ROBIN LEE DUCKWORTH v. EDWARD NEIL DUCKWORTH
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RENDERED:
JANUARY 12, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-002433-MR
ROBIN LEE DUCKWORTH
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
CIVIL ACTION NO. 97-CI-00220
v.
EDWARD NEIL DUCKWORTH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, MILLER and TACKETT, Judges.
HUDDLESTON, Judge.
Robin Lee Duckworth appeals from an order
denying her motion to redocket a petition for dissolution of
marriage.
Additionally, Robin challenges the circuit court’s
decision to decline subject matter jurisdiction, the failure to
conduct an evidentiary hearing in arriving at that decision and the
dismissal due to inconvenient forum.
I.
FACTS AND PROCEDURAL HISTORY
The Duckworths were married on May 5, 1996, in Fort Bend
County, Texas.
On June 3, 1997, Edward filed a petition for
dissolution of his marriage to Robin in Knox Circuit Court.
At the
time, the Duckworths lived in Barbourville, Kentucky.
They had a
son who was seven months old and Robin was pregnant with a child
due in January 1998.
this action.
Edward properly served Robin with notice of
On June 23, 1997, Robin filed a pro se reply to
Edward’s petition.
Sometime prior to March 10, 1998, Edward moved to Texas.
At some point, though it is not clear from the record when, the
children joined him in Texas.
On September 10, 1998, Edward filed
a notice of voluntary dismissal of the Knox Circuit Court action.
On May 10, 1999, Robin filed a motion to redocket the original
petition with a supporting affidavit.
On May 12, 1999, Ron
Reynolds, counsel for Edward, filed an affidavit in support of his
actions taken to have the original petition voluntarily dismissed.
On May 28, 1999, the Knox County Domestic Relations
Commissioner wrote a letter to a judge in Tyler, Texas.
The
Commissioner’s understanding was that Edward had filed a petition
to dissolve the Duckworth marriage in Texas on the same day that he
had filed his notice of voluntary dismissal in Kentucky.
This
letter stated that the DRC had conferred with the circuit court
judge in Kentucky to determine whether the Kentucky court would
accept or decline jurisdiction.
Based on the failure of the
parties to go forward with the case in Kentucky, the DRC and the
judge decided to decline jurisdiction.
On June 3, 1999, the
district court of Rockwall County, Texas, entered a final decree of
divorce.
Robin and Edward appeared in person, with counsel, and
announced ready for trial on that date.
There is nothing in the
record to suggest that either party objected to the jurisdiction of
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the Texas court; and the court found that it had jurisdiction of
the case and of all the parties.
On June 10, 1999, the DRC filed a report on the original
action.
report.
On June 18, 1999, Robin filed an objection to the DRC’s
She
specifically
then
requested
reiterating
that
the
the
court’s
court
enter
decision
to
an
order
decline
jurisdiction.
On August 10, 1999, Edward filed a copy of the final
divorce decree and other papers from the Texas divorce action in
Knox Circuit Court.
The Texas divorce decree found the home state
of both infant children of the marriage to be the State of Texas.
On August 23, 1999, Knox Circuit Court denied Robin’s
exceptions to the DRC’s report and it denied her motion to redocket
the original action.
On September 2, 1999, Robin appealed to this
Court.
II.
PROOF OF SERVICE
The first question presented is whether a party has
properly served an answer when an offer of proof of service is made
by a statement within a motion and affidavit filed more than seven
months after receiving notice of voluntary dismissal. The question
requires an interpretation of the language of two Kentucky Rules of
Civil Procedure - CR 5.03 and CR 41.01.
First, we look to the
language of CR 41.01(1) which, in pertinent part, states that “any
claim . . . may be dismissed by the plaintiff without order of the
court, by filing notice of dismissal at any time before service by
the adverse party of an answer . . . . ”
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This begs the question of
what constitutes proof of “service” of an answer?
The civil rules
resolve this question in CR 5.03 where it is stated:
Whenever any pleading or other paper is served
. . . ,
proof of the time and manner of such service shall be
filed before action is to be taken thereon by the court
or the parties.
Proof may be by certificate of a member
of the bar of the court or by affidavit of the person who
served the papers, or by any other proof satisfactory to
the court.
Conceding that proof by certification does not exist
here, Robin urges us to look to the last two phrases of the rule,
specifically, that service is proper if “by affidavit of the person
who served the papers, or by any other proof satisfactory to the
court.”
However, neither method of proof was properly made here.
While Robin filed her reply to the original petition with
the circuit court, nothing in the record proved her assertion that
she had properly served Edward or his counsel with an answer prior
to the notice of voluntary dismissal.
Proof of service “shall be
filed before action is to be taken thereon by the court or the
parties.”1
The only proof Robin filed concerning service of a
reply came more than seven months after Edward had filed the notice
of voluntary dismissal; therefore, her filing of proof of service
was not timely made.
Whether there existed “other proof satisfactory to the
court” that Robin had properly served Edward or his counsel is a
1
Ky. R. Civ. Proc. (CR) 5.03.
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Emphasis supplied.
question of fact.
Determination of the existence of such proof is
within the sound discretion of the trial court.
III.
SUBJECT MATTER JURISDICTION
The second question presented is whether the court’s
decision to decline jurisdiction was erroneous.
“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.”2
Robin urges us to follow Brighty v. Brighty3 where
it was stated that:
Under the UCCJA4, the question of whether jurisdiction
exists in a particular forum to entertain a motion for a
child
custody
determination,
either
by
initial
or
modification decree, necessarily involves an evidentiary
hearing dedicated to resolution of the issue consistent
with the best interests of the child.5
However, reliance on this portion of the Brighty decision
is misplaced.
The issue in Brighty was whether the trial court had
jurisdiction to enforce a contempt order although it no longer had
jurisdiction to modify the underlying visitation order.
court
entered
no
initial
decree
in
Kentucky.
Here, the
Therefore,
no
2
Gullett v. Gullett, Ky. App., 992 S.W.2d 866, 869 (1999),
citing Commonwealth, Dept. of Highways v. Berryman, Ky., 363 S.W.2d
525, 526 (1962).
3
Ky., 883 S.W.2d 494 (1994).
4
Uniform Child Custody Jurisdiction Act (the Act has been
codified in Kentucky as Ky. Rev. Stat. (KRS) 403.400 et seq.)
5
Brighty, supra, n. 3, at 496.
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modification issue exists.
Since a voluntary dismissal of the
original divorce action existed, the motion to redocket does not
rise to the level of a child custody determination.
Therefore,
Robin is not entitled to an evidentiary hearing under the terms of
Brighty.
Robin’s argument that KRS 403.430 requires a court to
give reasonable notice and opportunity to be heard before making a
child custody determination must fail for the same reason.
Since
the court was never required to make a child custody determination,
the rule does not apply to her case.
IV.
DISMISSAL ON OTHER GROUNDS
Finally, Robin asserts that the court erred in failing to
apply the appropriate legal standards in dismissing the dissolution
action on the ground of inconvenient forum.
fatally flawed.
This argument is
Since Edward voluntarily dismissed the action, it
was not dismissed on the ground of inconvenient forum.
The only
reference to inconvenient forum in the record was in a letter from
the DRC to the judge in Tyler, Texas.
In the closing of the
letter, the DRC mentions that he and the circuit court judge
believe the proper forum conveniens would lie in the Texas court.
The assertion that the court dismissed the action on the ground of
inconvenient forum unsupported by the record.
V.
CONCLUSION
The court properly denied Robin’s motion to redocket the
divorce action.
subject
matter
Additionally, the court’s decision to decline
jurisdiction
and
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its
failure
to
conduct
an
evidentiary hearing in arriving at that decision were proper under
the circumstances.
We affirm the order.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rhonda Duerr Girdner
Barbourville, Kentucky
Franklin A. Stivers
London, Kentucky
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