Divorce Law Journal

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.

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.

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.

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