.211(3)(g).

Accordingly, we interpret the rebuttable presumptions found in KRS 403.213(2) as inapplicable in modification of child support cases where application of the child support guidelines have been determined unjust or inappropriate under KRS 403.211(3). In these cases, the proper standard for modification of child support is found in KRS 403.213(1) and simply requires a ?showing of a material change in circumstances that is substantial and continuing.?

In sum, we conclude that the child support guidelines are inapplicable for two independent reasons ? (1) Michael and Laurie?s combined monthly gross income exceeds the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and (2) the familial circumstances herein are of an extraordinary nature rendering application of the child support guidelines unjust. See KRS 403.211(3)(e) and (g). As the child support guidelines are inapplicable, the rebuttable presumption found in KRS 403.213(2) concerning modification of child support is, likewise, inapplicable. Hence, the proper standard for modification of child support is found in KRS 403.213(1) and is simply whether there exists a material change in circumstances that is substantial and continuing. We, thus, believe the family court erred by relying upon the rebuttable presumption found in KRS 403.213(2) as a basis for denying Michael?s motions to modify child support. Consequently, we vacate the family court?s January 7, 2009, and May 22, 2009, orders denying Michael?s motions to modify child support. Upon remand, the family court shall reconsider Michael?s motions to modify child support in accordance with KRS 403.213(1).

We view Michael?s remaining contentions of error either moot or without merit.

For the foregoing reasons, the Orders of the Franklin Circuit Court, Family Court Division, are vacated and this cause is remanded for proceedings consistent with this opinion.

713. REAL PROPERTY.  FAILURE TO TIMELY RELEASE LIENS. ATTORNEYS FEES, DAMAGES.

HALL (GARY), ET AL.

VS.

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. , ET AL.

OPINION AFFIRMING IN PART; REVERSING IN PART; AND REMANDING

CLAYTON (PRESIDING JUDGE)

KELLER (CONCURS) AND BUCKINGHAM (CONCURS)

2009-CA-001001-MR

2009-CA-001091-MR

TO BE PUBLISHED

LAUREL

CLAYTON, JUDGE: Gary Hall and Sharon Hall appeal the Laurel Circuit Court's order denying statutory penalties under KRS 382.365 but awarding them attorney fees and costs. The statute addresses the timely release of liens on real property. Mortgage Electronic Registration Systems, Inc. (?MERS?) and Household Finance Corporation, II (?Household Finance?)(collectively referred to as ?Household Finance?) cross-appeal the court?s award of attorney fees and costs. After a careful review, we affirm in part, reverse in part, and remand.

718. STATE RETIREMENT. PURCHASE OF SERVICE CREDIT.

KENTUCKY RETIREMENT SYSTEMS

VS.

FOSTER (BARBARA)

OPINION AFFIRMING IN PART AND VACATING IN PART

MOORE (PRESIDING JUDGE)

THOMPSON (CONCURS) AND WHITE (CONCURS)(SENIOR STATUS JUDGE)

2009-CA-001369-MR

TO BE PUBLISHED

FRANKLIN

MOORE, JUDGE: Kentucky Employees Retirement Systems (?KERS?) appeals the Franklin Circuit Court?s decisions to: 1) deny KERS relief from a court order granting Barbara Foster's request to purchase twenty-three months of service credit for the time she was employed as a professor at the University of Kentucky; 2)hold KERS in contempt for refusing to allow Foster to purchase those twenty-three months of service credit; 3) impose the expense of Foster?s attorney?s fees upon KERS as a sanction for contempt; 4) direct KERS to restore a month of sick leave service credit KERS removed following an audit of her account; and 5) enjoin KERS from further auditing or adjusting Foster?s account below a total of 325 months of service credit. For the reasons stated herein, we affirm the first three of these rulings and vacate the latter two.