OPAL POWELL v. TONY R. LOGAN
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RENDERED: JULY 30, 1999; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002313-MR
OPAL POWELL
APPELLANT
APPEAL FROM MASON CIRCUIT COURT
HONORABLE ROBERT GALLENSTEIN, JUDGE
ACTION NO. 93-CI-253
v.
TONY R. LOGAN
APPELLEE
OPINION
VACATING
** ** ** ** **
BEFORE:
COMBS, DYCHE AND GARDNER, JUDGES.
GARDNER, JUDGE:
Opal A. Powell (Powell) appeals from orders of
the Mason Circuit Court awarding child visitation to Tony R.
Logan (Logan) and denying her Kentucky Rule of Civil Procedure
(CR) 60.02 motion to vacate those orders.
For the reasons stated
herein, we must vacate.
The facts are simple and uncontroverted.
Powell and
Logan produced a child, Brandi Logan (Brandi), born outside of
marriage in 1993.
Powell and Brandi reside in Ohio, and Logan
resides in Mason County, Kentucky.
In August, 1993, Powell filed
a petition in Mason Circuit Court pursuant to the Uniform
Reciprocal Enforcement of Support Act (URESA), Kentucky Revised
Statute (KRS) Chapter 407.
The petition sought to establish
paternity, child support, medical coverage, and unreimbursed
public assistance.
During the pendency of the proceedings, Logan
stipulated to paternity.
After proof was taken on the petition, the circuit
court rendered an "Order of Paternity" on February 16, 1994,
which adjudicated paternity, established temporary custody of
Brandi with Powell, and established visitation rights in favor of
Logan.
It appears that no further action was taken until
February 11, 1997, when the circuit court rendered an order
setting forth the specific dates and times of Logan’s right to
visitation.
Powell’s subsequent motion to set aside the February
11, 1997 order was denied.
On August 25, 1997, Powell filed a CR 60.02 motion
seeking to vacate all prior orders relating to visitation.
As a
basis for this motion, she argued that the circuit court lacked
both personal and subject matter jurisdiction.
The motion was
denied by way of order entered September 5, 1997, and this appeal
followed.
Powell now argues that the circuit court committed
reversible error in failing to vacate its prior visitation
orders.
Specifically, she maintains that URESA, the statutory
basis for her petition, expressly establishes the limited powers
and duties of the responding tribunal (in this case the circuit
court), and that the adjudication of visitation is not within the
scope of those limited powers.
As such, she argues that all
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orders relating to visitation were void for lack of jurisdiction
and that the circuit court should have so ruled on her motion for
CR 60.02 relief.
She also directs our attention to Abbott v.
Abbott, 673 S.W.2d 723 (1983), which she maintains supports her
argument that the circuit court was without jurisdiction to
adjudicate visitation rights.
In a separate but related argument, Powell notes that
she resides in Ohio, and that Brandi was born in Ohio and has
resided there her entire life.
The implicit argument is that
jurisdiction to adjudicate visitation cannot be established
independently of URESA because the petitioner and her child
reside outside the Commonwealth.
We have closely studied the facts, the law, and the
argument of counsel1, and find Powell’s argument persuasive.
URESA, codified at KRS Chapter 407, sets forth the scope of the
court’s authority thereunder at KRS 407.5301.
It provides as
follows:
(2) This section provides for the following
proceedings:
(a) Establishment of an order for
spousal support or child support
pursuant to KRS 407.5401;
(b) Enforcement of a support order and
income-withholding order of another
state without registration pursuant to
KRS 407.5501 to 407.5902;
(c) Registration of an order for spousal
support or child support of another
state for enforcement pursuant to KRS
407.5601 to 407.5612;
(d) Modification of an order for child
support or spousal support issued by a
tribunal of this state pursuant to KRS
407.5203 to 407.5206;
1
Logan has not filed a responsive brief.
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(e) Registration of an order for child
support of another state for
modification pursuant to KRS 407.5601 to
407.5612;
(f) Determination of parentage pursuant
to KRS 407.5701; and
(g) Assertion of jurisdiction over
nonresidents pursuant to KRS 407.5201
and 407.5202.
(3) An individual petitioner or a support
enforcement agency may commence a proceeding
authorized under KRS 407.5101 to 407.5902 by
filing a petition in an initiating tribunal
for forwarding to a responding tribunal or by
filing a petition or a comparable pleading
directly in a tribunal of another state which
has or can obtain personal jurisdiction over
the respondent.
Clearly, the court’s authority under Chapter 407 is
expressly limited to the registration, establishment, enforcement
or modification of spousal or child support orders, and to the
adjudication of parentage.
The dispositive question, then, is
whether Chapter 407 implicitly confers jurisdiction to the court
over matters not expressly enumerated.
does not.
We must conclude that it
While, to our knowledge, there are no published cases
within the Commonwealth so stating, there exists a vast array of
extra-jurisdictional case law which almost universally supports
Powell’s claim that URESA does not confer jurisdiction over
visitation.
See generally e.g., In re Byard, 658 N.E.2d 735
(Ohio 1996), citing Mississippi Dept. of Human Services v.
Marquis, 630 So.2d 331 (Miss. 1993);
Hood v. Hood, 499 A.2d 772
(Vt. 1985); State ex rel. Dewyea v. Knapp, 674 P.2d 1104 (Mont.
1984); England v. England, 337 N.W.2d 681 (Minn. 1983); State ex
rel. Hubbard v. Hubbard, 329 N.W.2d 202 (Wisc. 1983);
People ex
rel. VanMeveren v. District Court in and for Larimer County, 638
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P.2d 1371 (Colo. 1982);
1980);
Moffat v. Moffat, 612 P.2d 967 (Cal.
Kline v. Kline, 542 S.W.2d 499 (Ark. 1976).
These cases stand for the general proposition that the
scope of URESA is limited to the resolution of support and
parentage issues, and in so doing the foreign courts concluded
that the URESA cannot be interpreted as conferring jurisdiction
over visitation.
In further support of this proposition, the
successor act to URESA, namely the Uniform Interstate Family
Support Act (UIFSA), which adopts URESA’s underlying purpose,
Ostermiller v. Spurr, 968 P.2d 940 (Wyo. 1998), also contains
commentary "[w]hich makes clear that visitation issues are not to
be litigated in the context of a support proceeding."
Ostermiller v. Spurr, 968 P.2d at 935, citing the Uniform
Interstate Family Support Act, 9 Uniform Laws Annot. § 305
comment at 350 (1997 Supp.).
In sum, we find the reasoning
expressed in the above-cited cases and commentary to be
compelling and supported by the clear language of URESA, and
accordingly now adopt the conclusion that URESA does not confer
jurisdiction to adjudicate visitation issues.
Having determined that URESA does not vest the court
with jurisdiction to adjudicate visitation matters, we must then
determine whether jurisdiction could be found under the instant
facts separate from URESA.
Jurisdiction over visitation issues
may be found, if at all, by first determining if the court has
jurisdiction over custody issues.
566 S.W.2d 814 (1978).
Gaines v. Gaines, Ky. App.,
Jurisdiction over custody (and
accordingly over visitation matters) is established pursuant to
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KRS 403.420.
Captioned as "Prerequisites to Jurisdiction", it
states that,
(1) A court of this state which is competent
to decide child custody matters has
jurisdiction to make a child custody
determination by initial or modification
decree if:
(a) This state is the home state of the
child at the time of commencement
of the proceeding, or had been the
child's home state within six (6)
months before commencement of the
proceeding and the child is absent
from this state because of his
removal or retention by a person
claiming his custody or for other
reasons, and a parent or person
acting as parent continues to live
in this state; or
(b) It is in the best interest of the
child that a court of this state
assume jurisdiction because the
child and his parents, or the child
and at least one (1) contestant,
have a significant connection with
this state, and there is available
in this state substantial evidence
concerning the child's present or
future care, protection, training,
and personal relationships; or
(c) The child is physically present in
this state and the child has been
abandoned or it is necessary in an
emergency to protect the child
because he has been subjected to or
threatened with mistreatment or
abuse or is otherwise neglected or
dependent; or
(d) It appears that no other state would
have jurisdiction under
prerequisites substantially in
accordance with paragraphs (a),
(b), or (c), or another state has
declined to exercise jurisdiction
on the ground that this state is
the more appropriate forum to
determine the custody of the child,
and it is in the best interest of
the child that this court assume
jurisdiction.
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(2) Except under paragraphs (c) and (d) of
subsection (1) of this section, physical
presence in this state of the child, or
of the child and one (1) of the
contestants, is not alone sufficient to
confer jurisdiction on a court of this
state to make a child custody
determination.
(3) Physical presence of the child, while
desirable, is not a prerequisite for
jurisdiction to determine his custody.
(4) A child custody proceeding is commenced
in the circuit court:
(a) By a parent, by filing a petition:
1. For dissolution or legal
separation; or
2. For custody of the child in the
county in which he is permanently
resident or found; or
(b) By a person other than a parent, by
filing a petition for custody of
the child in the county in which he
is permanently resident or found,
but only if he is not in the
physical custody of one (1) of his
parents.
KRS 403.420 reveals two bases upon which we must
conclude that jurisdiction cannot be found under the instant
facts separate from URESA.
First, none of the prerequisites for
jurisdiction under KRS 403.420 is present - Kentucky is not the
home state of Brandi; Brandi does not have a significant contact
with Kentucky; she is not physically present and in need of
emergency protective orders; and, it cannot be said that no other
state would have jurisdiction.
Second, KRS 403.420(4) provides
that such a proceeding may be commenced only by the filing of a
petition for custody/visitation in the county in which the child
permanently resides or is found.
The failure of either of these
requirements bars the exercise of jurisdiction.
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Neither is met
in the matter at bar, and as such we cannot find that the circuit
court could have properly exercised jurisdiction via KRS 403.420.
For the foregoing reasons, the orders of the Mason
Circuit Court which establish or otherwise address visitation are
vacated.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Gerald W. Shaw
Aberdeen, Ohio
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