DAVID NEIL WELLMAN v. SHELLY IRENE CHRISTIAN
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RENDERED: May 24, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001793-MR
DAVID NEIL WELLMAN
APPELLANT
APPEAL FROM MARTIN CIRCUIT COURT
HONORABLE DANIEL SPARKS, JUDGE
ACTION NO. 00-CI-00185
v.
SHELLY IRENE CHRISTIAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, and COMBS, Judges.
COMBS, JUDGE:
David Neil Wellman appeals the July 10, 2001 order
of the Martin Circuit Court dismissing his petition for custody
of his children for lack of subject matter jurisdiction.
After a
review of the record and an examination of the prerequisites to
jurisdiction contained in the Uniform Child Custody Jurisdiction
Act (UCCJA), set out in KRS1 403.400 to 403.630, we affirm.
Wellman and the appellee, Shelly Irene Christian, a
resident of Maryland, are the parents of two children, Lester and
Paul, born in 1993 and 1994, respectively.
The parties were
never married; both children were born in Maryland and resided
with Christian in that state continuously from their birth until
July 2000, when Wellman brought them to Kentucky.
The parties
offer different versions of the events leading to the arrival of
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Kentucky Revised Statutes.
the children in Kentucky.
Wellman alleges that the children were
abandoned by their mother and that relatives prevailed upon him
to take responsibility for the boys.
Christian denies the
allegation that she abandoned the children; she claims that she
allowed Wellman to have the boys for a two-week period of
visitation at his residence, which was in Ohio at that time.
On August 23, 2000, Wellman filed a petition in the
Martin Circuit Court seeking custody of the children.
that he and the children were residents of Kentucky.
He alleged
The court
issued an order giving Wellman temporary custody of the children.
Christian, pro se, filed an answer to the petition, alleging
that:
(1) Wellman actually resided in Ohio; (2) the Kentucky
address which Wellman listed in the petition was that of his
brother; (3) the children were not residents of Kentucky but had
lived their entire lives with her in Maryland; and (4) she was
the proper custodian for the children.
Christian sought the
return of her children and the dismissal of Wellman’s petition.
After obtaining legal counsel, Christian moved the
trial court to set aside its temporary custody order and to
return the children to her custody.
In response to these
motions, Wellman alleged that while Christian had custody of
them, the children
were in a drug-infested environment, and were
exposed to drugs, drug use and the
accompanying lifestyle . . . which pose[d] a
very real and serious threat to their
physical, mental, moral and emotional health.
In light of these allegations, the trial court determined that it
had jurisdiction to entertain the custody dispute pursuant to KRS
-2-
403.420(1)(c) and (4)(a)(2).
On October 25, 2000, it denied
Christian’s motion for immediate custody and ordered an
assessment of Wellman’s home by the county child services agency.
On December 7, 2000, about two months after having been
awarded temporary custody of the children, Wellman was sentenced
in federal court to serve sixty months in prison following a plea
of guilty to charges of drug trafficking.
Wellman’s sister, Jean
Fannin, a resident of West Virginia, had possession of the
children after Wellman’s incarceration.
Fannin moved to
intervene in the custody action and sought temporary custody of
the children.
Meanwhile, Christian had commenced a custody
proceeding in the circuit court for the City of Baltimore,
Maryland.
She renewed her motion for immediate entitlement to
custody and requested that the Martin Circuit Court relinquish
jurisdiction of the proceeding pending on its docket.
The circuit court initially denied Christian’s motions
and placed the custody of the children with the Commonwealth of
Kentucky, Cabinet for Families and Children (Cabinet), which in
turn kept the children with Fannin.
Christian then filed a
motion to vacate, and the Martin Circuit Court reconsidered its
order and determined that it should decline to exercise ongoing
jurisdiction over the matter.
In analyzing the jurisdictional
issue, the circuit court reasoned as follows:
The situation as it now exists is that the
children have been residing in the State of
West Virginia for a substantially similar
amount of time as they resided in the State
of Kentucky. Regardless, however, the
lengthiest period of residence of the minor
children has been in the State of Maryland.
The Court is of the opinion that the children
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would have the closest connection to the
State of Maryland and it would be in the
State of Maryland where significant evidence
concerning the childrens’ [sic] care,
protection, training, and personal
relationships is most readily available.
On July 10, 2001, the circuit court granted Christian’s motion to
vacate its previous order, terminated its award of temporary
custody to the Cabinet, and dismissed the case from its docket.
In so ruling, the Martin Circuit Court expressed its hope that
the Maryland courts would place the children “in a caring and
nurturing environment.”
This appeal followed.
Wellman first argues that he acted properly in bringing
the children to Kentucky and that the Martin Circuit Court was
correct in assuming jurisdiction under the emergency provisions
of KRS 403.420(1)(c).
However, any issue relating to the grant
of temporary custody is now moot.
Neither the propriety of
Wellman’s actions nor the initial exercise of jurisdiction by the
circuit court in ordering temporary custody is before us for
review.
Rather, the judgment presented for our review raises the
issue of the propriety of the circuit court’s surrender of its
jurisdiction in favor of another forum.
Wellman next contends that once the circuit court
elected to exercise jurisdiction over the custody dispute, it had
“an affirmative duty, and an obligation to the minor children, to
provide for their care and safety.”
support of this proposition.
No authority is cited in
On the contrary, the provisions of
the UCCJA affirmatively encourage a trial court to make a
comparative analysis in cases where jurisdiction may exist in
more than one state:
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A court which has jurisdiction . . . to make
an initial or modification decree may decline
to exercise its jurisdiction any time before
making a decree if it finds that it is an
inconvenient forum to make a custody
determination under the circumstances of the
case and that a court of another state is a
more appropriate forum. (Emphasis added.)
KRS 403.460(1).
The statute then sets forth a series of factors
which the trial court should consider and weigh in reaching such
a determination:
(a) If another state is or recently was the
child’s home state;
(b) If another state has a closer connection
with the child and his family or with the
child and one (1) or more of the contestants;
(c) If substantial evidence concerning the
child’s present or future care, protection,
training, and personal relationships is more
readily available in another state;
(d) If the parties have agreed on another
forum which is no less appropriate; and
(e) If the exercise of jurisdiction by a
court of this state would contravene any of
the purposes stated in KRS 403.400. KRS
403.460(3).
After reviewing the record of this case in conjunction
with the statutory criteria, we conclude that the Martin Circuit
Court correctly held that jurisdiction should return to Maryland.
Maryland is the home state of the children (see KRS 403.410(5));
it is the state where their mother resides; Maryland is the
location of all the witnesses and the evidence pertaining to
Wellman’s claims that Christian is unfit to be entrusted with the
children’s care and custody.
Indeed, the retention and exercise
of jurisdiction by the Martin Circuit Court would tend to
undermine many of the purposes of the UCCJA expressed in KRS
-5-
403.400 (criterion (e) of KRS 403.460(3)).
Regardless of
Wellman’s motives for bringing his children to Kentucky, the
Martin Circuit Court properly found that Maryland has a “closer
connection” with the children and that it has superior access to
evidence regarding their care.
We find no error in its analysis.
In Wood v. Graham, Ky., 633 S.W.2d 404, 406 (1982), a
factually congruent case, our highest court issued a writ
prohibiting the circuit court from proceeding with a custody
dispute.
The child had lived its entire life in Ohio,
and was brought, in a surreptitious manner,
to Kentucky two days prior to the filing of
the marriage dissolution action. Kentucky is
not now, and never has been, the home state
of the child in question. The child’s
residence was, and is, in Ohio. Moreover,
there is no evidence in the record to show
that it would be in the best interest of the
child for Kentucky to assume jurisdiction.
To the contrary, the record shows that the
best interest of this small child would be
served by leaving his future to the
authorities in Ohio, who have cared for him,
supervised him and provided for him since his
birth.
Consistent with Wood and with the policies underpinning the
UCCJA, we believe that the circuit court committed no error in
relinquishing jurisdiction in this matter and that it would have
acted erroneously had it elected to retain jurisdiction.
Wellman has acknowledged that Maryland is the home
state of the children and that they have a connection with it.
Nonetheless, he contends that the Martin Circuit Court erred in
failing to consider the children’s best interest in deferring to
Maryland.
He argues that Kentucky is the only place where his
children “had a real home and a safe, loving environment.”
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He
also believes that the current residence of the children in West
Virginia does not affect the ability of the Martin Circuit Court
to retain jurisdiction.
With the enactment of the UCCJA, Kentucky intended and
endeavored to restrict its jurisdiction in interstate custody
disputes.
Turley v. Griffin, Ky., 508 S.W.2d 764 (1974).
In
cases where Kentucky is not the home state of the child, KRS
403.420(1) allows our courts to exercise jurisdiction in the
following limited circumstances:
(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 appear that no other state would have
jurisdiction . . .(Emphasis added.)
These provisions essentially contemplate an emergency
situation as justifying intervention by a Kentucky court.
Once
the emergency has passed, it is appropriate for the Kentucky
court to relinquish that jurisdiction in favor of the more
appropriate forum.
Cabinet for Human Resources v. McKeenan,
Ky.App., 672 S.W.2d 934 (1984).
After Wellman was incarcerated
and after the children were removed to West Virginia, the circuit
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court re-assessed the jurisdictional aspect of this case and
deferred to the Maryland courts, declining to address the merits
of the custody dispute.
We agree that the circuit court
correctly determined that it should not continue to exercise
jurisdiction based on an emergency that no longer existed —
particularly since the parties and their children were either
absent from the state and/or incarcerated.
See Reeves v. Reeves,
Ky.App., 41 S.W.3d 866 (2001).
In summary, the record supports the findings and
conclusions of the trial court with respect to the appropriate
forum for resolving this dispute.
We find no abuse of discretion
in the decision to relinquish jurisdiction in this matter.
Although Wellman raises the specter that the best interests of
his children will not be properly served by the Maryland courts,
we believe that the courts of Maryland are capable,
conscientious, and significantly connected to the interests of
these children.
We assume the competence and diligence of the
court system of our sister state.
The order of the Martin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Brian Cumbo
Inez, KY
Lincoln Harris
Prestonsburg, KY
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