SHERI HOSKINS GIBSON v. DOUGLAS A. GIBSON
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RENDERED:
DECEMBER 22, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000313-MR
AND
NO. 2004-CA-001924-MR
SHERI HOSKINS GIBSON
APPELLANT
APPEALS FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 99-CI-00021
v.
DOUGLAS A. GIBSON
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; HUDDLESTON, 1 SENIOR JUDGE.
JOHNSON, JUDGE:
Sheri Hoskins Gibson has appealed, separately,
two orders of the Oldham Circuit Court, respectively entered on
January 15, 2004, and August 18, 2004, in which the trial court
modified the visitation rights of her former husband, Douglas A.
Gibson, with the parties’ two minor children, reduced Doug’s
child support and his medical reimbursement arrearages, and
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
failed to award interest on child support that was vested and
remained unpaid.
Having concluded that there is no relief to be
granted on the January 15, 2004, order, and that the trial court
did not abuse its discretion as to the medical reimbursement
arrearages, we affirm in part.
Having concluded that the trial
court lacked personal jurisdiction to reduce Doug’s child
support, we reverse in part.
Having further concluded that the
trial court abused its discretion in failing to enter a judgment
on Doug’s child support arrearages, including interest on the
arrearages, we vacate in part and remand.
Sheri and Doug were divorced by the Oldham Circuit
Court by a decree entered on March 31, 1999.
Prior to entry of
the decree, the parties orally entered into a separation
agreement which was read into the record at the time the March
31, 1999, decree was entered, but not reduced to writing at that
time.
However, it is undisputed that the separation agreement
provided that Sheri and the parties’ two minor children would be
living in North Carolina after the divorce.
By agreed order
entered on March 8, 1999, the parties agreed to a visitation
schedule for Doug and the children, which was incorporated into
the decree. 2
Pursuant to the decree, Doug was to pay $1,500.00
per month in child support and he was to be responsible for all
2
The original separation agreement did not provide a visitation schedule.
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of the childrens’ uninsured medical expenses.
Doug paid the
child support as agreed from March 1999 until February 2002.
Sheri moved to North Carolina with the children during
1999.
While the question of whether she ever changed her
residence back to Kentucky is disputed, it is conceded that in
July 2003 she returned to Kentucky and stayed here until late
September or early October 2003.
Sheri’s position is that her
relocation to Kentucky was only temporary so she could take care
of her ailing mother and seek a potential job opportunity “to
determine if in fact, she wished to return to Kentucky.”
No further action was taken in the case until Doug
filed a motion with the trial court on September 30, 2003,
requesting the trial court to modify the previous visitation
agreement and to “issue a rule against Sheri to show cause why
definite periods of visitation should not be established for
[Doug] to have visitation with the parties’ minor children.”
the time Doug filed this motion, he resided in Indiana.
At
Sheri
did not receive notice of either the motion or the hearing held
on October 2, 2003.
The trial court entered an order on October
2, 2003, which set a specific one-week visitation schedule with
the minor children from October 2, 2003, through October 9,
2003, and allowed Doug to take the children to East End
Pediatrics during this visitation period.
Contrary to what
Sheri has stated in her brief, the trial court also passed the
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remaining matters until October 10, 2003, at which time Sheri
was to appear with the children so they could be interviewed.
Sheri apparently received notice of this order and
filed a motion on October 7, 2003, asking the trial court to
remove the matter from its docket for lack of jurisdiction
because none of the parties resided in Kentucky. 3
She also filed
a motion at that time asking that the parties’ oral separation
agreement, previously read into the record, be reduced to
writing.
The trial court held the previously scheduled hearing
on October 10, 2003, but Sheri and the children failed to
appear.
The trial court then entered an order on October 10,
2003, finding Sheri in contempt and stating that for her to
avoid arrest, she must return the children to Oldham County and
ensure they attend Crestwood Elementary, not medicate the
children without a doctor’s specification, grant certain
visitation with the children as set out by the trial court, and
report to court with the children on October 17, 2003.
On October 14, 2003, the trial court entered an order
denying Sheri’s motion to dismiss the action based upon lack of
jurisdiction under the Uniform Child Custody Jurisdiction Act
(UCCJA).
The trial court based its denial of dismissal on the
fact that Sheri “relocated to [Kentucky] in July [2003], has
3
Throughout this proceeding the parties refer to “subject-matter”
jurisdiction, while we believe the correct concept is “in personam” or
“personal” jurisdiction. Cox v. Cox, 170 S.W.3d 389 (Ky. 2005).
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resided with her parents since that time, and the children have
been enrolled at Crestwood Elementary for the 2003-2004 school
year.”
The order further noted that “[a]t the termination of
the hearing, the [trial] court checked with Crestwood Elementary
and was advised that the children have not been withdrawn from
school.”
Sheri then filed a motion on October 14, 2003, to have
the trial court’s October 2, 2003, and October 3, 2003, orders
set aside.
A hearing was held on October 17, 2003, and
subsequent thereto, the parties reached an agreement which the
trial court approved in an order entered on October 22, 2003.
The order allowed Sheri and the children to return to North
Carolina 4 and allowed the children to withdraw from enrollment at
Crestwood Elementary School and to enter school at North Raleigh
Christian Academy in North Carolina.
The order also required
the parties to resolve Doug’s visitation with the children based
upon their new school calendar.
The trial court, on that same
date, also entered, in writing, the separation agreement that
the parties agreed to on March 31, 1999, and incorporated it
into an amended decree.
On October 22, 2003, Doug filed a motion to decrease
his child support obligation as set by the Separation Agreement.
4
This order specifically states that Sheri and the children had resided in
North Carolina since 1999.
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Sheri filed a response on October 30, 2003, and moved for a
common-law judgment against Doug for child support and medical
reimbursement arrearages and for dismissal of Doug’s motion
based on lack of jurisdiction.
After the hearing on November 4, 2003, on the issue of
visitation, the trial court entered an order on November 14,
2003, establishing visitation 5 and also stating that it retained
jurisdiction over the case regarding child support, but that it
would lose jurisdiction regarding custody and visitation six
months post-September 2003.
Then, on January 13, 2004, the
trial court entered an order stating that the trial court would
consult with the circuit court in Wake County, North Carolina to
determine which court had “appropriate jurisdiction at the
present time.”
On January 15, 2004, the trial court entered an
order stating as follows:
This matter came before the Court and was
addressed by Court order entered January 13,
2004. In that [o]rder, the Court indicated
that it would contact Judge Stubbs to make a
determination as to appropriate custodial
jurisdiction for the present time.
After contacting Judge Alice Stubbs by
telephone conference on January 12, 2004,
the judges agreed that this Court would
retain jurisdiction for custody and
5
Sheri describes this order as a “modification” of the parties’ Separation
Agreement regarding visitation. Doug argues to the contrary that the trial
court’s order was an enforcement of the current agreement and order and only
provided for the physical transfer of the children in accordance with the
separation agreement’s visitation provision.
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visitation purposes until March 10, 2004[,]
which represents the expiration of the six
(6) month term after Sheri[‘s] removal from
the state of Kentucky.
. . . .
As such, this Court retains jurisdiction for
matters of custody and visitation until
March 10, 2004.
Sheri then appealed this order.
After several continuances, a hearing was held on
April 6, 2004, on Doug’s motion to modify child support and
Sheri’s motion for a common-law judgment on child support and
medical reimbursement arrearages.
It appears from the record
that the continuances were due to Doug’s failure to provide
documents requested by Sheri through the discovery process. 6
On
August 18, 2004, the trial court, after hearing testimony and
reviewing numerous exhibits placed in the record, entered its
findings of fact and conclusions of law regarding the amount of
child support and medical arrearages due from Doug to Sheri, as
well as modifying downward Doug’s child support obligation.
This second appeal followed. 7
6
According to an order entered by the trial court on February 25, 2004, the
trial court found that as of that date, Doug had failed to comply with prior
discovery orders to provide information regarding his 2001, 2002, and 2003
income and expenses. The trial court in this order stated that “failure to
comply may result in a dismissal of his request for a reduction in child
support.”
7
Sheri’s appeals were consolidated by order of this Court entered on June 27,
2005, i.e., Case No. 2004-CA-000313-MR and Case No. 2004-CA-001924-MR.
Therefore, the issues in the two appeals will be addressed in one Opinion.
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Sheri raises five issues in her brief.
The first
issue pertains to her appeal of the trial court’s January 15,
2004, order.
The remaining four issues pertain to her appeal of
the trial court’s August 18, 2004, order.
Sheri argues that the
trial court abused its discretion in entering its January 15,
2004, order because it did not have jurisdiction under the UCCJA
(now the Uniform Child Custody Jurisdiction and Enforcement Act)
(UCCJEA) to modify a visitation order when none of the parties
resided in Kentucky. 8
It should be pointed out that prior to the
trial court’s order of January 15, 2004, it had entered orders
regarding custody and visitation on October 2, 2003, October 10,
2003, October 22, 2003, October 24, 2003, November 17, 2003, and
January 13, 2004, none of which Sheri appealed.
However, in
Sheri’s brief she argues “all of the orders from September 30,
2003, forward in regard to visitation are null and void for a
lack of subject matter jurisdiction and must be set aside and
vacated.”
While none of the above-mentioned orders were final
and appealable at the time they were entered, by the time Sheri
filed her notices of appeal in the consolidated cases they had
become final and appealable.
Further, in reviewing the orders
that Sheri failed to appeal and failed to reference in her pre-
8
Between January 14, 2004, and March 10, 2004, the UCCJA, as set out in KRS
403.400-403.620 governed custody determinations. As of July 13, 2004, the
UCCJA was repealed and superseded by the UCCJEA, as set out in KRS 403.800880.
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hearing statements, there does not appear to be any matter which
currently affects the parties or the children.
Because those
orders were not timely appealed, we cannot review any order
prior to the January 15, 2004, order.
Thus, on the issues of custody and visitation, we
address only the January 15, 2004, order.
In that order the
trial court “retained jurisdiction” for matters of custody from
January 14, 2004, the date of the order, until March 10, 2004.
A review of the record between January 14, 2004, and March 10,
2004, indicates that the trial court exercised jurisdiction over
visitation and custody matters in an order entered on February
25, 2004.
After this order, there was no additional order of
record prior to or on March 10, 2004.
Thus, the period of time
which the trial court retained jurisdiction has passed, with no
lasting effects; and Sheri has failed to identify any relief we
can grant her on this claim.
Thus, this issue is now moot and
it is not necessary that we discuss it any further.
Sheri’s remaining issues concern the trial
court’s order entered on August 18, 2004.
First, Sheri argues
that the trial court had no jurisdiction to hear Doug’s motion
for a reduction of child support filed on October 22, 2003,
because Doug resided in Indiana and Sheri and the children
resided in North Carolina.
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We begin our analysis with the Uniform Interstate
Family Support Act (UIFSA) which became effective in Kentucky on
January 1, 1998.
KRS 407.5205 et seq., which is the controlling
statute on this issue, states as follows:
(1)
A tribunal of this state issuing a
support order consistent with the law
of this state has continuing, exclusive
jurisdiction over a child support
order:
(a)
As long as this state remains
the residence of the obligor,
the individual obligee, or
the child for whose benefit
the support order is issued; 9
or
(b)
Until all of the parties who
are individuals have filed
written consents with the
tribunal of this state for a
tribunal of another state to
modify the order and assume
9
While both sides spend a great deal of time in their briefs arguing whether
Sheri’s three-month return to Kentucky from July 2003 to October 2003 changed
the residency of the children from North Carolina back to Kentucky, this
issue is moot. The trial court, in an order entered on October 22, 2003,
prior to entry of either order on appeal to this Court, stated, “[i]t was
agreed that [Sheri] and the parties’ minor children shall be allowed to
permanently return to North Carolina, where they have resided since 1999.”
There is no indication in the record that Doug challenged this order by
filing a motion to alter, amend, or vacate; and this finding that Sheri and
the children resided in North Carolina from 1999 to October 2003 is supported
by substantial evidence and is not clearly erroneous. Doug argues
extensively in his brief that Sheri and the children were residing in
Kentucky at the time he initiated the proceeding to modify visitation in late
September 2003. However, that was not the finding of the trial court in its
October 22, 2003, order, despite somewhat conflicting language in its October
14, 2003, order. Therefore, it has been established that the state of
residence of Sheri and the children has been North Carolina since 1999 and
during all times relevant to this appeal. We will proceed with a
jurisdictional analysis from the standpoint that neither of the parties, nor
their children, were residents of Kentucky at the time Doug filed his motion
for a modification of child support.
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continuing, exclusive
jurisdiction.
In replacing the Uniform Reciprocal Enforcement of
Support Act (URESA), the UIFSA brought changes to child support
enforcement “by expanding personal jurisdiction over nonresident obligors . . . and eventually creating a ‘singleorder’ system that applies nationally” [footnote omitted]. 10
“The primary purpose of [the] UIFSA was to eliminate multiple
and inconsistent support orders by establishing a principle of
having only one controlling order in effect at any one time.
This principle was implemented by a definitional concept called
‘continuing, exclusive jurisdiction,’ under which the state that
issues the support order (the issuing state) retains exclusive
jurisdiction over the order, until specified conditions occur
which provide a basis for jurisdiction in another state.” 11
“Jurisdiction, a term with multiple meanings, primarily
indicates the power to adjudicate” [citation omitted]. 12
“Personal jurisdiction is required for child support orders to
be enforceable because such orders involve the imposition of a
personal obligation to pay money.” 13
10
Graham and Keller, Kentucky Practice, §14.54 (Supp. 2005).
11
Jurado v. Brashear, 782 So.2d 575, 578 (La. 2001).
12
Id. at 577.
13
Id. at 577, n.2.
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In this case, based upon the definitions under KRS
407.5101, and the facts as set forth herein, KRS 407.5205(1)(a)
is not applicable as neither of the parents (obligor nor
obligee), nor the children still resided in Kentucky at the
relevant times of this case.
Further, KRS 407.5205(1)(b) does
not apply because the parties have not filed a written consent
for another state to assume continuing, exclusive jurisdiction
over this matter.
Since sections (1)(a) and (1)(b) of KRS 407.5205 do
not provide specifically for situations as in this case, and
since we have found no guidance from Kentucky’s statutes and
case law, this issue appears to be one of first impression in
Kentucky, and we must look to our sister states. 14
In the Kansas
case of In Re: the Marriage of Abplanalp, 15 the statute and the
significant facts under review were very similar to those in
this case.
The parties were divorced in Kansas and Kansas was
14
See Jurado, 782 So.2d at 580 (stating that “[t]he comments by the drafters
of the Uniform Act clearly show that the issuing court cannot modify a child
support order after the obligor, obligee and child all leave the state
permanently. Pointing to Section 205 of the Model Act, which provides that
the court issuing a support order retains continuing, exclusive jurisdiction
over the order ‘[a]s long as this state remains the residence of the obligor,
the individual obligee, or the child for whose benefit the support order is
issued,’ the drafters reasoned that the converse also applies: [I]f all of
the relevant persons-the obligor, the individual obligee, and the child-have
permanently left the issuing state, the issuing state no longer has an
appropriate nexus with the parties or child to justify exercise of
jurisdiction to modify. Unif. Interstate Family Support Act § 205 cmt., 9
U.L.A. 285-86 (1996)” [emphasis added]). See also Zaabel v. Konetski, 807
N.E.2d 372, (Ill. 2004); and Hopkins v. Browning, 186 Misc.2d 693
(N.Y.Fam.Ct. 2000).
15
7 P.3d 1269 (Kan.App. 2000).
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the issuing state of the effective child support order over the
parties’ minor children.
Subsequently, the mother and the minor
children moved to Nebraska and the father moved to Oklahoma.
Three years after the divorce, the father filed a motion to
modify his child support in the Kansas court and prior to the
hearing the mother filed a motion to continue the hearing and
for the Kansas court to issue an order registering the child
support order in Nebraska.
The Kansas court denied the mother’s
motion and granted the father’s modification motion and
decreased the child support.
In reversing the trial court, the Court of Appeals of
Kansas stated that “once the issuing state has lost continuing,
exclusive jurisdiction, the obligee may seek modification of the
child support order in the obligor’s state of residence or the
obligor may seek a modification in the obligee’s state of
residence” [citations omitted]. 16
The Court further stated as
follows:
The purpose of UIFSA is to prevent a
party from obtaining a local advantage by
requiring that the moving party must be a
nonresident of the state where the motion is
filed. Also, the state where the action is
brought must have personal jurisdiction over
the nonmoving party. Once [the issuing
state] has lost continuing, exclusive
jurisdiction and a motion to modify child
support is filed, upon proper motion, the
order for child support should be forwarded
16
Abplanalp, 7 P.3d at 1271.
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to an appropriate tribunal, e.g. to a
state: (1) where the movant is a nonresident
and (2) that has jurisdiction over the
nonmoving party. . . . If the parties and
child no longer reside in [the issuing
state], except for modification by
agreement, the party petitioning to modify
an existing child support order must submit
himself or herself to the jurisdiction of
the state where the nonmoving party resides
[citations omitted]. 17
A few years later, the Kansas Court of Appeals
revisited this issue in the case of In Re: the Marriage of
Myers, 18 and upheld the holding in Abplanalp.
In Myers, the
statute was essentially the same and the significant facts were
similar, except the mother in Myers did not request a transfer
of the motion to the court of an appropriate state.
The lower
court reached the following decision:
“Is it up to this court to decide what the
appropriate tribunal is? Should this court
just dismiss the support motion out of hand,
which appears to be the respondent’s
position herein, and leave the parties and
the child in limbo with no court then having
the child support matter before it? Neither
of these options seems particularly
appropriate. Therefore, until such time as
an appropriate motion to transfer is filed,
the Court shall retain jurisdiction and
respondent’s motion in this regard is
denied.” 19
17
Abplanalp, 7 P.3d at 1271.
18
56 P.3d 1286 (Kan.App. 2002).
19
Myers, 56 P.3d at 1288.
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The Court of Appeals reversed the lower court, upheld
the holding of Abplanalp, and explained the resolution of the
issue as follows:
The parties would not have been “in
limbo” if the district court had dismissed
the case for lack of jurisdiction. As the
Louisiana Supreme Court recently said:
“Significantly, there is no limbo
situation, as feared by the court
of appeal, when both parents and
the child move out of the issuing
state. The court of the issuing
state retains jurisdiction to
enforce its order, but not to
modify the order. If either party
desires modification, the burden
is on that party to take
appropriate action in the
appropriate state. When the
obligor wishes to reduce his or
her obligation, the reduction must
be sought in the obligee’s state
of residence; when the obligee
wishes an increase in support,
that increase must be sought in
the obligor’s state of
residence.” 20
We find the holdings of the Kansas Court of Appeals in
both Abplanalp and Myers persuasive.
Section (b) of KRS
407.5205(1) cannot be read as the alternative to section (a)
when there is no continuing, exclusive jurisdiction of the
20
Myers, 56 P.3d at 1291 (quoting Jurado, 782 So.2d at 580). The Court in
Myers went on to state that if none of the parties or their children reside
in the issuing state, any agreement that they reach under section (b) of the
statute will not “re-bestow subject matter jurisdiction on the [issuing
state] court by agreement.” Id. at 1289. However, we do not reach this
issue, as such agreement was not attempted in the case before us.
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issuing state under section (a).
“‘However logical this
analysis may seem, it leads to an illogical result.’” 21
Thus, for Kentucky to have continuing, exclusive
jurisdiction over the child support order either Doug, Sheri, or
the children would have had to remain as a resident of Kentucky.
It is undisputed that Doug left Kentucky and became a resident
of Indiana, and it was found by the trial court that Sheri and
the children left Kentucky and became residents of North
Carolina.
Accordingly, Kentucky lost jurisdiction over any
modification of the child support order, and the burden was on
Doug, as the movant, to demonstrate that jurisdiction was reestablished in Kentucky.
This burden has not been met.
Because
Kentucky no longer had continuing, exclusive jurisdiction over
either of the parties or their children at the time Doug filed
his motion to modify child support, Doug’s only alternative, as
the movant would have been to pursue the matter in North
Carolina, where Sheri and the children resided.
Therefore, we
hold that the circuit court erred as a matter of law in
21
Myers, 56 P.3d at 1290 (quoting Etter v. Etter, 18 P.3d 1088, 1089-90
(Okla.Civ.App. 2001). The Kansas Court of Appeals found that the courts of
Louisiana, Oregon, and Texas agreed with its reasoning. Id. (citing Jurado,
782 So.2d at 580 (noting Louisiana court lost continuing, exclusive
jurisdiction to modify child support order after parties and children left
state.); Cohen v. Powers, 43 P.3d 1150 (Or.App. 2002) (noting Alabama court
no longer had continuing, exclusive jurisdiction over support order under the
UIFSA because neither party resided in Alabama); In re B.O.G., 48 S.W.3d 312,
318, rev. denied (Tex.Civ.App. 2001) (noting Texas court no longer had
jurisdiction to modify the support order under the UIFSA because parties no
longer resided in Texas)). See also Etter, supra; and Youssefi v. Youssefi,
744 A.2d 662 (N.J.Super. 2000).
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modifying the current child support order and in failing to
dismiss Doug’s motion pursuant to Sheri’s request based on lack
of personal jurisdiction.
Thus, the order entered on August 18,
2004, is reversed in part.
However, we reach a different conclusion on the
jurisdiction question as to the issues of enforcing the Oldham
Circuit Court’s orders on past-due child support and medical
expenses.
Child support payments become vested when due, so
“each installment of child support becomes a lump sum judgment,
unchangeable by the trial court when it becomes due and is
unpaid” [emphasis original]. 22
A trial court has no authority to
forgive or to retroactively eliminate a past-due child support
arrearage. 23
Child support is a statutory duty intended to
benefit the children, rather than the parents. 24
The right to
child support belongs to the child not the parents. 25
Therefore, the motion Sheri brought before the trial
court in this case regarding a common-law judgment for child
support arrearages and medical reimbursements was a request for
the trial court to enforce its current order regarding child
support, not in any way for it to modify the child support order
22
Price v. Price, 912 S.W.2d 44, 46 (Ky. 1995) (quoting Stewart v. Raikes,
627 S.W.2d 586, 589 (Ky. 1982)).
23
Id.; Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky.App. 1994).
24
Clay v. Clay, 707 S.W.2d 352 (Ky.App. 1986).
25
Gaines v. Gaines, 566 S.W.2d 814 (Ky.App. 1978).
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in place.
Because of the absence of precedent in this
Commonwealth as to child support enforcement jurisdictional
issues, we have looked for guidance to our state’s high court’s
decision in Brighty v. Brighty, 26 regarding enforcement versus
modification of custody/visitation orders.
In Brighty, Kentucky had lost jurisdiction to modify
the initial custody decree under the UCCJA, but the father
argued that because the motion before the trial court did not
involve a child custody determination or custody modification,
the UCCJA did not apply, rather, “the matter before th[e]
[c]ourt involve[d] no more and no less than the inherent powers
of a trial court to enforce its validly entered orders, and its
standing authority to retain enforcement jurisdiction of the
same.” 27
The Supreme Court agreed with this argument and stated
as follows:
The question of whether there is a
distinction between enforcement jurisdiction
and modification jurisdiction is a question
of first impression in Kentucky. It is the
holding of this Court that a clear
difference exists, supported by the law and
sound reasons of public policy [emphases
original].
. . . .
Where no modification is sought or
obtained, courts have consistently held that
the UCCJA does not apply to contempt
26
883 S.W.2d 494 (Ky. 1994).
27
Id. at 496.
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proceedings. The reason is fundamental and
makes sense. The UCCJA explicitly applies
to “child custody determinations by initial
or modification decree.” An order for
contempt is simply not a custody
determination in any way, shape or form
[citations omitted].
The distinctive analyses in which a
court must engage with respect to issues
involved in these two very different
proceedings demonstrates the truth of this
proposition. Under the UCCJA, the question
of whether jurisdiction exists in a
particular forum to entertain a motion for a
child custody determination, either by
initial or modification decree, necessarily
involves an evidentiary hearing dedicated to
resolution of the issue consistent with the
best interest of the child. The
jurisdictional principle provided by the Act
accords flexibility built around a child’s
“home state,” as well as a measure of
uniformity designed to eliminate conflicting
decisions on the part of competing state
forums.
In sharp contrast, the issue of
enforcement jurisdiction is strictly limited
to a basic determination of whether a
custody order was valid when entered, and
can be enforced. In other words, the
interests intended to be protected by
enactment of the UCCJA, are just not
implicated by a trial court’s discretion to
retain contempt jurisdiction and the ability
to enforce its own validly entered orders
[citation omitted].
It is important to state clearly that
the conclusion set forth by this opinion,
that there is a significant difference
between modification jurisdiction and
enforcement jurisdiction with respect to
child custody disputes, works no change in
existing Kentucky law related to the
requirements for jurisdiction over original
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decree or modification disputes that do fall
within the purview of the UCCJA or the PKPA
(Parental Kidnapping Prevention Act)
[citations omitted]. 28
The Supreme Court’s rationale in Brighty supports our conclusion
that the trial court would have jurisdiction to review Doug’s
payment of child support and medical expenses under the existing
order and to determine arrearages owed pursuant to statute as
Sheri’s motion was not requesting a new child support order or
requesting modification of the existing order and, thus, did not
involve issues reviewable under the UIFSA.
The parties agreed on March 31, 1999, that Doug would
pay child support in the amount of $1,500.00 per month for the
benefit of the parties’ two minor children, with one-half of the
payment to be due on the first and one-half of the payment to be
due on the 15th of each month thereafter.
amount on or around February 2002.
Doug quit paying this
On October 31, 2003, Sheri
filed a motion for a common-law judgment on arrearages.
trial court stated the following as to the child support
arrearages in the August 18, 2004, order:
Child support arrears. The Court
reviewed respondent’s exhibit 11, which is
an arrearage calculation with built-in
interest figures, for which [Sheri] claims
child support owed is $21,769.41.
The interest appears to be compounded
and in addition [Sheri] appears to have
28
Brighty, 883 S.W.2d 496-97.
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The
charged [Doug] $1500.00 for the full month
of November despite the fact that child
support is reduced effective November 5,
2004.
The court calculates that [the] amount
due from the date [Doug] was last current to
November 5, 2003, is $31,750.00 and the
amount he paid is $14,100.00 indicating that
he owes child support in the amount of
$17,650.00. The Court does not accept the
interest calculations of [Sheri] but
doubtless there is interest due. Counsel
should agree on the interest figure.
This ruling by the trial court was clear error because, after
stating that it did not agree with the calculations Sheri
proposed, it abused its discretion by failing to calculate the
arrearages and by not entering a judgment thereon. 29
Once the validity of an order setting child support is
established, the non-custodial parent bears the burden of
proving that he satisfied the obligation and owes no arrearage. 30
It is clearly discretionary with the court to award interest on
a child support arrearage; if there are factors making it
inequitable to require payment of interest it may be denied. 31
However, in this case, the trial court did not make a finding of
29
“‘Abuse of discretion in relation to the exercise of judicial power implies
arbitrary action or capricious disposition under the circumstances, at least
an unreasonable and unfair decision’ . . . The exercise of discretion must be
legally sound” [citation omitted]. Kuprion v. Fitzgerald, 888 S.W.2d 679,
684 (Ky. 1994). See also Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky.App.
2002).
30
See Raymer v. Raymer, 752 S.W.2d 313 (Ky.App. 1988).
31
See Hoskins v. Hoskins, 15 S.W.3d 733 (Ky.App. 2000).
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such inequity.
There was no evidence that Doug provided any
services to the children, or that he made any attempt to
substantially comply with the trial court’s child support order.
The general rule is that interest should be allowed on
deferred payments of a fixed amount. 32
KRS 360.040 contains the
definitive formula for calculating interest on child support
arrearages. 33
Once a payment becomes delinquent, it becomes a
judgment, and interest generally runs from the payment’s due
date until it is paid. 34
KRS 360.040 states, in pertinent part,
“[a] judgment shall bear twelve percent (12%) interest
compounded annually from its date.”
The statute clearly and
unambiguously requires interest calculated therein to be
compounded annually.
Therefore, we vacate the order on this
issue and remand this matter for the trial court to calculate
the arrearage and to enter judgment thereon with interest.
Sheri’s final argument is that the trial court abused
its discretion in reducing the medical reimbursement arrearages
due from Doug to her.
Sheri argues that the trial court should
have awarded her arrearages due from Doug from April 1999
through January 2004 in the amount of $5,188.25, and that it
32
See Hardin v. Hardin, 711 S.W.2d 863 (Ky.App. 1986).
33
Thurman v. Commonwealth, Cabinet for Human Resources, 828 S.W.2d 368
(Ky.App. 1992).
34
Young v. Young, 479 S.W.2d 20, 22 (Ky. 1972).
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erred in only awarding her $3,326.17.
Specifically, the trial
court reduced the amount owed to Sheri on the arrearages by
$100.00 per year and found that the childrens’ counseling
expenses were unsubstantiated.
From our review of the record, we cannot conclude that
the trial court abused its discretion in its award of the
medical expense arrearage to the extent it is based upon its
original order entered on March 31, 1999.
However, the trial
court’s order provided certain arrearage awards based upon its
simultaneous modification of the child support award.
Since we
have ruled that the trial court lacked jurisdiction to modify
its original child support order as requested by Doug’s October
22, 2003, motion, any language in the August 14, 2004, order
referring to arrearage based upon the modification is void.
Therefore, we affirm the trial court’s August 14, 2004, order
regarding the medical arrearages, except as it references any
effect upon the arrearages by the trial court’s simultaneous
modification of child support, and reverse the order to that
extent.
For the foregoing reasons, the order of the Oldham
Circuit Court entered on January 15, 2004, is affirmed.
The
order of the Oldham Circuit Court entered on August 18, 2004, is
affirmed in part, reversed in part, and vacated in part, and
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this matter is remanded for further proceedings consistent with
this Opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Thomas K. Stone
Louisville, Kentucky
Brian Schuette
James Blake Hornal
Bowling Green, Kentucky
ORAL ARGUMENT FOR APPELLEE:
James Blake Hornal
Bowling Green, Kentucky
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