COAKY Minutes: May10, 2013 — Two published decisions dealing with family law pension division as marital property per motion to set aside, alter, vacate under CR 59.05; and criminal law expungment

Published and Unpublished Decisions for COAKY for May 10, 2013

Click HERE For this week’s COA minutes and decisions
No. 459 – 475;  17 decisions; 2 decisions “To Be Published”
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This week the following issues were addressed by COAKY:  Two published decisions dealing with family law pension division as marital property per motion to set aside, alter, vacate under CR 59.05; and criminal law expungment

PUBLISHED DECISIONS –

469.  FAMILY LAW.  MARITAL PROPERTY (PENSION DIVISION)
CR 59.05 (ALTER, AMEND, VACATE MOTION)
BAILEY VS. BAILEY
OPINION AFFIRMING
2012-CA-000508-MR
TO BE PUBLISHED
SPENCER

LAMBERT, JUDGE: Buddy Lee Bailey appeals from the Spencer Family Court’s January 5, 2012, order setting aside its previous order denying Linda Beth Bailey’s motion to alter, amend, or vacate. Buddy also appeals the trial court’s February 20, 2012, order denying his motion to alter, amend, or vacate the January 5, 2012, order. After careful review, we affirm the orders of the trial court.

Although CR 59.05 does not specifically set forth the grounds for relief under the rule, the Supreme Court of Kentucky has cited to its federal counterpart, Federal Rules of Civil Procedure 59(e), in limiting the grounds to the following:

There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent manifest injustice. Serious misconduct of counsel may justify relief under this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.

Gullion, 163 S.W.3d at 893, quoting 11 Wright & Miller, Federal Practice and Procedure: Civil (2d Ed.) § 2810.1. A CR 59.05 motion may be granted on the basis of newly discovered evidence or evidence that was not available at the time of trial. Id. at 894. Unavailable evidence must be evidence that existed at the time of the trial. Id.

472.  CRIMINAL LAW.  EXPUNGMENT.
COMMONWEALTH VS. DAVIS
OPINION REVERSING AND REMANDING
2012-CA-000933-MR
TO BE PUBLISHED
BULLITT

MOORE, JUDGE: The Commonwealth of Kentucky appeals the Bullitt Circuit Court’s order granting Ricky Davis’s motion to expunge the records in this case pertaining to his arrest, fingerprints, photographs, and index references or other data. After a careful review of the record, we reverse and remand because the motion to expunge was improperly granted.

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