KAREN LESLIE GOSSETT v. DAVID WILLIAM GOSSETT
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RENDERED:
October 9, 1998; 10:00 a.m.
ORDERED NOT TO BE PUBLISHED BY THE KENTUCKY SUPREME COURT:
JUNE 9, 1999 (98-SC-000907)
Commonwealth Of Kentucky
Court Of Appeals
NO. 1997-CA-000315-MR
KAREN LESLIE GOSSETT
APPELLANT
APPEAL FROM NELSON CIRCUIT COURT
HONORABLE LARRY D. RAIKES, JUDGE
ACTION NO. 85-CI-000230
DAVID WILLIAM GOSSETT
APPELLEE
OPINION
REVERSING AND REMANDING
* * *
BEFORE:
GARDNER, HUDDLESTON, AND KNOX, JUDGES.
KNOX, JUDGE:
This appeal is taken from the judgment of the
Nelson Circuit Court setting aside that court's previous order
of, inter alia, child support, and dismissing subsequent motions
for child support.
The circuit court held it lacked
jurisdiction to enter an in personam judgment against appellee
when he was only constructively served, therefore, never
properly before the court.
BACKGROUND
Appellant, Karen Gossett (Karen), and appellee, David
Gossett (David), were married in Nelson County, Kentucky on
November 1, 1980.
Both parties had been raised in Nelson County
where their respective parents reside.
In November 1980 David
became a member of the United States Navy.
Between March 1981
and sometime in 1982, the parties lived in Kingsville, Texas.
One (1) daughter was born to the parties on March 14, 1981.
In
1982, Karen returned to Nelson County while David was stationed
in Norfolk, Virginia.
In 1983, Karen joined David in Norfolk
where they remained until the date of their separation, July 14,
1984, at which time Karen returned to Nelson County.
On September 23, 1985, Karen filed her petition for
dissolution in the Nelson County Circuit Court.
Karen
acknowledged in her petition that David was incarcerated
somewhere outside Kentucky.
In fact, David was incarcerated in
the Naval brig at the Norfolk Naval Station.
At the time Karen
filed her petition, she further moved the court to appoint a
warning order attorney to warn David of the pendency and nature
of the action against him.
Francis L. Dickerson, a member of
the local bar, was appointed warning order attorney the
following day.
On September 27, 1985, Dickerson directed a
letter to David advising him of the need to file any defenses to
the action within fifty (50) days of September 24, 1985.
On November 4, 1985, David responded to the warning
order attorney’s letter with the following:
TO:
C.E. Allen Circuit Clerk
c/o Court of Justice
Commonwealth of Kentucky
Bardstown, Ky 40004
VIA:
Law Office
Francis L. Dickerson
303 N. Third Street
Bardstown, Ky 40004
FROM:
David William Gossett
Box 999 Naval Station
Norfolk, Va 23511
. . . .
Dear Mr. Dickerson,
Thank you for your letter of 27 Sept.
1985 concerning your appointment as the
warning order attorney for the complaint
filed against me in Nelson Civil Court.
At present I am confined in the Naval
Station Brig with an expected release date
of 16 FEB. 1986. I am asking the court for
a continuance until the last week of FEB.
1986.
I will be presenting evidence to rebut
several issues in the complaint. I feel
that if the court were to make a judgement
[sic] in my absence, I would be denied to
contest these matters. I feel that many of
the issues mentioned in the complaint are
without merit, and could possibly be
misinterpreted to my detriment.
I have intentions of finishing the
requirements for my Associate Degree, and I
will probably only work part-time in the
next year, classifying myself as a full-time
student. Based on these assumptions I
cannot afford to pay maintenance, court
costs, or a great amount of child support in
the upcoming future.
I will be more than happy to appear in
court after my release in late Feb. 86. At
that time I may require your services to
effectively present my defense in these
matters. Please feel free to contact myself
or my counselor here at the Brig.
David signed the document before a notary on November 6, 1985.
A copy of this correspondence was attached to the warning order
attorney’s report filed November 13, 1985.
Karen’s motion for an interlocutory decree of
dissolution, reserving all other matters, was entered December
5, 1985.
David was released from the Naval brig, under
administrative leave, on January 16, 1986.
Technically, David
remained a member of the armed services until the paperwork
effecting his discharge could be completed in April of that
year.
David made arrangements for his mail to be forwarded to
his parents’ Nelson County home where he returned immediately
following his release.
On January 24, 1986, Karen filed a motion for custody
of the parties’ minor child, child support, permanent
maintenance, attorney fees and court costs.
The motion’s
certificate indicated notice had been sent to David at his Naval
station address; however, David denies having ever received the
forwarded document or any other papers regarding this matter.
However, the motion and notice of hearing is not of record as
having been returned to the circuit clerk’s office, yet, David’s
copy of the court’s ultimate order of March 5, 1986 addressing,
inter alia, David’s child support obligation, is of record as
having been “returned to sender.”
Furthermore, following his
release from the brig, and return to Kentucky, David made no
independent effort to contact the court or any officer thereof
to ascertain the status of this action, nor did he make any
child support payments pursuant to the order.
On October 10, 1995, David moved the court for CR
60.02 relief requesting the March 5, 1986 order be vacated.1
Sometime in 1996, Karen moved the court for an order compelling
David to commence paying maintenance and child support
arrearages pursuant to the March 1986 order. In February 1996 an
interlocutory order was issued vacating the portion of the March
5, 1986 order dissolving the marriage2 between the parties and
referring the matter of child support to the domestic relations
commissioner for further proceedings.
David was summonsed via the Kentucky Secretary of
State on April 17, 1996.
Since the record is incomplete and
fails to reflect the specific motion in issue, we shall presume
the summons regarded Karen’s 1996 motion to obtain maintenance
and child support.
In May 1996, David made a motion under CR
12.02, moving the court to dismiss the entire action as it
1In light of the record before us, it would appear that David’s motivation to seek CR
60.02 relief was precipitated by the Commonwealth’s action to be reimbursed for AFDC which
had been received by Karen on bealf of the parties’ minor child.
2The parties were to be considered divorced as of December 5, 1985, the date of the
original judgment.
relates to child support and maintenance, and quash the abovementioned summons.
On January 6, 1997, the circuit court found
that it lacked jurisdiction and sustained David’s motion for
dismissal.
This appeal ensued.
In determining the absence of jurisdiction, the
circuit court concluded that David had never personally appeared
in the original dissolution
action.
The court opined that
David’s response to correspondence from the warning order
attorney did not operate as a personal appearance.
We disagree.
Indeed, it is accurate that the court is prohibited
from rendering personal judgment against a constructively served
party unless they have “appeared” in the action. KRS 454.165.
An appearance, however, is generally found when a party has
participated in the action to an extent indicating an intention
to defend. Cann v. Howard, Ky. App., 850 S.W.2d 57, 62
(1993)(citing Smith v. Gadd, Ky., 280 S.W.2d 495 (1955)).
Therefore, our question is not whether the
[respondent] has submitted himself to the
jurisdiction of the court, but whether or
not he has so participated in the action as
to indicate an intention to defend. There
must be some act which would signify that
the [respondent] is contesting liability
rather than admitting it, and therefore
would be likely to contest the motion for
judgment if given notice.
In construing the word “appeared” . . .,
we are of the opinion that it means the
[respondent] has voluntarily taken a step in
the main action that shows or from which it
may be inferred that he has the intention of
making some defense.
Smith v. Gadd, Ky., 280 S.W.2d 495, 498 (1955).
We believe David’s letter to the Nelson County Circuit
Clerk served not only as the requisite act signifying the intent
to appear, contest and defend but as an actual appearance,
invoking jurisdiction of the court.
Plainly, the face of the document reveals that David
addressed his reply letter to C.E. Allen, Circuit Court Clerk,
at the appropriate address provided by Dickerson, the warning
order attorney.
Dickerson was merely utilized as the medium by
which to convey the communication.
This fact is evidenced by
David’s use of the term “via” in reference to Dickerson’s law
office.
Further, a review of the actual language of the letter
reveals that, but for two (2) sentences, its content addresses
the court.
The opening sentence thanks Dickerson for the notice
of the action.
The concluding paragraph contains one (1)
statement referencing David’s possible future need of attorney
services in presenting his defenses.
The remainder of the
correspondence addresses: (1) David’s then current status; (2)
the fact that David “will be presenting evidence to rebut
several issues in the complaint[;]” (3) that “many of the issues
mentioned in the complaint are without merit” and
misinterpretation of same may operate to his detriment; (4)
future work and educational plans relating to an ability to pay
maintenance and child support; and, (5) the clear statement that
“I will be more than happy to appear in court after my release
. . . .”
As attested by the contents of this letter, David made
known his intention to present evidence in his defense,
contesting the issues, and personally advancing his case before
the court.
Again, David stated, “I will be more than happy to
appear in court. . . .”
As such, we conclude that David
received notification of the dissolution action, at least in
November 1985 when he, personally, responded to the court that
he intended to appear and defend the action brought against him
which included a claim for, inter alia, custody of the parties’
minor child, child support, and maintenance, in addition to fees
and costs.
Moreover, David stated, “I am asking the court for a
continuance. . . .”
“It is elementary law that a party who
enters his appearance to any suit by filing an answer or
otherwise responding waives the service of a summons.”
Saylor, 300 Ky. 471, 189 S.W.2d 688, 690 (1945).
Brock v.
It is our
opinion that requesting relief from the court, in this case a
continuance, constitutes an affirmative appearance, invoking
personal jurisdiction.
Apparently, the circuit court treated the final decree
of dissolution (March 5, 1996 order) as a default judgment,
which, essentially, it was.
CR 55.01.
Although David’s brief
in support of an order setting aside all orders except the
actual decree of dissolution fails to cite the rule of civil
procedure on which he relies, we believe the action could be
characterized as a CR 55.02 motion to set aside a default
judgment.
On the other hand, even if it is more properly
considered a CR 60.02 motion, the outcome remains the same
because CR 55.02 provides that the court may set aside a
judgment by default in accordance with CR 60.02.
CR 60.02 provides in relevant part: “On motion a court
may, upon such terms as are just, relieve a party or his legal
representative from its final judgment, order, or proceeding
upon the following grounds: . . . (e) the judgment is void. . .
.
The motion shall be made within a reasonable time[.]”
“While
there is no time limit for a motion to set aside predicated on
the judgment being void, the motion must still be made ‘within a
reasonable time. . . .’ ”Foremost Ins. Co. v. Whitaker, Ky.
App., 892 S.W.2d 607, 610 (1995)(citing CR 60.02).
The
reasonable time restriction is a matter left to the discretion
of the trial court, yet a factor which the trial court need take
into consideration.
Gross v. Commonwealth, Ky., 648 S.W.2d 853,
858 (1983).
Likewise, CR 12 requires that the defense of lack of
personal jurisdiction be timely presented.
Whatever rights a party formerly could
assert by special appearance may be
preserved regardless of whether or not a
general appearance has been entered,
provided the defense or objection is timely
presented under Rule 12. Even though the
party at the same time or subsequently
enters a general appearance, or by pleading
or motion raises an issue with respect to
the merits of the action, his special
defenses remain intact if properly asserted.
Cann v. Howard, Ky. App., 850 S.W.2d 57, 62-3 (1993)(emphasis
added)(citation omitted).
Hence, under any of these scenarios,
the requirement is the same, i.e., that the motion be made in a
timely fashion.
This action was instituted in September 1985.
As
discussed supra, David received notice and responded to the
complaint.
On November 28, 1994, David entered into an agreed
order to pay child support arrearages.
According to David’s own
testimony, at the time he was advised that the arrearages
required repayment, he “cooperated fully and made arrangements
to repay [the] amount.”
David also testified he did not seek
legal representation at this time, rather, voluntarily entered
into the agreed order.
It was not until October 1995, some ten
(10) years following the initiation of the suit, that David
asserted the court lacked in personam jurisdiction.
While review of the record does not indicate the issue
of “timeliness” of David’s motion to vacate and dismiss was
raised before the circuit court, we believe the record clearly
reflects that his motion was not timely filed, and that he
waived his defense of lack of personal jurisdiction by failing
to bring
a CR 55.02, CR 60.02, or CR 12.02 motion within a
reasonable time after becoming aware of the cause of action
against him and entering his appearance.
In sum, we disagree with the circuit court’s
conclusion that David never made an appearance in the original
action.
Rather, it is our position that David’s response to the
court, and request for relief, established not only an intent to
appear and defend in the action against him, but an actual
appearance rendering personal jurisdiction in the court.
Following his release from the Naval brig, it was merely David’s
own inaction that resulted in his lack of representation.
He
cannot be said to have been denied notice nor the opportunity to
be heard.
Rather, David made a cognizant decision to ignore the
proceedings.
Further, we find the circuit court failed to determine
whether David waived his defense of lack of personal
jurisdiction by failure to bring a CR 55.02, CR 60.02, or CR
12.02 motion within a reasonable time after becoming aware of
the action against him and subsequent order for child support.
The order of the Nelson Circuit Court is reversed and
the matter remanded for further proceedings consistent with this
opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John S. Kelley, Jr.
Bardstown, Kentucky
Larry Langan
Bardstown, Kentucky
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