DIANA KOHLER AND JOHN KOHLER v. LAURIE MCDONALD
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RENDERED: April 15, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000337-ME
AND
NO. 2004-CA-000684-ME
DIANA KOHLER AND
JOHN KOHLER
v.
APPELLANTS
APPEALS FROM LIVINGSTON CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 01-CI-00201
LAURIE MCDONALD
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
SCHRODER, JUDGE:
These are consolidated appeals by grandparents
who have sole custody of minor child from orders denying their
motions to transfer jurisdiction and to dismiss mother’s motions
to modify custody and hold them in contempt.
1
The grandparents
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
argue that the state of Georgia, where they and the child have
lawfully resided for over seven months, is now the proper forum
for jurisdiction under the Uniform Child Custody Jurisdiction
Act (“UCCJA”).
From our review of the totality of the
circumstances and the UCCJA, we adjudge that the Livingston
Circuit Court properly exercised jurisdiction in this case.
Hence, we affirm.
Appellants, Diana and John Kohler (“the Kohlers”), are
the maternal grandparents (mother and stepfather of child’s
mother) of L.Q., born November 11, 1999.
In December of 2001,
while still residing in Kentucky, the Kohlers filed a petition
for permanent custody of L.Q.
After an evidentiary hearing, the
Livingston Circuit Court applied the best interest standard and
awarded permanent custody of L.Q. to the Kohlers in an order
dated April 2, 2002.
The court based its decision on the
following findings:
the child’s father had neglected and
abandoned L.Q.; the child’s mother, Laurie McDonald, had severe
alcohol and anger control problems which caused her to lose
custody of her other two children; the Kohlers have had custody
of the child for a big part of her life; in December of 2000,
L.Q. was removed from McDonald’s custody by the Cabinet for
Families and Children (“CFC”) based on a determination of abuse
and neglect as a result of McDonald’s alcohol problems; L.Q.
returned to McDonald’s home for two months and was thereafter
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removed again in September of 2001; the Kohlers possess adequate
parenting skills to care for L.Q.; L.Q. has adjusted well to the
Kohlers’ home, and her mental and physical condition has
steadily progressed while in their care; and McDonald and the
Kohlers do not have a relationship conducive to joint decisionmaking regarding the child.
However, the court felt that a
relationship with the natural mother should still be maintained.
Thus, the court ordered visitation by McDonald for a minimum of
four hours a week as directed and scheduled by Diana Kohler and
specifically provided that “the visitation may evolve into
overnight and unsupervised visitation as the
petitioner/grandmother deems appropriate.”
There was no
language in the court’s order prohibiting the Kohlers from
moving to another state with L.Q.
Subsequently, McDonald failed to comply with the
visitation schedule and the Kohlers filed a motion to eliminate
McDonald’s visitation and for her to show cause why she should
not be held in contempt for failing to comply with the
visitation order.
McDonald filed a motion for review of the
visitation schedule established pursuant to the April 2, 2002
order.
On March 31, 2003, the court entered an order denying
the Kohlers’ motion to hold McDonald in contempt, specifically
finding that there was nothing to be gained by holding McDonald
in contempt.
As for McDonald’s motion for review of the
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visitation schedule, the court ordered a new home study by the
CFC of McDonald’s home because she had remarried, and further
modified visitation to allow for McDonald to visit L.Q. two
hours per week at the CFC office in Smithfield, Kentucky.
It is undisputed that on April 18, 2003, the Kohlers
moved with L.Q. to Marietta, Georgia to help take care of John’s
ailing father.
On April 30, 2003, McDonald moved to have the
Kohlers found in contempt for failure to present L.Q. for
visitation in Kentucky per the March 31, 2003 order.
On June
10, 2003 the court entered an order holding the Kohlers in
contempt and directing the Kohlers to purge the contempt by
making L.Q. available for visitation at the CFC office in
Smithfield, Kentucky on or before June 12, 2003.
On June 19,
2003, the Kohlers filed a motion to modify visitation in order
to “accommodate the goals of this court while permitting
Petitioners to meet their personal obligations in Georgia.”
In
an order entered July 22, 2003, the court granted the motion for
modification and indicated that the parties had reached an
agreement that McDonald could have unsupervised visitation with
L.Q. on specific dates in July, every other week in Kentucky and
every other week in Georgia if McDonald’s work schedule
permitted.
On August 18, 2003, the court entered an order
setting visitation again every other week in Kentucky and every
other week in Georgia.
On October 17, 2003, McDonald again
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moved the court to require the Kohlers to show cause why they
should not be held in contempt for not producing the child for
visitation in Kentucky.
However, the certificate of service on
said motion was not signed by McDonald or her attorney.
Consequently, the court entered an order passing on the matter,
subject to re-notice.
On November 26, 2003, McDonald filed a motion to
modify the previous custody order of April 2, 2002, seeking to
regain custody of the child.
The Kohlers filed a response to
this motion on December 3, 2003 and also filed a motion to
transfer jurisdiction of the case to Georgia on grounds that the
Kohlers and L.Q. had been residing in Georgia since April 18,
2003.
In this motion the Kohlers argued that under state and
federal law, Georgia was now the appropriate jurisdiction to
determine any matters pertaining to L.Q.’s custody.
Thereafter
on January 5, 2004, the Kohlers filed in the Livingston Circuit
Court a notice that they had filed a petition to domesticate a
foreign judgment in the Cobb County Circuit Court in Marietta,
Georgia since the child had resided in the state of Georgia
beyond the statutory time required for the state of Georgia to
exercise jurisdiction.
The Kohlers next filed a motion to
dismiss McDonald’s motions to modify custody and to hold them in
contempt on grounds of lack of jurisdiction.
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A hearing on all the motions pending in the case in
the Livingston Circuit Court was held on January 8, 2004.
On
January 14, 2004, the Livingston Circuit Court entered an order
denying the Kohlers’ motions to dismiss and denying McDonald’s
motion to modify custody and hold the Kohlers in contempt.
In
this order, the court maintained permanent custody with the
Kohlers, but modified the visitation schedule to allow McDonald
to visit with L.Q. one long weekend a month, on designated
holidays, and four weeks during the summer.
The court directed
that the parties shall equally divide the transportation
responsibilities by meeting halfway between the homes in
Kentucky and Georgia to exchange the child.
As for the motion to transfer the case to Georgia,
Judge Cunningham of the Livingston Circuit Court and the judge
from the Cobb County (Georgia) Circuit Court conferred and
determined that the Livingston Circuit Court was the more
appropriate forum and thus continued to have jurisdiction over
the matter.
Accordingly, on March 18, 2004, the Livingston
Circuit Court entered an order also denying the Kohlers’ motion
to transfer the case to the state of Georgia.
The Kohlers now
appeal from the January 14, 2004 and March 18, 2004 orders.
At the outset, we shall address appellee’s motion to
dismiss appellants’ appeal.
Upon review of this motion, we
adjudge that it is without merit and thus should be denied.
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The Kohlers first argue that the Livingston Circuit
Court did not have jurisdiction to hear McDonald’s motion to
modify the previous custody order.
In January and March of
2004, the Uniform Child Custody Jurisdiction Act (“UCCJA”), KRS
403.400 – 403.620, governed custody determinations as between a
party in Kentucky and a party in another state.2
KRS 403.420(1)
provided:
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 the 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
. . .
2
Effective July 1, 2004, the UCCJA was repealed and replaced by the Uniform
Child Custody Jurisdiction and Enforcement Act, KRS 403.800 – 880.
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(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.
“Home state” was defined in KRS 403.410(5) as “the
state in which the child immediately preceding the time involved
lived with his parents, a parent, or a person acting as parent,
for at least six (6) consecutive months, and in the case of a
child less than six (6) months old the state in which the child
lived from birth with any of the persons mentioned.”
Pursuant
to the undisputed evidence that L.Q. has lived with the Kohlers
in Georgia since April 18, 2003, it is clear that Georgia was
the home state of L.Q. at the time the motions were filed, heard
and ruled on in this case.
However, the home state of the child
is not always the sole or controlling factor in determining
jurisdiction under the UCCJA.
“Physical presence of the child,
while desirable, is not a prerequisite for jurisdiction to
determine . . . custody.”
KRS 403.420(3); Gullett v. Gullett,
992 S.W.2d 866, 870 (Ky.App. 1999).
The other factors
establishing jurisdiction under KRS 403.420(1) are the best
interest of the child when:
the child and his parents or one
contestant have significant connections with Kentucky and there
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is substantial evidence regarding the child’s present or future
care, protection, training, and personal relationships in
Kentucky; or another state has declined jurisdiction on the
ground that Kentucky is the more appropriate forum.
403.420(1)(b) and (d).
KRS
In Pike v. Aigner, 828 S.W.2d 674, 676-
77 (Ky.App. 1992), this Court stated the following regarding
UCCJA determinations:
[A]n approach to the exercise of
jurisdiction in which the totality of the
circumstances is evaluated is preferable to
the mechanical application of the statute to
deprive a court of jurisdiction when the
greater part of the evidence pertaining to
the child’s interest is present in the state
whose jurisdiction is invoked.
Diana Kohler testified that she and her husband moved
to Georgia with L.Q. to help take care of John’s ill father.
There was some evidence presented at the hearing attempting to
show that the Kohlers moved to Georgia to escape the
jurisdiction of Kentucky and thus evade the visitation order.
However, the Livingston Circuit Court found that said evidence
fell short of establishing an improper motive for the Kohlers’
move to Georgia with the child, and we shall defer to this
finding.
Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986).
The
evidence established that L.Q. now has a doctor, is in
preschool, and has some family (relatives of John Kohler) in
Georgia.
While Diana testified that their home in Kentucky was
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listed for sale at the time of the hearing, she did not state
that they intended to stay in Georgia permanently or what they
intended to do in the event John’s father recovered.
L.Q. resided in Kentucky from birth until 2003, and at
the time of the hearing in this case, had lived in Georgia for
less than nine months.
The natural mother of L.Q., with whom
she still has visitation, continues to reside in Kentucky.
The
mother is remarried and her current husband has two young
daughters who also reside in Kentucky.
The evidence established
that L.Q. has a good relationship with these stepsisters.
With
the exception of the motions filed in the Cobb County (Georgia)
Circuit Court after the Kohlers moved to Georgia, all of the
litigation regarding the custody of L.Q. has been in the
Livingston Circuit Court.
The Livingston Circuit Court has
heard many motions and made numerous rulings regarding the
custody and visitation of L.Q. since the petition for permanent
custody was first filed in 2001.
It is apparent from our review
of the proceedings and the record in this case that the
Livingston Circuit Court has taken a lot of time and effort to
closely monitor the case to insure the best interests of the
child.
And most significantly, the Georgia court declined
jurisdiction in this case, deferring to the Livingston Circuit
Court as the more appropriate forum.
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From our review of the totality of the evidence and
the UCCJA, we believe the Livingston Circuit Court continued to
properly assume jurisdiction in this case under KRS
403.420(1)(d).
The state of Georgia explicitly declined
jurisdiction in this case on grounds that Kentucky is the more
appropriate forum, and we believe that, at least as of the time
of the hearing and orders in this case, it remained in the best
interest of L.Q. for the Livingston Circuit Court to continue to
assume jurisdiction.
As in Gullett, 992 S.W.2d at 870, the
Kohlers failed to set forth a case showing that it was not in
the best interest of L.Q. that the Livingston Circuit Court
continue to have jurisdiction or that the best interests of L.Q.
would be better served by litigating child custody issues in
Georgia.
The Kohlers next argue that the Livingston Circuit
Court could only have continuing jurisdiction over the contempt
proceeding, but could not have jurisdiction over the
modification motion, citing Brighty v. Brighty, 883 S.W.2d 494
(Ky. 1994), for the proposition that the UCCJA is only invoked
once a motion for modification of custody is filed, but does not
apply to contempt or enforcement proceedings.
Here, however,
even when the UCCJA is applied (because a motion for
modification of custody had been filed), Kentucky still properly
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had jurisdiction over matters regarding the custody of L.Q., as
discussed above.
Finally, the Kohlers argue that the Livingston Circuit
Court improperly exercised jurisdiction in this case because it
was an inconvenient forum under KRS 403.460.
Under KRS
403.460(1):
A court which has jurisdiction under KRS
403.420 to 403.620 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).
Pursuant to KRS 403.460(3), the court shall consider
“if it is the interest of the child that another state assume
jurisdiction,” taking the following factors, among others, into
account:
(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;
. . .
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(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(4) provided:
Before determining whether to decline or
retain jurisdiction the court may
communicate with a court of another state
and exchange information pertinent to the
assumption of jurisdiction by either court
with a view to assuring that jurisdiction
will be exercised by the more appropriate
court and that a forum will be available to
the parties.
First, the language of KRS 403.460(1) is permissive,
not mandatory.
Secondly, as stated earlier, the judge from the
Cobb County, Georgia court and Judge Cunningham of the
Livingston Circuit Court did communicate and determine that
Kentucky was the more appropriate forum in this case, presumably
considering the above factors.
For the same reasons discussed
earlier, we agree that Kentucky was the appropriate forum in
this case.
Accordingly, the Livingston Circuit Court did not
err in refusing to decline jurisdiction pursuant to KRS 403.460.
For the reasons stated above, the motion to dismiss
appellants’ appeal is denied and the orders of the Livingston
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lisa A. DeRenard
Benton, Kentucky
Stuart C. Peek
Smithland, Kentucky
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