COA 2009 Minutes: November 13, 2009 (Nos. 1154-1179)

COA 2009 Minutes: November 13, 2009 (Nos. 1154-1179)[link corrected 11/17/2009)

  • 26 decisions
  • 6 published

PUBLISHED DECISIONS WITH LINKS TO FULL TEXT

1157
FAMILY LAW
Marital property, garnishment and responsibility  for early-withdrawal penalties & tax consequences

James Atkisson  v. Kathleen Atkisson
JEFFERSON COUNTY
OPINION AFFIRMING APPEAL NO. 2008-CA-000376-MR; AND REVERSING IN PART AND REMANDING APPEAL NO. 2008-CA-001774-MR
** ** ** ** ** BEFORE: ACREE, STUMBO, AND WINE, JUDGES.
WINE, JUDGE: James Atkisson (“James”) brings these consolidated appeals from a judgment and post-judgment orders of the Jefferson Family Court involving the dissolution of his marriage to Kathleen Atkisson (“Kathleen”). First, James appeals from the court’s judgment restoring Kathleen’s non-marital interest in the residence, dividing the parties’ interest in a timeshare property, and awarding temporary maintenance and attorney fees to Kathleen. We find no reversible error in the trial court’s rulings on these issues. In the second appeal, James contends that Kathleen filed premature garnishment writs against certain tax-deferred accounts, causing him to incur substantial penalties and taxes. We agree with the trial court that Kathleen was within her rights to file the garnishment writs when she did. However, we also find that the trial court abused its discretion by requiring James to be solely responsible for the early-withdrawal penalties and tax consequences caused by the garnishment. Hence, we affirm in part, reverse in part and remand with directions for the trial court to make appropriate adjustments in its allocation of the marital estate.

1159
ARBITRATION
Affirmed enforcement of award

FIA Card Services N.A. v. Michael P. Callahan
JEFFERSON COUNTY
OPINION REVERSING AND REMANDING
** ** ** ** ** BEFORE: ACREE, TAYLOR AND THOMPSON, JUDGES.
ACREE, JUDGE: FIA Card Services, N.A., formerly known as MBNA America Bank N.A. (FIA), appeals from the denial by the Jefferson Circuit Court of FIA’s Petition and Application to Confirm and Enforce Arbitration Award against Michael Callahan. No brief was filed on behalf of Callahan. After considering the record in this case and the law applicable thereto, we find that the trial court should have confirmed and enforced the arbitration award. Accordingly, we reverse.

1164
BUSINESS LAW
Garnishment, attorneys fees, etc.

Sandra C. Brooks v. Lexington- Fayette Urban County Government
OPINION AFFIRMING
** ** ** ** ** BEFORE: KELLER, MOORE AND NICKELL, JUDGES.
NICKELL, JUDGE: This case reaches our Court for the third time following seventeen years of contentious litigation. It has been the subject of published opinions from this Court and the Supreme Court of Kentucky.1    The issues raised in this appeal are whether the trial court erred in granting the Lexington-Fayette Urban County Housing Authority its costs and expenses incurred in its successful bid to quash enforcement of a non-wage garnishment, and in denying Sandra C. Brooks’ (“Brooks”) request for attorney’s fees. These issues arise from orders of the Fayette Circuit Court entered on August 7, 2008, and October 10, 2008. Although separately appealed, the matters have been consolidated for purposes of our review.

As correctly stated by the trial court, it is well settled in Kentucky that attorney’s fees are awarded only to the prevailing party. CR 54.04, KRS 344.450. Brooks did not prevail on any portion of the litigation for which she now seeks reimbursement for her attorney’s fees. She cites no authority supportive of her proposition that she is somehow still entitled to receive the requested fees and we are convinced none exists. The trial court correctly found the fee application was unreasonable and the amounts sought were non-compensable under the law. Again, there was no abuse of discretion.

1170
GOVERNMENT, OPEN MEETINGS STATUTE

Lexington-Fayette Urban County Government v. LEXHL, LP
OPINION AFFIRMING
** ** ** ** ** BEFORE: STUMBO, THOMPSON, AND WINE, JUDGES.
WINE, JUDGE: The Lexington-Fayette Urban County Government (“LFUCG”) appeals from a summary judgment entered by the Fayette Circuit Court which dismissed its declaratory judgment against Lexington H-L Services, Inc., d/b/a Lexington Herald Leader (“Herald-Leader”). The LFUCG sought a declaration that the litigation exception to the Open Meetings Act allows it to close council meetings in order to answer requests for information propounded by administrative agencies. The trial court concluded that the matter was moot because the underlying action was no longer pending before the agency. We agree. Furthermore, the LFUCG has not shown that this issue is capable of repetition which would allow review. Hence, we affirm the trial court’s dismissal of the action as moot.

1171
TORTS, EMPLOYMENT
Intentional infliction of emotional distress, disability discrimination
William Bohl v. City of Cold Spring
OPINION AFFIRMING
** ** ** ** **
BEFORE: NICKELL AND VANMETER, JUDGES; LAMBERT,1 SENIOR JUDGE.
LAMBERT, SENIOR JUDGE: This appeal is from the trial court’s summary judgment in favor of Appellee on Appellant’s claims for disability discrimination, retaliation, constructive discharge, intentional infliction of emotional distress (“IIED”), and disability harassment. For the reasons stated herein, we affirm.

In this case, Appellant made a prima facie showing of the “essential functions” element, because he produced evidence that he continued to perform his job to the satisfaction of his employer after he was diagnosed with multiple sclerosis, to and including the day he ceased working as a detective. Chief Burk stated in his deposition that there were no job performance issues with Appellant at any point during his time with the Department or after he was diagnosed with multiple sclerosis and that he was performing his job duties to the Department’s satisfaction. Therefore, from this evidence and in view of the low threshold showing required of a plaintiff, we conclude that Appellant provided sufficient proof to meet his prima facie case as to this element.

1175
FAMILY LAW
Custody
Karen Temple v. Philip Temple

OPINION AFFIRMING
APPELLEES
** ** ** ** ** BEFORE: NICKELL AND WINE, JUDGES; HARRIS,2 SENIOR JUDGE.
NICKELL, JUDGE: This appeal flows from the filing of a custody petition by N.T.’s maternal grandmother, Cheryl McCauley. Karen Temple, the natural mother of N.T., appeals from an order entered by the Owsley Circuit Court on November 18, 2008, adopting the findings of fact, conclusions of law and decree proposed by a special domestic relations commissioner (DRC) who found Karen had waived her superior right to her son’s custody by not seeking custody for herself; awarded custody of N.T. to Cheryl; allowed Karen and her father, Phillip Temple, to share visitation with N.T. at least one weekend of each month; and directed Karen to pay $60.00 to Cheryl each month in child support. After reviewing the record and the law, we affirm.

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