KATHERINE S. BAKER v. MARTIN BAKER
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RENDERED:
SEPTEMBER 16, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001485-ME
KATHERINE S. BAKER
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 03-CI-504624
v.
MARTIN BAKER
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Katherine S. Baker brings this appeal
from an order of the Jefferson Family Court summarily denying
her motion for an order establishing jurisdiction and for
modification of parenting schedule, entered July 1, 2004.
For
the following reasons, we vacate and remand to the family court
for an evidentiary hearing.
A brief recitation of the facts is warranted.
Appellant Katherine Baker (Kate) and Appellee Martin Baker
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
(Martin) resided in Fullerton, California during their elevenyear marriage.
The marriage produced three children, born in
1992, 1994, and 1997.
Kate petitioned for dissolution of the
marriage on June 28, 1999.
(Orange County, California, Superior
Court Case Number 99D006106).
On June 20, 2002, the parties
entered into a stipulated agreement providing for joint legal
custody of the three minor children with Kate retaining sole
physical custody.
The stipulation specifically provided that
"(f)ather gives consent to Mother moving out of state with the
minor children."
Pertinent to this appeal, the stipulation also
provided:
JURISDICTION. The parties hereby stipulate
that jurisdiction for this matter is to
remain in California until either the Court
declines jurisdiction or until the parties
jointly stipulate to another jurisdiction,
which is then accepted by the Court in
question. (If the parties were to stipulate
to jurisdiction in a locale which then
declined jurisdiction, then jurisdiction
would remain with California.) . . .
ATTORNEYS' FEES IN ACTION TO ENFORCE OR
MODIFY AGREEMENT. The prevailing party in
any action or proceeding to enforce or
modify any provision of this agreement, or
any corresponding provision of a subsequent
judgment into which the provision is merged,
will be awarded reasonable attorneys' fees
and costs. For the moving party to be
deemed the prevailing party for purposes of
this provision, at least ten days before the
filing of any motion he or she must provide
written notice to the other party specifying
the alleged breach or default, if capable of
being cured, or the modification requested.
The other party must then be allowed to
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avoid implementation of this provision by
curing the breach or default specified or
executing an agreement for the modification
requested] (sic) during the, (sic) ten-day
period.
The parties were thereafter granted a divorce on September 16,
2002, by the Superior Court.
Meanwhile, in July, 2002, Kate and the children moved
to Jefferson County, Kentucky.
In December, 2003, Kate
petitioned the Jefferson Family Court to "Domesticate and
Enforce Custody Judgment and Modify Parenting Schedule," and
Martin responded pro se in opposition thereto.
The record
contains no resolution of this petition.
On June 16, 2004, Kate filed the motion which formed
the basis of this appeal, specifically moving for an order
establishing jurisdiction and for modification of parenting
schedule, to which Martin did not respond.
In summarily denying
the motion and declining to accept jurisdiction, the Jefferson
Family Court concluded 1) that because California had adopted
the doctrine of "exclusive, continuing jurisdiction" in custody
matters, pursuant to California Family Code § 3422, Kate was
first required to file a motion in the California divorce action
to give that court the opportunity to determine that it no
longer had jurisdiction; and 2) that California was the more
appropriate forum to consider the issue of the parties'
parenting schedule with the children, given that a) Martin still
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lived in California and had another child living there who is
the half-brother of Kate and Martin's children, b) Kate's
brother, wife and child (cousin to Kate and Martin's children)
still lived in California, c) Kate had withheld visitation with
the children from Martin since April, 2003, without seeking a
modification from the California court, and d) the parties had
agreed that Kate and the children could move out of California
so long as California retained jurisdiction.
Therefore, the
family court "decline(d) to accept jurisdiction of this matter
until Ms. Baker has filed a motion in the parties' California
divorce action and given that court the opportunity to determine
that it no longer has jurisdiction of this matter."
Further,
without a specific motion from Martin, the family court reserved
his "motion for reimbursement of necessary travel and other
expenses, including attorney fees, under KRS 403.450(3) . . .
until such time as he submits an itemized affidavit to the
Court, setting forth the time incurred, the hourly rate, and
other expenses incurred."
Kate's Kentucky Rules of Civil
Procedure (CR) 59.05 motion to alter, amend, or vacate the
family court's order (as it pertained to the custody and
parenting schedule) was denied, and this appeal followed.
Martin did not file a brief for appellee.
As a preliminary matter, we note that there is a
pending motion by Kate before this Court for leave to submit the
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following additional information.
Between the filing of the
notice of appeal and the filing of her brief, apparently in
response to the directive of the family court in the order now
on appeal, Kate filed a motion in California asking the Orange
County Superior Court to decline jurisdiction and to transfer
the action to Kentucky.
This motion was granted and the case
was transferred from California to Kentucky on December 30,
2004. 2
Kate thereafter filed a motion in this Court asking leave
to submit this order to this Court.
Martin did not respond, and
the motion was passed to this panel on the merits.
Having reviewed the record, we are inclined to grant
Kate's motion given that the California court's order declining
jurisdiction and transferring same to the Jefferson Family Court
was specifically requested by the Jefferson Family Court and is
material to the disposition of this appeal.
Before us on appeal, Kate asserts that because of
disputed factual issues, the family court erred in denying her
2
The order, in pertinent part, states as follows: 1. The proceedings in
this case are transferred to the Jefferson County Kentucky Family Court,
pursuant to § 397.5 of the California Family Code and § 396b of the
California Code of Civil Procedure provided they will accept jurisdiction.
[Kate] to pay costs of transfer.
2.
The Orange County California Superior Court determines that it is an
inconvenient forum for the future determinations of the child custody issues
in this case and that the Jefferson County Kentucky Family Court is a more
appropriate forum for the determination of those issues. Therefore, pursuant
to Family Code § 3427, the future determination of the child custody issues
in this case by the Orange County Superior Court are stayed in favor of the
Jefferson County Kentucky Family Court; and the Orange County Superior Court
declines to exercise its jurisdiction for future determinations of the child
custody issues in this case.
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motion without a hearing, and also in its prospective
application of Kentucky Revised Statutes (KRS) 403.824.
We
review questions of fact under the clearly erroneous standard of
CR 52.01.
Riechle v. Riechle, 710 S.W.2d 442, 444 (Ky. 1986).
We review questions of law de novo.
See generally Brown v.
Commonwealth, 40 S.W.3d 873, 875 (Ky.App. 1999).
As we conclude
that the summary factual findings of the family court are not
supported by substantial evidence but instead based on
conflicting facts which are best resolved by an evidentiary
hearing, we vacate and remand.
The family court based its summary denial of
jurisdiction on KRS 403.460 and 403.470, concluding that the
California court was more appropriate to consider the issue of
the parties' parenting schedule because:
The children lived in California from their
birth until July of 2002, when they moved to
Kentucky. [Martin] still resides in
California. [Martin] has another child
living in California, who is the halfbrother of the children. [Kate's] brother,
his wife, and their child, the cousin of the
children, still reside in California.
[Kate] has withheld visitation with the
children from [Martin] since his last visit
with them in California in April of 2003
without seeking a modification of their
parenting schedule in the California court.
Finally, the parties agreed that [Kate] and
the children could move out of California so
long as California retained jurisdiction of
this matter. It is unlikely that [Martin]
would have agreed to permit [Kate] and the
children to leave California without any
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assurance that California would have
retained jurisdiction of this matter.
While there is evidence in the record to support these factual
findings, the evidence cannot be characterized as substantial.
Instead, in reviewing the record we find that the findings are
supported only by the unsworn pro se response filed by Martin to
the initial petition filed in this case by Kate, and are
diametrically opposed by Kate in her pleadings.
As there was
conflicting evidence in the pleadings, an evidentiary hearing
should have been held.
See generally Williams v. Phelps, 961
S.W.2d 40, 43 (Ky.App. 1998).
In any event, our vacating and remanding of the family
court's decision in order to conduct an evidentiary hearing on
this matter dovetails with the family court's directive in the
decision:
[T]his Court will decline to accept
jurisdiction of this matter until [Kate] has
filed a motion in the parties' California
divorce action and given that court the
opportunity to determine that it no longer
has jurisdiction of this matter.
As the California court has declined jurisdiction and
transferred the case to Kentucky, the case is ripe for decision
on the terms as set by the family court.
Two issues remain on appeal.
First, Kate asserts that
the family court erred in sua sponte awarding attorney fees and
costs to Martin.
While it is accurate that Martin did not make
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a motion for attorney fees and costs, he did indicate in his pro
se response that it was appropriate under Kentucky law for the
court to charge Kate with all of Martin's expenses incurred in
opposing Kate's request.
We also note that Kate agreed in the
stipulated agreement to the award of attorney fees and costs to
the prevailing party in an action to enforce or modify the
agreement.
We decline to address this issue, however, as Kate
did not raise this issue in her CR 59.05 motion or prehearing
statement.
CR 59.06, 76.03(8).
Second, we cannot agree with Kate's assertion that the
family court erred in prospectively applying KRS 403.824, which
provides for continuing and exclusive jurisdiction in the same
manner as the California code, and which was not effective until
July 13, 2004, several days following the court's ruling herein.
Although it is true that the family court made reference in its
order to the (at the time) upcoming change in the statute, it is
clear from a reading of the order that the court based its
decision on the law in effect at the time the decision was
rendered.
We therefore see no error.
For the foregoing reasons, we vacate the order of the
Jefferson Family Court and remand for an evidentiary hearing and
other proceedings consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
No brief for appellee.
Mary Janice Lintner
Louisville, Kentucky
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