Campbell County Courthouse, Newport, Kentucky. Image courtesy of Keith Vincent, www.CourthouseHistory.com
Published Court of Appeals appellate cases for this week –
October 30, 2015: Links are to full text of PDF decision with AOC.
864. Divorce. An incompetent person cannot bring or maintain an action for dissolution of marriage.
Elmer Riehle vs. Carolyn Molloy Riehle
COA Published Opinion Affirming; Boyle County
STUMBO, JUDGE: Elmer Riehle appeals from a Boone Circuit Court order dismissing his petition for dissolution of marriage. The issue is whether Elmer, who has been adjudicated to be disabled and incompetent, may divorce his wife, Carolyn, who is also his guardian and conservator.
Elmer then filed a petition for dissolution of marriage in August of 2013, naming Carolyn in her individual capacity as respondent. The trial court entered an order dismissing Elmer’s petition, on the grounds that under the present state of the law in Kentucky, an incompetent person cannot bring or maintain an action for dissolution of marriage. This appeal by Elmer followed. In ruling against Elmer, the trial court relied on Johnson v. Johnson, 294 Ky. 77, 170 S.W.2d 889 (1943), which addressed whether the committee of an incompetent person could bring an action for divorce on the latter’s behalf.
Finally, Elmer argues that for public policy and equitable reasons, Kentucky should adopt the recent approach of many other jurisdictions which allow a ward to divorce his or her guardian. This argument was previously addressed in an unpublished opinion of this Court, Brockman ex rel. Jennings v. Young, 2011 WL 5419713, 2010-CA-001354 (Ky. App. 2011), in which the guardians of an elderly woman suffering from Alzheimer’s disease sought to file a petition on her behalf to dissolve her marriage from a husband who appeared to have been financially exploiting her. After performing a lengthy analysis of the public policy implications of such an action, a majority of the panel nonetheless concluded that this Court was bound by the Johnson precedent. We can only follow suit. “[A]s an intermediate appellate court, this Court is bound by established precedents of the Kentucky Supreme Court. SCR 1.030(8)(a). The Court of Appeals cannot overrule the established precedent set by the Supreme Court or its predecessor court.” Smith v. Vilvarajah, 57 S.W.3d 839, 841 (Ky. App. 2000).
867. Board of Claims. No breach of duty found against the DOH regarding vehicle enforcement and resultant fatal collision.
Commonwealth of Kentucky , Transportation Cabinet, Dept of Highways vs. Collins, Individually and as Adm’x of Estate of Leonard E. Collins, Jr.
COA Published Opinion Reversing Circuit Court Appeal Reversing Board of Claims (reinstated BOC decision dismissing claim)
KRAMER, JUDGE: At the conclusion of the administrative proceedings underlying this appeal, the Board of Claims dismissed a claim of negligence asserted by Sycilla Collins, the administratrix of the Estate of Leonard E. Collins, Jr. (collectively the “Estate”), against the Commonwealth of Kentucky, Transportation Cabinet, Department of Highways (“Transportation Cabinet”). Following an administrative appeal, the Letcher Circuit Court reversed. For the reasons discussed herein, the Board of Claims correctly dismissed the Estate’s negligence claim. We therefore reverse the circuit court.
The fact that the Transportation Cabinet owes a general duty to the public to enforce size and weight restrictions of vehicles upon particular roadways does not establish that it owed any direct duty to Mr. Collins to prevent, by way of more vigorous enforcement of those traffic regulations, the accident that resulted in his untimely death. The Estate has failed to establish any special relationship between Mr. Collins and the Transportation Cabinet. As a matter of law, there was no duty to be breached. Therefore, the Board of Claims acted appropriately in dismissing this case. In light of the foregoing, the Letcher Circuit Court is REVERSED and directed to dismiss the Estate’s administrative appeal.
875. Juvenile. Reversed commitment that minor was beyond control.
S.(A.) vs. Commonwealth of Kentucky
COA Published Opinion Reversing and Remanding. Boyle County
KRAMER, JUDGE: A.S.,1 a female juvenile, appeals the Boyle Circuit Court’s order committing her to the custody of the Cabinet for Health and Family Services (Cabinet) as being beyond control.2 After a careful review of the record, we reverse and remand because A.S. was not notified that she was charged with being beyond control; the circuit court violated A.S.’s right to present a defense and cross-examine witnesses; and the disclosure of A.S.’s medical records was in error.
There were no Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from Oct. 39, 2015.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).
AOC version of this week’s decisions can be accessed by clicking here.
The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.
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