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.
