Feb. 3, 2012 COA Minutes — Nos. 116-142 (27 decisions; 4 published)
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PUBLISHED DECISIONS OF COA:
117. FAMILY LAW.
COPAS (KATHY JOAN)
VS.
COPAS (RICHARD DALE)
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ACREE (PRESIDING JUDGE)
MOORE (CONCURS) AND NICKELL (CONCURS)
2009-CA-000685-MR
2009-CA-000720-MR
TO BE PUBLISHED
SHELBY
ACREE, JUDGE: This opinion addresses the combined appeal and cross-appeal from orders of the Shelby Family Court modifying the division of Appellee/Cross- Appellant Richard Copas’s military retired pay between Richard and his former spouse, Appellant/Cross-Appellee Kathy Copas. There are three issues before us.
First, did the family court abuse its discretion in utilizing Kentucky Rules of Civil Procedure (CR) 60.02(f) to reopen the order dividing the parties’ marital property? Second, did the family court abuse its discretion in modifying the language in a previous order concerning the division of Richard’s military retired pay? And third, did the family court abuse its discretion in granting Kathy’s CR 59.05 motion by adding language to the order which, in effect, designated Richard’s disability benefits as marital property and then dividing it between the parties? With regard to the first two questions, we find no abuse of discretion. However, we find the family court did abuse its discretion as to the last issue. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
119. FAMILY LAW. EXPERTS (TESTIMONY OF SOCIAL WORKER)
BROSNAN (TIMOTHY M.)
VS.
BROSNAN (MARGARET)
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
CAPERTON (CONCURS) AND COMBS (CONCURS IN RESULT)
2010-CA-000229-MR
2010-CA-000272-MR
2010-CA-000849-MR
TO BE PUBLISHED
JEFFERSON
THOMPSON, JUDGE: Timothy M. Brosnan appeals and Margaret Brosnan (now Sargent) cross-appeals from a judgment of the Jefferson Family Court entered in their dissolution of marriage action dividing their marital property and debts and awarding maintenance to Margaret. Margaret also appeals from an order of the Jefferson Family Court denying her motion for attorney’s fees incurred on appeal.
he question presented is whether Lacock is qualified to express an opinion that Margaret suffers from PTSD. Lacock’s professional qualifications are that she has a master’s degree in social work and is licensed in Iowa as an independent social worker. Timothy argues that Lacock was not qualified to express a medical opinion regarding Margaret’s psychological symptoms or diagnosis. Based on established precedent, we agree.
124. FAMILY LAW
GASKILL (JULIE ANN)
VS.
ROBBINS (JON KEVIN)
OPINION AFFIRMING
LAMBERT (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2010-CA-001814-MR
TO BE PUBLISHED
WARREN
LAMBERT, JUDGE: Julie Ann Gaskill appeals from a Warren Family Court’s findings of fact, conclusions of law, and judgment with regard to the valuation and distribution of an oral surgery practice in dissolution proceedings. Finding no error in the trial court’s judgment, we affirm.
125. CRIMINAL LAW
MOFFITT (BRIAN M.)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
WINE (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001822-MR
TO BE PUBLISHED
LIVINGSTON
ACREE, JUDGE: The question presented in this appeal is whether Kentucky’s Sex Offender Registration Act (“SORA” or the “Act”), codified at Kentucky Revised Statutes (KRS) 17.500 – 17.580, is unconstitutional as applied to Appellant, Brian Moffitt, on the grounds that it violates his procedural and substantive due process rights. Because we find Kentucky’s SORA constitutionally sound, we affirm the Livingston Circuit Court’s August 27, 2010 order denying Moffitt relief.
TORT REPORT FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP):
IF YOU WANT
- WORKERS COMPENSATION LAW UPDATES, I RECOMMEND YOU GO TO THE COMP ED WEB SITE AT http://www.comped.net/.
- FAMILY LAW UPDATES, I RECOMMEND YOU GO TO Diana Skaggs' Divorce Law Journal at http://www.divorcelawjournal.com
JOHNSON (VALERIE D.), ET AL.
VS.
BREWER (BETTY), ET AL.
OPINION REVERSING AND REMANDING
CLAYTON (PRESIDING JUDGE)
STUMBO (CONCURS) AND THOMPSON (CONCURS)
2010-CA-002096-MR
NOT TO BE PUBLISHED
SCOTT
CLAYTON, JUDGE: Michael H. Johnson and his guardian, Valerie D. Johnson, bring this appeal from a Scott Circuit Court order granting summary judgment to Betty Brewer, Charles F. Brewer, Gregory Brewer, and Indiana Insurance Company (hereinafter “the Brewers”).
On appeal, the Johnsons argue that summary judgment was inappropriate because the Brewers had failed to show that there were no genuine issues of material fact regarding whether Charles Brewer had observed the applicable standard of care for a driver entering an intersection on a green light. Although it is undisputed that Michael Johnson ran the red light and that Charles Brewer was proceeding on a green light through the intersection, “[c]omparative negligence . . . calls for liability for any particular injury in direct proportion to fault.” Hilen v. Hays, 673 S.W.2d 713, 718 (Ky. 1984). “A driver approaching an intersection with the right-of-way has no absolute right to proceed so unconditional that she can ignore duties of reasonable lookout, sounding a horn when necessary, and avoiding collision when there is reasonable opportunity to do so.” Wittmer v. Jones, 864 S.W.2d 885, 888 (Ky. 1993). “A green light or ‘go’ signal, is not a command to go regardless of other persons or vehicles that may already be at the intersection but is a qualified permission to proceed carefully in the direction indicated.” Swartz v. Humphrey, 437 S.W.2d 750, 753 (Ky. 1969).
The Johnsons contend that police photographs of the intersection which were taken at the time of the accident and are in the record indicate otherwise. We agree that the photographs are not conclusive. Thus, a factual dispute exists regarding how much of the intersection is visible to traffic approaching from the west.
Next, the Johnsons argue that simply because the sole eyewitnesses who are able to testify about the accident deny that Charles did anything wrong is not dispositive, and that a jury should assess their credibility. It is well established that the credibility of a witness is a matter for the jury. Estep v. Commonwealth, 957 S.W.2d 191, 193 (Ky. 1997). “Where questions exist regarding the credibility of witnesses and the weight of evidence, such matters must await trial and not be determined on motion for summary judgment.” Amos v. Clubb, 268 S.W.3d 378, 382 (Ky. App. 2008). We agree that a jury should assess the credibility of Betty and Gregory Brewer’s testimony regarding the events immediately preceding the collision.
The Brewers argue that the unverified allegations in the complaint are of little significance as they are not admissions of fact but rather mere assertions of a claim. Nonetheless, on its face, the complaint may be admissible.
[Kentucky Rules of Evidence] KRE 801A(b) 1 allows the introduction as non-hearsay of an adverse party’s admissions, including admissions contained in superceded or abandoned pleadings, but only against the declaring party.” See Dalton v. Mullins, 293 S.W.2d 470 (Ky. 1956) (pre-Rules holding that Appellant’s abandoned pleading was admissible as competent evidence against Appellant).
Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 119 (Ky. 2008). Because material issues of fact remain regarding Charles Brewer’s observance of the duty to maintain a reasonable lookout and maintain a safe speed, the credibility of the witnesses, and the topography of the intersection, summary judgment was not appropriate in this case.
The order granting summary judgment to the Brewers and Indiana Insurance Company is reversed, and the matter is remanded for further proceedings in accordance with this opinion.
137. TEACHER NEGLIGENCE. QUALIFIED OFFICIAL IMMUNITY APPLIED.
ADAMS (SHARON), ET AL.
VS.
DAWSON (MELANIE)
OPINION AFFIRMING
STUMBO (PRESIDING JUDGE)
MOORE (CONCURS) AND WINE (CONCURS)
2011-CA-000537-MR
NOT TO BE PUBLISHED
CALLOWAY
STUMBO, JUDGE: Sharon Adams, individually and as next friend of Austin Herald appeals from an order granting summary judgment for Melanie Dawson. This is a personal injury case where Herald was injured while at school. Ms. Dawson was Herald’s teacher. Adams argues that summary judgment should nothave been granted. We find Ms. Dawson was protected by qualified official immunity; therefore, summary judgment was appropriate.
