TERRY GOFF v. LAURA ANDREWS GOFF
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RENDERED: May 30, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001994-MR
TERRY GOFF
v.
APPELLANT
APPEAL FROM WARREN FAMILY COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 96-CI-00768
LAURA ANDREWS GOFF
APPELLEE
OPINION
REVERSING IN PART
AND AFFIRMING IN PART
** ** ** ** **
BEFORE:
DYCHE and KNOPF, JUDGES; AND JOHN D. MILLER,
Special Judge.1
KNOPF, JUDGE:
Terry Goff appeals from an order of the Warren
Family Court which set aside the existing custody, support, and
visitation orders entered in its 1997 dissolution decree, and
which dismissed his pending motions to modify custody.
1
He
Senior Status Judge John D. Miller sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution.
argues that the trial court had original jurisdiction at the
time the decree was entered, and that the trial court retains
continuing jurisdiction to address the pending motions to modify
custody.
We agree with Terry that the original orders were not
void for lack of subject-matter jurisdiction.
The trial court
properly exercised jurisdiction at that time because the child’s
home state declined to exercise its jurisdiction.
However,
since the child has resided outside of Kentucky for more than
six months, we find that Kentucky no longer has continuing
jurisdiction over the motion to modify custody.
Hence, we
reverse in part, and affirm in part.
Terry Goff (Terry) and Laura Andrews (Laura) were
married in Wilson County, Tennessee on June 17, 1996.
On July
10, 1996, less than one month after the marriage, Terry filed a
petition for annulment of the marriage in Warren Circuit Court.2
In October of 1996, he filed an amended petition seeking
dissolution of the marriage.
During the brief time that Terry and Laura were
together, they purchased a house in Nashville, Tennessee.
Upon
their separation, Laura moved into the Nashville residence.
Terry continued to reside in Warren County, Kentucky.
2
On
This case was originally assigned to Division Two of the Warren
Circuit Court. It was later transferred to Division One, and
then to Division Three after the establishment of Family Court
in Warren County.
2
October 13, 1996, Laura gave birth to a daughter, Olivia Grace
Sanderson Goff.
Ten days earlier, Laura had filed an action for
divorce in the circuit court for Davidson County, Tennessee.
In
addition to seeking dissolution of the marriage, Laura asked the
Tennessee court to establish paternity of the child, and to
award her custody and support.
She also filed a motion to
dismiss the Warren County action, asserting that Kentucky lacked
jurisdiction over her and the child, and that Tennessee was the
proper forum to resolve the issues relating to the divorce.
On January 17, 1997, the Tennessee court dismissed
Laura’s divorce action, citing the pending dissolution action in
Kentucky.
Thereafter, the parties informed the Warren Circuit
Court that they had reached a settlement with regard to all
issues in dispute in the dissolution action, including matters
relating to the paternity, custody and support of Olivia.
On
March 3, 1997, the Warren Circuit Court entered an “Agreed
Decree of Dissolution of Marriage.”
Among other things, the
decree directed Terry to submit to a paternity test within 60
days from entry of the order.3
The decree also awarded custody
of Olivia to Laura, ordered Terry to pay $700.00 per month in
child support, and awarded Terry “reasonable” visitation with
Olivia as agreed by the parties.
3
Apparently, the paternity test confirmed that Terry is Olivia’s
father, as that issue never arose again.
3
However, the parties returned to court on a number of
occasions to litigate various disputes regarding support and
visitation.
In April 1999, Laura filed a motion seeking past-
due child support and to increase child support.
By order
entered on June 4, 1999, the court denied the motion to increase
child support, but ordered Terry to pay an arrearage of
$2,800.00.
In April of 2000, a dispute arose between the
parties regarding visitation.
On May 12, 2000, the trial court
resolved the matter by entering a formal visitation order and
schedule.
In response to further disputes over visitation, the
trial court entered a supplemental order on June 14, 2000.
There were additional motions filed over visitation
disputes from May through October of 2000.
In August of 2000,
Terry filed a motion seeking joint custody of Olivia.
He
subsequently asked the court to order a joint custody
evaluation.
On October 30, 2000, Laura filed a motion to
terminate Terry’s visitation with Olivia, alleging that his
behavior had subjected the child to emotional trauma.
She also
filed a motion to hold Terry in contempt after he failed to
return Olivia from visitation as scheduled.
On November 28, 2000, Laura filed a petition in the
Chancery Court for Williamson County, Tennessee, seeking to
register the Kentucky decree and to modify the terms of custody
and visitation.
In conjunction with this action, Laura filed a
4
motion in the Warren County action to dismiss all pending
custody and visitation motions and to transfer the case to
Tennessee.
She argued that Tennessee has become Olivia’s home
state, and as a result Kentucky no longer has jurisdiction to
hear the custody or visitation matters.
On February 16, 2001,
the trial court entered an order denying Laura’s motion.
The
court found that Kentucky has continuing jurisdiction over the
custody matters, and that Kentucky has significant contacts with
the child.
In a separate order, the trial court also ordered the
parties to submit to a joint custody evaluation.
Thereafter,
the court found Laura in contempt due to her failure to keep
appointments with the evaluator.
In April of 2001, Terry filed
an additional motion, seeking either joint or sole custody of
Olivia.
Finally, in July of 2001, Laura filed a motion to set
aside the original custody award and to dismiss Terry’s motions
to modify custody.
She argued that because Olivia has resided
in Tennessee since her birth, Kentucky was never her home state.
Hence, she asserted that Kentucky never had subject-matter
jurisdiction over the custody and visitation matters, and as a
result the provisions of the decree relating to these matters
were void.
5
In an order entered on September 7, 2001, the trial
court agreed with Laura, and granted her motion to set aside the
original custody decree.
The court found that Kentucky had
never been Olivia’s home state, and concluded that none of the
other jurisdictional prerequisites set out had been met.
Consequently, the court concluded that it never had original
jurisdiction to decide the custody, support, and visitation
issues, and all prior orders entered by the Warren Circuit Court
on these matters were void.
This appeal followed.
The parties agree that the jurisdictional issue is
governed by the Uniform Child Custody Jurisdiction Act (UCCJA),4
and the federal Parental Kidnapping Protection Act (PKPA).5
The
purposes of the UCCJA are set out in KRS 403.400, as follows:
"(1) The general purposes of [the UCCJA] are
to:
(a) Avoid jurisdictional competition
and conflict with courts of other states in
matters of child custody which have in the
past resulted in the shifting of children
from state to state with harmful effects on
their well-being;
(b) Promote cooperation with the courts
of other states to the end that a custody
decree is rendered in the state which can
best decide the case in the interest of the
child;
(c) Assure that litigation concerning
the custody of a child takes place
ordinarily in the state with which the child
and his family have the closest connection
4
KRS 403.400 et seq.
5
28 U.S.C. § 1738A.
6
and where significant evidence concerning
his care, protection, training, and personal
relationships is most readily available, and
that courts of this state decline the
exercise of jurisdiction when the child and
his family have a closer connection with
another state;
(d) Discourage continuing controversies
over child custody in the interest of
greater stability of home environment and of
secure family relationships for the child;
(e) Deter abductions and other
unilateral removals of children undertaken
to obtain custody awards;
(f) Avoid relitigation of custody
decisions of other states in this state
insofar as feasible;
(g) Facilitate the enforcement of
custody decrees of other states;
(h) Promote and expand the exchange of
information and other forms of mutual
assistance between the courts of this state
and those of other states concerned with the
same child; and
(i) Make uniform the laws of those
states which enact it.
To these ends, the UCCJA sets forth certain
prerequisites necessary for courts of this state to have
jurisdiction in child custody cases.
The jurisdictional rules
are set forth in KRS 403.420(1) and provide, in relevant part,
as follows:
A court of this state which is competent to
decide child custody matters has
jurisdiction to make a child custody
determination by initial or modification
decree if:
(a) This state is the home state of the
child at the time of commencement of the
proceeding, or had been the child's home
state within six (6) months before
commencement of the proceeding and the child
7
is absent from this state because of his
removal or retention by a person claiming
his custody or for other reasons, and a
parent or person acting as parent continues
to live in this state; or
(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 appears that no other state
would have jurisdiction under prerequisites
substantially in accordance with paragraphs
(a), (b), or (c), or another state has
declined to exercise jurisdiction on the
ground that this state is the more
appropriate forum to determine the custody
of the child, and it is in the best interest
of the child that this court assume
jurisdiction.
Similarly, under the Federal counterpart to the UCCJA,
the Parental Kidnapping Protection Act (PKPA),6 a Kentucky court
has jurisdiction to make a child custody determination only if:
(1) such court has jurisdiction under the
law of such State: and
(2) one of the following conditions is met:
(A) such State (i) is the home State of
the child on the date of the commencement of
the proceeding, or (ii) had been the child's
6
28 U.S.C.A. 1738A.
8
home State within six months before the date
of the commencement of the proceeding and
the child is absent from such State because
of his removal or retention by a contestant
or for other reasons, and a contestant
continues to live in such State;
(B)(i) it appears that no other State
would have jurisdiction under subparagraph
(A), and (ii)it is in the best interest of
the child that a court of such State assume
jurisdiction because (I) the child and his
parents, or the child and at least one
contestant, have a significant connection
with such State other than mere physical
presence in such State, and (II) there is
available in such State substantial evidence
concerning the child's present or future
care, protection, training, and personal
relations;
(C) the child is physically present in
such State and (i) the child has been
abandoned, or (ii) it is necessary in an
emergency to protect the child because he
has been subjected to or threatened with
mistreatment or abuse;
(D)(i) it appears that no other State
would have jurisdiction under subparagraph
(A), (B), (C), or (E), or another State has
declined to exercise jurisdiction on the
ground that the State whose jurisdiction is
in issue is the more appropriate forum to
determine the custody visitation of the
child, and (ii) it is in the best interest
of the child that such court assume
jurisdiction; or
(E) the court has continuing
jurisdiction pursuant to subsection (d) of
this section.
In addition, the PKPA contains a provision that
explicitly preempts conflicting state law, pursuant to the
Supremacy Clause of Article VI of the United States
Constitution.
However, the PKPA does not, of itself, grant
9
continuing jurisdiction to a state; the state must be able to
assert continuing jurisdiction under its own state law.7
The
UCCJA does not specifically grant continuing jurisdiction,
referring instead to the question of whether the child has a
"significant connection" to this state.
The statute, in other
words, places a limit on jurisdiction but does not grant it
unless state law authorizes it.
Terry relies heavily on Markham v. Markham,8 in which
the former Court of Appeals upheld a modification-of-custody
order even though the mother and her children never resided in
Kentucky.
Because the mother and the children voluntarily
entered an appearance in the Kentucky dissolution proceeding,
the Court held that Kentucky properly exercised jurisdiction
over the custody matter.9
Based on Markham, Terry contends that
Laura’s appearance in the Warren County action and her
litigation of the child custody, support, and visitation matters
were sufficient to invoke the court’s original jurisdiction, and
hence its continuing jurisdiction
The trial court distinguished Markham by noting that
it was rendered before the adoption of the UCCJA.
The court
7
Reeves v. Reeves, Ky. App., 41 S.W.3d 866, 867 (2001).
8
Ky., 461 S.W.2d 545 (1970).
9
Id. at 546.
10
held that Turley v. Griffin10 is the applicable authority.
Turley v. Griffin was decided four years after Markham and
applied the Child Custody Jurisdiction Act, the predecessor to
the UCCJA.
The jurisdictional requirements of the Child Custody
Jurisdiction Act were substantially similar to the UCCJA.
The
former Court of Appeals held that once a child resides outside
Kentucky for more than six months, Kentucky ceases to be the
child’s home state, and no longer has jurisdiction to modify
custody.11
Based on Turley and the cases which follow it, the
trial court concluded that Markham is no longer viable.
We agree with the trial court that the Markham opinion
is of questionable value in light of the adoption of the UCCJA
and the PKPA.
Moreover, jurisdiction of the subject matter
cannot be conferred by waiver or consent.12
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.13
However, we disagree with the trial court that it
lacked original jurisdiction to enter the custody decree in
10
Ky., 508 S.W.2d 764 (1974).
11
Id. at 766.
12
Commonwealth, Dept. of Highways v. Berryman, Ky., 363 S.W.2d
525, 526 (1962); Johnson v. Bishop, Ky. App., 587 S.W.2d 284,
285 (1979); CR 12.08.
13
Berryman at 526-27.
11
1997.
Because Olivia was born in Tennessee and has lived there
all her life, Kentucky clearly is not her home state.
Nonetheless, physical presence of the child, while desirable, is
not a prerequisite for jurisdiction to determine her custody.14
KRS 403.420(1)(d) and 28 U.S.C. § 1728A(c)(2)(D) permit a
Kentucky court to exercise jurisdiction when it appears that no
other state would have jurisdiction or another state has
declined jurisdiction.
The trial court found these sections do not apply
because the Williamson County, Tennessee court is actively
asserting jurisdiction over the child in this matter.
But while
it is true that a Tennessee court is currently asserting
jurisdiction over Laura’s motion to modify custody, the
controlling question is whether a Tennessee court was asserting
jurisdiction when the original decree was entered in 1997.
To
the contrary, the Davidson County, Tennessee court declined to
exercise jurisdiction over the custody matter in 1997,
dismissing Laura’s dissolution action in favor of the Kentucky
action.
Consequently, Kentucky had original jurisdiction under
KRS 403.420(1)(d) to enter custody and support orders as part of
the dissolution action.15
14
Therefore, the original custody,
KRS 403.420(3).
15
See also Gullett v. Gullett, Ky. App., 992 S.W.2d 866 (1999).
In Gullett, the mother moved to Ohio prior to the birth of the
12
support and visitation orders entered by the Warren Circuit
Court remain valid and enforceable.
However, our analysis does not end here.
There is a
significant distinction between the court’s enforcement
jurisdiction and its modification jurisdiction.
Kentucky
retains jurisdiction to enforce an original custody decree until
it is superceded by a custody modification order properly
entered by a court with jurisdiction.16
As demonstrated in this
action, the parties returned to Warren County on a number of
occasions to litigate various visitation and support disputes.
In contrast, the “home state” requirements of the
UCCJA and the PKPA apply to a determination of the court’s
jurisdiction to modify an existing custody decree.
Under the
PKPA, a court which has made a child custody or visitation
determination has continuing jurisdiction if the child resides
child, but the child was born after the Kentucky petition for
dissolution was filed. Since an unborn child cannot have a
“home state” for purposes of the UCCJA or the PKPA, and since no
other state, including Ohio, could have exercised jurisdiction
at the time the petition was filed, this Court held that
Kentucky properly exercised jurisdiction over the custody matter
under KRS 403.420(1)(d). The fact that Ohio became the child’s
home state upon its birth did not divest Kentucky of that
jurisdiction. Id. at 870. In the present case, both Kentucky
and Tennessee could have exercised jurisdiction over the custody
matters, as both the Kentucky and Tennessee actions were pending
when Olivia was born. But the Tennessee court expressly
declined to exercise its jurisdiction in favor of the Kentucky
action.
16
Brighty v. Brighty, Ky., 833 S.W.2d 494, 496 (1994).
13
in the state, or if the state asserting continuing jurisdiction
has been the child's home state within the last six months, and
one of the parties continues to live within the state.17
If this
minimum threshold requirement is not met, then it would appear
to be improper for a state to continue to assert jurisdiction.18
In this case, Olivia has resided outside of Kentucky
for more than six months.
state.
Hence, Kentucky is not her home
Under Turley v. Griffin and its progeny, the state which
has the "most significant connection" to the child needs to be
the one to assert jurisdiction over matters affecting custody
and visitation.19
The fact that a Kentucky court has experience
with a particular case is not sufficient reason, under the PKPA,
to assert continuing jurisdiction.
Furthermore, at the time the
trial court entered its order, a Williamson County, Tennessee
court had invoked its jurisdiction over the custody-modification
matter.20
Clearly, Tennessee is the only state at this time
which can legitimately assert jurisdiction over this matter, as
17
28 U.S.C § 1738A(d).
18
Reeves v. Reeves, 41 S.W.3d at 868, citing Torres v. Torres,
62 Cal. App. 4th 1367 (1998); Shockley v. Shockley, 611 A.2d 508
(Del. 1992).
19
Turley, 508 S.W.2d at 766.
20
In an order entered on May 4, 2001, (and filed with the trial
court on May 9), the Williamson County, Tennessee court found
that it had jurisdiction under Tennessee’s version of the UCCJA
to modify the Kentucky custody order.
14
it is now the home state of both Laura and Olivia.21
Any further
matters concerning Olivia’s custody should be litigated there.
Therefore, the trial court properly dismissed Terry’s pending
motion to modify custody.
Accordingly, the order of the Warren Family Court is
reversed insofar as it set aside the original custody order in
this case.
The custody, support, and visitation order entered
by the court on March 3, 1997, and the subsequent orders by the
court enforcing that order are hereby reinstated.
The order of
the Warren Circuit Court is affirmed insofar as it dismissed the
pending motions to modify custody.
DYCHE, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS WITH RESULT.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Wesley V. Milliken
Milliken Law Firm
Bowling Green, Kentucky
Steven D. Downey
Bowling Green, Kentucky
21
Reeves, 41 S.W.3d at 868.
15
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