COA 2009 Minutes: December 4, 2009 (Nos. 1225-1245)

COA 2009 Minutes: December 4, 2009 (Nos. 1225-1245)

  • 21 decisions
  • 4 published

Published Decisions with digest and link to full text decision at AOC:

1236
Family Law – Child Custody Modificatio
n
Biggs vs. Biggs
OPINION VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; WINE, JUDGE; GRAVES,1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: Mark Biggs appeals the dismissal of his motion to modify custody by the Henderson Circuit Court. After our review, we vacate and remand.

Mark Biggs (Mark) and Amy Nichols (Amy) divorced in 1999. At that time, their son, Jesse, was three years of age. The Henderson Circuit Court ordered joint custody with Amy designated as the primary care provider. In 2007, Amy, her new husband, and Jesse moved to Colorado. Mark was deployed to Afghanistan. Mark filed a motion in Henderson Circuit Court to prevent Amy from taking Jesse to Colorado. The court denied the motion because of Mark’s deployment but advised him to file another motion once he was “available” – presumably meaning upon his return to Kentucky.

In 2008, Mark filed a motion to modify custody. Citing lack of jurisdiction, the trial court dismissed the motion in April 2008, finding that Kentucky was no longer Jesse’s home state. Mark now appeals the trial court’s denial of his motion to reconsider. After examining the record and the applicable law, we are persuaded that the trial court erred in its order declining to exercise jurisdiction in this matter.

1240
Business Law – Contracts, Parol Evidence Rule

Barber Cabinet Co., LLC  vs. Sparks
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: This residential construction contract case originated in 2005, when Appellees, Lundy L. Sparks and Pamela M. Sparks, contracted with B.A. Parker Homes, LLC (Parker) to construct a residence for them in Nicholasville, Kentucky, at a cost of about $700,000.00. Parker was the general contractor. As is customary, an allowance was provided in the home- building contract for various items, including cabinetry. When time came to select cabinets, Parker, the contractor, directed Sparks to Barber Cabinet Company, a well-known Kentucky cabinetry company, with which Parker regularly did business. Sparks selected cabinetry more or less within the confines of the $46,500.00 allowance. At the conference between Sparks and Barber Cabinet, detailed specifications were reduced to writing in a sales contract that was signed by Sparks. At the end of the document the following language appears:

The undersigned has ordered and approved all specifications, materials and finishes on this job. The undersigned will be responsible personally for payment in full of the total job cost listed above. This is the entire agreement and no other. Terms: 50% deposit due with contract and order, balance due upon delivery unless prior arrangements have been made. Authorizing signature: /s/Lundy L. Sparks, date 9-6-06.

The first issue presented is whether, upon Parker’s failure to pay Barber, Sparks is liable to Barber under the written instrument of September 6, 2006, quoted hereinabove. In the event we determine that Sparks is liable pursuant to the writing, we must also consider whether and to what extent Barber is entitled to a lien to secure payment.

As this case was decided in the trial court on the basis of failure of contract formation, that court failed to reach some of the accounting issues. Though perhaps not exhaustive of such issues, on remand the court should determine the amount due on the cabinetry contract, the amount Sparks paid Parker for the cabinetry, and the availability of escrow funds to satisfy all or part of the debt to Barber. As such, the trial court should make a proper determination of the foregoing matters and of such other matters as may be properly before the court. On remand, Sparks shall have the burden of proving the fact, the amount, and the purpose of payment to Parker. As to such sums that remain unpaid for the cabinetry, Barber’s lien may be enforced to such extent and its lien priority determined as required by law.

For the foregoing reasons, the judgment of the trial court is reversed. This cause is remanded for further consistent proceedings.


1242
Wills, Estates, Probate: Residuary clause distribution

Mackey vs. Hinson
OPINION AFFIRMING
** ** ** ** ** BEFORE: LAMBERT AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
LAMBERT, JUDGE:    This is a will contest over a portion of the residuary estate of Dianne Hill. For the reasons stated herein, we affirm the judgment of the Campbell Circuit Court.

We therefore hold that a miscalculation or omission, if any, which resulted in a portion of Hill’s estate, including a portion of Hill’s residuary estate, going undesignated in her will did not result in intestacy as to this undesignated portion. Rather, this contingency was expressly and manifestly provided for by the general and manifest language of total distribution set forth in the will’s residuary clause. Accordingly, the heirs’ argument that Hill died partially intestate is
without merit and must be rejected. As established by over a century of precedent, the very purpose and function of the residuary clause is to account for miscalculations or omissions such as the one that was made in this case.

For these reasons, we affirm the Campbell Circuit Court’s order, as amended, holding that Hill was not partially intestate at the time of her death.

1243
Family Law – contempt for failing to pay child care assistance costs

Cabinet for Health and Family Services vs. G.(J.T.) et al
OPINION VACATING AND REMANDING
BEFORE:    FORMTEXT LAMBERT AND VANMETER, JUDGES; HARRIS, SENIOR JUDGE.

LAMBERT, JUDGE: The Cabinet for Health and Family Services appeals from the Scott Circuit Court, Family Division’s order finding it in contempt for failing to pay child care assistance costs. After careful review, we vacate and remand.

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