WILLIAM D. LOBDELL v. MISTY ROBIN LOBDELL
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RENDERED: December 12, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000325-MR
WILLIAM D. LOBDELL
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 00-CI-00162
v.
MISTY ROBIN LOBDELL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, CHIEF JUDGE; BARBER AND BUCKINGHAM, JUDGES.
EMBERTON, CHIEF JUDGE.
William Lobdell seeks to set aside a
part of a judgment entered in a dissolution action directing him
to pay child support, certain marital debts and child support
arrearages.
Lobdell, a resident of Virginia, claims that the
court lacked personal jurisdiction over him, and therefore, the
personal judgments of the Kentucky court are void.
We find that
Lobdell entered an appearance in the action, and therefore,
affirm.
William and Misty Lobdell married in June 1995 in
Virginia and prior to 1999, moved to Kentucky.
Misty filed a
petition for dissolution of marriage in the Bell Circuit Court
on April 7, 2000.
William, then a resident of Virginia, was
served with summons by certified mail on April 12, 2000, but did
not respond to the petition.
Misty’s deposition was scheduled
for June 2, 2000, and William was notified by service at his
Virginia address.
The deposition was taken without the presence
of William or his counsel.
A motion to submit the case for
decision was filed by Misty, and again, William was notified by
mail at his Virginia address.
On June 27, 2000, the Bell
Circuit Court entered a decree of dissolution and William was
ordered to pay temporary child support in the amount of $70 per
week for the parties’ two children.
The payments were to
continue until the amount of William’s income could be
determined.
William was ordered to provide evidence of his
income within twenty days and was further ordered to assume a
$7,000 debt for a pickup truck owned by the parties.
The decree
specifically states that William had not filed an answer nor
made an appearance in the action.
On August 2, 2000, the circuit court entered an order
stating that it had received information from William regarding
his wages.
Based on that information and the child support
guidelines, child support was set at $325 per month.
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On
September 18, 2000, the Commonwealth filed a petition to have
the court determine that Kentucky had exclusive jurisdiction
over the child support.
The motion alleged that Misty had been
receiving public assistance from Kentucky since mid-1999, and
that an order had been entered in Virginia against William
establishing child support at $95 per week.
There is, however,
no Virginia order in the record.
On September 18, 2000, the court held a hearing on the
Commonwealth’s motion following which the court entered an order
finding that Kentucky has continuing exclusive jurisdiction in
the matter.
The court specifically noted that Misty’s counsel
and William appeared at the hearing.
On October 12, 2000,
William entered into an agreed order whereby he agreed to pay
$3,053.62 in child support arrearages.
After William failed to comply with the child support
orders and failed to pay for the vehicle as ordered by the
court, Misty filed a motion for contempt.
It was not until
November 15, 2002, in a response to the contempt order, that
William filed a pleading entitled “Special Appearance and Motion
to Vacate” challenging the personal jurisdiction of the court.
Service by certified mail is sufficient to authorize a
personal judgment if the party against whom the judgment is
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entered has appeared in the action.1
Smith v. Gadd2 is one of
the few cases discussing the conduct sufficient to constitute an
“appearance.”
That case dealt with CR3 55.01 and its notice
provisions for entry of a default judgment against parties that
have appeared in an action.
However, the law relied upon by the
court is useful to our present analysis.
Citing from legal
treatises the court recited the general law:
In 13 Am.Jur., Appearances, Section 10,
it is said:
‘A general appearance may arise by
implication from the defendant’s
seeking, taking, or agreeing to,
some step or proceeding in the
cause, beneficial to himself or
detrimental to the plaintiff,
other than one contesting the
jurisdiction only. The purpose of
the appearance, however, must bear
some substantial relation to the
cause. In other words, it must be
a purpose within the cause, not
merely collateral thereto.’
(Emphasis original.)
In 6 C.J.S., Appearances, Section 12 a,
the general rule is thus stated:
‘An appearance may be expressly
made by formal written or oral
declaration, or record entry, to
the effect that the defendant
appears; or it may be implied from
some act done with the intention
1
Kentucky Rules of Civil Procedure (CR) 4.04(8).
2
Ky., 280 S.W.2d 495 (1955).
3
Kentucky Rules of Civil Procedure.
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of appearing and submitting to the
court’s jurisdiction; . . . .’4
(Emphasis original.)
William did not appear before the court prior to the
entry of the decree of dissolution.
However, his subsequent
responses to the court’s orders, physical appearance in court,
and acknowledgment of the agreed order, are sufficient to submit
him to the jurisdiction of the court.
William also complains that the trial court should
have rejected the agreed order for payment of the arrearages
since there was no documentation as to the amount of the
arrearage submitted to the court.
There is no evidence that
William signed the order under duress or that it was obtained by
fraud.5
We find no error.
The order denying the motion to vacate is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gerald L. Greene
GREENE & LEWIS
Pineville, Kentucky
Bill Hayes
HAYES LAW OFFICE
Middlesboro, Kentucky
4
Id. at 497.
5
See Smith v. Smith 295 Ky. 50, 173 S.W.2d 813 (1943).
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