COMMONWEALTH OF KENTUCKY, EX REL. EDWARD RYAN v. TRINA LANE
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RENDERED:
SEPTEMBER 12, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-000641-MR
COMMONWEALTH OF KENTUCKY,
EX REL. EDWARD RYAN
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
INDICTMENT NO. 99-CI-00938
v.
TRINA LANE
APPELLEE
OPINION
REVERSING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND TACKETT, JUDGES.
TACKETT, JUDGE:
This case involves the status of a child
support order issued by a court in Florida, and subsequently
registered in Kentucky pursuant to the Uniform Interstate Family
Support Act (UIFSA) that was adopted by Kentucky in 1998.
KRS 407.5101 et seq.
See
After confirming the Florida order, the
Fayette Circuit Court discovered, on the basis of evidence
offered by the parties and in consultation with the issuing
court in Florida, that the order was based on a mistake of fact.
Consequently, the trial court ordered the child support stayed
and unenforceable in the state of Kentucky.
The Fayette County
Attorney appeals, citing KRE 407.5608, and the Full Faith and
Credit to Child Support Orders Act, 28 U.S.C. 1738B.
was filed for the appellee.
No brief
Because KRS 407.5608 unequivocally
states that a child support order, once confirmed, may not be
contested, we reverse.
Trina Lane and Edward Ryan were divorced in Florida in
1996.
Ryan was granted custody of their two children, Nicholas
(born February 9, 1982) and Edward (born September 26, 1984).
The divorce decree purportedly included a child support
provision ordering Lane to pay Ryan $380.00 per month for child
support.
Lane subsequently moved to Lexington, Kentucky.
On
March 17, 1999, the Clerk of the Fayette Circuit Court, pursuant
to KRS 407.5605, sent a notice to Lane, informing her that the
Florida support order would be registered in Kentucky and
enforced against her.
Lane requested a hearing, claiming that
the order had been obtained by fraud.1
At the hearing, Lane alleged that she and Ryan had an
agreement to abate any payment of child support until she was
1
This type of hearing is contemplated under KRS 407.5606(1), which states:
A nonregistering party seeking to contest the validity or enforcement
of a registered order in this state shall request a hearing within
twenty (20) days after notice of the registration. The nonregistering
party may seek to vacate the registration, to assert any defense to the
allegation of noncompliance with the registered order, or to contest
the remedies being sought or the amount of any alleged arrearages
pursuant to KRS 407.5607.
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financially able to begin paying it.
The matter was continued
to September 3, 1999, but Lane failed to appear in court on that
date.
At the September 3 hearing, the Fayette County Attorney
submitted
Ryan’s written response to Lane’s charges, which
stated that he and Lane had agreed to abate enforcement of the
child support order for a time, with the missed payments to be
made up later.
The circuit court confirmed enforcement of the Florida
order in Lane’s absence, in the nature of a default judgment.
Lane was ordered to pay $380.00 per month in child support, and
an additional $50.00 per month towards her arrears totalling
more than $12,000.
The court entered a written ruling to this
effect on September 14, 1999.
The record indicates that Ryan
was still a resident of Florida at the time the order was
confirmed.
On March 10, 2000, the Fayette County Attorney filed a
motion to hold Lane in contempt of court for failing to pay
child support.
Lane thereafter appeared in court at what would
prove to be a protracted series of hearings at which she alleged
that under the actual terms of the divorce decree her child
support obligation was set at zero.
attend a hearing on the matter.
The court requested Ryan to
He responded by letter, stating
that he could not be present as he was unable to leave his
employment with the U.S. Coast Guard in New Jersey.
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On September 1, 2000, Lane’s attorney filed a motion
to vacate, alter or amend the 1996 Florida decree on the basis
of fraud.
The motion also asked for reimbursement (as Lane
claimed she had already been sending her children money which
had not been credited) and for modification of the custody
decree.
After lengthy testimony from Lane and speaking twice to
Ryan on the telephone, the judge stated that she would make a
ruling after conferring with the judge who had presided over the
divorce action in Florida.
On December 14, 2000, the circuit court entered an
order stating that the Florida judgment was stayed and
unenforceable in the state of Kentucky on the grounds of mistake
of fact.
Upon reviewing the entire record, and speaking with
the judge in Florida, the circuit court concluded that the
Separation Agreement referred to in the Florida Judgment and
signed by both parties did not provide for any child support to
be paid by Lane.
There was a handwritten addendum providing for
child support but it was not signed by either party.
circuit court’s order stated as follows:
[T]his Court finds that said Florida
Judgment was issued based upon a mistake in
fact; specifically, that there was a valid,
signed agreement by and between the parties
establishing child support. This Court also
finds that the Florida Judgment was signed
and entered in error [by the Florida court]
based on the assumption that there was an
agreement between the parties as to payment
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The
of child support when, in fact, there was no
such agreement. Accordingly, Respondent has
satisfied her burden of proof under KRS
407.5607[1](e) and the enforcement of
Florida Judgment pertaining to the child
support obligation of Respondent, Trina R.
Lane to Petitioner, Edward J. Ryan, Jr., is
stayed and is unenforceable in this state.
Lane has since left Kentucky and is now living in
Texas.
It is unclear whether she plans to return to Kentucky.
Ryan continues to reside in New Jersey.
Nicholas and Edward are
now both over eighteen years of age.
The Fayette County Attorney argues that the circuit
court’s order of December 14, 2000, deeming the Florida Judgment
unenforceable should be overturned and the original order
reinstated.
The primary argument advanced by the County
Attorney is that, under KRS 407.5608, the circuit court was
powerless to vacate the order after it was confirmed on
September 14, 1999.
KRS 407.5608 states:
Confirmation of a registered order, whether
by operation of law or after notice and
hearing, precludes further context of the
order with respect to any matter that could
have been asserted at the time of
registration.
The Court of Appeals of Virginia has defined
confirmation as follows:
An order is confirmed after the court has
issued notice to the non-registering party
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of the registration and the amount of the
alleged arrearages, if any, . . . and has
provided the non-registering party with an
opportunity for a hearing to contest the
registration and amount of arrearages.
Slawski v. Commonwealth Dep’t of Social
Servs., 514 S.E.2d 773, 774 (Va. App. 1999);
Graham & Keller, West’s Kentucky Practice,
Domestic Relations Law §14.61 (1997, supp.
2003).
Lane was given notice of the registration and the
amount of the alleged arrearages, and the opportunity to contest
the order prior to its confirmation, but she failed to attend
the September 3, 1999 hearing.
She did not come forward again
until some six months later when she was threatened with
contempt of court.
Had Lane pursued the issue prior to its
confirmation by the circuit court, the court could have stayed
the enforcement of the order pursuant to KRS 407.5607(1)(e),
which states that “[a] party contesting the validity or
enforcement of a registered order or seeking to vacate the
registration has the burden of proving . . . [t]here is a
defense under the law of this state to the remedy sought.”
Clearly, when the court in its order of December 14,
2000, relied on KRS 407.5607(1)(e), it failed to recognize that
such an action was precluded under KRS 407.5608 because the
order had already been confirmed on September 14, 1999.
It should be noted that the County Attorney did not
raise the issue of the preclusive effect of KRS 407.5608 until
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it filed a motion with the court to reconsider its holding on
December 22, 2000.
In a final hearing held on January 19, 2001,
the circuit court explained that in spite of the technicalities
raised by the County Attorney, it could not in good faith order
the enforcement of an erroneous order confirmed as such by the
court in Florida.
Although we agree that the result may be
harsh in this case, the clear language of KRS 407.5608 leaves us
with no choice but to reverse the holding of the lower court.
Furthermore, any resort to the provision of CR 60.02,
which permits the vacating of an order for a mistake of fact, is
futile since “where the statute . . . sets forth the procedure,
the rules must give way to it if they are in conflict or
inconsistent with the statute.”
See Ky. R. Civ. P. 1; Dawson v.
Department of Economic Security, Ky. App., 423 S.W.2d 911, 912
(1968).
Because the effect of KRS 407.5608 is dispositive in
this case, we will not address the other arguments raised in the
appellant’s brief.
For the foregoing reasons, the order of the Fayette
Circuit Court is reversed.
BUCKINGHAM, JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS WITHOUT SEPARATE OPINION.
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BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Margaret H. Kannensohn
Fayette County Attorney
Lexington, Kentucky
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