PATRICIA A. SCHMIDT v. DANIEL WINGENFELD
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RENDERED: February 19, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002513-MR
PATRICIA A. SCHMIDT
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY C. NOBLE, JUDGE
ACTION NO. 96-CI-002356
v.
DANIEL WINGENFELD
APPELLEE
OPINION
AFFIRMING IN PART AND
VACATING IN PART
* * * * * * * * * *
BEFORE:
BUCKINGHAM, JOHNSON, and KNOX, Judges.
BUCKINGHAM, JUDGE:
Patricia Schmidt (Patricia) appeals from an
order of the Fayette Circuit Court involving child support
arrearage, attorney’s fees, and travel expenses.
We affirm in
part and vacate in part.
Patricia and Daniel Wingenfeld (Daniel) were married in
October 1988, and Patricia gave birth to a daughter in February
1989.
Daniel filed for divorce from Patricia in Ohio in August
1989, and the initial divorce pleadings filed on behalf of Daniel
and Patricia acknowledged that the child was Daniel’s.
Likewise,
a subsequent paternity test showed a 98.81 percent probability
that Daniel was the child’s father.
In December 1989, Daniel was ordered to pay temporary
child support of $96.36 per week, which he failed to pay.
During
the divorce proceedings in 1990, Daniel’s stepmother made
allegations that Daniel had abused his stepbrother, and Patricia
alleged that Daniel had abused their child.
These allegations
were never substantiated, but Daniel and Patricia entered into an
agreed judgment of divorce which recited that there were no
children born of their marriage.
This agreed judgment also
expressly stated that each party waived arrearages for past child
support.
In September 1990, Daniel filed a motion in Ohio to set
aside the agreed judgment insofar as it stated that no child was
born of his marriage with Patricia.
Patricia moved to Kentucky
with the child in March 1992, and in May 1992, the Ohio trial
court granted Daniel’s motion and vacated the finding that no
children were born of the marriage and that the parties waived
child support arrearages.
Issues involving parental rights and
responsibilities were expressly reserved for a later
determination.
Patricia appealed the Ohio trial court’s ruling
vacating the relevant portion of the agreed judgment to the Court
of Appeals of Ohio, which affirmed the trial court’s ruling in
December 1993.
In July 1994, a hearing was held before a referee in
Ohio concerning the parental rights and responsibilities of the
parties.
The referee’s report stated in relevant part that
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Patricia would be the child’s custodial parent, that Daniel was
entitled to visitation in accordance with a schedule, and that
Daniel was to pay Patricia the sum of $200 per month plus a two
percent administrative fee every month for the support of the
child, effective July 20, 1990, the date on which the agreed
judgment of divorce was received for filing.
Daniel was also
ordered to pay $100 per month on the arrearage of $4,294.56 plus
a two percent administrative fee until the arrearage was paid in
full.
The referee found that Daniel’s total annual income was
$22,000 and Patricia’s was $5,720.
Based upon those incomes, the
referee found that Daniel’s support obligation pursuant to Ohio’s
child support schedule would be $281 per month, but that that
amount would be “unjust or inappropriate and not in the best
interest of the minor child due to the extraordinary costs
associated with visitation . . . as well as the unknown benefits
Defendant receives from her remarriage . . . .”
support was set at $200 per month.
Thus, child
Patricia’s objections to the
referee’s report were overruled by the trial court, and no appeal
was taken from the trial court’s order approving and adopting the
referee’s report.
Daniel later filed a motion in Ohio to modify
visitation and to require Patricia to show cause why she should
not be held in contempt for refusing to allow Daniel to exercise
his visitation rights.
These motions were heard before a
magistrate in Ohio in April 1996.
The magistrate found that Ohio
had jurisdiction over the proceedings but that Ohio was an
“inconvenient forum for future parenting proceedings” pursuant to
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the Uniform Child Custody Jurisdiction Act (UCCJA) and that
Kentucky would be a more appropriate forum.
No objections were
filed to the magistrate’s report, and it was adopted by the Ohio
trial court in June 1996.
The Ohio trial court ordered the
relevant portions of the record to be transmitted to the
appropriate Kentucky court, and the relevant judgments of the
Ohio courts were registered with the Fayette Circuit Court
(hereafter “the trial court”) in July 1996 by Daniel’s Kentucky
attorney.
Later in July 1996, Daniel filed a motion to modify
visitation with the trial court.
Patricia responded to the
motion and subsequently filed a motion to reduce child support
arrearages owed by Daniel to a lump-sum judgment.
Daniel filed a
response to Patricia’s motion in which he alleged that Kentucky
did not have jurisdiction to modify foreign support orders under
the (UCCJA), found in Kentucky Revised Statute (KRS) 403.400403.620.
While the motion to reduce child support arrearages to
a judgment was pending, Daniel filed a motion to determine
transportation responsibilities in regard to visitation and
seeking to require Patricia to bear some of the costs associated
with visitation.
In response to Daniel’s motion regarding
transportation responsibilities, Patricia requested the trial
court for attorney’s fees pursuant to KRS 403.220.
The trial court issued an order in April 1997 in which
it found that the Ohio court’s order concerning child support
arrearages did not address how arrearages which had accrued from
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July 1990 until March 1995 should be paid.
The court noted
Daniel’s contention that it had no jurisdiction over the support
issues but, nevertheless, provided that “[r]ather than make the
parties incur the cost of returning to Ohio for clarification on
this point, this Court will assume jurisdiction and rule on the
omitted term.”
The order did not state that the court had
jurisdiction over the support questions.
The trial court ordered
Daniel to pay support and arrearages as ordered by the Ohio court
but denied Patricia’s motion to reduce arrearages to a judgment.
Patricia’s motion to alter, amend, or vacate the April 1997 order
followed.
In September 1997, the trial court issued an order
resolving the lingering visitation issues between Patricia and
Daniel.
This order further provided that Patricia was
responsible for reimbursing Daniel for a portion of his
visitation expenses.
The order also set forth the amount of
arrearage owed by Daniel to be $14,994.15, but refused to alter
or vacate its previous order denying Patricia’s motion to reduce
that amount to a judgment.
motion for attorney’s fees.
Finally, the order denied Patricia’s
Patricia then filed a notice of
appeal in which she noted that she was appealing only from the
September 1997 order.
Patricia’s first argument is that the trial court had
no discretion to refuse to enter a judgment for arrearages as
“unpaid periodical payments for maintenance of children . . .
become vested when due.
The accrued sum of delinquencies is a
fixed and liquidated debt . . . .”
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Dalton v. Dalton, Ky., 367
S.W.2d 840, 842 (1963).
See also Stewart v. Raikes, Ky., 627
S.W.2d 586 (1982).
We agree with Daniel that the trial court had no
jurisdiction to rule on matters involving child support.
Although Daniel did not file a cross-appeal concerning the
rulings that the trial court made involving child support,
subject matter jurisdiction may not be waived and an appellate
court may find a lack of subject matter jurisdiction sua sponte.
Cann v. Howard, Ky. App., 850 S.W.2d 57 (1993).
Kentucky’s
adoption of the UCCJA gave the trial court jurisdiction “to
decide child custody matters” in KRS 403.420(1).
KRS 403.410(2)
defines “custody determination” as “a court decision and court
orders and instructions providing for the custody of a child,
including visitation rights; it does not include a decision
relating to child support or any other monetary obligation of any
person[.]”
The trial court acquired jurisdiction of child custody
and visitation rights pursuant to the UCCJA when Ohio declined to
exercise its jurisdiction, but such jurisdiction did not include
jurisdiction over child support matters.
At least two other
states have reached similar conclusions.
See Peck v. Jones, 878
P.2d 390, 391 (Okla. Ct. App. 1994); In re Marriage of Buchanio,
635 N.E.2d 980 (Ill. App. Ct. 1994), appeal denied by Buchanio v.
Buchanio, 642 N.E.2d 1274 (Ill. 1994).
In short, we hold that
the trial court correctly denied Patricia’s motion to reduce
child support arrearages to a judgment as it had no jurisdiction
of the matter.
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Patricia’s second argument is that the trial court
abused its discretion by not awarding her attorney’s fees.
KRS
403.220 allowed the court to award attorney’s fees for the cost
“of maintaining or defending any proceeding under this chapter.”
As the UCCJA is located in KRS Chapter 403, the trial court had
the authority to award attorney’s fees in this action.
However,
attorney’s fees are “entirely within the trial court’s
discretion.”
679 (1993).
Glidewell v. Glidewell, Ky. App., 859 S.W.2d 675,
As Daniel was successful on his motion for
visitation rights, and as the trial court had no jurisdiction to
consider Patricia’s child support motion, we conclude that the
trial court did not abuse its discretion in denying Patricia’s
motion for attorney’s fees.
Patricia’s final argument is that the trial court erred
in ordering her to pay a portion of the expenses Daniel incurred
when exercising his visitation rights with the child.
She notes
that the Ohio trial court ordered Daniel to pay only $200 per
month due to his visitation expenses rather than the $280 per
month called for by the Ohio child support schedule and argues
that the trial court abused its discretion in ordering her to pay
a portion of those expenses.
Again, we conclude that the trial
court did not have jurisdiction under the UCCJA to enter an order
relating to a “monetary obligation of any person.”
See KRS
403.410(2).
The order of the Fayette Circuit Court is affirmed in
part, but is vacated to the extent that it makes determinations
concerning child support and reimbursement of travel expenses.
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ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven F. Vicroy
Lexington, KY
Patrick F. Nash
Lexington, KY
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