Divorce Law Journal

Judge's Recusal in Divorce Action Requires Recusal in Domestic Violence Action - Published Family Law Opinion from Ky. Court of Appeals

BOONE V.BOONE

Judge recused herself from a divorce action, after a DVO hearing, but before issuing an Order dismissing the DVO. Wife then filed motions arguing Judge should be recused from the DV case as well because she had recused herself in the divorce. The Judge denied Wife’s motions. Wife appealed arguing that “the court abused its discretion in denying her Petition for a DVO” and that the Judge “should have disqualified herself with respect to the DVO.”

The court first turns to the recusal issue. The Court of Appeals holds that when the Judge disqualified herself from the divorce, she lost jurisdiction in the DV matter. The Court of Appeals bases its decision on “very purpose” of family courts – the one family, one Judge concept..  The divorce case and the DVO were still ongoing at the time of the Judge’s recusal, therefore, recusal in one required recusal in all. As the Judge had no jurisdiction at the time she entered the Order dismissing the DVO, the Order Wife appealed from is void.

Although the DVO dismissal is void, the Court of Appeals notes that the trial court misconstrued KRS 403.720, noting Kentucky Courts liberally construe domestic violence statutes to allow victims who are reasonably in fear of immediate physical injury relief. They clarify that even potential psychological damage is encompassed by the domestic violence statutes.

Digested by Elizabeth M. Howell

Ky Court of Appeals Published Opinion Today: Grandparent Custody and Child Support

LAMBERT V. LAMBERT

Maternal grandfather who resided in Kentucky took possession of grandchildren whose mother resided in Pennsylvania, after mother took the children for a visit and never returned to retrieve the children. Grandfather filed a dependency, neglect, and abuse proceeding and was granted temporary custody of the children.

Grandfather subsequently filed a petition for child custody. After a hearing, the court granted custody to grandfather. Mother appealed arguing the court did not have jurisdiction, erred by granting custody without permitting her to present her case, considered inadmissible hearsay, and erred by ordering her to pay child support without evidence of income.

The Court of Appeals looks to KRS 403.822 and holds that the court had jurisdiction to grant grandfather custody. The KRS 403.800(7) definition home state is met as 1) the children had been living in Kentucky for over six consecutive months prior to the filing of the petition, and 2) grandfather was a person acting as a parent as he was awarded temporary custody in the dependency action.  Grandfather did not need to have de facto custodian status to bring an action for child custody.

Next the Court of Appeals looks to mother’s argument that the court erred by granting custody without permitting her to present her case. Mother was present, although under the influence of cocaine, at the custody hearing. As she made no attempt to offer any proof or evidence and did not objection to the guardian ad litem’s motion to grant grandfather custody or the entry of the decree, the alleged error is not considered by the Court of Appeals as it was not preserved for review. Notwithstanding, the court notes a directed verdict was appropriate given the evidence of mother’s conduct.

The court then considers mother’s hearsay argument. Mother argued that it was hearsay for the Kentucky social worker to testify as to information provided by the Pennsylvania social worker. The court finds it was likely inadmissible hearsay, but finds it was a harmless error. Mother also argued it was hearsay for the court to take judicial notice of the dependency action. Judicial notice was proper under KRE 201(b). The Court of Appeals holds this argument has no merit as judicial records are not subject to reasonable dispute and also admissible as public records.

Finally, mother argues that the court erred by ordering her to pay child support without evidence of income. The court imputed mother with minimum wage without hearing any evidence, despite the fact that mother has two other children under the age of three. The Court of Appeals finds the trial court abused its discretion by imputing minimum wage to mother in light of her caring for children under the age of three and order the court to input mother’s income at zero and order the minimum $60 child support award on remand.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Supreme Court - Whether a child testifies is in the discretion of the trial court and six hour time limit on trial was reasonable

ADDISON V. ADDISON

After significant ongoing litigation over custody, the Trial Court ordered that custody be transferred to Father and that Mother have supervised visitation. The Court of Appeals reversed because of the arbitrary time limitation at trial. Upon discretionary review the Ky Supreme Court reversed the Court of Appeals and reinstated the trial court’s judgment.

Time Limitations

As the Trial Court judge was familiar with the case, set the time limit sufficiently in advance of trial, and had significant experience with modification hearings, six hours was a reasonable time limitation within the discretion of the Judge.

Children’s Testimony

Mother requested the minor children testify as part of the modification hearing. The Trial Court declined to interview the children in chambers or allow them to testify. Mother argued on appeal the Trial Court did not have the authority to exclude the children’s testimony, when the children were called by a party to be a witness in a custody proceeding. The Court of Appeals, citing Coleman agreed. Coleman v. Coleman, 323 S.W.3d 770 (Ky. App. 2010). The Kentucky Supreme Court reversed the Court of Appeals and Coleman holding that the decision to interview a child or permit a child to testify in custody proceedings is within the discretion of the trial court. KRS 403.290(1) which grants a judge discretion in interviewing a child would be defeated if a party could obligate a child to testify. Additionally, the Trial court had the benefit of a GAL, two psychologists, and there is strong policy against placing a child between parents. The Trial Court’s decision was within its discretion.    

Jurisdiction

Although the Mother and children resided in Indiana, Kentucky was the undisputed home state when custody was initially determined. Father remained in Kentucky and exercised visitation in Kentucky. The Trial Court properly considered KRS 403.834 in determining Kentucky retained jurisdiction. Furthermore, Mother’s timing in requesting a change in jurisdiction was suspect.

Best Interest Standard, Attorney Fees, and Psychological Evaluation

The Supreme Court affirmed the Trial Court on all remaining issues finding no errors. The Trial Court properly applied the best interest standard by considering the KRS 402.340 and 403.270 factors, as well as an expert’s recommendation. The Trial Court declined to award mother attorney fees, as Mother’s actions necessitated the proceedings and there is nothing mandatory in an award of fees under KRS 403.220. Finally, the Trial Court properly denied Mother’s motion for Father to undergo a psychological evaluation as Father’s mental health was never in controversy.

Digested by Elizabeth M. Howell

 

Published Domestic Violence Opinion from Ky Court of Appeals March 13, 2015

HOLT V. HOLT

The appellant appealed a Bullitt County DVO, arguing the court lacked jurisdiction to enter a DVO. The petition for a DVO was originally filed in Nelson County. It was transferred to Bullitt County after the Nelson District Court determined Bullitt County would be more appropriate, as the court was already familiar with the parties. The Appellant Court first addresses subject matter jurisdiction holding that the Kentucky Family Courts all have jurisdiction to preside of matters involving domestic violence. The Court then turns to venue and finds that both the county where the victim resides, in this case Nelson, and the county where there are on-going dissolution proceedings, in this case Bullitt, are proper venues. Thus, the Appellate Court found no error with either jurisdiction or venue.

Additionally, appellant argued there was insufficient evidence to enter a DVO and no meaningful hearing. The Appellate Court affirms the entry of the DVO holding that testimony Appellant was harassing and stalking Appellee, unlawfully entered his home, had angry outbursts, frequent drive-bys, prior acts of violence, and harassing communications was sufficient evidence to support the entry of a DVO. The Court further held there was a meaningful hearing, as each party was represented by counsel, gave testimony, and had an opportunity for cross-examination.

Judge Thompson wrote separately noting the role of clerk is ministerial, and a clerk should not make a determination about the legal sufficiency or forum when a complaint is properly filed. The clerk in this case incorrectly prevented Appellee from filing in Bullitt County and instructed him to file in Nelson County. 

Digested by Elizabeth M. Howell

 

Published Family Law Opinion from Ky Court of Appeals Today

Farrar v. Farrar

The parties’ Settlement Agreement included a provision for the sale of the marital residence. When husband rejected an offer for the purchase of such residence and asserted he intended to buy the home, the trial court ordered wife to sign a quitclaim deed over to husband. For her equity in the home the Trial Court awarded wife the value of half of the offer for purchase of the home less hypothetical closing costs. Wife appealed the Trial Court’s calculation of equity in the home, as well as other matters.

Wife first challenged the Trial Court’s jurisdiction to amend the parties dissolution decree without making the required CR 60.02 findings. The Appellate Court  held this argument was waived because it was not brought up prior to the appellate action. The Appellate Court reiterated the Supreme Court’s holding in Commonwealth v. Steadman that while subject-matter jurisdiction cannot be waived, case specific jurisdiction, jurisdiction over a particular case where the court has jurisdiction of the general matter, can be waived.

The Appellate Court next addressed husband’s claim that wife’s argument is estopped by deed. Although wife executed a quitclaim deed and accepted payment from husband, the Appellate Court held wife did not waive her right to appeal. The court looked to the general support for preservation of the right to appeal and wife’s action, which was in compliance with the trial court’s order. Additionally, the Appellate Court held that the acceptance of payment did not waive the right of appeal. AlthoughComplete Auto Transit  holds that a party who accepts payment on a judgment is estopped from pursuing an appeal to reverse that judgment, the Appellate Court held Complete Auto Transit does not apply to “acceptance of monetary payments in dissolution proceedings where there is no disagreement or dispute concerning whether the accepting party was entitled to at least the amount accepted and the only issue on appeal concerns whether the accepting party is entitled to additional money.”

The Appellate court concluded that it was an abuse of discretion for the trial court to use hypothetical closing costs to reduce the amount of equity wife received when husband was keeping the house and had no immediate plans to sell. Including closing costs in equity calculations is only appropriate when “(1) the receiving spouse plans or intends an imminent sale of the property without delay; and (2) credible and reliable evidence supports the estimated costs of sale.”

The Trial Court awarded wife attorney fees because husband willfully and deliberately violated the parties’ settlement agreement. The Appellate Court remanded to Trial Court because the Trial Court did not make a finding about financial circumstances which is required in awarding attorney fees. The Appellate Court upheld the Trial Court’s decision not to impose CR11 sanctions, as wife’s motion was well grounded in law.

 

Third Family Law Published Opinion from Ky Court of Appeals Today

Luu v. Murphy, et al

Child custody award to de facto custodians reversed. Substantial evidence of record does not support the conclusion that appellees were child's primary caregivers and primary financial supporters. Trial court appears to have based its ruling on testimony of the appellees that they "believed" they were no longer just babysitting the child but that they were keeping her on a permanent basis. During three of the months appellees had the child it was clear that this was meant to be a temporary babysitting arrangement. Mother's temporary absences from West Virginia did not cout against the six-month period required to establish the home state of the child. Even if Kentucky had jurisdiction, under facts of this case appellees could not be declared de facto custodians because they had not been child's primary caregiver and financial supporters for six month before mother sought to regain custody.

The West Virginia family court has jurisdiciton.

Ky Court of Appeals Published Family Law Opinion Today:Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within 5/2/13 motion to vacate the DVO, Appeals court lacks jurisdicti

Erwin v. Cruz 

Where amended DVO was entered 11/1/11, no appeal was taken, and no argument or factual assertion which arose after that date was within  5/2/13 motion to vacate the DVO, Appeals court lacks jurisdiction to consider appeal of the denial of the 2013 motion to vacate.

Published Family Law Opinion from Ky Court of Appeals Today: Split custody modification jurisdiction under UCCJEA

Ellis v. Ellis

 Where Ky did not issue original custody decree, neither child currently resides in issuing state and that state declines to exercise exclusive continuing jurisdiction, and one child lives with father in Ky and other child resides with mother in AZ, Ky is clearly the home state of one child and AZ is clearly the home state of the other child. The only issue is whether Ky should decline to exercise jurisdiction to modify because AZ is a more appropriate forum. While splitting jurisdictions should generally be avoided, in this case trial court was reversed because AZ has no connection to the son, no relevant information about the child is located in Az, and none of the factors of KRS 403.834(2) would favor AZ’s exercise of jurisdiciton over KY.

 

UCCJEA Divests Family Court of Jurisdiction when Parents and Child have Left Kentucky, Ky Case Digest, Wahlke v. Pierce

Wahlke v. Pierce, No. 2012-000022-ME

Published: Reversing and Remanding

County: Campbell

FACTS:

Mother and Father were married in 2000 and filed for dissolution of the marriage in 2008. When the petition was filed, Mother, Father and Child born of the marriage lived in Campbell County, Kentucky. After the dissolution was filed, Mother, with Child, and Father moved separately to Ohio. Neither the child nor the parents lived in Kentucky when the divorce decree was entered in 2009. Mother was awarded sole custody of Child, and Father was awarded visitation and ordered to pay child support. The parties’ continued to litigate post-decree issues related to child support, visitation and attorneys’ fees in the Family Court. In June 2010, Mother filed a motion to relocate and notified the family court that she wanted to move with Child to Abilene, Texas. Mother also filed a motion to modify Father’s visitation schedule to reflect the distance between the parties. The Family Court entered an order granting the motion to relocate and amending the visitation schedule.

Father filed a motion to reconsider the court’s ruling based on a lack of jurisdiction, arguing that the court lacked jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Family Court denied the motion, stating that there was substantial information available in Kentucky regarding the child’s care, protection, training and personal relationships, and Father waived the issue by not raising it until the motion to reconsider.

Father appealed, arguing that the Family Court lacked subject matter jurisdiction to modify the original child custody determination under the UCCJEA because there was no exclusive, continuing jurisdiction because neither the parents nor the child lived in Kentucky.

ANALYSIS:

The UCCJEA, codified in Kentucky law, governs disputes concerning the state’s jurisdiction to decide child custody and visitation matters. The Family Court’s jurisdiction to modify a custody arrangement is determined at the time the motion to modify is filed. The Family Court misinterpreted KRS 403.824(1) because the court no longer had exclusive, continuing jurisdiction over the custody matter. A family court’s jurisdiction is exclusive and continuing until one of two circumstances has occurred: neither the child nor a parent of the child has a significant connection with the state and substantial evidence regarding the child is lacking or neither the child nor the parents of the child reside in that state. Therefore, unless a modification of custody has been filed, the state loses exclusive, continuing jurisdiction when the parents, persons acting as parents (if applicable), and child have all physically left the state to live elsewhere. Even if a significant connection existed and if certain evidence was available about the child in Kentucky, the relocation of both parents and the child outside of Kentucky before the filing of the modification divested the Family Court of exclusive, continuing jurisdiction.

Reversed and remanded. 

Digested by McKenzie Cantrell, Of Counsel, Diana L. Skaggs + Associates

 

 

Soileau v. Bowman, Ky Court of Appeals, CR60.02, Personal Jurisdiction

Soileau v. Bowman, 2011-CA-001230-ME

Issue:  Rule 60.02 motion, personal jurisdiction

Published:   Reversing and Remanding   

County:  Anderson

Father appealed FC’s order denying his CR 60.02 motion to set aside prior orders and judgments for lack of personal jurisdiction.    

FACTS:

Mother and Father resided in Texas with their minor Child prior to separation.  After separation, Mother moved to Kentucky with Child and commenced divorce action.  Mother was unsuccessful in serving Father and warning order attorney was appointed to constructively serve him.  FC issued temporary order requiring Father to pay child support or $1,096 monthly.  Father subsequently made some payments of child support in amounts of $100-$300.  FC then issue final decree with child support at $1,096 per month.  County attorney’s office intervened for judgment on the arrearage, and FC entered a arrearage judgment against Father for $6,815.  Case was later transferred to Anderson FC, and a flagrant non-support arrest warrant issued, with arrearage amounting to nearly $50,000.  Years later, Father moved FC to set aside all previous orders pursuant to CR 60.02 on the basis that each was void for lack of personal jurisdiction, which FC denied.  Father appealed. 

ANALYSIS:

FC denied Father’s motion on the basis that it was not filed within a reasonable amount of time.  CA noted that void judgments are legal nullities that must be set aside regardless of when made.  Absent an appearance by the party, constructive service alone is not sufficient to subject nonresidents to a personal judgment by a court of this state.  Thus, because warning order service is only constructive, FC had no personal jurisdiction over Father.  Commonwealth asserted that under KRS 454.210, Kentucky’s long arm statute, and KRS 407.520, Kentucky’s UIFSA’s long arm statute, FC had personal jurisdiction over Father because he made child support payments, because Child resided in Kentucky per Father’s directive, and because Father’s attorney made a phone call on Father’s behalf to Commonwealth’s office.  CA noted that neither of those steps did not “constitute steps taken which are beneficial to him or detrimental to [Mother]”, nor had Father taken any other steps that would place him within the purview of the long-arm statutes.  As FC had no personal jurisdiction over Father, the orders issued affecting him are void. 

Reversed and Remanded.

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

Guenther v. Guenther, Ky COA, Domestic Violence Order

Guenther v. Guenther, 2011-CA-001165-ME, (link to .pdf within minutes is broken)

Issue:  Jurisdiction to enter DVO, error in entry of DVO

Published:   Reversing and Remanding   

County:  Kenton

Ex-husband contested entry of DVO, contending FC was without jurisdiction to enter it, as DVO hearing was continued to more than 14 days after filing of EPO (though by agreement of parties) and that FC had insufficient factual basis to establish that domestic violence had occurred and may occur again.

FACTS:

Divorced but reconciled couple had an altercation in which Ex-Wife claimed that Ex-Husband grabbed her wrist and threw her to ground.  FC entered EPO and hearing was scheduled nine days later.  At the scheduled hearing, both parties and their counsel were present but asked the judge to continue the hearing as they were attempting to reach an agreement on the DVO, with the possibility of DVO dismissal.  DVO hearing was continued for 2 weeks.  At the hearing, Ex-Wife testified that she heard her back “pop” when Ex-Husband threw her to ground and that she suffered substantial pain though she did not seek immediate medical treatment.  In response to her counsel’s questions as to whether Ex-Husband had been verbally abusive to her and if she was afraid a similar physical altercation might happen again in the future, she replied “yes” with no elaboration.  Ex-Husband testified that he did not throw Ex-Wife to the ground but that she lost her balance and fell.  FC nonetheless entered DVO, finding that domestic violence had occurred and may occur again.  Ex-Husband then filed this appeal. 

ANALYSIS:

FC had jurisdiction to enter DVO

Ex-Husband argued that KRS 403.740 imposes a strict fourteen-day window during which FC must conduct EPO hearing or lose its jurisdiction to enter a DVO thereafter. Prior to its 2010 amendment, the first sentence of KRS 403.740 provided that “an emergency protective order issued in accordance with this section shall be effective for a period of time fixed in the order, but not to exceed fourteen (14) days.” As amended, the statute now reads, “An emergency protective order issued in accordance with this section shall be effective until the full hearing provided for in this subsection or in KRS 403.745, or until withdrawn by the court.” The legislature specifically deleted the language that limited the effectiveness of an EPO based on a petition to fourteen days and, in its stead, amended the statute to specifically allow an EPO to be effective until a hearing or withdrawn by the court.  The statute continues on to state that a date and time for a full hearing shall be set within fourteen days, but does not state that the hearing must be conducted and not continued. And, if the hearing is continued, then the effectiveness of the EPO can be continued until the next anticipated hearing which shall be set within fourteen days of the date from which it was continued. If the legislative intent had been for the court to conduct such a hearing and not give the court discretion to continue the hearing beyond the aforementioned fourteen days, it would not have included the language or until withdrawn by the court.  Further, the ability to continue the hearing may benefit the parties.  Just as a timely hearing envisioned by the statute allows the parties to protect their rights, so does a continuance of the hearing by their mutual agreement allow the parties to have some control over their case.   Certainly any continuance of the hearing should be in the sound discretion of the court, mindful of the purposes of the statue, and for good cause. CA held that KRS 403.740 does not prohibit a court from granting a continuance of the fourteen-day hearing on a petition for an EPO/DVO.

FC had insufficient factual basis to enter DVO

In order to issue a DVO, the petitioner must show that by a preponderance of the evidence that an act or acts of domestic violence and abuse have occurred and may again occur.  CA found that Ex-Wife’s “monosyllabic responses to her attorney’s leading questions regarding verbal abuse and her fear of future abuse similar to the altercation between the parties is insufficient to base a finding that domestic violence may occur again;” thus, entry of a DVO based on the evidence presented exceeded the discretion of the court. CA remanded to FC for it to vacate the DVO and, if appropriate, enter an EPO.

Reversed and remanded.

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

Williams v. Frymire, Ky COA, Modification of Custody, Jurisdiction

Linda Williams v. David Frymire

No. 2011-CA-001568-ME

Published: Opinion Affirming

County: Calloway

Linda Williams has appealed from judgment of Calloway Family Court modifying custody of the parties’ minor daughter, Jessica Frymire, from sole to joint and naming Linda’s former husband and Jessica’s father, David Frymire, as the primary residential parent.  Linda contends the court did not have jurisdiction to consider David’s motion to modify, and if the forum was appropriate, abused its discretion in modifying the primary residential parent.

The parties were married twice; first from 1992 to 1996 and a second marriage which occurred in 2000.  Jessica was born in 2005.  In 2006 Linda filed a petition in Fayette County to dissolve the marriage.  David failed to appear at the final hearing regarding custody of Jessica and Linda was awarded sole custody and child support.  The final decree was entered in January, 2007.  When Linda moved to Woodford County in November, 2007, she moved to transfer the matter to Woodford County.  In July, 2010, she moved to change the venue again, this time to Calloway County.  Linda and Jessica moved to Missouri, but David remained in Calloway County.

In January, 2011, David filed a motion in Calloway Family Court requesting modification of custody or timesharing, for modification of child support, and restricted visitation.  The basis for David’s motion was an email from Linda announcing that five-year-old Jessica was transgender and would from that time on be considered a boy, wear boy’s clothing, and be called Bridge.  Linda would not listen to any challenge regarding this decision.  David’s motion notified the court that Linda had previously raised unfounded concerns about Jessica’s vision, hearing, and speech and her suspicions that Jessica had Asperger’s Syndrome.  David requested appointment of a child psychologist and a custodial evaluation, which the court granted.

The trial court concluded that Kentucky retained exclusive and continuing jurisdiction pursuant to statute because David was a Kentucky resident and that Kentucky was not an inconvenient forum.  A modification hearing was held on August 3 and 4, 2011.

David testified that Linda has bipolar disorder and her belief that Jessica is transgender developed after she viewed a television special on the topic.  David’s sister, Betsy Porter, and his mother, Phyllis Frymire, both testified that Jessica played like a girl, but conceded that she was not a “frilly” girl.  David’s father and his girlfriend both testified that they did not believe there was a gender issue.

Dr. Sarah Shelton, a clinical psychologist appointed by the court to perform a forensic custodial evaluation of parents and child, found no support for the diagnosis of gender identity disorder, and that Jessica should be treated with gender neutrality.  She recommended a change in custody.  Dr. Dale Owens, a child clinical psychologist, performed an independent evaluation of Jessica’s medical records and found that only Dr. Shelton’s reports were objective and thorough.

Dr. Patricia Berne, Jessica’s treating psychologist, recommended affirming Jessica’s gender choice.  She admitted she did not perform any psychological tests and was confident in diagnosing gender identity disorder, because in her opinion, gender is innate.  Dr. Robin Park, a psychologist, testified at the request of the court.  After meeting with Linda, Dr. Park was concerned about possible sexual abuse and referred Linda to Holly Carson to evaluate possible abuse.  Linda began cancelling appointments with Dr. Park who then made a hotline call to report suspected sexual abuse and neglect.

Trina Jansen, a licensed counselor and Jessica’s art therapist, testified that she diagnosed Jessica with gender identity disorder after the first visit.  Lacking experience with this disorder, she referred Linda to Dr. Berne.  After internet research and reading books, she felt qualified to write an opinion letter recommending affirmation of Jessica’s gender identity as a boy.

Linda testified about her difficulty dealing with the diagnosis of gender identity disorder and trying to follow the recommendations of the medical providers.

Linda asked Dr. Dean Rosen, a licensed clinical psychologist, for a second opinion.  He concurred in the finding of gender identity disorder, but admitted he did not contact David or any of his family members for input.  Clay Williams, Linda’s father, testified that Linda was following the providers’ recommendations.  Rhonda Diaz, who works at a childcare center in Calloway County that Jessica once attended, was called by David on rebuttal.

At the closing of the hearing, David requested sole custody, with visitation for Linda.  Linda requested joint custody with her being named as primary residential custodian.  The GAL also recommended joint custody with Linda remaining as the primary residential custodian.

In August, 2011 the court issued its findings of fact, conclusion, and judgment, holding that it was in Jessica’s best interest to modify custody from sole to joint with David designated as the residential parent and visitation to Linda.  The court did not dismiss the possibility that Jessica has or may have gender identity disorder but noted that girls can prefer male sports, toys, and clothes without being pathologized, requiring intervention.  Linda was also ordered to pay child support.  Linda then filed this appeal.

The Court of Appeals ruled that there were significant connections to Kentucky and substantial evidence in Kentucky for Kentucky to retain exclusive jurisdiction, after reviewing the factors in KRS 403.834(2), the Court of Appeals held that the trial court did not abuse its discretion in retaining jurisdiction.

The Court of Appeals also agreed that the family court’s decision to name David as the residential parent was not an abuse of discretion based on the evidence presented.  The Court made no judgment about the diagnosis of gender identity disorder, but noted that medical witnesses Linda presented did nothing to establish that Jessica was properly diagnosed or that Linda was receiving or following competent medical advice.  The Court stated that Linda’s behavior provided sufficient support for the decision that it would be in Jessica’s best interest to name David as the residential parent and no abuse of discretion was perceived.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Lee v. George, Ky S. Ct., Denial of a Writ of Prohibition; Bonds

Lee v. George

2011-SC-000265-MR

Published:   Affirming  

County:  Jefferson

Father appealed Court of Appeals’ denial of petition for writ of mandamus or prohibition, in which he asked that the judge be required to disqualify himself from case due to his bias against Father and that the Guardian Ad Litem and opposing counsel be disqualified because they engaged in fraud and conspiracy against him.

FACTS:

Father and Mother divorced in 2009.  They have 3 minor sons.  Judge Stephen George presided over highly contentious divorce proceedings, including a trial on child-related issues and a separate trial on financial issues.  At the time Father filed his writ Petition, Mother had full custody of sons with Father having unsupervised parenting time with them on a regular weekly schedule and various holidays.  Judge George attributed the contentiousness of the proceedings to Father.  Father represented himself through much of the litigation.  He filed numerous motions with FC, many of which were deemed to be baseless.  Correspondingly, Mother filed motions for CR 11 sanctions against Father, but Judge George was hesitant in doing so because Father was unrepresented.  However, on Mother’s Motion, Judge George entered an Order requiring Father to post $7,500 bond prior to any future motions being called.  At that time, Father had filed 36 motions, only 5 of which FC found to grounded in law or fact.  Father had also commented to FC and others indicating his intent to continue this pattern.   In response to the Order requiring a bond, Father filed the writ that is the subject of this appeal, in which he asked CA to order Judge George to disqualify himself due to bias and to disqualify Mother’s counsel and GAL alleging they had engaged in fraud and conspiracy.  In his writ petition, Father posited that the $7,500 bond was an example of Judge George’s bias, but also that the bond violated his due process rights and his right of access to the courts.  CA construed this as an additional basis for Appellant’s request for extraordinary relief.  CA denied the petition, finding that the bias, fraud and conspiracy issues are properly the subject of a direct appeal, and that the $7,500 was reasonably limited in scope so as not to deprive Father of meaningful access to the court. 

ANALYSIS:

Extraordinary writs may be granted in two classes of cases:  1. where the lower court is proceeding or about to proceed outside of its jurisdiction and there is no remedy through application to an intermediate court, and 2. where the lower court is acting or about to act erroneously, and there is no adequate remedy by appeal—this class requires a showing that “great injustice and irreparable injury will result if the petition is not granted.”  However, there is a “subclass” of special cases where the showing of great injustice and irreparable injury is not required; instead, it must be shown that a “substantial miscarriage of justice” will occur if the lower court proceeds erroneously, and correction of the error is necessary “in the interest of orderly judicial administration,” but no adequate remedy on appeal must still be shown.  Nevertheless, even after meeting these tests, the requested relief need not be granted—that is within the sound discretion of the appellate court.

Father claims his writ fell into both classes and the subclass.   

First class of writs:

Father claimed that Judge George acted outside of his jurisdiction because he was a “biased individual” and not a truly neutral judge.  SC restated this argument as a claim that FC was acting contrary to law and therefore outside its jurisdiction.  SC held that “jurisdiction” in this class of writs refers not to legal error, but to subject-matter jurisdiction, which goes to the court’s authority to even hear cases.  SC held that FC had jurisdiction to hear divorce cases and to issue orders related thereto.

Second class of writs:

On the bias, conspiracy and fraud issues, Father claimed that he had no adequate remedy on appeal and that he would suffer irreparable injury due to the amount of time it takes for resolution on appeal and the deleterious effect this would have on the relationship with his children, as he believed that his parenting time is too limited.  SC noted its previous holdings that the delay and expense of appeals does not constitute irreparable injury or render remedy by appeal inadequate, and that his claimed injuries are not the kind that justify an extraordinary writ.

On the $7,500 bond issue, Father claimed that the bond was unfair and inappropriate, focusing on Judge George’s alleged bias against him.  He also made a bare argument that that bond violated his due process rights, right of access to the courts, and Eighth Amendment rights.  However, he did not expressly ask for a writ to set aside the bond.  CA construed this discussion as a request for relief separate from his request to disqualify Judge George, the GAL, and Mother’s counsel, and CA addressed the issue on the merits.  CA found that the bond was reasonably limited in scope.  SC refused to address the issue on the merits because Father failed to request the relief in the “Request for Relief” section or any supplemental documents to CA. 

Affirmed.

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

Willis v. Willis, Ky COA, QDRO Modification, Jurisdiction

Larry Willis v. Ruby Willis

No. 2010-CA-002328-MR

Published: Opinion Reversing

County: Boyle

Larry Willis appealed from the November 30, 2010 order of Boyle Family Court modifying a Qualified Domestic Relations Order entered July 16, 2009.

The parties were married in 1992 and Ruby filed a petition to dissolve the marriage in March 2007. The parties participated in mediation in July, 2007 and reached an agreement which Larry reluctantly signed. On August 22, 2007, Ruby returned to the marital residence to retrieve personal items and furniture, and violence ensued. Larry shot Ruby twice and inflicted a massive head injury by kicking her. She is now permanently disabled and guardians and conservators have been appointed to care for her needs. Larry was convicted of criminal charges in connection with the attack and received five to ten year sentences, to be served concurrently.

On December 22, 2008, the family court entered the final decree of dissolution incorporating the property settlement agreement. Ruby received all the marital property and $91,000.00 from the nonmarital portion of Larry’s retirement as an offset. In July, 2009, Ruby filed a motion to enter a tendered Qualified Domestic Relations Order, awarding $91,000.00 to Ruby and the balance in the amount of $201,536.05 to Larry.

In October, 2010, Ruby moved the family court to modify the QDRO. Because the QDRO referenced the amount in the retirement accounts at the time of the marriage as Larry’s nonmarital property, before large market losses occurred, Ruby requested the family court to amend the QDRO to reflect that his nonmarital portion be reduced by the same market loss as her marital portion.

The family court conducted a hearing and directed both parties to submit proposed findings of fact and conclusions of law. The court entered Ruby’s version and ordered a modification of the QDRO, subtracting $145,699.83 from Larry’s nonmarital portion and awarding the funds to Ruby.

On appeal, Larry argued that the family court abused its discretion in reassigning his nonmarital property to Ruby, that the parties entered into a valid separation agreement, that the family court did not have jurisdiction to modify the QDRO, and that Ruby failed to appeal from either the decree or the original QDRO.

The Court of Appeals agreed with Larry that the family court violated KRS 403.190 in reassigning his nonmarital property to Ruby, that the parties entered into a valid separation agreement, and that family court did not have jurisdiction to modify the QDRO fifteen months after its entry.

Therefore, the Court of Appeals held that the Boyle Family Court abused its discretion in modifying the QDRO and reassigning a portion of Larry’s nonmarital property to Ruby and the family court’s order entered November 30, 2010 is reversed.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

 

 

 

Gossett f. Kelley, et al, Ky COA, Subject Matter Jurisdiction for Custody Modification

Jessica Gossett v. Brian Scott Kelley, et al.

No. 2011-CA-001536-ME

Published:  Opinion Vacating

County:  Hopkins

Jessica Gossett appealed an order entered by the Hopkins Family Court naming Shannon and Brian Kelley de facto custodians of the minor child of Jessica and Kenneth Gossett and awarding custody to the Kelleys.  The appeal was based on matters of venue and adequacy of evidence, but the Court of Appeals was required to vacate the order because the Hopkins Family Court lacked subject matter jurisdiction.

The Gossetts were divorced by a decree entered in Christian Family Court on January 11, 2011.  Jessica was awarded sole custody.  Ten days later, the Kelleys filed a petition for custody of the minor child claiming standing as de facto custodians and asserting that the Gossetts had waived their superior right to custody.  No affidavits were attached to their petition.

On February 21, 2011, there was a venue hearing in Hopkins County, and another hearing in that court on the standing issue on April 27, 2011.  Jessica’s venue challenge was rejected and the family court ruled the Kelleys had standing and they were awarded custody.

The Court of Appeals began its analysis by considering subject matter jurisdiction.  The Kelleys were aware of the proceedings in Christian Family Court and could have sought standing as de facto custodians, but they did not participate in that action.  Sole custody was awarded to Jessica.

Once the Christian Family Court order was entered, any subsequent action affecting custody was a modification.  The Kelleys and the Hopkins Family Court relied on KRS 403.270 for subject matter jurisdiction, but only KRS 403.340 provides the court SMJ to modify custody decrees.  A motion to modify custody must be accompanied by the requisite affidavit or affidavits.  No affidavits were submitted and therefore the Hopkins Family Court never had SMJ.  The affidavit(s) must support a change of circumstances of the child or his custodian and modification must serve the best interests of the child.  In addition to the failure to file supporting affidavits, the Hopkins Family Court order makes it clear there was no change in circumstances.

Because the Hopkins Family Court lacked subject matter jurisdiction to modify the final custody decree entered in Christian Family Court, the order granting the Kelleys de facto custodian status and awarding them custody is vacated.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Mitchell, el al. v. Mitchell, Ky S. Ct., Attorney Fees, Finality of Judgment

Mitchell, et al. v. Mitchell

2010-SC-000722-DG

Published:  Opinion Reversing and Remanding

County:  Fayette

The parties divorced in 1990, ending a 24-year marriage.  Their agreement provided the wife $3000.00 per month in maintenance which was subject to modification if she became more employable as a result of education she received from husband’s financial assistance.  In October, 2008 husband filed a motion to modify maintenance after wife received a bachelor’s degree in social work from the University of Kentucky.  In June, 2009, wife filed a motion for attorney fees, expert fees, and costs incurred to defend the motion for modification.

On June 22, 2009, family court heard testimony on both motions, and on June 30, 2009 entered an order finding insufficient grounds for modification of maintenance.  The order did not mention wife’s motion for fees and costs.  On July 1, 2009, wife’s attorney emailed the judge’s clerk regarding the fees and on August 13, 2009 the judge’s secretary informed husband’s attorney that wife was going to file an affidavit concerning fees and that husband would have one week to respond, after which there would be a hearing.

At the hearing on September 4, 2009 husband objected on the grounds that family court no longer had jurisdiction over wife’s motion.  On September 16, 2009 the trial court granted wife’s motion and awarded $19,161.80 in attorney fees and held that husband’s objection was without merit.

 Husband appealed to Court of Appeals, which held family court lacked jurisdiction to grant wife’s motion and reversed award of attorney fees.  Wife then appealed from Court of Appeals’ decision and discretionary review was granted.

 Husband contended that trial court’s granting of fees to wife was an amendment to its decision denying his motion to modify maintenance.  Since wife’s motion was not granted within 10 days following denial of husband’s motion, he asserted that CR 52.02 divested family court of jurisdiction.  The Supreme Court disagreed, however, finding that CR 52.02 applied only to the amendment of judgments.  The ten day time limit would apply only if the order denying husband’s motion to modify was a final judgment.

The finality of a judgment depends upon whether a case involves a single claim or multiple claims.  If the case involves a single claim, all rights of all parties must be adjudicated in order to be final.  CR 54.01.  Multiple claims involve the application of CR 54.02(1) which states a final judgment may be granted on less than all claims only if it is determined there is no just cause for delay.  Absent such determination, the decision is interlocutory and subject to revision at any time before entry of judgment adjudicating all claims.

The Supreme Court found that wife’s motion for attorney fees was a separate motion by a party opposed to the initial action, and more akin to a counterclaim.  Different facts supported each motion in that husband relied on wife’s attainment of a bachelor’s degree and the basis for wife’s claim was the financial disparity of the parties.

Holding that the motions of each party constituted separate claims for the purposes of CR 54.02, the Supreme Court reversed the opinion of the Court of Appeals and remanded to that court for consideration of the merits of husband’s appeal of the trial court’s order awarding attorney fees to wife.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

J.P. v. S.B.B. and B.B., Ky COA, Paternity and Standing

J.P. v. S.B.B. and B.B.

No. 2011-CA-000516-ME

Published: Opinion Vacating and Remanding

County: Pulaski

J.P. appeals an Order of Pulaski Circuit Court denying his petition to establish paternity, custody, visitation, and child support.

J.P. and S.B.B. had an affair that lasted several years, from approximately 2001 until 2007. S.B.B. was married the entire time and sexually active with J.P. and her husband. S.B.B. gave birth in January 2004 to T.C.B. and J.P. was involved in the child’s life until S.B.B. ended the affair in 2007. When S.B.B. terminated his visits, J.P. filed a petition to establish paternity, custody, visitation, and child support in July, 2009. In September, 2009, J.P. filed a petition for genetic testing to establish paternity.

The Pulaski Circuit Court held a hearing in November, 2010 and entered its findings of fact and conclusions of law in February, 2011. The trial court found that since the marital relationship between S.B.B. and her husband had not ceased during the ten month period preceding the birth of T.C.B., that J.P. lacked standing to pursue a paternity action and further held that it did not have subject matter jurisdiction.

Standing is defined as a party’s right to make a legal claim or seek judicial enforcement of a duty or right, and the requirement is met if the party has a real and substantial interest in the subject matter of the litigation. Whether a party has standing is determined by the facts of the case.

The trial court relied on J.N.R. v. O’Reilly, 264 S.W. 3d 587 (Ky. 2008) which focused on the date the marital relationship ceased. The legal presumption was that a child born to a married woman was the child of her husband unless evidence shows the marital relationship ceased ten months before the child’s birth. 

Several months after this case, the Supreme Court overruled O’Reilly in J.A.S. v Bushelman, 342 S.W. 3d 850 (Ky. 2011), and shifted the legal analysis away from the status of the woman’s marriage and instead scrutinized whether the woman’s lover presented sufficient evidence to support the possibility of a paternity claim. Because Bushelman superseded O’Reilly, the Court of Appeals held that J.P. had presented enough evidence to proceed with his paternity claim. Accordingly, pursuant to the more recent authority set forth in Bushelman, the order of the trial court is remanded for additional proceedings.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

 

 

 

 

 

 

 

 

 

 

 

Roberts v. Bedard, Ky COA, Modification of Foreign Support Orders, Jurisdiction

Roberts v. Bedard

2011-CA-000212-ME

Issue:  Modification of foreign child support orders

Published:  Affirming

County: Fayette

Mom appealed FC’s Order dismissing her motion to modify a child support order originally entered in Florida. FC dismissed the motion, holding that, although the court may have personal jurisdiction over Dad, it did not have subject matter jurisdiction over a proceeding to modify the order.

FACTUAL AND PROCEDURAL BACKGROUND:

Paternity judgment entered in FL in December 2006. Mom moved to KY in 2007, and in April 2008, filed a Notice and Affidavit of Foreign Judgment Registration of FL paternity judgment in Fayette FC, followed by a petition and motion to modify the child support. At hearing, Dad argued by special appearance that he was not a KY resident, had not been served in KY, and that none of the criteria in KRS 407.5201 were met and, therefore, FC did not have jurisdiction. FC ultimately dismissed that action, finding that it did not have personal jurisdiction over Dad. After Dad appealed this decision, CA affirmed FC, noting in its decision that “any increase in child support requested by the obligee must be sought in the state of residence of the obligor.” Mom filed a new motion to modify the child support order in KY in 2010. Dad, who was in KY to spend time with the child, was personally served at that time. FC dismissed the new motion to modify the child support order, observing that, while under KRS 407.5201(1) a court may exercise personal jurisdiction over a nonresident who has been personally served in this state, it must also have subject-matter jurisdiction under the requirements of KRS 407.5611 before it can  modify a child support order from another state; that, according to KRS 407.5611, a requirement for subject-matter jurisdiction to modify a foreign child support order is that the party seeking modification must not reside in this state; and as Mom resided in KY, KY does not have subject-matter jurisdiction to modify FL child support order.  Mom unsuccessfully argued that the Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) preempted the subject-matter jurisdiction requirements of UIFSA and allowed FC to modify the child support order.  Mom appealed.  

ANALYSIS:

CA held that even though personal jurisdiction was acquired over Dad in July 2010, the foreign order was not effectively registered in order to confer subject-matter jurisdiction. When Dad was served, no registered order existed because the 2008 registration occurred when KY did not have personal jurisdiction over him.  According to FFCCSOA, registration of the parties’ Florida support order would only have been effective in Kentucky if Kentucky had personal jurisdiction over Dad at the time of registration.

Further, FC did not have subject-matter jurisdiction under state law.  Under Kentucky’s UIFSA statutes, the family court would only have had subject-matter jurisdiction if Roberts had been a nonresident of Kentucky when she filed her motion to modify. 

Since a court must have both personal and subject-matter jurisdiction to address modification of another state’s child support orders, and FC did not have subject-matter jurisdiction, it had to dismiss Mom’s motion.  CA noted that personal jurisdiction is something the court may exercise whereas subject-matter jurisdiction is mandatory. Lastly, as CA found no contradiction between Kentucky’s UIFSA provisions and FFCCSOA, it made no determination regarding whether FFCCSOA preempts Kentucky UIFSA statute.

FC affirmed.

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

S.B. v. M.C., Ky COA, Paternity, Jurisdiction, Child Custody

S.B. v. M.C.

No. 2009-CA-000966-ME

Published: Opinion Reversing and Remanding

County: Scott

S.B. appeals from the Scott Family Court’s dismissal of his action to establish paternity of L.R.C., a minor child born to M.C., for lack of subject matter jurisdiction.

M.C., a married woman, acknowledges she had an affair with S.B. in 2005 and that S.B., and not her husband, is the biological father of L.R.C., born in January, 2006.  Since L.R.C.’s birth, M.C. encouraged S.B.’s involvement in L.R.C.’s life and S.B. immediately began providing financial support.

In March, 2006, S.B. wanted a more formal division of time-sharing and filed a petition for paternity.  DNA tests confirm that S.B. is L.R.C.’s father by a probability of 99.9%.  M.C. filed two answers.  The first was dated April 7, 2006 and denied all allegations and requested attorney’s fees.  The second answer, dated April 12, 2006 admitted all the allegations in S.B.’s petition and stated that S.B. was L.R.C.’s father.

On April 17, 2006, M.C. filed a petition stating that she and S.B. are L.R.C.’s parents and asked the court to establish custody, award child support, and establish time-sharing.  In July, 2006, S.B. petitioned for temporary and permanent custody and support.

For the next two years, the parties returned to court numerous times on matters related to time-sharing, overnight visits, limiting S.B.’s use of alcohol, holidays, insurance and tax credits, and the court entered orders up to August, 2008.

On August 22, 2008 the family court sua sponte entered an order temporarily setting aside all previous orders while it considered the constitutionality of the paternity statutes.  S.B. filed a memorandum in support of a custody determination, but M.C. tendered a notice of dismissal and a supporting memorandum.  She argued that family court did not have jurisdiction to hear the paternity case and was without jurisdiction to establish custody.

In March, 2009, the family court issued an order denying S.B.’s motion for a custody order and granting M.C.’s motion to dismiss.  The court determined that it was without subject matter jurisdiction because KRS 406.180 limits jurisdiction to children born “out of wedlock,” and cited J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008).  After denial of his motion to alter or amend, S.B. appealed.

The Court of Appeals found that M.C.’s judicial admissions rebut the presumption that her husband was L.R.C.’s father, and in addition, they never challenged the results of diagnostic paternity tests.  Not until the family court determined the need to evaluate the constitutionality of the paternity statutes did M.C. change her mind and argued that she had always intended to raise L.R.C. as her husband’s child.

Because the presumption that L.R.C. was born during lawful wedlock has been rebutted, family court had jurisdiction to establish paternity and determine custody.  The matter was reversed and remanded to Scott Family Court for a determination of paternity and custody consistent with this Opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Corns v. Corns, Ky COA, Child Custody Modification, Subject Matter Jurisdiction, Due Process, Continuance

Corns v. Corns

2010-CA-001911-ME

Published: Reversing and Remanding

County: Lewis

Gary Lee Corns appealed from an Order of Family Court, Lewis Circuit Court modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratliff).  The Court of Appeals reversed for lack of subject matter jurisdiction and denial of due process and remanded for further proceedings consistent with this Opinion.

The parties entered into a Separation Agreement on August 30, 2007 and their Divorce Decree was entered that day incorporating the Agreement.  They agreed to share joint legal custody of their daughter, Allison, and did not designate a primary residential custodian.

In 2008, the parties could not agree about where to send Allison to school and Taffy asked the court to decide what was in the child’s best interest.  The court treated the motion as a request to modify custody and permitted Taffy to file an amended motion and two affidavits.  In August, 2008 the court denied Taffy’s request to allow the child to attend school in Carter County rather than in Lewis County where she had attended preschool.  The court did not specifically rule on Taffy’s motion to modify custody and designate a primary residential custodian.

In 2009, the parties disagreed about Allison’s need for a tonsillectomy.  The court authorized Taffy to schedule the procedure, but allowed Gary to seek a second opinion.  If the independent exam produced a contrary medical indication, a hearing could be scheduled.  In November, 2009, the second medical examiner concluded the tonsillectomy was unnecessary so in July, 2010 Gary filed a motion requesting a hearing on the tonsillectomy issue and “shared parenting decision making.”  Taffy filed a verified response which, in part, agreed that she and Gary could no longer share joint custody.  Taffy also filed a motion for the court to hold Gary in contempt for failure to pay his share of medical expenses.

At the hearing on September 9, 2010, Gary appeared without counsel, and requested a continuance because he was not aware that custody was at issue.  His request was denied and the hearing was conducted, after which the court sustained Taffy’s motion for a directed verdict on the tonsillectomy issue.  On the custody matter, Taffy elicited testimony from Gary regarding his filing a grievance against one of the child’s physicians and contacting the FBI.  Witnesses from the Cabinet for Health & Family Services testified about Gary’s claims of fraud against Taffy and eleven reports about Taffy’s family, none of which were substantiated. The child’s teacher testified about Gary’s conduct when the child was mildly disciplined.  Taffy told the court that Allison had 14 throat infections between 2008 and 2010

The trial court’s order entered September 14, 2010 granted custody and decision-making authority to Taffy and set out the parenting schedule.  Gary’s motion to alter, amend or vacate the order argued that Gary did not receive notice of the hearing for custody modification and objecting to the tonsillectomy procedure.  Gary’s motion was denied and the appeal followed.

The Court of Appeals found no abuse of discretion in the trial court going forward and found Gary’s claim of lack of notice “disingenuous.”  There were procedural errors, however, which resulted in the trial court’s lack of subject matter jurisdiction.  Gary failed to file an affidavit, his motion was not verified, and Taffy’s attempt to join Gary’s motion was ineffectual because Gary’s motion was statutorily inadequate to raise the issue of custody modification.  It was error for the court to hear Taffy’s motion to change custody because it had not been scheduled for hearing and Gary had no notice of a hearing.

The orders of Lewis Circuit Court were reversed and remanded for proceedings consistent with this Opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

J.A.S. v. Hon. Lisa O. Bushelman, Judge, Ky. S. Ct., Paternity, Subject Matter Jurisdiction, and Standing of Putative Father

J.A.S. v. Hon. Lisa O. Bushelman, Judge

Kenton Circuit court and C.H.E., Real Party in Interest

2010-SC-000045-MR

Published:  Affirming

County:     Kenton

J.A.S., the mother of infant N.R.S., appeals as a matter of right from a decision of the Court of Appeals denying her petition for a writ of prohibition.  She sought the writ to bar Judge Bushelman from adjudication of an action filed by C.H.E. to determine the paternity of N.R.S.

 The Court of Appeals declined to grant Appellant’s petition and affirmed Judge Bushelman’s conclusion of law that N.R.S. was born out of wedlock, because Appellant’s extra-marital affair constituted a cessation of her marital relationship more than ten months before N.R.S.’s birth.  Therefore, under KRS 406.011, the trial court had subject matter jurisdiction.

The specific question is whether the paternity of a child born to a married woman, who throughout the relevant period maintained a sexual relationship with her husband, may be adjudicated in Kentucky courts upon the petition of a man who, by the apparent results of a DNA test, is virtually certain to be the biological father of the child.

J.A.S. and C.H.E. were involved in a secret affair from August, 2007 until March, 2008, although J.A.S. continued to have sexual intercourse with her husband.  In September, 2008 J.A.S. gave birth to N.R.S. and two weeks later she and C.H.E. arranged for a DNA test to determine if he was the father of N.R.S.  When the test revealed a 99.9429% probability that he was the father, C.H.E. expressed a desire to acknowledge the child and J.A.S. informed her husband of the affair.

In October, 2008, C.H.E. filed a paternity action pursuant to KRS Chapter 406.  In her response, J.A.S. denied that C.H.E. was the father and affirmatively pled that the Court lacked SMJ and that C.H.E. had no standing to assert his paternity claim.  She moved to dismiss the paternity action, relying upon the lead opinion in J.N.R. v. O’Reilly, 284 S.W.3d 587 (Ky. 2008).

The Court of Appeals discussed the J.N.R. case and held that because less than a majority agreed on the reasoning for the decision it should not be cited as a holding of the Court and to the extent that J.N.R. is perceived or deemed to have binding precedential authority, it is overruled.

The trial court, guided by J.N.R. concluded that it had SJM per KRS 406.011.  J.A.S. filed an original action in the Court of Appeals for a writ of prohibition, which CA denied.  The Supreme Court affirmed Court of Appeals, although on other grounds.  The Supreme Court concluded the Trial Court had SMJ under KRS Chapter 406.051 and 406.180, and C.H.E. had standing because he is a putative father authorized under KRS 406.021 to file a complaint to have paternity determined.

The Supreme Court engages in a lengthy discussion of Kentucky law regarding paternity, presumptions, and proof, as well as recent developments in genetics and DNA analysis.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Foster v. Fortner, Ky COA, Registration of Foreign Support Order, Modification, UIFSA, Jurisdiction, Waiver

Foster v. Fortner, Kentucky Court of Appeals

Published:  Reversing

County: Johnson

 Dad appealed TC’s decision registering a foreign child support order from Georgia and holding a prior KY child support judgment void as a matter of law.

FACTS:

Mom and Dad were divorced in GA in 2002.  Decree provided that Child would live with Mom and ordered Dad to pay child support to Mom.  Mom was incarcerated in 2003 and Child went to live with Dad.  Dad filed a Motion for Child Support 3 months later in July 2003 and issued a summons to Mom.  This summons was returned unserved, but Mom was personally served in KY a few weeks later.  In August 2003, Child was removed from Dad’s home and placed in foster care.  In September 2003, a default judgment was entered requiring Mom to pay Dad child support of $180 per month.  Mom regained custody of Child in 2004 and Child has lived in GA since then.  In December 2008, GA child support office requested KY to enforce child support arrears against Dad in amount of $16,711 but no judgment accompanied the request.  In January 2009, GA CFC filed a UIFSA petition in KY to register the GA Order for child support, seeking to enforce child support orders only for the period when Child lived with Mom.  TC found that KY action should have been filed as a UIFSA action for GA to enforce, and therefore the KY judgment was void as a matter of law; that KY was required to honor the GA child support order and UIFSA petition from GA; and that if Dad wanted to modify child support or dispute arrearages, he could do so only in GA.  TC registered the GA order and ordered Dad to pay an additional $100 towards his arrearage in addition to his monthly amount of $311.       

ANALYSIS:

CA held that had GA Petition to register child support order been filed prior entry of KY order, then KY would have had no authority to modify child support in this case.  However, CA held that since UIFSA only allows a court to either register and enforce an order or register and modify an order, Kentucky was free to modify the order if it otherwise had jurisdiction to do so.  KY TC had subject matter jurisdiction over matters of child support and KY TC had personal jurisdiction over Mom.  CA held that although KY TC may not have had “particular case jurisdiction” over the case, Mom waived that argument by not challenging the order or particular case jurisdiction at the time the motion was filed in KY.  Lack of particular case jurisdiction renders a judgment voidable, not void ab initio, and a voidable judgment is subject to consent, waiver, and estoppel. 

CA also noted that KY TC should not have registered a foreign judgment for child support arrearages that had not been reduced to a judgment in GA, as this impermissibly deprived Dad of the opportunity to challenge the arrearage and thus deprives him of due process of law.  

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

N.H. v. Comm., et al, Ky COA, Subject Matter Jurisdiction, Paternity

N.H. v. Comm., et al, 2010-CA-000955-ME

Published:   Affirming

County: Simpson

 

Appellee K.M.F. and her husband, S.S. were separated from December, 2007 until January, 2009.  In January, 2008, K.M.F. had sexual relations with Appellant, N.H., became pregnant and gave birth in October, 2008.  In November, 2008, K.M.F. filed a paternity action to determine if N.H. was the child’s biological father and DNA tests confirmed that he was.  In February, 2009, a judgment of paternity was entered against N.H., who filed a CR 60.02 motion to set aside the judgment.  He argued that the child was not born out of wedlock as required by KRS 406.011 and thus the trial court lacked jurisdiction.  N.H. appealed the trial court’s denial of the CR 60.02 motion.

 

Appellant contended that the trial court lacked jurisdiction because since K.M.F. and S.S. were married when the child was born, there was a presumption the child was born of the marriage, citing J.N.R. v. O’Reilly, 264 S.W.3d 587 (Ky. 2008).  In J.N.R., the Supreme Court held that Kentucky courts lacked subject matter jurisdiction to determine paternity claims in the absence of evidence or allegation that the marital relationship ceased ten months before the child’s birth.  In this case, however, all evidence supported the assertion that the marital relationship of K.M.F. and S.S. ceased in November, 2007 and did not resume at any time in the eleven months before the child’s birth in October, 2008.  Therefore, the trial court had subject matter jurisdiction over the paternity action.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

Telek v. Daugherty, Ky COA, Jurisdiction to Enter Domestic Violence Order

Telek v. Daugherty, 2009-CA-001993-ME

Published:   Reversing and Remanding

County: Kenton

If Respondent has been served with EPO, hearing for DVO must occur within 14 days of entry of the EPO, or the court loses subject matter jurisdiction to hold the hearing and has no jurisdiction to re-issue an EPO or enter a DVO.  In this case, even though the original EPO was re-issued and the hearing rescheduled to a time beyond the fourteen-day period at the request of Defendant’s counsel, the family court lost jurisdiction at the expiration of the fourteen-day period, for subject matter jurisdiction cannot be waived. 

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

Harrison v. Leach, Ky. S. Ct., Waiver of Standing, Right of Non-Parent to Seek Custody Not Addressed

Harrison v. Leach, 2010-SC-000018-DGE

Published:  Vacating and Remanding

County:     Estill

      Because the issue of standing, which can be waived, is distinct from the issue of subject-matter jurisdiction, the Supreme Court held that an appellate court cannot, sua sponte, resolve an appeal based on a lack of standing before the trial court when no party had raised the issue of standing in the proceedings below.

     The Appellee, Christopher Leach, and his wife, Emily, had three children.  As a result of allegations of dependency, neglect or abuse, a family court awarded temporary physical custody to the Appellants, the maternal grandparents of the children.  When the grandparents petitioned a circuit court for full custody, the issue was referred to a domestic relations commissioner.  (The trial court where the custody action arose does not have a family court.)

    The parties stipulated that the grandparents did not qualify as de facto custodians.  Even though KRS 403.420 had been repealed, the DRC stated that “the right of a non-parent to initiate a custody action in Kentucky is set forth in KRS 403.420(4)(b).”  The DRC concluded that Emily abused the children and Christopher failed adequately to protect them, but found the evidence insufficient to establish that Christopher was an unfit parent.  The DRC recommended that Christopher be granted sole permanent custody of all three children.

     The Harrisons filed exceptions to the DRC report and the trial court ultimately rejected the DRC’s conclusions and awarded permanent sole custody of the children to the Harrisons.  Christopher appealed to the Court of Appeals.  Acting on its own motion, the Court of Appeals concluded that repeal of KRS 403.420 meant the Harrisons lacked standing to seek custody and the trial court lacked subject matter jurisdiction to determine the Harrisons’ custody action.  The Court of Appeals vacated the trial court’s order and remanded the case to the trial court with directions to dismiss the custody proceedings.

     The Supreme Court granted the Harrisons’ motion for discretionary review to determine whether an appellate court may act upon its own motion to decide an appeal based upon a purported lack of standing of one of the litigants.  SC concluded that standing is distinct from subject matter jurisdiction and a party may waive a right to contest standing.  Thus, an appellate court may not, on its own motion, raise the issue of standing of one of the parties to the appeal and adjudicate the appeal on grounds of standing when no party has questioned another party’s standing.

      “Standing” is defined as “a party’s right to make a legal claim or seek judicial enforcement of a duty or right.”  Although the Harrisons clearly had an interest in the custody of the children, in the CA’s view, the repeal of KRS 403.420 left the Harrisons without a statutory mechanism to seek custody.  The CA believed that lack of standing caused the TC to lack subject matter jurisdiction.

      In its analysis, the SC explained that standing and lack of subject matter jurisdiction are not synonymous.  Subject matter jurisdiction involves a court’s ability to hear a type of case and standing involves a party’s ability to bring a specific case.

     The SC further concluded that Christopher had waived any issues related to standing; it was error for the CA to inject standing into the case.  SC held that any question regarding a lack of standing is waived if not timely pled.  Even if there is a genuine issue about whether a party lacks standing, the appellate court should not do what the parties have not done themselves.

     The CA decision was reversed and the matter was remanded to that court for a determination on the merits of Christopher’s appeal.

    Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

Discretionary Review Granted in Harrison v. Leach

Here is our digest and link to the Kentucky Court of Appeals opinion which addresses the standing of a third party who is not a defacto custodian following enactment of the UCCJEA.

Wooldridge v. Zimmerer, Ky COA, Jurisdiction To Extend Domestic Violence Order

WOOLDRIDGE v. ZIMMERER, 2009-CA-001786-ME   

Issue:  Jurisdiction to Extend Previously-Issued DVO

Published:   Vacated and Remanded with Instructions to Dismiss

County: Jefferson

 

Wooldridge appealed from FC order extending DVO for an additional three years, contending FC did not have jurisdiction to do so as original term of DVO had expired at time of court’s order.

 

FACTS:

On August 17, 2006, Zimmerer filed a DV petition against Wooldridge and, after hearing, FC entered a DVO, which was effective until August 28, 2009.  On August 27, 2009, Zimmerer filed another DV petition against Wooldridge. An EPO was entered, which was effective until September 8, 2009, the date of hearing. After both parties testified, FC concluded that Zimmerer’s new allegations were insufficient for the entry of a 2^nd DVO.  FC ordered original DVO to be extended for another 3 years from the date the original order expired, holding that, since Zimmerer had filed a new petition for another DVO prior to the expiration of the original DVO, FC still had jurisdiction.  FC held that the “petition” could be viewed as a motion to extend the current DVO.

 

ANALYSIS:

CA held that although a DVO can be reissued even where no additional violence or abuse had occurred during the pendency of the DVO, that is an evidentiary issue, not a jurisdictional issue as was presented in this case.  Even though proof is presented to a court that a DVO could be reissued, the court must still have jurisdiction to extend an order.  Because she filed a petition for another DVO, Zimmerer’s original DVO still expired on August 28, 2009. On that date, she no longer was protected by the DVO but was under the protection of the newly issued EPO. Unfortunately for Zimmerer, at EPO/DVO hearing FC held that the allegations in the EPO were not sufficient for the granting of another DVO.

 

CA rejected Zimmerer’s argument that the filed petition was intended as a motion to extend the 2006 order, holding that the DVO statutes establish the jurisdictional prerequisites for extending a DVO and these jurisdictional parameters must be maintained to maintain the efficacy of these statutes. FC does not have the authority to re-characterize a “petition” for a DVO as a motion for an extension of a DVO.

 

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

 

 

Hunter v. Mena, Ky COA, Domestic Violence

Hunter v. Mena, 2009-CA-000494-ME

Issue: Domestic Violence Order

Published: Affirming in part, Reversing in part, Remanding

County: Jefferson

 

Hunter appealed a Domestic Violence Order (DVO), which prohibited contact with his former girlfriend, Mena, and his nephew. 

 

FACTS:

Mena lived with Hunter and his nephew, Christopher.  Hunter discovered that Mena and Christopher had become romantically involved.  Hunter stole Mena’s purse, had his niece physically attack her, and committed other acts of harassment.  Mena moved out and briefly stayed with Christopher’s mother, at a shelter, and then went to stay with her mother in Indiana.  Mena filed an EPO, and a DVO was issued after a hearing.  The DVO was amended following a rehearing approximately a month later.  Hunter appealed. 

 

ANALYSIS:

Hunter asserted three claims on appeal: 1)DVO improperly prohibited contact with Christopher, a non-party, 2) family court lacked subject matter jurisdiction to enter DVO since Mena was not a Kentucky resident at the time, and 3) the evidence contradicted court’s finding that he committed acts of domestic violence against Mena. 

First, COA found that Christopher was a minor.  At the time that Mena filed her EPO, Mena’s mother filed an EPO on Christopher’s behalf as his next friend.  The EPO was entered, but later rescinded at the rehearing since Mena’s mother was not a Kentucky resident.  To qualify as a “next friend” the individual must reside in Kentucky.  However, in order to protect Christopher the court entered a requirement on Mena’s DVO that Hunter have no contact with Christopher.  This was error.  Christopher is entitled to the protection of the domestic violence statutes, but since he is a minor Mena should have filed a petition on his behalf.  She did not. Therefore, the no contact requirement in Mena’s DVO regarding Christopher must be stricken.

        Second, COA found that Mena did not abandon Kentucky as her legal residence when she went to stay with her mother in Indiana.  She made every effort to stay in Kentucky and only went to Indiana after Hunter refused to leave her alone.  There was no evidence that Mena intended to establish permanent residency in Indiana.  The Kentucky court had subject matter jurisdiction. 

    Finally, COA found that the testimony and evidence presented at the hearing was conflicting and the COA would not substitute its judgment for that of the trial court.  The evidence was legally sufficient to support the family court’s decision. 

 

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

Walsh-Stender v. Walsh, Ky COA, UCCJEA Jurisdiction

Walsh-Stender v. Walsh, __ S.W.3d __ (Ky. App. 2009)

   The parties divorced in Tennessee and the decree included a permanent parenting plan regarding the custody of the parties’ minor son.  The Tennessee court modified the parenting plan in 2004, and shortly thereafter father and son moved to Kentucky.  Even though the son lived in Kentucky, he still visited his mother in Tennessee.  In 2008, father filed a petition to modify custody in Kentucky.  Father sought sole custody with mother having limited visitation.  After a hearing, the Kentucky court granted father’s motion.  Mother, who represented herself, filed a CR 60.02 motion months later.  The Kentucky court denied the motion and mother appealed. 

The COA never reached the merits of mother’s CR 60.02 motion.  Instead, it vacated the trial court’s denial of her CR 60.02 motion, the custody modification order, and any and all collateral orders, including the award of costs and attorney fees to father, because the Kentucky court lacked subject matter jurisdiction under the UCCJEA.  “Under the UCCJEA, the state having original jurisdiction over a custody matter retains exclusive, continuing jurisdiction over all custody matters even when the child has acquired a new home state as long as the child and at least one parent maintains substantial connections with the state.”  Since the mother still lived in Tennessee and the son regularly visited her, the substantial connection requirement was met.  Further, there was nothing in the record that showed that Tennessee declined to exercise its jurisdiction.  The lack of jurisdiction by the Kentucky court cannot be waived.  Even though the mother did not raise the issue of jurisdiction on appeal, appellate courts are required to address jurisdictional issues sua sponte if needed.  

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

Leach v. Harrison, Ky COA, Standing Of Non-Parents (Not Defacto Custodians)To Petiton For Custody

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

    More than eight investigations were opened regarding the mother’s abuse and neglect of her three minor children, including excessive corporal punishment.  Due to the ongoing investigations, all three of the children were eventually placed with the maternal grandparents on a temporary basis. The maternal grandparents filed for permanent sole custody of the children.  DRC recommended that father have custody of the children, the grandparents have visitation, and that mother be allowed to regain her visitation rights.  The trial court rejected the DRC’s recommendations and granted permanent sole custody to the grandparents and allowed the father unsupervised visitation.  Father appealed.  The mother of the children stipulated to neglect in the trial court and did not appeal. 

    COA never reached the merits of the case.  It vacated and remanded based on lack of jurisdiction.  Both parties stipulated before the hearing that the grandparents were not de facto custodians.  The right of a non-parent, other than a de facto custodian, to have standing to petition for custody used to be set forth in KRS 403.420, which was part of the Uniform Child Custody Jurisdiction Act (UCCJA).  The UCCJA was repealed in 2004 and replaced by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  No provision or statute currently in effect allows a third party, who is not a de facto custodian, to have standing to petition for custody.  Without jurisdiction, the Court had no power to do anything.  COA ordered the children to remain in the care of the grandparents pursuant to a previous order.  It also noted that if the children remained in the temporary custody of the grandparents for a continuous year following the conclusion of the proceedings, the grandparents would have standing as de facto custodians.  

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

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