ROBERTS (COURTNEY G.) VS. BEDARD (ERIK)Annotate this Case
RENDERED: FEBRUARY 12, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
COURTNEY G. ROBERTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN P. SCHRADER, JUDGE
ACTION NO. 08-CI-02123
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BEFORE: CAPERTON AND STUMBO, JUDGES; KNOPF,1 SENIOR JUDGE.
CAPERTON, JUDGE: The Appellant, Courtney Roberts, appeals the October 14,
2008, order of the Fayette Family Court, wherein the court dismissed Roberts’s
motion to modify a child support order from the state of Florida based upon a lack
of personal jurisdiction after finding Roberts was a non-resident of the
Commonwealth. In response, the Appellee, Erik Bedard, argues that the issues
Senior Judge William Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
raised by Roberts are resolved by KRS 407.5611(1), and thus, the order of the trial
court should be affirmed. Having reviewed the record, the arguments of the
parties, and the applicable law, we affirm.
Roberts and Bedard were never married, but had one minor child
together, as confirmed by a December 14, 2006, final judgment of paternity and
paternity agreement from the state of Florida, wherein the parties resolved issues of
both paternity and child support. At the time of entry of that order, Roberts had
resided in Florida for approximately three years. Bedard, a citizen of Canada, was
living in the United States pursuant to a work visa, and resided primarily in the
state of Maryland. Thereafter, in November of 2007, Roberts relocated to
Kentucky, and subsequently filed a notice, petition and motion to modify child
support on July 2, 2008.2 That pleading was served on Bedard in Seattle,
Washington, by certified mail.
Bedard made a special appearance, and objected to Kentucky
jurisdiction, stating that he was not a Kentucky resident, and further, that he had
not been served in Kentucky. In addition, Bedard noted Florida’s reservation of
jurisdiction. Roberts responded by affidavit, stating that she was in Kentucky at
Bedard’s direction. Bedard filed a responsive affidavit, denying the allegations
made by Roberts.
Bedard is a professional baseball player. Following entry of the initial child support order in
Florida, Bedard’s annual income went from approximately $380,000 per year to $3,200,000 per
year while playing for the Baltimore Orioles, and then to approximately $7,000,000 per year
upon being traded to the Seattle Mariners.
At the hearing below on this issue, Roberts elaborated on her
affidavit, testifying that when she and Bedard spoke in December of 2007, he
directed her to move to Kentucky, and that but for his directive, she would have
stayed in Florida. Roberts claimed that residing in Kentucky enhanced the
opportunity for both Bedard and his parents to visit the minor child, although no
such visits had taken place at the time of the hearing.
Part of the evidence reviewed by the court below included various
emails sent between the parties between December of 2007 and February of 2008.
The court found that those emails established that, contrary to Roberts’s claim that
Bedard had directed her to move to Kentucky, she was considering numerous other
places to live, and that she eventually settled in Lexington for various reasons,
none of which were at the direction of Bedard.3 The court also noted that Roberts
had stated in both affidavit and deposition testimony that she had no support or
friends in Florida.
Ultimately, after reviewing the evidence presented by the parties, the
court below issued an order finding that Roberts did not meet her jurisdictional
burden of proof under KRS 407.5201(5) for personal jurisdiction or KRS 407.5205
for issuing state jurisdiction. In so finding, the court stated that KRS 407.5201(5)
requires not mere suggestion of an act or direction by Bedard but in fact requires
some exercise of authority by Bedard.
According to the emails, the reasons included the importance of the child going to Roberts’s
dentist in Lexington, and attending the same “pre-k” school that Roberts had attended as a child,
in addition to being close to family.
Accordingly, the court found that the emails sent by Roberts, and her
clear personal ties to Lexington established that Bedard did not direct her
relocation. Thus, the court determined that not only would it decline to exercise
any jurisdiction it might have under KRS 407.5201, but that in fact it had no
jurisdiction, because none of the scenarios mandated by the statute occurred.
Accordingly, the court dismissed the motion to modify support.
On appeal to this Court, Roberts raises five issues, which include
whether the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
of KRS 403.800 is applicable to the exercise of personal jurisdiction over a nonresident party; whether the family court had personal jurisdiction over a nonresident party pursuant to the Uniform Interstate Family Support Act (UIFSA) of
KRS 407.5201 et. seq.; whether a foreign judgment registered in Kentucky would
be treated the same as if the judgment originated in Kentucky; whether a state loses
continuing jurisdiction of the parties and any judgment or order when all parties
move from the state; and whether the trial court improperly admitted emails
introduced by Bedard. In her prehearing statement, however, Roberts identified
the sole issue on appeal as being whether the family court had personal jurisdiction
over Bedard for modification of the foreign child support determination pursuant to
At the outset, we note that CR 76.03(8) provides that a party shall be
limited on appeal to issues in the prehearing statement except for instances wherein
when good cause is shown. In such instances, the appellate court may permit
additional issues to be submitted upon timely motion. As we have received no
such motion from Roberts in the matter sub judice, we decline to address the
numerous issues raised for the first time in her brief, and instead, focus our
attention on the application of the UIFSA to the matter sub judice, and to the issue
raised in her prehearing statement concerning whether the court had personal
jurisdiction pursuant to KRS 407.5201(5).
In her arguments to this Court, Roberts asserts that the court below
had personal jurisdiction over Bedard pursuant to KRS 407.5201(5), which
provides that the court will have jurisdiction over a non-resident if, “the child
resides in this state as a result of the acts or directives of the individual.”
Certainly, personal jurisdiction is required for child support orders to be
enforceable because such orders involve the imposition of a personal obligation to
pay money. See Gibson v. Gibson, 211 S.W.3d 601 (Ky.App. 2006). Further, we
acknowledge that the primary purpose of UIFSA is to eliminate multiple and
inconsistent child support orders by establishing a principle of having only one
controlling order in effect at any one time. See KRS 407.5205 et. seq.
Roberts attempted both below, and in her brief to this Court, to
establish that the court had personal jurisdiction over Bedard pursuant to KRS
407.5201(5). Having reviewed the record and applicable law, we believe that the
court lacked personal jurisdiction on the basis asserted by Roberts, and agree with
the trial court that the weight of the evidence establishes that Roberts moved to
Kentucky by her own choice, and not by act or at the direction of Bedard.
Furthermore, we believe Gibson, supra, to be determinative of the
issues raised in the matter sub judice. In Gibson, we addressed a scenario in which
neither of the parties resided in the issuing state of a support order which they
sought to modify. In Gibson, as in the matter sub judice, we were required to
interpret and apply the UIFSA, which Kentucky has adopted. In so doing, we
determined that various decisions made by our sister states were persuasive, and
found that any increase in child support requested by the obligee must be sought in
the state of residence of the obligor. In making that determination, we specifically
cited a holding of our sister state stating that, “the purpose of UIFSA is to prevent a
party from obtaining a local advantage by requiring that the moving party must be
a non-resident of the state where the motion is filed.” See Gibson at 607, citing In
re the Marriage of Abplanalp, 27 Kan.App.2d 833, 7 P.3d 1269 (2000).
The reasoning behind our holding in Gibson is further affirmed by the
language of KRS 407.5611, which provides specifically that:
1) After a child support order issued in another state has
been registered in this state, the responding tribunal of
this state may modify that order only if KRS 407.5613
does not apply and if after notice and hearing it finds
(a) The following requirements are met:
1. The child, the individual obligee, and the obligor do
not reside in the issuing state;
2. A petitioner who is a nonresident of this state seeks
3. The respondent is subject to the personal jurisdiction
of the tribunal of this state; or
(b) The child, or a party who is an individual, is subject
to the personal jurisdiction of the tribunal of this state
and all of the parties who are individuals have filed
written consent with the issuing tribunal for a tribunal of
this state to modify the support order and assume
continuing, exclusive jurisdiction over the order.
However, if the issuing state is a foreign jurisdiction that
has not enacted a law or established procedures
substantially similar to the procedures under this chapter,
the consent otherwise required of an individual residing
in this state is not required for the tribunal to assume
jurisdiction to modify the child support order.
In the matter sub judice, it is true that none of the parties reside in
Florida, the original issuing state, and that the order was properly registered in
Kentucky. It is equally clear that Roberts is a resident of Kentucky, however it is
just as clear that Bedard is neither subject to the personal jurisdiction of a tribunal
of Kentucky (KRS 407.5611(1)(a)(3)) nor consented to a modification of child
support by a tribunal of Kentucky (KRS 403.5611(1)(b)).
While Roberts has attempted to establish that Kentucky has personal
jurisdiction over Bedard, in reviewing the potential grounds for jurisdiction under
KRS 407.5201, we find that none have been properly established. Accordingly,
under both UIFSA and our holding in Gibson, we find that the trial court was
correct in finding that the statutory prerequisites for jurisdiction to modify the
support order were not met, and that it was therefore without jurisdiction to do so.
Wherefore, for the foregoing reasons, we hereby affirm the October
14, 2008, order of the Fayette Circuit Court, the Honorable John P. Schrader,
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
John Allen Taylor
W. Stokes Harris, Jr.