RAYMOND SCOTT v. DIETTA SCOTT SUMMERS
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RENDERED: MAY 9, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-001999-MR
RAYMOND SCOTT
v.
APPELLANT
APPEAL FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 00-CI-00054
DIETTA SCOTT SUMMERS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Raymond Scott has appealed from an order
entered by the Livingston Circuit Court on August 14, 2001,
which denied his motion for an order requiring his ex-wife,
Dietta Summers, to show cause why she should not be held in
contempt for failing to comply with a visitation order.
Having
concluded that the Livingston Circuit Court correctly ruled that
it did not have jurisdiction over Raymond’s motion for
enforcement of its previous order, we affirm.
Raymond and Dietta were married in McCracken County,
Kentucky on December 13, 1993.
They had two children, Jonathon,
who was born on September 11, 1994, and Jamie, who was born on
September 12, 1996.
On March 29, 2000, Dietta filed a petition
for dissolution of the marriage in the Livingston Circuit Court.
The parties entered into a settlement agreement, and their
marriage was dissolved by the Livingston Circuit Court on August
2, 2000.
The settlement agreement provided that the parties
were to have joint custody of the children, with Dietta being
designated as the primary residential caregiver.
The settlement
agreement further provided that Raymond would have weekly
visitation with the children each Sunday through Tuesday, and
that “[t]he parties may deviate from this arrangement only upon
agreement by both parties.”
The parties also agreed to
frequently confer with each other “on all important matters
pertaining to the child[ren]’s health, welfare, education and
upbringing.”
On August 18, 2000, only 16 days after the settlement
agreement was approved by the circuit court, Dietta remarried
and began planning to move with her children to Addison, Texas.1
The move was completed on September 6, 2000.
Due to her pending
move to Texas, on September 5, 2000, Dietta filed in the
Livingston Circuit Court a motion to modify custody, since
1
Apparently, Dietta’s new husband resides in Addison, Texas.
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Raymond would be unable to visit with his children as the
parties had previously agreed.
On October 30, 2000, the
Domestic Relations Commissioner filed a report recommending that
Dietta be held in contempt of court for “blatantly” failing to
abide by the terms of the settlement agreement.
Dietta filed
objections to the commissioner’s report and an evidentiary
hearing was held before the circuit judge on January 3, 2001.
On January 23, 2001, the Livingston Circuit Court entered an
order holding Dietta in contempt of court for violating court
orders by “willfully and intentionally interfering with
[Raymond’s] custodial rights and visitation with [his]
children.”
Subsequently, the parties modified their agreement
and Raymond was given visitation with the children for most of
their spring break, summer break, Thanksgiving break, and
Christmas break.
This modified visitation schedule was approved
by the Livingston Circuit Court in an agreed order entered on
April 9, 2001.
On May 25, 2001, Dietta filed in the District Court of
Dallas County, Texas, a motion seeking modification of the
Kentucky custody order and a temporary ex parte restraining
order prohibiting Raymond from removing the children beyond the
jurisdiction of the court for any purpose, including summer
visitation.
The District Court exercised temporary emergency
jurisdiction of the case under Texas’ version of the Uniform
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Child Custody Jurisdiction Act (UCCJA) based on the need to
protect the children.
The District Court granted the temporary
ex parte restraining order on that date.
On June 20, 2001, the District Court held a hearing on
Dietta’s motions.
The Dallas County District Court exercised
jurisdiction pursuant to the Texas Family Code since the
children had not been a resident of any state other than Texas
for the eight months preceding the filing of the petition in the
Dallas County District Court.2
The Dallas County District Court
noted that Raymond had been “duly and properly notified” of the
proceedings, but “did not appear and wholly made default.”
The
District Court considered the testimony of Dr. Sharon J.
Anderson, a children’s psychologist, who, based upon her
personal interviews with the children, opined that Raymond’s
continued interaction with the children had the potential to
cause them severe psychological damage.
On July 19, 2001, the Dallas County District Court
entered a temporary order modifying Raymond’s visitation and
contact with his children.
More specifically, the Texas court
suspended Raymond’s summer visitation privileges and ordered
that all contact with his children be monitored.
The Texas
court also issued a temporary injunction prohibiting Raymond
from removing the children from its jurisdiction.
2
Tex.Fam.Code § 152.201 and § 152.203.
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When Dietta failed to honor the modified visitation
agreement that had been approved by the Livingston Circuit
Court, Raymond filed in the Livingston Circuit Court on July 10,
2001, a motion for an order requiring Dietta to show cause why
she should not be held in contempt of court for failing to
comply with the modified visitation agreement.
On August 14,
2001, the Livingston Circuit Court entered an order pursuant to
KRS3 403.420, which relinquished jurisdiction to the Dallas
County District Court and denied Raymond’s motion for a contempt
hearing.
This appeal followed.
In his appeal Raymond argues that KRS 403.420 is
inapplicable since a contempt proceeding is not a “custody
proceeding” under the UCCJA.4
The UCCJA, which is codified at
KRS 403.400, et seq., sets forth the jurisdictional requirements
under the statute at KRS 403.420, in relevant part, as follows:
(1)
A court of this state which is
3
Kentucky Revised Statutes.
4
KRS 403.410(2) provides:
“Custody determination” means a court decision and
court orders and instructions providing for the
custody of a child, including visitation rights; it
does not include a decision relating to child support
or any other monetary obligation of any person[.]
KRS 403.410(3) provides:
“Custody proceeding” includes proceedings in which a
custody determination is one (1) of several issues,
such as an action for divorce or separation, and
includes child neglect and dependency proceedings[.]
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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
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.
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In support of its ruling, the Livingston Circuit Court
noted that Kentucky “was not the home state of [Dietta] and the
children within six months before commencement of the proceeding
[to hold Dietta in contempt].”5
The Livingston Circuit Court
further acknowledged that the “Texas Court has assumed
jurisdiction of the children.”
While we agree with the
Livingston Circuit Court’s finding that Kentucky was not the
“home state” of the children when Raymond initiated the contempt
proceeding, to resolve the question before this Court we must
also consider whether the Texas order which modified the
parties’ previous custody and visitation agreement was validly
entered.
In Brighty v. Brighty,6 the Supreme Court of Kentucky
was presented with a similar case.
The appellant in Brighty,
Bruce Brighty, had filed a motion in the Jefferson Family Court
requesting the court to enforce a previously entered contempt
order against his ex-wife, Dara Hopton, regarding visitation of
the parties’ minor child, Brooke.
In response Dara relied on
KRS 403.420 and argued that since Brooke had been living with
her in New Jersey for more than two years, the Jefferson Family
5
See KRS 403.420(1)(a).
6
Ky., 883 S.W.2d 494 (1994).
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Court did not have jurisdiction over the proceeding.
The
Jefferson Family Court agreed and the Court of Appeals affirmed.7
The Supreme Court granted discretionary review and
reversed.
The Supreme Court concluded that the UCCJA had no
application to the contempt proceeding brought in the Jefferson
Family Court.
The Supreme Court held that there was a clear
difference between a court’s enforcement jurisdiction, which is
“strictly limited to a basic determination of whether a custody
order was valid when entered, and can be enforced[,]” and its
modification jurisdiction, which “necessarily involves an
evidentiary hearing dedicated to resolution of the issue
consistent with the best interest of the child.”8
In support of
its holding, the Supreme Court cited the “paramount importance
of a court’s inherent authority to enforce its own orders[.]”9
Since the original custody decree entered by the
Jefferson Circuit Court10 in Brighty was still valid and binding,
the Supreme Court concluded that the Jefferson Family Court
retained the authority to enforce any subsequent orders relevant
to that decree.
Central to the Supreme Court’s holding,
however, was the fact that no modification had been sought or
7
Id. at 496.
8
Id. at 496-97.
9
Id. at 497.
10
The case was initially brought in the Jefferson Circuit Court and later
reassigned to the Jefferson Family Court. Id. at 495.
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obtained prior to the filing of the contempt proceeding; for if
the original custody decree entered by the Jefferson Circuit
Court had been validly modified by a court from another
jurisdiction prior to the filing of the contempt proceeding, the
Jefferson Family Court would no longer have had the authority to
enforce the initial custody decree.
The Supreme Court stated:
The UCCJA governs custody
determinations. According to the statute, a
“‘custody determination’ means a court
decision and court orders and instructions
providing for the custody of the child,
including visitation rights. . . .” KRS
403.410(2). (emphasis added). In the
present case, the custody determination with
regard to the minor child (including
visitation with her father) was established
in 1985 by order of the initial decree of
the Jefferson Circuit Court. The original
custody decree is valid and binding until
superseded by a custody modification order
properly entered by a court with
jurisdiction. The record before us
demonstrates that no attempt to modify
custody or the terms of visitation had been
sought by either party in any court at the
time the challenged contempt proceeding was
first heard and decided in Kentucky.
Where no modification is sought or
obtained, courts have consistently held that
the UCCJA does not apply to contempt
proceedings. This reason is fundamental and
makes sense. The UCCJA explicitly applies
to “child custody determinations by initial
or modification decree.” KRS 403.420(1).
An order for contempt is simply not a
custody determination in any way, shape or
form.
[citation omitted].11
11
Id. at 496.
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Accordingly, we must determine whether the order
entered by the Dallas County District Court, which modified the
visitation order from the Livingston Circuit Court, was valid.
If the Livingston Circuit Court’s order was validly modified,
then jurisdiction had properly vested in the Dallas County
District Court and the Livingston Circuit Court lacked
jurisdiction to enforce its previous orders.
On the other hand,
if the Livingston Circuit Court’s order had not been validly
modified by the Dallas County District Court, then the
Livingston Circuit Court retained jurisdiction to enforce its
previous orders.
It is undisputed that the April 9, 2001, amended
visitation order was valid when entered by the Livingston
Circuit Court.
Thus, that order was binding on the parties
until it was “superceded by a custody modification order
properly entered by a court [of competent] jurisdiction.”12
On
May 25, 2001, the Dallas County District Court entered a
temporary ex parte restraining order prohibiting Raymond from
removing the children from Texas for any purpose.
On July 19,
2001, the Dallas County District Court entered a temporary order
modifying Raymond’s visitation and contact with his children.
Under KRS 403.520, this modification order can be recognized and
12
Brighty, 883 S.W.2d at 496.
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enforced by the courts of this Commonwealth only if Texas
“assumed jurisdiction under statutory provisions substantially
in accordance with KRS 403.420 to 403.620.”
That is to say,
Texas must have satisfied one the jurisdictional requirements
enumerated in KRS 403.420 prior to modifying the amended
visitation order entered by the Livingston Circuit Court on
April 9, 2001.
As noted above, under KRS 403.420(1)(a), a state has
jurisdiction to make a child custody modification if the state
is the “home state” of the child at the time of commencement of
the proceeding.
KRS 403.410(5) defines “home state” as the
state in which the child lived with a parent for at least six
consecutive months immediately preceding the time of
commencement of the proceeding.
Jonathon and Jamie clearly had
been living with their mother in Texas for at least six
consecutive months prior to the filing of Dietta’s motion to
modify visitation.13
Furthermore, there was no pending motion in
Kentucky pertaining to custody when Dietta filed her motion in
Texas.
Thus, the Texas court properly assumed “home state”
jurisdiction under the UCCJA when it decided to entertain
Dietta’s motion for modification of Raymond’s visitation.
Once
Texas assumed jurisdiction and modified the visitation order,
13
The children had been living in Texas since September 2000.
motion to modify custody was filed in May 2001.
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Dietta’s
there no longer existed an enforceable Kentucky visitation order
for Raymond to attempt to enforce through a motion for contempt.
Accordingly, the Livingston Circuit Court lacked jurisdiction to
enforce a visitation order that had been superceded by the order
from the Dallas County District Court and was no longer valid.
To hold otherwise would be contrary to the UCCJA, which was
enacted primarily to prevent jurisdictional conflicts between
the states in matters of child custody.14
While this issue is
one of first impression in Kentucky, our holding is consistent
with the results reached by the majority of jurisdictions that
have addressed this issue.15
For the foregoing reasons, the order of the Livingston
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Tod D. Megibow
Paducah, Kentucky
Anne M. Smith
Calvert City, Kentucky
14
See KRS 403.400(1)(a).
15
See e.g., Marquiss v. Marquiss, Wyo., 837 P.2d 25, 38 (1992); Levis v.
Markee, Mo.App., 771 S.W.2d 928, 931 (1989); Commonwealth ex rel. Taylor v.
Taylor, Pa.Super.Ct., 480 A.2d 1188, 1191 (1984); In re Marriage of Corrie,
Was.App., 648 P.2d 501, 596 (1982); and Daily v. Dombroski, Ga., 297 S.E.2d
246 (1982). See also Danny R. Veilleux, Annotation, What Types of Proceedings
or Determinations are Governed by the Uniform Child Custody Jurisdiction Act
(UCCJA) or the Parental Kidnapping Prevention Act (PKPA), 78 A.L.R.4th 1028
§§ 14 and 15 (1990).
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