TAMMIE GULLETT v. MICHAEL GULLETT
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RENDERED: March 12, 1999; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000785-MR
TAMMIE GULLETT
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS NICHOLLS, JUDGE
ACTION NO. 95-CI-000480
v.
MICHAEL GULLETT
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
HUDDLESTON, McANULTY, AND SCHRODER, JUDGES.
McANULTY, JUDGE.
This is an appeal by Tammie Gullett (Tammie)
seeking to vacate the supplemental decree of the Greenup Circuit
Court on the basis that, under the provisions of the Uniform
Child Custody Jurisdiction Act (UCCJA), the trial court was
without jurisdiction to consider the post-dissolution proceedings
as to child custody and visitation.
We affirm.
Tammie and the appellee Michael Gullett (Michael) were
married on October 22, 1994.
The marriage produced one child,
Jacob Thomas Gullett (Jacob), born September 28, 1995.
On
September 14, 1995, two weeks prior to the birth of Jacob,
Michael filed a petition to dissolve the marriage.
The petition
specifically sought custody of the unborn child.
On the day of
Jacob’s birth, Tammie responded and likewise sought custody of
the child.
Following various litigation, including proceedings
to establish Michael’s paternity of Jacob, on January 2, 1997,
the trial court entered a decree dissolving the marriage and
reserving all other issues, including child custody issues.
On
October 7, 1997, prior to the commencement of a scheduled final
hearing before the Domestic Relations Commissioner, the parties
announced that a settlement had been reached and that an agreed
order would be prepared and presented resolving all pending
issues in the dissolution action.
Under the agreement, inter alia, the parties were to
have joint custody of Jacob, with Tammie being the primary
residential custodian; Michael was to have visitation rights
pursuant to the Greenup Circuit Court uniform visitation
schedule; and Michael was to pay child support.
subsequently refused to sign the agreement.
Tammie
On December 10,
1997, Michael filed a motion requesting that the trial court
enforce the agreement.
On December 11, Tammie’s counsel filed a
motion to withdraw on the basis that “[Tammie] has failed to
communicate with counsel concerning representation in this
matter.”
Tammie retained new counsel and a hearing was held on
Michael’s motion to enforce the agreement.
On March 6, 1998, the
trial court entered an order and supplemental decree enforcing
and incorporating the agreement made between the parties.
appeal followed.
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This
Tammie contends that the trial court did not have
jurisdiction over the post-dissolution proceedings relating to
custody and visitation because she was a resident of Ohio at the
time of the filing of the petition to dissolve the marriage and
because she and Jacob have lived in Ohio since the child’s birth.
Tammie acknowledges that the issue of jurisdiction was not
brought to the attention of the trial court prior to entry of the
March 6, 1998, supplemental decree; however, she nevertheless
argues that the issue may now be raised because subject matter
jurisdiction may not be waived by a party.
Jurisdiction of the subject matter cannot be conferred
by waiver or consent.
Commonwealth, Dept. of Highways v.
Berryman, Ky., 363 S.W.2d 525, 526 (1962);
Johnson v. Bishop,
Ky. App., 587 S.W.2d 284, 285 (1979); CR 12.08.
The question of
subject matter jurisdiction may be raised at any time and is open
for the consideration of the reviewing court whenever it is
raised by any party.
Berryman at 526 - 527.
Though Tammie
failed to raise the issue of subject matter jurisdiction
throughout two and one-half years of trial court proceedings, she
may nevertheless raise this issue for the first time on appeal.
The UCCJA is codified in KRS 403.400, et seq.
The
jurisdictional rules are codified in KRS 403.420(1) and provide,
in relevant part, as follows:
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
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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.
Tammie states in her brief that “[a]t the time of the
filing of the petition [she] and the parties’ child were
residents of the State of Ohio.”1
not supported by the record.
This assertion, however, is
The petition was filed on September
14, 1995, and Jacob was born on September 28, 1995.
1
As an unborn
Sometime in July 1995, while pregnant with Jacob,
Tammie moved to Ohio to live with her parents and has remained a
resident of Ohio since that time.
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child, Jacob was not a “resident” of Ohio at the time of the
filing of the petition for dissolution in this action.
Jacob’s status as an unborn child at the time of the
filing of the petition for dissolution creates an anomaly in the
application of KRS 403.420(1).
KRS 403.420(1)(a) confers child
custody jurisdiction upon a state if that state is the home state
of the child “at the time of commencement of the proceeding.”2
A
proceeding is commenced in the circuit court when a parent files
a petition for dissolution of the marriage.
KRS 403.420(4)(a).
For a child less than six months old, KRS 403.410(5) defines the
child’s home state to be “the state in which the child lived from
birth.” (emphasis added).
Since Michael filed his petition for
dissolution prior to the birth of Jacob, Jacob did not have a
“home state” at the time of the “commencement of the
proceedings.”
Hence, as of the time of the filing of the
petition for dissolution, we do not discern a home state
jurisdictional preference in favor of Ohio under KRS
403.420(1)(a).
Physical presence of the child, while desirable, is not
a prerequisite for jurisdiction to determine his custody.
403.420(3).
KRS
Upon the filing of the petition to dissolve the
marriage, either Kentucky, or Ohio - the domicile of the father
and mother, respectively - could arguably have assumed
jurisdiction under KRS 403.420(b).
However, because the child
was unborn at the time of the petition, again, there is an
2
Or if the state was the home state within six months
prior to the commencement of the proceedings.
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anomaly in the application of KRS 403.420(b) in that the unborn
child, having no life experiences, had not yet had the
opportunity to form “significant connections” with a state, be it
Kentucky or Ohio.
See Graham & Keller, Domestic Relations Law,
15 Kentucky Practice § 14.28 (2d ed. 1997) for a discussion of
significant connection jurisdiction under the UCCJA.
Under the circumstances of this case, the most
appropriate subsection of KRS 403.420(1) to apply is subsection
(d).
Under this subsection a state may assume jurisdiction if no
other state has jurisdiction in accordance with subsections (a) (c) and it is in the best interest of the child for the state to
assume jurisdiction.
We conclude that no other state, including
Ohio, appeared to have custody jurisdiction over the unborn child
at the time the dissolution petition was filed.
We do not have
before us a best interest jurisdictional analysis under the facts
as they existed at the time the dissolution petition was filed.
In her brief, Tammie has failed to set forth a case showing that
it was not in the best interest of Jacob that Greenup Circuit
Court assume jurisdiction or that the best interests of Jacob
would have been better served by litigating child custody issues
in Ohio.
“[A] circuit court is a court of general jurisdiction;
its judgments are presumed to be within its jurisdiction until
the contrary appears.
If the judgment is void it is a nullity
and may be disregarded everywhere; but he who assails a judgment
as void must state facts showing it to be void.”
Goodman v.
Board of Drainage Com'rs of McCracken County, Mayfield Creek
Drainage Dist. No. 1, Ky., 16 S.W.2d 1036, 1037-1038 (1929).
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Tammie has failed to show that at the time of the commencement of
this custody proceeding, jurisdiction was not proper under KRS
403.420(1)(d).
Upon the birth of Jacob, Ohio became his home state.
Thereafter, Ohio was authorized under the UCCJA to assume
jurisdiction to determine Jacob’s custody under its equivalent of
KRS 403.420(1)(a).
See Ohio Revised Code (ORC) 3109.22.
However, pursuant to ORC 3109.24, the equivalent of KRS 403.450,
an Ohio Court
shall not exercise its jurisdiction . . . if
at the time of filing the petition a
proceeding concerning the custody of the
child was pending in a court of another state
exercising jurisdiction substantially in
conformity [with the Ohio equivalent of KRS
403.420 to KRS 403.620], unless the
proceeding is stayed by the court of the
other state because [Ohio] is a more
appropriate forum or for other reasons.3
Hence, upon the birth of Jacob, Ohio attained concurrent
jurisdiction to decide custody matters concerning Jacob; however,
the fact that Ohio later became Jacob’s home state did not divest
Kentucky of the jurisdiction it theretofore had properly
exercised under KRS 403.420(1)(d).
The mere fact that the child
and his custodial parent live in another state does not, as a
matter of law, divest the trial court of jurisdiction.
Dillard
v. Dillard, Ky. App., 859 S.W.2d 134, 137 (1993).
3
See also the Parental Kidnapping Prevention Act, 28
U.S.C.A. 1738(g); “A court of a state shall not exercise
jurisdiction in any proceeding for a custody determination
commenced during the pendency of a proceeding in a court of
another state where such court of that other state is exercising
jurisdiction consistently with the provisions [substantially
similar to those set forth in KRS 403.420(1)].”
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In her brief, Tammie specifically objects to the trial
court’s jurisdiction to hear the “post dissolution proceeding as
to custody [and] visitation.”
The decree dissolving the marriage
was entered on January 2, 1997.
Based upon our discussion,
supra, we fail to discern how the entry of the dissolution decree
would trigger the divestiture of UCCJA jurisdiction in the trial
court any more so than would Jacob’s birth and his subsequent
acquisition of a home state.
Rather, following the entry of the
dissolution decree, upon a proper filing in Ohio, the
simultaneous proceeding procedures under KRS 403.450 and ORC
3109.24 would be triggered.
Entry of the decree of dissolution
did not automatically divest the trial court of jurisdiction.
In summary, at the time of the filing of the petition
to dissolve the marriage, Kentucky was a proper forum to litigate
child custody issues pursuant to KRS 403.420(1)(d).
While Ohio
later became the home state of Jacob and hence a proper forum
under the Ohio version of KRS 403.420(1)(a), no event occurred
following the filing of the original petition that would have
divested the trial court of its initial jurisdiction.
For the foregoing reasons, the trial court had
jurisdiction over the subject matter and the supplemental decree
of the trial court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mary Hall Sergent
Ashland, Kentucky
Roger R. Cantrell
Greenup, Kentucky
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