Divorce Law Journal

Biggs V. Biggs, Ky COA, Child Custody Modification Jurisdiction

Biggs v. Biggs, __ S.W.3d __ (Ky. App. 2009)

 

 

 

The parties divorced in 1999.  The parties shared joint custody when mother and child moved to Colorado in 2007.  In 2008 father filed a motion to modify custody in Kentucky.  The trial court dismissed the motion for lack of jurisdiction, finding that Kentucky was no longer the child’s home state under the UCCJEA and that the child and a parent no longer had significant connections with Kentucky.  Father appealed.

 

    COA found that the trial court erred in declining to exercise jurisdiction.  Pursuant to KRS 403.824(1), Kentucky, the state that made the initial custody determination, retains jurisdiction unless: 

 

(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships[.]  

 

The child and his father still had significant connections to Kentucky.  The father was a Kentucky resident, the child had lengthy visits with his father, and the child’s younger half-sister, grandparents and other relatives also resided in Kentucky.  Therefore, Kentucky retained jurisdiction.  However, the trial court could have declined to exercise its jurisdiction pursuant to KRS 403.834.  In order to do so, the court should have applied the factors set out in KRS 403.834(2) and stayed the proceedings so that an action could be promptly commenced in the other state to ensure that the child did not slip through the cracks between jurisdictions.  The trial court did not do either.  The COA remanded the case for further proceedings consistent with the analysis and procedures required by the UCCJEA.

 

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Cabinet for Health and Family Services v. J.T.G. and A.G., Ky COA, Jurisdiction, Venue, Cabinet Child Care Costs

 

Cabinet for Health and Family Services v. J.T.G and A.G. ___S.W. 3d ____(Ky. App 2009)

PUBLISHED:   VACATING AND REMANDING

LAMBERT, PRESIDING; HARRIS, SENIOR JUDGE, CONCURS WITH SEPARATE OPINION; VANMETER DISSENTS
COUNTY: SCOTT

 

Cabinet appealed Scott FC’s order finding it in contempt for failing to pay child care assistance costs, relying on Jefferson FC order as “law of the case.”

 

FACTS:

Uncle took permanent custody of Child due to mental illness of his sister, Child’s mother, by order of Jefferson FC.  Uncle claims that he advised Jefferson FC and Cabinet that he could only take permanent custody of Child if Cabinet paid childcare assistance and provided Kindship care until Child was out of grade school, and that Cabinet agreed, though written orders do not reflect such an agreement.    Case began in Jefferson County, where mother resided, but was later transferred to Scott FC at Uncle’s request as this was his county of residence.  Cabinet paid childcare for three years, and then advised Uncle that payments would cease.  Uncle claimed that Cabinet advised him to return to Jefferson FC for childcare order, and Uncle did so.  Jefferson FC issued order requiring Cabinet to provide childcare assistance, despite case having been transferred to Scott FC.  Uncle filed motion with Scott FC to have Jefferson FC order enforced.  Scott FC found that Jefferson FC order was the “law of the case,” and ordered Cabinet to pay.  Cabinet filed 59.05 motion, arguing that Jefferson FC order was unconstitutional as its terms violated KRS 610.010(12) regarding FC’s jurisdiction over Department of Juvenile Justice.  Scott FC disagreed, again holding that Jefferson FC order was “law of the case” and holding Cabinet in contempt.

 

ANALYSIS/HOLDINGS:

Jefferson FC lost jurisdiction over case once it was transferred it to Scott FC so that the Jefferson FC order at issue was void ab initio.  Scott FC mistakenly relied upon the Jefferson FC as the “law of the case,” because this doctrine applies only to appellate decisions in cases that are remanded to TC.  CA found that Scott FC did not make findings regarding KRS 610.010(12) and remanded to Scott FC for this purpose. 

 

VANMETER DISSENTING:

Both Scott and Jefferson FCs were capable of having, and did have, subject matter jurisdiction over the case.  While Scott FC clearly had venue of the case when Jefferson FC issued the order in question, Cabinet waived its objection as to venue.  Moreover, KRS 610.010(12) applies only to children who are committed to or in the custody of the Cabinet,” so this statute does not apply to this case. 

 

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.  

Williams v. Bittel, Ky COA, Custody Modification and Stay of Foreign Judgment

Williams v. Bittel

PUBLISHED: AFFIRMING
HARRIS, SENIOR JUDGE, PRESIDING; ACREE AND CLAYTON CONCUR
COUNTY: DAVIESS

 

Child’s Aunt and Uncle (“the Williamses”) appealed from TC’s order denying their petition to modify custody of Child and cross-appealed from TC’s order denying their motion to reconsider the petition. Fiance of Child’s deceased mother (“Bittel”) appealed from TC’s order denying his petition to modify custody and to stay a foreign judgment.

 

These appeals presented CA with three issues of first impression:

(1) Whether an out-of-state adoption preempts KY custody orders;

(2) Whether a de facto custodian who is granted joint custody rights must continuously meet the de facto custodial requirements in order to maintain standing in custody proceedings; and

(3) Whether TC could properly condition its deference to the GA courts on Child’s custody and visitation by providing that its prior orders regarding Bittel’s joint custodianship and visitation with Child are not affected. 

 

FACTS:

Child’s biological father never had contact with her.  Mother began living with Bittel while pregnant with child, and after Child was born, they functioned as a family unit.  When Child was 18 mos., Mother died. 

The Williamses assumed the responsibilities of caring for Child, but Bittel remained extremely involved in her life and even moved in with the Williamses.  The Williamses later asked Bittel to leave their home.

When Child was 2, Bittel petitioned for custody of Child.  First, TC found that the Williamses and Bittel were de facto custodians of Child.  Then, both parties were granted joint custody. The Williamses were designated primary residential custodians with liberal visitation given to Bittel. Neither the Williamses nor Bittel appealed. 

When Child was 8, the Williamses notified Bittel that they intended to move to Georgia. Bittel ultimately moved for specific visitation.  The Williamses then filed a motion to modify custody.  The motion was denied based upon the Williamses’ failure to support their motion with an affidavit, as required by KRS 403.350.  TC granted Bittel’s motion for specific visitation and carefully outlined a visitation schedule. TC denied the Williamses motion to reconsider their petition for custody modification.  The Williamses appealed this ruling. 

During the pendency of the custody action in KY, the Williamses adopted Child in Georgia. Bittel attempted to intervene in the adoption, but GA law only allows blood relatives standing to intervene in adoption cases, and he failed.  The Williamses filed the GA adoption decree as a foreign judgment in KY. Bittel moved to stay the foreign judgment. TC upheld Bittel’s rights as joint custodian of Child, despite the adoption, but deferred to GA as the more convenient forum.  Bittel appealed and the Williamses cross-appealed this order.

 

I. Interstate Custody Dispute: Does the GA adoption divest KY of custody jurisdiction? No.

 

The Williamses argued that because KRS 403.802 specifically exempts adoptions from the UCCJEA’s concept of “exclusive, continuing jurisdiction,” jurisdiction of all custody proceedings in this action was relinquished to the GA courts because of the adoption.  CA noted that while the UCCJEA does not apply to adoptions, Bittel never claimed that KY should have jurisdiction over the adoption. CA held that exclusive, continuing jurisdiction of the custody matters remains in KY as long as Bittel resides in KY and maintains a significant relationship with Child, so that the GA adoption did not invalidate or alter TC’s custody orders.  CA noted that the Williamses “successfully circumvented the spirit of the law. Their actions create the precise problems that the UCCJEA and the PKPA attempted to avoid; viz., interstate custody disputes and competition. This loophole cannot be closed by our Court, only by legislative action.”

 

II. De Facto Custodianship: Must Bittel continuously meet the de facto custodian requirements in order to maintain standing in custody proceedings? No.

 

The Williamses argued that Bittel never met the standard for de facto custodians.  CA held that while Bittel’s de facto custodian status was the basis for the TC’s award of joint custody, his standing to participate in the custody proceedings was derived from his joint custodian status. He need not maintain the de facto custodian status in order to maintain standing as a joint custodian as such would place an unfair burden upon non-residential joint custodian.

 

III. The Inconvenient Forum Issue: Could TC properly condition its deference to GA courts on custody and visitation issues by providing that its prior orders regarding Bittel’s joint custodianship and visitation are not affected? “Yes.”

 

CA concluded that TC’s imposition of this condition was allowed by statute, but noted that GA courts may not fully enforce the “previous orders” of the TC. 

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates 

Mauldin v. Bearden, Ky. S. Ct., Child Custody, CR 60, Continuing Jurisdiction

Mauldin v. Bearden, ___S.W. 3d___ (Ky. 2009)

PUBLISHED: REVERSING
OPINION BY JUSTICE NOBLE; ABRAMSON, CUNNINGHAM, SCHRODER, AND VENTERS, JJ., CONCUR; MINTON, C.J., CONCURS IN RESULT ONLY
COUNTY:

JEFFERSON

Paternal Grandparents appealed from CA decision reversing Jefferson Family Court’s (FC’s) order denying Mom’s motion to set aside FC's judgment awarding permanent custody of Daughter to Paternal Grandparents and her motion for visitation, where FC found that it lacked jurisdiction to consider visitation. 

FACTS: 

At time of Daughter’s birth, Mom and Dad were alcoholics and physically abusive to each other.  Mom had been drunk more than once during her pregnancy and while breastfeeding.  She had also been arrested for PI and DUI during her pregnancy.  Paternal Grandparents filed a petition for temporary and permanent custody and an ex parte emergency motion for temporary custody of Daughter four days after birth of Daughter.  Maternal Grandparents supported the motion, providing an Affidavit regarding both Mom’s and Dad’s unfitness to parent.  FC entered temporary custody order that day and referred the matter to CFC for investigation.    Daughter was immediately taken to Alabama to live with Paternal Grandparents.  CFC subsequently filed DNA action a few days later, which was transferred to same division as custody action consistent with principle of “one family, one judge,” which underlies Family Court, though the actions had and continued to have separate case names and numbers.  The following day, a hearing was held in which both Mom and Dad appeared drunk and were taken into custody. FC reaffirmed its award of temporary custody to Paternal Grandparents.  At a subsequent hearing, Mom and Dad were ordered to participate in a course of rehabilitative treatment and testing and were allowed supervised visitation, though neither ever exercised that right.  Neither Mom nor Dad filed a responsive pleading during this time.

Paternal Grandparents filed a motion asking the court to enter a default judgment granting them permanent custody of Daughter. Neither Mom nor Dad appeared at the hearing or filed   a response. FC entered a default judgment granting Paternal Grandparents permanent custody.  The supervised visitation order from the DNA proceeding remained in effect, but as CFC was taking no further action, there was no termination of parental rights that would have prevented the ordered visitation.  Mom and Dad were still living together.  Paternal Grandparents then initiated proceedings in Alabama, then the home state of Daughter, to formally adopt Daughter. Daughter had then been living there for nearly a year. Alabama entered temporary decree granting custody to Paternal Grandparents and set a dispositional hearing.  Mom participated in the Alabama proceeding through counsel.  She then filed a motion with Jefferson Family Court (FC) under case numbers for both custody and DNA actions, but noticed only for DNA docket, asking for custody of Daughter.  FC denied her motion as improper on DNA docket.

Mom then filed a motion to set aside the default judgment entered against her and to set a custody hearing, pursuant to CR 60.02(d) and (f). In support of her motion, Mom did not provide a Memorandum but filed affidavits signed by herself, Dad and Maternal Grandparents. Mom's affidavit stated that she believed Dad and Paternal Grandparents had conspired with Dad to prevent her participation; that Dad’s threats of abuse and her lack of access to vehicle or phone prevented her from participating in the permanent custody hearing; and that she otherwise would have defended herself, though she did not provide the basis for her defense.  Dad corroborated the abuse and conspiracy.  Maternal Grandparents stated that Mom was now capable of having custody of Daughter.   

After reviewing rebuttal affidavits and hearing the arguments of counsel, FC denied Mom an evidentiary hearing on the merits of her motion and issued an order finding that Mom failed to allege fraud or other improper conduct by Paternal Grandparents or collusion occurring between Dad and Paternal Grandparents and that Paternal Grandparents had done nothing wrong in their pursuit of custody of Daughter. FC noted that Mom and Dad stipulated in DNA proceeding that Daughter was at risk of neglect due to their alcohol abuse.  FC agreed that it had jurisdiction, but that that there was no basis pursuant to CR 60.02 to set aside the judgment granting permanent custody to Paternal Grandparents. 

Mom filed a motion for visitation and a motion to alter, amend or vacate its order denying her relief under CR 60.02.  FC denied Mom's motion to alter, amend or vacate, declining to exercise jurisdiction and deferring the visitation issue to Alabama as the home state of the child.  Mom appealed.  CA reversed, vacated and remanded, holding that affidavits submitted by Mom alleged facts that, if true, demonstrated fraud justifying vacation of the judgment, and that FC should hold a full evidentiary hearing with testimony.  CA also found that Kentuckyhad continuing jurisdiction under KRS 403.824, but did not address the fact that FC expressly declined jurisdiction. 

Questions:

Did FC properly deny Mom’s CR 60.02 motion without conducting full evidentiary hearing on fraud allegations?

Does FC have continuing exclusive jurisdiction such that it must make decisions regarding visitation? 

Analysis:

CR 60.02:

SC found that given what FC judge had from affidavits, record, and what he knew from case, he had sufficient information to determine facts and judge credibility of parties without taking further testimony.  FC was well within its discretion to take allegations on their face, and determine if further proof was necessary, as specificity of fraud allegations would be fleshed out by further testimony but not fundamentally changed.  FC judge had already had numerous contacts with parties to judge credibility of the affidavits.  Also, as a policy matter, FC’s decision spared family further turmoil from redundant testimony.

SC further found that Mom did not have nor did she allege defense at time of default judgment, as required by CR 60.02, and that although abuse and addiction are factors that are proper for a court to consider, neither standing alone equate to “facts of an extraordinary nature” required to be present under CR 60.02.  

Continuing Jurisdiction:

SC found that FC did have jurisdiction over actions concerning Daughter because she was born in Kentucky

and had resided here the entire eight days of her life when action was filed. 

SC nonetheless noted several procedural errors.  Paternal Grandparents filed Petition for custody under KRS 403.828, 403.270, and 405.020.  However, none of those statutes were applicable to Paternal Grandparents at that time. KRS 403.270 and KRS 405.020 applied to parents and/or de facto custodians and, since Paternal Grandparents had not had physical custody of nor provided financial support for Daughter for previous 6 months, they were not de facto custodians.  KRS 403.828 grants emergency jurisdiction to Kentucky when a child is brought in from another state that has jurisdiction over the child but is not exercising it.  As Daughter was resident of Kentucky at the time, this statute did not apply. 

SC noted that Paternal Grandparents could have filed a DNA petition under KRS 620.070 and FC could have issued emergency custody order to Paternal Grandparents under KRS 620.060, but that this order would only have been effective for 72 hours and that temporary removal hearing with full notice to both parents would have had to be held during that time.  That did not occur in this case.  Only when FC “renewed” its temporary custody order and ordered supervised visitation for Mom and Dad in the DNA docket did Paternal Grandparents have full legal custody.  FC should not have refused to hear Mom’s motion to modify custody orders just because Mom filed in the DNA action rather than the KRS 403 action.  SC opined that “it makes little sense… to continue to treat this subject matter as separate actions, if the purpose of the family court system is ‘one family, one judge,’” and that, “one a legitimate party properly invokes the court’s jurisdiction…continued compartmentalization of the proceedings—before the same judge—works only to disadvantage some litigants without a sound reason for doing so.”  SC nonetheless found that these problems did not affect the ultimate outcome, for when Kentucky declined to exercise jurisdiction and deferred to Alabama, proper UCCJEA provisions were followed regarding custody and visitation.  Moreover, UCCJEA does not apply to adoption proceedings and FC could make no ruling affecting Alabama

adoption proceeding.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Goldstein v. Feeley, Ky. S. Ct., Jurisdiction, Writs of Prohibition and Mandamus

Goldstein v. Feeley, __ S.W.3d __ (Ky. 2009)

A limited Decree of Dissolution was entered in 2003, dissolving the marriage of Ruby JoAnn Young-Layer and Robert James Layer and reserving the remaining issues, including the division of marital property, for future determination. In 2006, Robert died.  No property issues had been resolved.  Upon the wife’s motion, Robert’s estate was substituted as the real party in interest in the dissolution matter.  In March 2008, on the wife’s motion, the court entered a restraining order to prevent Appellant from transferring any interest in the estate’s assets without court order or agreement of the wife.  Appellant then filed motions to set aside the restraining order and to dismiss the dissolution action for lack of personal jurisdiction.  The court denied his motions.  The wife then asked the court for a temporary injunction in place of the restraining order.  Before the court could hold hearing on the matter, Appellant petitioned the COA for a writ of mandamus and prohibition. The COA denied the petition on the grounds that Appellant had an available remedy through an interlocutory appeal of the injunction.

SC affirmed.  Such writs are authorized in two circumstances: 1) where a court is acting out of its (subject matter) jurisdiction, and 2) where the lower court has jurisdiction but is proceeding erroneously and there is no adequate remedy by appeal. Because the question of personal jurisdiction is reviewable on appeal, writs are unavailable to litigants claiming lack of personal jurisdiction.  Therefore, the COA correctly denied Appellant’s writ.  Regardless of the question of personal jurisdiction, the trial court retained in rem jurisdiction to determine the nature and extent of the marital property and the authority to equitably divide it.      

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Herald v. Herald, UCCJEA (Child Custody Jurisdiction)

HERALD V. HERALD CHILD CUSTODY JURISDICTION (UCCJEA) 2008-CA-000601 PUBLISHED: VACATING AND REMANDING PANEL: THOMPSON PRESIDING; STUMBO AND GUIDUGLI CONCUR COUNTY: KENTON DATE RENDERED: 2/13/2009

Dad appealed KY TC’s ruling awarding custody of 3 children to Mom, contending that KY TC lacked jurisdiction to make such an order under UCCJEA.

FACTS: Family lived in NC for several years before parties separated and Wife and children moved to KY in April 2007. Dad, a marine, stayed in NC awaiting deployment. In June 2007, parties entered into a separation agreement giving Dad custody of kids, and kids returned to NC where they stayed until Mom removed them again in October. Mom then filed Petition for Dissolution of Marriage in KY in January 2008. A few weeks later, Dad then removed the kids back to NC, refusing to tell Mom of kids’ location or to allow her to speak with him and informing her that he was soon to be deployed to Iraq.

Mom subsequently filed Motion for custody in KY. TC issued order scheduling status hearing for February 19th. On February 15th, Mom filed and was granted an ex parte motion for emergency custody. Dad’s NC counsel corresponded with KY court on February 18, advising that Dad was deployed, kids had lived in KY only 2 ½ months, and providing copy of his motion for custody filed in NC court on February 15. KY TC nonetheless conducted hearing on February 19. Mom testified, but Dad did not appear. KY TC indicated at end of hearing that it would communicate with NC court re proper jurisdiction under UCCJEA, but this never occurred. KY TC gave Mom custody a week later. Dad entered special appearance a month later to move to dismiss case due to KY TC’s lack of subject matter jurisdiction and in personam jurisdiction over him. KY TC declined to dismiss Mom’s custody petition but did stay action under Soldiers’ and Sailors’ Civil Relief Act.

ANALYSIS: Parties conceded that KY was not home state of children for six months, nor that NC had declined to exercise jurisdiction; therefore, KRS 403.822 did not apply. Mom alleged that KY had jurisdiction under KRS 403.828, the temporary emergency jurisdiction provision of the UCCJEA. This statute allows KY jurisdiction where a child in KY has been abandoned or needs emergency protection to prevent or escape from mistreatment or abuse. CA found no allegations of mistreatment or abuse by Mom in refusal to inform her of location of children. Although Dad was due to be deployed to Iraq, TC cannot use this fact against Dad because those serving in military should not be automatically deprived custody of their kids. Furthermore, to allow such justification for exercise of “emergency” jurisdiction would allow a parent seeking custody to file such a petition in any state moment before deployment.
KY TC’s order vacated and remanded for order dismissing petition for custody.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Ky UCCJEA COA Decision February 13, 2009

A digest of Hearld v. Hearld, custody jurisdiction under UCCJEA, will be posted soon

Koerner v. Koerner, Ky COA, Child Support Modification Jurisdiction

KOERNER V. KOERNER
CHILD SUPPORT JURISDICTION
2008-CA-000080
PUBLISHED: VACATING
THOMPSON PRESIDING
COUNTY: OLDHAM
DATE RENDERED: 10/17/2008

Mom alleged that TC lacked subject matter jurisdiction over child support modification.

FACTS:
At the time of the dissolution, Mom and Dad and their two minor children resided in GA. Their divorce decree gave Mom and Dad joint custody of the children with Mom having primary physical custody, and Dad was ordered to pay child support to Mom. In 2003, Mom and the children moved to KY. In 2006, Dad, who remained a GA resident, registered the GA decree in KY and filed a motion in KY TC requesting primary physical custody of oldest child. TC denied immediate modification of custody but ordered that oldest child reside with Dad during that summer, subject to further modification at the end of the summer. In August of that summer, primary residential custody was transferred to Dad. Mom timely filed a CR 59 motion to alter, amend or vacate the order. One week after the order modifying the custody decree and, before Mom’s CR 59 motion was ruled upon, Dad filed a motion to modify the child support paid to Mom on the basis that the GA decree was premised on both children being in Mom’s custody, so that the transfer of residential custody of the oldest child to him was a change in circumstances that justified modification. Subsequently, TC granted Mom’s CR 59 motion and returned the oldest child to Mom’s primary residential custodianship. In memoranda to TC addressing Dad’s motion for modification of child support, Dad argued that pursuant to the KY child support guidelines his child support should be reduced. Mom opposed the modification on the basis that the family court lacked jurisdiction under KRS Chapter 407 et. seq. TC reduced Dad’s child support based on the parties’ incomes and the corresponding child support amount in the guidelines.

ANALYSIS:
Whether TC had the authority to modify the GA decree requires an interpretation of the applicable provisions of the UIFSA as incorporated into KRS Chapter 407. CA held that the state that issued the child support decree or order retains “continuing, exclusive jurisdiction” unless KRS 407.5613 applies or conditions for modification established in KRS 407.5611(1)(a) are met. Although enforcement of a child support decree and modification both require that the decree be registered in the foreign state, there are additional requirements to be met before the court has authority to modify an existing child support decree. Thus, Dad’s proper registration of the child support decree in KY did not confer jurisdiction in KY TC to modify the decree.
KRS 407.5613 provides that jurisdiction to modify a child support order of another state exists if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state . . . .” Because Dad remained a GA resident, KRS 407.5613 has no application. KRS 407.5611 provides that a KY TC will have jurisdiction to modify if it finds that the child, the individual obligee, and the obligor do not reside in the issuing state, that the petitioner is a nonresident of KY, and that KY would have personal jurisdiction of respondent; or, that the child or one of the parties is subject to KY’s personal jurisdiction and that the parties have filed written consent for KY TC to assume continuing, exclusive jurisdiction over the order. If the obligor or obligee remains a resident of the issuing state and no written consent is filed, the issuing state retains continuing, exclusive jurisdiction to modify its child support decree. Although arguably not a desired result, one state may retain jurisdiction to modify child support while another obtains subject matter jurisdiction over child custody and visitation. Thus, KY TC had no jurisdiction to modify the GA child support decree, although KY has jurisdiction over custody matters in this case.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Fehr v. Fehr, KY COA, Jurisdiction, Restoration Of Nonmarital Property

FEHR V. FEHR
2007-CA-001495
PUBLISHED: AFFIRMING IN PART AND REVERSING AND REMANDING IN PART
THOMPSON PRESIDING
COUNTY: OLDHAM
DATE RENDERED: 10/3/2008

ISSUES PRESENTED:
Ex-Husband appealed TC’s decision awarding Ex-Wife a villa and a one-half marital interest in a mini-storage warehouse located in the Netherlands Antilles, alleging that he should have received his nonmarital interest in those properties. Ex-Wife contended that TC lacked subject matter jurisdiction over the property located in the Netherlands Antilles, or alternatively, that the law of that country should apply to the division of the property. She also challenged the admission of appraisals performed by an unlicensed real estate agent.

FACTS:
The parties were married on August 7, 2000, in the Netherland Antilles. Both were KY residents at the time and Ex-Husband continued to reside in KY throughout the marriage. During the marriage, Ex-Wife primarily resided in St. Maarten but did not change her United States citizenship. In June 2004, Ex-Husband filed a petition for dissolution in KY, asserting his KY residence. Ex-Wife admitted in her Response that she had been a KY resident for several years, and subsequently filed documents in the record demonstrating that her domicile was within the U.S. Ex-Wife did not object to the jurisdiction of the Oldham TC until two years after the petition was filed. The parties were equal shareholders a mini-warehouse storage company, incorporated pursuant to the laws of the Netherlands Antilles. The corporation was formed prior to the marriage. Ex-Husband made a total pre-marital investment of $110,693 to this property, while Ex-Wife invested $60,000 in the purchase of the property prior to the marriage and managed the property since the purchase. The parties also owned a villa in St. Maarten, titled in a company organized under the laws of the country of Anguilla and of which Ex-Wife was the sole director. Ex-Wife invested $101,000 from the sale proceeds of her pre-marital home towards the purchase of the villa, while Ex-Husband contributed $217, 000 of non-marital funds to the purchase. A St. Maarten real estate broker appraised the villa at $705,000 and the warehouse business at $585,000. He was not a licensed appraiser but testified that licensure is not customary in the Netherland Antilles.
TC found that the warehouse was a joint business venture, declared it to be marital property, and equally divided the parties’ interests. Despite the evidence that both parties contributed nonmarital funds toward the purchase of the villa, TC made an “equitable decision to award the entirety of the property to Ex-Wife, stating that such a decision was made in consideration of several factors, including the contribution of each party to the home, the difficulties in enforcing a Kentucky judgment as it relates to the St. Maarten property; and that TC ordered no maintenance paid from Ex-Husband to Ex-Wife.

JURISDICTION:
Because both parties were Kentucky domiciliaries, CA concluded that TC had subject matter jurisdiction and personal jurisdiction over the parties to grant the dissolution. Ex-Wife objected to the assertion of TC’s jurisdiction, due to TC’s lack of power to decide the parties’ interest in the St. Maarten property, thus claiming TC’s lack of subject matter jurisdiction. Subject matter jurisdiction cannot be waived or otherwise conferred by the parties. It either exists or it is absent. Although it is well established law that KY courts are without jurisdiction to settle title or possessory rights to land outside the Commonwealth, it is equally accepted that a court may, through an in personam decree, affect title to land in another state. CA held that by virtue of TC’s personal jurisdiction over the parties, it had the authority and power to indirectly affect the property by compelling the conveyance of the interest, though an action to enforce a foreign decree so as to transfer title in accordance with the decree generally requires a separate action in the jurisdiction in which it is located.

REAL ESTATE EXPERT QUALIFICATIONS:
Ex-Wife contended that the testimony of the real estate broker was inadmissible because he was not licensed in accordance with Kentucky law. CA held that KY statutory regulation of real estate appraisers does not supersede the Rule of Civil Procedure placing qualification of expert witnesses within the discretion of TC based on the witnesses’ knowledge, skill, experience, training, and education. Although a statutory license requirement is relevant to TC’s determination, the lack of a license does not render the testimony inadmissible.

ALLOCATION OF NONMARITAL PROPERTY
A proper inquiry into the division of property begins with a three-step process: (1) TC first characterizes each item of property as marital or nonmarital; (2) then assigns each party's nonmarital property to that party; and (3) finally, equitably divides the marital property between the parties. When property consists of both marital and nonmarital contributions and has increased in value during the marriage, the reason for the increase in nonmarital property value must be determined. If attributable solely to economic conditions, the increase is nonmarital. If the increase is the result of the joint efforts of the parties it is considered marital property subject to division in equitable proportions.
With regard to the division of the warehouse business, CA held that while Ex-Husband contributed more than Ex-Wife financially, she contributed a corresponding amount in her effort as manager of the business both before and during the marriage so that her nonmarital contribution as manager of the property was equal to the monetary contribution of non-marital funds contributed by Ex-Husband. Thus, TC did not err in awarding each party a one-half interest in that asset.
With regard to the villa, CA held that TC’s award of the villa to Ex-Wife is inconsistent with KRS 403.190 and the three-step process required to be applied. Because TC found that Ex-Husband and Ex-Wife made nonmarital contributions to the purchase of the villa, it was required to award each their respective nonmarital interests in the property. Only after it has restored each party their nonmarital interest are the factors delineated in KRS
403.200 and an award of maintenance, if any, appropriate. CA stated that TC is not permitted to circumvent KRS 403.190 in lieu of a maintenance award.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Murphy v. Murphy, Ky COA, Modification Of Custody, Notice

Murphy v. Murphy, --S.W.3d – (Ky. App. 2008), 2007-CA-002298-ME

The parties shared joint custody and equal parenting time of their three children. More than a year after the parties’ last interaction with the court, the father moved to modify custody. He mailed the motion/notice to the mother’s attorney of record. The mother’s attorney of record then filed a Notice of Nonrepresentation, stating that she no longer represented the mother, but had mailed a copy of the motion to her last known address.

The court held the modification hearing without the mother, or any legal representative, present, since the mother had an attorney of record. The father even told the court that the mother’s current address was different than the one her attorney of record had mailed the motion to. The court saw no need to take any proof regarding the change of custody in the mother’s absence, and sustained the motion to grant the father sole custody of the children. The mother only learned of the hearing and order afterwards, when the father contacted her to pick up the children.

About a week after the hearing, the mother finally received the motion/notice that her attorney of record had sent. The next day, the mother filed a pro se motion to alter, amend or vacate the judgment, which the court denied. The parties subsequently entered an agreed order regarding parenting time, allowing the mother weekend and Wednesday night visitation. The mother then renewed her motion to alter, amend, or vacate and asked the court to appoint her a GAL. The court denied both motions. The mother appealed.

The mother’s first claim of error was the court failed to find that the father’s motion for change of custody warranted a hearing. The COA found that the father alleged sufficient grounds to justify a hearing.

The mother’s second claim of error was the court, knowing that notice was highly questionable, erroneously allowed the hearing to go forward without her presence. The COA reversed for lack of notice. Conclusion of the divorce action terminated the attorney-client relationship, therefore service of notice on the mother’s attorney of record did not effectuate service on the mother. In addition, once the attorney filed the Notice of Nonrepresentation, a new hearing date should have been set and service made directly on the mother.

The mother’s final claim of error was the court modified custody without finding a change in circumstances or best interests of the children as required by KRS 403.340(3). As there were no affidavits, no testimony, and no findings by the court, the COA reversed and remanded for a hearing and the statutorily required findings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A HEARING AND FINDINGS.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Coffman v. Rankin, Ky Child Custody Modification, Standard To Be Applied; Jurisdiction

Coffman v. Rankin, --S.W.3d-- (Ky. 2008), 2007-SC-000348-DGE

The parties divorced in 2001 and were granted joint custody of their two minor children. The mother was named primary residential custodian. In 2004, the father filed a motion to modify the custody decree due to his concerns regarding the mother’s intention to move with the children and her engagement to an individual with past mental and addiction problems. During the pendency of the action, the mother was granted permission to relocate from Hardin County to Jefferson County with the children and her, now, new husband. An evidentiary hearing was held in 2006 and the Family Court named the father the primary residential custodian based on the best interests of the child standard. After the mother’s motion to alter, amend, or vacate was overruled, she appealed. The COA held that the Family Court abused its discretion and proceeded without subject matter jurisdiction, and therefore reversed the Family Court’s ruling.
The SC granted discretionary review. The SC found that the Family Court did have subject matter jurisdiction, since the Family Court determined that the moving papers were sufficient. It also found that the Family Court did not abuse its discretion, as the Family Court issued a thorough findings of fact and conclusions of law in excess of 16 pages.

Dissenting Opinion: It was an abuse of discretion in the trial court’s finding that there was substantial evidence to justify a change of custody. The evidence showed that the children are doing well with their mother. The majority of the fact finding concerned the new husband’s past instability. However, there was no evidence that the new husband had suffered any problems during his relationship with the mother or in the last five years. The trial court based its findings on speculation of what might occur in the future. Also, KRS 403.270(3) was completely ignored, as there was no evidence that the mother’s new relationship has affected her relationship with the children. More proof was needed to justify uprooting the children from their mother’s care.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

The Relocation Case That Wasn’t

The Kentucky Supreme Court decided Coffman v. Rankin today, a 4 – 3 decision reversing the Court of Appeals and reinstating the trial court change in the primary residence of the parties’ two children, now 13 and 10 years old.
The Opinion of the Court by Chief Justice Lambert, joined by Justices Abramson, Minton and Noble, held that a verified petition to modify custody is sufficient to confer subject matter jurisdiction on the trial court. It ruled that the Court of Appeals, in going on to address the merits of the change in primary residence, inappropriately applied a serious endangerment standard rather than the “best interest” standard. The majority opinion found that the Family Court applied the correct standard and there was no abuse of discretion.
The dissent by Justice Cunningham, joined by Justices Schroeder and Scott, agrees that the trial court had subject matter jurisdiction and agreed that the appropriate standard was “best interest” rather than serious endangerment. They dissented, however, because almost all of the fact finding had to do with mental and emotional instability of the children’s stepfather that had occurred five years in the past and which did not affect the minor children. Little of the testimony involved the children, who clearly wanted their mother to remain their primary custodial parent. The dissent passionately argued “To find that this evidence is sufficient to change custody away from a mother, who has had the children all of their lives, will set a precedent that will create justifiable apprehension for all custodial parents throughout the state and will undermine the much needed stability for children of broken homes.” A digest will follow shortly.

The court chose not to use this case as part of a trio on relocation. We have numerous posts on the other relocation cases under submission at the Kentucky Supreme Court, Pennington v. Marcum and Frances v. Frances here, here, here, etc. No decisions will be released in July so it will be at least two months before we hear where we are headed on relocation and possible revisiting of Fenwick v. Fenwick.

Gomez v. Gomez, KY COA, Domestic Violence Jurisdiction

Gomez v. Gomez, __ S.W.3d __ (Ky. App. 2008), 2007-CA-001919-ME, May 9, 2008

Appellee filed a domestic violence petition in district court requesting an emergency protective order against the Appellant. The district court did not issue an emergency protective order, but did issue a summons and set the matter for a hearing. After the family court held a full evidentiary hearing, it issued a domestic violence order. Appellant appealed the order alleging that 1) since the district court failed to issue an emergency protective order, the family court lacked jurisdiction to either hold a hearing or enter a domestic violence order and 2) insufficiency of the evidence. COA found that the family court did have proper jurisdiction. Family courts are the primary forum for matters concerning domestic violence and abuse, although the district courts have concurrent jurisdiction to enter emergency protective orders under KRS 403.725. The Court found no statutory language to support Appellant’s position that district courts retain exclusive jurisdiction unless an emergency protective order is issued. Of special significance in the instant case was the fact that the parties also had a pending divorce action, which gave the family court jurisdiction under KRS 403.725(4) as well. COA also found that the family court’s issuance of the domestic violence order was supported by the evidence and was not clearly erroneous.
AFFIRMED.
Digest by Sarah Jost Nielsen, Diana L. Skaggs + Associates

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court

JNR and JFR v. Honorable Joseph O’Reilly, Judge, Jefferson Family Court
and JRG, Real Party in Interest, ___ S.W.3d ___ (Ky. 2008)
2007-SC-000175-MR

JGR (James) filed a custody and support petition, alleging DNA confirmed him to be the biological father of a child who lived with his mother, JNR (Julia), who was married to JFR (Jonathan). After the family court refused to dismiss the petition, Julia and Jonathan were denied a writ of prohibition in the Court of Appeals and appealed to the Kentucky Supreme Court. The Supreme Court ruled 4 to 3 in favor of Julia and Jonathan in five separate opinions.

The opinion of the Court by Justice Minton in which Chief Justice Lambert concurred held that the family court was without subject matter jurisdiction to determine paternity claims brought by a biological father where there is no evidence or allegation that the marital relationship ceased ten months before the child’s birth. Because a showing of irreparable injury and lack of adequate remedy by appeal is not required for issuance of a writ of prohibition when the trial court is acting outside its jurisdiction, the Court of Appeals erred in denying the writ of prohibition. Although the parties debated the due process and equal protection rights of the unmarried biological father, the constitutional claim was not perfected by serving a challenge on Kentucky’s Attorney General.

Justices Cunningham and Scott concurred in the result only, and each wrote separate opinions in which the other joined. Justice Scott opined that only the parties to a marriage can challenge the presumption of legitimacy under KRS 406.011 and there is no constitutional right of a “stranger to the marriage” to assert paternity under such circumstances. Justice Cunningham wrote that this case is squarely about the legal status of marriage and about a married couple’s right to be left alone from the allegations of an interloper asserting the claim of fatherhood.

Justice Abramson dissented by an opinion in which Justice Schroder joined and wrote that the Supreme Court erred grievously in its holding. She distinguishes “marital relations,” the sexual aspects of marriage with the “marital relationship,” the broader aspect of emotional, physical, social, and moral dimensions characterized by a monogamous bond. She believed the “marital relationship between the husband and wife” referenced in KRS 406.011 can certainly be said to “cease” when the wife is having sexual intercourse with another man. While the marriage may still exist as a matter of law and sex may still occur between the spouses on occasion, the monogamous “marital relationship” ceases when the third party enters the picture. She focuses on the words actually used by the legislature as the operative concern and notes that it also makes common sense. A child born to a married woman and a lover who is not her husband is indeed born out of wedlock. The evidence which would show a cessation of the marital relations would need to be assessed on a case by case basis but would encompass the situation, as here, where the putative father has had a visitation with the child through the mother’s cooperation and has secured DNA testing establishing biological fatherhood.

Justice Abramson challenges the majority belief that its holding protects the integrity of the family. If a mother alone can harbor the secret of paternity so long as it serves her purposes, there is no societal disincentive to conceiving a child outside the bounds of marriage. Secondly, she notes that there are tens of thousands of blended families in Kentucky who cope with shared parenting. The only variable in this case is that the only child who has a parent outside the home is the younger as opposed to the older child or children. Finally, she notes the medical and psychological consequences to a child who should have a right to know his parentage.

Justice Noble dissented by separate opinion writing that the majority confused a statutory element of proof as a requirement for standing. One does not have to prove an element in order to have the right to plead it. She believes the majority jumped over the hurdles of proper pleading and procedure to the evidentiary merits of the case, noting that even on writ procedures from the Court of Appeals, the Kentucky Supreme Court is not the fact finder. She wrote that this case is one example of evolving legal questions that arise when a new type of court is instituted. Under KRS 406.021, a putative father has standing. Once a party has standing, then certain elements of proof must be established to rebut the presumption that a child born during the marriage is the child of the husband. One does not have to prove an element of a claim to have the right to plead it. She opined that James clearly has a due process right to at least be heard, because he does have standing.

Skinner v. Skinner, KY, Child Custody Jurisdiction

SKINNER V. SKINNER
CHILD CUSTODY JURISDICTION
2006-CA-002523
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
PANEL: STUMBO PRESIDING; ACREE, GRAVES CONCUR
COUNTY: WAYNE

Dad appealed from TC’s order sustaining Mom’s motion asking TC to take jurisdiction of child custody matters stemming from a prior dissolution of marriage proceeding in Tennessee. Dad maintained that TC improperly assumed jurisdiction, improperly based its findings on facts not in the record, and erred in failing to maintain a record of its communications with the Tennessee court.

Dad and Mom were divorced in 1998 by TC in the state of Tennessee (“TN TC”). Mom received custody of the parties’ minor child, with Dad being granted visitation. In 1999, Mom and Child moved to KY and established residency. In 2003, Dad filed a motion to for Mom to show cause why she should not be held in contempt for her failure to permit Dad to exercise visitation with Child. In 2004, on the same day that Dad’s TN attorney was granted leave to withdraw in TN case, Mom filed a petition in KY TC to alter visitation schedule. Dad moved to dismiss KY motion for lack of jurisdiction which was subsequently denied for Dad’s failure to prosecute, but TN TC issued order setting a trial date for all pending issues and the order was mailed to Mom’s last known address. DRC conferred with TN TC on the jurisdictional issue. TN TC opined to DRC that jurisdiction should remain with TN TC. KY DRC found that Mom’s KY action, having been filed the same day that Dad’s TN attorney was granted leave to withdraw, represented Mom’s attempt to change jurisdictions, and that as Dad initially sought to enforce the existing TN Order in 2003, Kentucky could not exercise jurisdiction as a TN action was pending. Mom filed exceptions to KY DRC order. KY TC’s order (rendered in 2004) acknowledged that TN retained jurisdiction over a related contempt proceeding, but held that KY had jurisdiction over Child because Child resided in KY since 1999. In 2006, Dad moved KY TC to decline jurisdiction over Child and give full faith and credit to TN TC’s orders. Mom then sought an emergency order from KY TC to suspend visitation based on Child’s allegation that Dad tried to touch her inappropriately. KY TC then rendered an order declining jurisdiction as to the modification of visitation and giving full faith and credit to TN child custody orders, which Mom moved to alter, amend or vacate. KY TC then ruled that the UCCJA and KRS Chapter 403 operated to vest KY with jurisdiction over child custody and visitation matters, finding that KY was Child’s home state and that it was in Child’s best interest for KY to exercise jurisdiction. KY TC also determined that Dad had sexually abused the child, stating that “[t]his court cannot in good conscience place a child in the custody of a person who has been abusive to the same child. Therefore without question this court should assume jurisdiction of the child under this section.”

Dad moved for KY TC to disclose its record of communications with TN TC. KY TC overruled Dad’s motion for disclosures due to the fact that no record of communication between KY TC and TN TC existed. Dad then filed this appeal.

Dad contended that KRS 403.420 (now supplanted by KRS 403.822) allows for jurisdiction to be determined based either upon whether KY is the child’s home state, or whether another state has continued to maintain jurisdiction in the matter, arguing that TN continued to maintain jurisdiction over the action, and that KY TC so acknowledged in 2006, when it stated that TN would have jurisdiction of modification and child custody orders in the case. Dad argued that by reversing this order with the entry of a new order, KY TC placed itself in the position of a review court by attempting to reassert jurisdiction over an issue which it had previously ruled that it did not maintain. CA found no error. Because Mom’s petition to alter visitation was filed before the enactment of KRS 403.822 and KRS 403.826, the law in effect at the time of filing, KRS 403.420 is controlling. KY had jurisdiction to adjudicate Mom’s petition since Child resided with Mom in KY for at least six months prior to the filing of the petition, which is one of the scenarios allowing KY to have jurisdiction per KRS 403.420.

Dad also argued that KY TC erred when it rendered 2006 order based on facts not found in the record, in which KY TC acknowledged relying upon written letters from counselors addressing the child abuse allegation, and that KY TC improperly failed to maintain a record of its communication with TN TC as required by statute, thus preventing him from defending, explaining or rebutting any information contained therein. CA agreed. Given the parties’ right to have the matter adjudicated from the evidence of record, as well as their statutory entitlement to examine a record of KY TC’s communication with TN TC, CA found that KY TC clearly erred by impairing or eliminating Dad’s ability to examine and rebut the evidence relied upon. CA affirmed KY TC’s order as to that portion reflecting KY TC assuming jurisdiction based on its finding that KY is Child’s home state, but reversed and remanded as to that portion of the Order addressing matters not contained in the circuit court record.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Discretionary Review Granted By Kentucky Supreme Court In Another Relocation Case; It Makes Three Move Away Cases Pending

When we link to a case (usually by simply highlighting the case in red, although that may change soon to make it more obvious) if the status of the case has changed, the link will be to the newest online version. That's how we discovered discretionary review was granted August !5, 2007 in Rankin v. Coffman, digested here. Unless the parties have the same last name or the case involves initials or the case name rings a bell, it is difficult to quickly note of the grants of discretionary review which involve family law. While the case indicates it is about jurisdiction, it really is about relocation of a child. The child was moved from Hardin County to Louisville when the relocation was granted and then forced by the court to return to Hardin County. We hope this case gets expedited and heard with Frances v. Frances, digested here and Pennington v. Marcum, digested here. Post Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003), a real mistake if there ever was one, relocation law has been a nightmare, evidenced by the large number of appeals on this issue. What could be so difficult about articulating a standard that if a parent wants to move a child, he/she must give a certain amount of notice and that the standard to be applied will be the best interests of the child? Um, well, our statutes have caused havoc.
In Robinson v. Robinson, 211 S.W.3d 63,68 (Ky. App. 2006) the court noted:

Child custody relocation litigation is not a new phenomenon in Kentucky. See, e.g., Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549 (1943)( “[S]ole question presented ... is whether the chancellor erred in modifying the judgment so as to permit [the custodial parent] to move to Pennsylvania and take the children with her.”). The arrival of the 21st century, however, heralded an accelerated evolution in this area of the law. This is true nationally as well as in Kentucky where our courts continue to address increasing numbers of such cases. Unfortunately, despite Kentucky's recent legislative efforts, Chapter 403 of the Kentucky Revised Statutes (Dissolution of Marriage Child Custody) fails to specifically address the special problem faced by our courts when custodial parents desire to relocate with their children subsequent to divorce.
The vast majority of state legislatures has passed a wide variety of laws directly addressing the relocation issue; nearly half require a relocating custodial parent to give advance notice of the move to the other parent, the court, or both. Kentucky is among the minority of states that have no specific statute. Therefore, until our legislature aligns with the majority of states, we are compelled to address relocation/custody issues by applying the general custodial modification statutes, KRS 403.340 and KRS 403.350.
KRS 403.340(2) states:

No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that:

(a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or
(b) The custodian appointed under the prior decree has placed the child with a de facto custodian.

KRS 403.340(2). The companion statute, KRS 403.350, states, in pertinent part:
A party seeking ... modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested ... modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits.... The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.

[1] Taken together, these statutes establish certain clear prerequisites to the modification of a prior custody decree where the modification is sought earlier than two years after its entry. Specifically, the motion to modify “must be accompanied by at least two affidavits. [Citation omitted]. If the applicable requirement is not met, the circuit court is without authority to entertain the motion.” Petrey v. Cain, 987 S.W.2d 786, 788 (Ky.1999). The filing of affidavits, therefore, is a jurisdictional requirement. Crouch v. Crouch, 201 S.W.3d 463, 465 (Ky.2006)(“[T]rial court had no jurisdiction to modify the [permanent custody] order unless a motion to modify, along with a supporting affidavit, was filed in the case.”).

The court also foot-noted the following:

FN4. Linda D. Elrod, Feature, States Differ on Relocation, 28 Fam. Advoc. 8, 8 (Spring 2006)(“Lawyers and judges have noticed the increase in the number of custody disputes in which relocation is an issue. The reasons are many: the steady high-divorce rate; the number of joint-custody and shared-residency arrangements; the shifting job market; remarriages; and the mobility of today's society.”).

FN5. Despite the Supreme Court's comment in Fenwick v. Fenwick, 114 S.W.3d 767 (Ky.2003) that “the relocation issue, at least in the context of sole custody, has been addressed and settled in Kentucky for more than a decade,” Id. at 784, Kentucky law in this area continues to evolve at a fast pace. Since 2000, the Kentucky appellate courts have addressed relocation/custody issues in some form in the following cases: Crouch v. Crouch, 201 S.W.3d 463 (Ky.2006); Brockman v. Craig, 205 S.W.3d 2444 (Ky.App.2006), mot. for disc. rev. filed, (Ky. Aug. 15, 2006) (No. 2006-SC-587-D); Bowman v. Bowman, --- S.W.3d ----, 2006 WL 658938 (Ky.App.2006)(Opinion Final, May 5, 2006); Allen v. Devine, 178 S.W.3d 517 (Ky.App.2005); Cox v. Cox, 170 S.W.3d 389 (Ky.2005); Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004); Fenwick v. Fenwick, 114 S.W.3d 767, 779 (Ky.2003); Scheer v. Zeigler, 21 S.W.3d 807 (Ky.App.2000). We could add to that list a fair number of unpublished opinions.

FN6. In 2001, child custody litigation in Kentucky was significantly affected when the state legislature amended KRS 403.340. The effect of the amendment was to soften custody modification requirements when a motion for modification is filed more than two years after the decree is entered. Fowler v. Sowers, 151 S.W.3d 357, 359 (Ky.App.2004). For modification within two (2) years of the award of permanent custody, the standard remains as strict now as prior to the amendment.

FN7. The following states require 30 days' notice prior to relocation: Florida (Fla. Stat. § 61.13001(3)(2006)), Georgia (Ga.Code Ann. § 19-9-1 (2006)), Kansas (Kan. Stat. Ann. § 60-1620 (2006)), Maine (Me.Rev.Stat.Ann. tit.19-A, §§ 1653(14) & 1657 (2006)), Montana (Mont.Code Ann. § 40-4-217 (2006)), New Mexico (N.M. Stat. § 40-4-9.1 (2006)), and Virginia (Va.Code Ann. § 20-124.5 (2006)). These states require 45 days' notice: Alabama (Ala.Code § 30-3-163 to 167 (2006)), California (Cal. Fam.Code § 3024 (2006)) and Maryland (Md.Code Ann., Fam. Law § 9-106 (2006)). States requiring 60 days' notice are: Arizona (Ariz.Rev.Stat. § 25-408 (2006)), Louisiana (La.Rev.Stat. Ann. § 9:355.4 (2006)), Missouri (Mo.Rev.Stat. § 452.377 (2006)), New Hampshire (N.H.Rev.Stat. Ann. § 458:23-a (2006)), Tennessee (Tenn.Code Ann. § 36-6-108 (2006)), Utah (Utah Code Ann. § 30-3-37 (2006)), Washington (Wash. Rev.Code §§ 26.09.405, et seq. (2006)), West Virginia (W.Va.Code § 48-9-403 (2006)) and Wisconsin (Wis. Stat. § 767.481 (2006)). The 2006 session of the Indiana legislature recently enacted a 90-day notice requirement (Ind.Code Ann. § 31-17-2.2-3 (2006)). “Reasonable” notice is required in Colorado (Colo.Rev.Stat. Ann. § 14-10-129 (2006)) and Oregon (Or.Rev.Stat. Ann. § 107.159 (2006)). Finally, the following states specifically address the relocation issue without implementing a notice requirement: Illinois (750 Ill. Comp. Stat. Ann. § 5/609 (2006)), Iowa (Iowa Code Ann. § 598.21D (2006)), Massachusetts (Mass. Gen. Laws ch. 208, § 30 (2006)), Michigan (Mich. Comp. Laws § 722.31 (2006)), Minnesota (Minn.Stat. § 518.195, Subd. 7 (2006)), Nevada (Nev.Rev.Stat. § 125C.200 (2006)), New Jersey (N.J. Stat. Ann. § 9:2-2 (2006)) and North Dakota (N.D. Cent.Code § 14-09-07 (2006)).

It's clearly time for our legislature to address the problem. (The AMML Model Relocation Act, anyone?) Meanwhile, we'll see if our Supremes have a magic wand.

Bissell v. Baumgardner, DVO and Emergency Custody Jurisdiction; Recusal

Bissell v. Baumgardner, ___S.W. 3d ___ (Ky. App. 2007), decided September 21, 2007

Husband appealed a DVO, which awarded temporary custody of the parties’ child to Wife. Husband argued the court did not have personal or subject matter jurisdiction to enter the order. Husband also argued the judge should have recused himself. CA held that the court did have jurisdiction and the judge's failure to recuse himself was not error.
The parties lived in KY but moved to UT. Eventually, they filed for divorce and Wife moved back to KY. While returning the parties’ child to Wife, after weekend visitation, Husband threatened to shoot Wife. Wife filed a domestic violence petition and an EPO was granted. Wife’s stepfather, a former judge, attended the DVO hearing with Wife. Husband requested the judge recuse himself because Wife’s stepfather had contributed to the judge’s campaign. The judge refused to recuse himself and entered a DVO awarding Wife temporary custody of the child. The judge orally stated that the temporary custody order was subject to modification by the UT court. The judge, however, did not include this finding in his written order.
CA held that the TC had both personal and subject matter jurisdiction to enter the order. CA opined that TC had subject matter jurisdiction because KY courts have jurisdiction to enter EPOs and DVOs to anyone who is a resident of KY or has fled to KY to escape domestic violence. CA reasoned that Wife had re-established her KY residency, therefore, the TC had subject matter jurisdiction. CA also opined that the TC had personal jurisdiction because Husband made the threat on Wife’s life in KY. The CA, however, remanded the case and instructed the TC to alter its’ written order to reflect that the temporary custody award was made based on TC’s temporary emergency jurisdiction. Also, the written order should acknowledge that any other custody issues should be addressed by the UT court. Finally, CA held that the TC judge’s refusal to recuse himself was not error. There was no indication from the record that the judge was biased and a judge is not required to recuse himself just because a party or their counsel has made contributions to the judge’s campaign.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Nordike, Now Holcomb v. Nordike

Nordike, now Holcomb v. Nordike, ___S.W.3d____ (Ky, 2007)

Husband and Wife’s divorce and custody actions were filed and orders were entered in Kansas. Following a move by Husband to another state, Wife moved to Kentucky. Once in Kentucky, Wife motioned the Kansas court to surrender jurisdiction to Kentucky. Kansas granted Wife’s motion because Kentucky was the current home state of the child, and Kansas was no longer a convenient forum. Wife then sought to register the Kansas decree in Kentucky. Eventually, the parities entered into an agreed order transferring jurisdiction to the Warren Circuit Family Court pursuant to UCCJA. The agreed order stated, “the petition for registration was accepted and all future matters pertaining to custody or visitation of this minor child shall be brought within the Warren Circuit Court.” Following entry, Husband repeatedly availed himself of the Kentucky forum. However, the court only ever addressed the issues of custody and visitation. At some point Wife sent Husband some interrogatories and requested documents seeking financial information. Husband objected arguing that the Kentucky court only had jurisdiction over custody and visitation and the information requested was not relevant to those issues. The TC agreed that the previously entered order only dealt with the issues of custody and visitation and it was unclear what the interrogatories had to do with those issues. Then wife sought to have the court amend its order to include jurisdiction over all issues of child support. She argued that child support was mistakenly omitted from the original order. Husband argued the Kentucky court did not have jurisdiction to hear the child support issue. TC agreed with Husband and held it did not have personal jurisdiction to hear the case. Wife appealed. CA held that the TC lacked both personal and subject matter jurisdiction. The Kentucky S.Ct. then heard the case on discretionary review.
The S.Ct. held that both the TC and CA were correct that the issue was that the TC lacked jurisdiction. However, the S.Ct. opined that there was no justiciable controversy, therefore the TC did not have jurisdiction. This is because there was no action pending before the TC. Wife was not seeking to actually have the child support order modified. Instead, she was requesting that the court modify its original order so that she might in the future have the issue of support addressed. To modify support, Wife needed to either have the Kansas child support decree registered and enforced in Kentucky or registered and modified in Kentucky. Either way, she needed to ask the court to actually do something rather than ask the court to say that it would in the future be willing to do something. Wife was essentially asking the court for an advisory opinion.
Digest by Linda Dixon Bullock, Diana L. Skaggs + Associates

Kentucky Supreme Court Hears Child Support And Child Custody Jurisdiction Issues

The digest follows for Nordike v. Nordike, 2004-CA-002242-MR, designated not to be published. Discretionary review was granted by Supreme Court 5/10/06 and oral arguments were held 5/17/07. You can read the briefs filed in the Kentucky Supreme Court here, courtesy of SCOKY Blog, via Chase Law School.

The promised summary:
Issue and Holding:
Whether Kentucky has jurisdiction over the child support provision of the parties’ Kansas divorce decree. The Court held no, because the jurisdictional requirements of the Uniform Interstate Family Support Act have not been met.

Facts:
The parties divorced in 1997 in Kansas. The parties were awarded joint custody of their one daughter, with the father designated as the primary residential custodian. Neither party was ordered to pay child support. In 2000, the father moved to Ohio and the Kansas court modified the decree, designating the mother as the primary residential custodian and requiring the father to pay child support. The mother and child then moved to Kentucky, and the father moved to Colorado.
Pursuant to the UCCJA, in 2003 the Warren Family Court entered an agreed order, acknowledging registration of the modified Kansas decree and that Kentucky had jurisdiction over custody and visitation issues. The Kentucky court then denied the father’s motion to be designated sole custodian or the primary residential parent. However, the court did modify visitation under the decree to reflect the large distance between the parties. The mother then moved for the Kentucky court to modify its agreed order to state that Kentucky also had jurisdiction over child support issues. The court denied the motion, and mother appealed.

Analysis:
Modifications of child custody and child support issues have different jurisdictional requirements. Jurisdiction to modify custody is governed by the UCCJEA, while jurisdiction to modify support issues is governed by the UIFSA. Therefore, a Kentucky court has jurisdiction to modify the Kansas child support order only if the requirements of KRS 407.5611 are met.
The requirements of KRS 407.5611(a) are not met, since the petitioner, the mother, is a Kentucky resident and the Kentucky court does not have personal jurisdiction over the respondent, the father. The Court rejected the argument that the father is subject to personal jurisdiction based on his participation in the Kentucky custody case.
The requirements of KRS 407.5611(b) are not met, because the Kansas court’s journal entry relinquishing jurisdiction over the custody matter to Kentucky does not reference child support or contend to reflect the parties’ consent. Therefore, it does not qualify as “written consent” as required by statute.
As such, the Kentucky court lacked both personal jurisdiction over the father and subject matter jurisdiction to modify the Kansas support order. AFFIRMED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Wallace v. Wallace

Wallace v. Wallace, --S.W.3d –(Ky. App. 2007)

Issues and Holdings:
1. Whether under the UCCJEA Kentucky has jurisdiction to modify the visitation order as to all, none, or only the oldest child, who has resided in Kentucky for a period exceeding six months. The Court held that the trial court had continuing jurisdiction to modify custody as to all three children, even though two of the children resided in TN.
2. Whether Hardin County was the proper venue. The Court held yes.

Facts:
The parties, both Kentucky residents, divorced in 2000 and were granted joint custody of their three children, with the mother being designated primary residential custodian. In 2002, the father was granted primary custody of the oldest child, Cody. In 2004, the mother and two younger children moved to TN. Subsequently, the father, a military police office with the U.S. Army, received orders to relocate to Hawaii. The father then filed a Petition to Modify Visitation.
The family court found that it lacked subject matter jurisdiction and dismissed the entire petition. The father appealed.

Analysis:
The concept of continuing jurisdiction incorporated into the UCCJEA was adopted by Kentucky and is contained in KRS 403.824. The state having original jurisdiction over custody maintains exclusive continuing jurisdiction though the child has acquired a new home state if the general requirement of the substantial connection jurisdictional provisions are met. Exclusive, continuing jurisdiction prevails under the UCCJEA until the relationship between the child and person remaining in the state with continuing jurisdiction diminishes to the point that a court cannot find significant ties and substantial evidence.
Kentucky has exclusive, continuing jurisdiction over custody issues relating to Cody, as both he and the father were Kentucky residents at the time the petition was filed. Kentucky also has exclusive, continuing jurisdiction over custody matters relating to the other two children, as the father is a Kentucky resident and visitation with those two children has taken place in Kentucky. In addition, the Court noted that fractionalization of custody issues within a family would lead to conflicts between state courts and would not serve the purpose of the UCCJEA or Kentucky’s family court system.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Rankin v. Coffman

Rankin v. Coffman. UPDATE: Discretionary review granted by Kentucky Supreme Court August 15, 2007.

Issue and Holding:
Whether the trial court had subject matter jurisdiction in a modification of child custody case. The Court held no, the trial court did not have proper subject matter jurisdiction.

Facts:
The parties were divorced in 2001, and granted joint custody of their two minor children, with the wife being designated primary residential custodian. In 2004 the husband filed a petition for child custody, requesting modification of the prior custody order. He alleged that the wife had become unstable since the divorce, that the children attended school not in their residential district, and that the wife’s impending (third) marriage to Dr. Rankin would be detrimental to the children (due to his past history of oral narcotics addiction, depression, and suicidal tendencies). The wife then filed a motion for leave to relocate with the children from Hardin County to Jefferson County. A hearing was held on the wife’s motion, evidence was heard, and the family court granted the motion.
A trial on the husband’s motion for modification of custody was not held until 2006. At trial, testimony was taken from the parties, the children in camera, eleven witnesses, and the depositions of two additional witnesses were admitted into evidence. Most of the testimony focused on Dr. Rankin’s mental and emotional stability and issues relating to his career. The family court granted the husband’s motion, designating him as the primary residential custodian, granting the wife visitation, recalculating the child support obligations of the parties, and addressing the issue of health care expenses and insurance. The wife filed a motion to alter, amend or vacate, which was denied. The wife appealed.

Analysis:
On appeal, the wife argued 1) the trial court erred in evaluating the evidence before it and that its ruling was contrary to the weight of the evidence presented, 2) the trial court erred in failing to grant her motion to alter, amend, or vacate the prior order, and 3) her husband failed to comply with KRS 403.350, depriving the family court of subject matter jurisdiction. The Court formally addressed the third argument only, although the Court gratuitously spoke as to the merits of the case.
The issue of subject matter jurisdiction can be raised at any time. It cannot be waived or obtained by consent. Therefore, the Court reviewed the issue, even though it had not been preserved for appeal. First, the husband failed to file a separate affidavit along with his petition, as required by KRS 403.350. However, the Court found that his verified petition met the requirement of being an “affidavit” pursuant to CR 43.13. Next, the Court found that the trial court abused its discretion in finding that adequate cause existed to consider the requested modification based solely upon the face of the pleadings. The husband’s petition contained only vague and conclusory allegations that did not rise to the level required by KRS 403.350 to justify a finding of adequate cause. As such, the Court reversed and remanded the matter with instructions for the family court to return residential primary custody to the wife and to recalculate child support and health insurance accordingly.
The Court then gratuitously addressed the merits of the case. The Court found that there was insufficient evidence to show that the children’s environment endangered them, that the harm caused by modification would be outweighed by the advantages of such a change, or that the best interests of the children would be served by a change in custody. The Court also found that the family court ignored the wishes of the children as the family court made no mention of their desires in its ruling.

Taylor, Judge, Dissented.
The issue of whether there was adequate cause to consider the request for modification of custody is substantive, not jurisdictional, and was not preserved for appellate review. Therefore, the Court should not review the issue, nor substitute its judgment on this issue for that of the family court. Based on the totality of the evidence presented, the family court’s findings were not clearly erroneous.

Digested by Sarah Jost Nielson, Diana L. Skaggs + Associates

UIFSA Jurisdiction

This case is not yet final.
Gibson v. Gibson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3751413 (Ky. App.)

Issue: If both parents and child relocate from Kentucky where the original orders of custody and child support were entered, does Kentucky retain jurisdiction to then modify the orders and/or to enforce the orders?

Spencer v. Spencer

Spencer v. Spencer, 191 S.W.3d 14 (Ky.App. 2006)

Issues and Holdings:
1. Whether the trial court had personal jurisdiction over a party who had no contact with the Commonwealth of Kentucky. The Court held no, the court had no personal jurisdiction over such party.
2. Whether under KRS 403.725(1), a provision of Kentucky’s domestic violence statute, a Kentucky court may issue a protective order against an individual over whom the court lacks personal jurisdiction. The Court held yes, the court can issue the protective order, however the order cannot impose affirmative duties on the individual over whom the court lacks personal jurisdiction.

Facts:
Ava and Ken Spencer resided in Oklahoma. Ken allegedly abused Ava and their son. On May 21, 2005, Ken flew to Las Vegas. He testified that the family was planning on moving there and he went to find employment. Ava testified that she saw the trip as her opportunity to escape the abuse, and she and their son traveled to Kentucky on May 22, 2005 to stay with a close friend. On May 23, 2005, Ava filed a domestic violence petition in Warren Circuit Court. That same day, the court issued an Emergency Protective Order, which restrained Ken from having any contact with Ava and granted Ava temporary custody of their son. Ken was served in Nevada by the Sheriff’s Department.
On June 6, 2005, Ken filed a motion to dismiss for lack of personal jurisdiction. After a hearing, the court announced that it would enter an Order of Protection. When Ken’s counsel asked the court about its personal jurisdiction over Ken, the court explained that its ruling was based on KRS 403.725(1).
Ken appealed.

Analysis:
First, the Court analyzed whether the court had personal jurisdiction over Ken. The Court reviewed the three prong test set out in Wilson v. Case, 85 S.W.3d 589 (Ky. 2002): 1) whether the defendant purposefully availed himself of the privilege of acting within the forum state or causing a consequence in the forum state; 2) whether the cause of action arose from the alleged in-state activities; and 3) whether the defendant has such connections to the state as to make jurisdiction reasonable. All three requirements must be met for the court to have jurisdiction. The Court held that the trial court did not have personal jurisdiction over Ken, since none of the requirements were met.
Second, the Court examined whether the trial court may issue a protective order against an individual over whom it lacks personal jurisdiction. KRS 403.725(1) allows Kentucky residents to file for domestic violence protection, as well as similar filings by people who have fled to Kentucky to escape domestic violence. The statute does not have a residency requirement; therefore it is a safe harbor statute. The Court recognized that a conflict arises where an order is issued against a party who has no minimum contacts with Kentucky. In such cases, the due process rights of the defendant must be balanced against the state’s interests in protecting victims of domestic violence.
Since this was an issue of first impression in Kentucky, the Court reviewed case law of other jurisdictions. The Court most aligned with how the Supreme Court of New Jersey approached the issue. In Shah v. Shah, 184 N.J. 125, 875 A.2d 931 (2005), the court distinguished between a prohibitory order that protects the victim of domestic violence and an affirmative order that requires the defendant to take action. A prohibitory order enforces the protection the law allows and does not implicate the defendant’s substantive rights. An affirmative order, however, involves the court exercising its coercive power to compel the defendant to act. The court has the authority to impose the former, but not the latter, on an individual over whom the court lacks personal jurisdiction.
In accordance with the analysis in Shah, the Court held that the trial court’s order prohibiting Ken from breaking the law in Kentucky by approaching Ava or the child complied with the requirements of due process. The Court held that the remaining portions of the order, i.e. ordering Ken to attend domestic violence counseling, violated the limits of Kentucky courts’ jurisdiction. The Court vacated the order and remanded the case back to the trial court for further proceedings in accordance with the opinion.

Jurisdiction to Modify and Enforce Child Support

In an opinion rendered today which is designated to be published, but not yet final, the Kentucky Court of Appeals held KY lacked jurisdiction under the UIFSA to modify support as neither parent nor the child resided any longer in KY, but retained jurisdiciton to enforce its judgment as to arrearages. Gibson v. Gibson.

Civil Union Partners' Custody Dispute To Be Decided in VT per PKPA and UCCJA; DOMA Does Not Trump

The Vermont Supreme Court decided a jurisdictional custody dispute between partners to a Vermont civil union, which revolved around the Parental Kidnapping Protection Act and the Uniform Child Custody Jurisdiction Act. The court rejected the argument that the federal Defense of Marriage Act might supersede either of those laws. Boston.com reports "The unanimous ruling in Vermont conflicts with a series of decisions in Virginia courts, which held that that state's anti-gay marriage laws controlled the case. Vermont Justice John Dooley wrote, though, that it's Vermont's laws that control the case because the women involved in the dispute were legally joined in a civil union in 2000 and that means Vermont family law governs their 2003 separation and subsequent child custody disagreement. A lawyer representing opponents of same-sex marriage said the dispute undoubtedly will have to be resolved by the U.S. Supreme Court."
UPDATE:
Law - Washington Post editorial provides clarity on Vermont-Virginia dispute is the headline from the Indiana Law Blog."A Washington Post editorial today cuts to the essence of the Vermont-Virginia visitation dispute. A paragraph: As the Vermont Supreme Court understood, this dispute isn't about whether Virginia is bound to honor same-sex unions. (The federal Defense of Marriage Act protects Virginia from that supposedly frightful consequence.) It's about the application of a federal law designed to help states -- and children -- avoid the sort of ugly tug of war that has ensnared Isabella here. Once one state's court has properly started hearing a case, the law provides, other states should stay out. Otherwise, parents who don't like the custody deal they got the first time could shop around for friendlier courts."The Indiana Law Blog also links to the August 5th NY Times report, written by Adam Liptak, on the Vermont Supreme Court ruling, and to the blog, How Appealing, whioh links to the Vermont Supreme Court ruling.

Jeffrey v. Jeffrey, 153 SW3d 849 (Ky.App., 2005)

Jeffrey v. Jeffrey, 153 SW3d 849 (Ky.App., 2005)
KRS 454.220, enacted in 1992, supersedes prior case law
and permits a divorce court in Kentucky to assert long arm
jurisdiction to distribute marital property, wherever located,
and to set spousal support where Kentucky was the matrimonial
domicile and the action was filed within one year of the date the
respondent became a non-resident of Kentucky.

B.C. v. B.T. and K.F., Joint Custodians of N.C., 182 SW3d 213, (Ky.App., 2005)

B.C. v. B.T. and K.F., Joint Custodians of N.C.,
182 SW3d 213, (Ky.App., 2005)
Appeal to Court of Appeals proper since Circuit had a
Family Court. Evidence was sufficient to establish father as
unfit, although such finding was unnecessary as grandmother
was found to be a de facto custodian and, thus, had equal
footing with father and the Court need only consider the
best interest of the child in making permanent custody award.

Hollbrook v. Hollbrook, 151 SW3d 825 (Ky.App., 2005)

Hollbrook v. Hollbrook, 151 SW3d 825 (Ky.App., 2005)
Where wife did not file a complaint in Bankruptcy Court,
the Court did not have jurisdiction to reverse the order of
the Bankruptcy Court discharging husband's debt to wife
arising from pension benefits he received prior to entry
and acceptance of QDROs.

Cox v. Cox, 170 SW3d 389 (Ky., 2005)

Cox v. Cox, 170 SW3d 389 (Ky., 2005)
Where Texas lacked minimum contacts with the husband
and, therefore, lacked jurisdiction to impose a lien on
property in Kentucky, its judgment regarding the lien was
not entitled to full force and credit and was not a "foreign
judgment" under the UEFJA.

Goff v. Goff, 172 SW3d 352(Ky.,2005)

Goff v. Goff, 172 SW3d 352 (Ky., 2005)
Applying the UCCJA, Kentucky had subject matter jurisdiction
to enter the initial custody decree, but was without continuing
jurisdiction to modify it because Tennessee was unquestionably
the home state of the child.

Parties were married in Tennessee (June 1996) and purchased a home in Nashville. Less than a month after the wedding, Mr. Goff filed a petition for annulment in Warren County, Kentucky, where he had moved. Wife remained in Tennessee.

On October 3, 1996, Mrs. Goff filed for divorce in Tennessee. Ten days later she gave birth in Tennessee. Two days later Mr. Goff amended his petition, seeking dissolution of the marriage in Kentucky. On December 6, 1996, the Kentucky court entered an order striking Mrs. Goff's motion to stay due to her non-appearance.

On January 17, 1997, the Tennessee court dismissed Mrs. Goff's action on the grounds there was an earlier pending action in Kentucky. The parties' child, 3 months old, had lived exclusively in Tennessee. On January 27,1997, Mr. Goff filed a motion in the Kentucky action to set child support, acknowledging that Mrs. Goff was the fit and proper custodian of the child, and conceded Kentucky had jurisdiction to set child support under Gaines v. Gaines. On February 18, 1997, the parties reached an Agreement, and the marriage was dissolved on March 3, 1997. Thereafter, the parties returned to the Kentucky court on a number of occasions to litigate issues regarding child support, arrearages, and visitation.

In August of 2000 Mr. Goff filed a motion seeking joint custody of the child; Mrs. Goff responded with a motion to terminate Mr. Goff's visitation. On November 29, 2000 Mrs. Goff filed a petition in Tennessee to register a foreign decree, asserting that Tennessee now had jurisdiction regarding custody matters. She claimed Kentucky never had jurisdiction to determine custody originally and that Kentucky did not have jurisdiction to determine modification, as the child has never resided in Kentucky.

The trial court agreed with Mrs. Goff on both issues, holding Kentucky did not have original jurisdiction and did not have jurisdiction over the motion to modify child custody, as the child has never resided in Kentucky.

The Court of Appeals held that under the UCCJA and the PKPA, the assumption by Kentucky of jurisdiction originally was correct, because the child had not resided in either state for six months (the child was was only 90 days old), and Tennessee declined jurisdiction.

The second issue was whether Kentucky had continuing jurisdiction to modify a custody decree, having acted originally. The trial court held held Kentucky did not, as the child had never lived in Kentucky. The Court of Appeals affirmed on this issue.

Discretionary Review was granted. The Supreme Court of Kentucky affirmed the Court of Appeals on both issues. 1) Kentucky had original jurisdiction because no other state would accept jurisdiction. Some state must accept jurisdiction. 2) Kentucky did not have jurisdiction to modify custody, as the child never resided in Kentucky, and more than 6 months had gone by, thus, Kentucky lost jurisdiction.

COMMENT: Kentucky has now adopted the UCCJEA