DAVID HARPER v. ANGELA HARPER
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RENDERED: AUGUST 17, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-000018-MR
DAVID HARPER
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 02-CI-00325
v.
ANGELA HARPER
APPELLEE
OPINION AND ORDER
VACATING IN PART AND DISMISSING IN PART
** ** ** ** **
BEFORE: MOORE AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE.
MOORE, JUDGE: Appellant, David Harper, seeks review of the Oldham Circuit Court's
denial of his motion to name him as primary residential custodian of his minor child and
to modify child support. The circuit court held a hearing on this motion over three
1
Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5) of the Kentucky Constitution and KRS 21.580.
separate days, December 17, 2004, January 27, 2005 and March 7, 2005.2 Upon review,
we hereby vacate the portion of the circuit court's order pertaining to Mr. Harper's motion
to name him as primary residential custodian because the circuit court lacked subject
matter jurisdiction over that issue, and we dismiss Mr. Harper's appeal regarding
modification of his child support obligation because this Court lacks subject matter
jurisdiction over this issue.
I. FACTUAL BACKGROUND
This is an unfortunate matter in which the parties have been in battle for
years over nearly every aspect of the life of their minor daughter since the parties began
their divorce proceedings in 2002. The child's date of birth is March 23, 1997.
Accordingly, for a large portion of her young life, she has only known strife between her
parents.
The parties entered into a separation agreement, which was later
incorporated into their divorce decree filed on October 1, 2002. Per the parties'
agreement, they share joint custody of the minor child.3 The child resides equally with
both parents. In a fourteen-day cycle, the child spends seven nights with each parent.
Holidays and vacations are divided between the parties. Neither party has ever been
designated as the child's primary residential custodian.
2
Other motions were also heard by the circuit court during the hearing; however, the court's
rulings on those issues are not being challenged.
3
Both parties live in Oldham County, apparently relatively close together.
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Mr. Harper has not remarried. Mrs. Harper has now remarried and goes by
the name of Mrs. Angela Auberry; she will, therefore, be referenced as “Mrs. Auberry”
herein. She has two older sons from a marriage prior to that with Mr. Harper.
On September 28, 2004, Mr. Harper filed a motion with the Oldham Circuit
Court. In his motion, Mr. Harper sought “an Order modifying the living arrangements of
the parties' minor child....” In the supporting memorandum, however, Mr. Harper stated
that he was submitting a “Memorandum in Support of Motion to Modify Custody
Arrangements regarding custody of the minor child....” In his request for relief, Mr.
Harper requested a court order that “[t]he minor child [] shall reside full time with the
Petitioner, David Harper.” Mr. Harper attached his affidavit in support of his motion. In
his affidavit, he stated that Mrs. Auberry has failed to care for the child and that her
husband is mean to the child. No additional affidavits were attached to his motion.
According to his testimony at the December 17, 2004 hearing, Mr. Harper stated the
purpose of his motion was not to change the custody determination, but it was his
purpose that the minor child would reside with him full time and that she would only see
her mother every other weekend and for two weeks in the summer. Thus, he sought to be
designated as the child's primary residential custodian.4
In same motion, Mr. Harper also sought a modification of child support so
that the payment of expenses for the child would be shared equally. The circuit court had
4
The term “primary residential custodian” is not defined anywhere in the Kentucky Revised
Statutes. Fenwick v. Fenwick, 114 S.W.3d 767, 779 (Ky. 2003). Courts have generally granted a
parent named as primary residential custodian the discretion to make day-to-day decisions for a
minor child, provide for routine care and control, as well as provide the primary residence for the
child. Id.
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entered an order on August 18, 2004, a month earlier, regarding a prior motion by Mr.
Harper to modify child support. Mr. Harper did not file a motion to vacate, amend or
modify that order; nor did he appeal it.
The circuit court held a hearing on Mr. Harper's September 18th motion
over three separate days, December 17, 2004, January 27, 2005 and March 7, 2005.5 The
circuit court denied his motion to be named as primary residential custodian on
November 29, 2005. However, the circuit court did not address Mr. Harper's request to
modify child support. Yet, during the initial stages of the hearing, the circuit court
indicated that it was not inclined to revisit the child support issues, having just denied, in
essence, the same motion by Mr. Harper on August 18, 2004. No new or different
grounds were given for modification of child support.
Prior to addressing the present issues before this Court, we note that we are
in awe of the history of fighting between the parties over their child and believe that it
should be put in some perspective to illuminate how our courts get so clogged by, in this
Court's view, unfounded power struggles using children as pawns. The parties have been
before the circuit court on many occasions for resolution of numerous disputes, mostly
brought by Mr. Harper. These motions have included a request that the circuit court
schedule the child's needed tonsillectomy because the parents could not agree on who
would perform the surgery; a motion seeking an order that contact between the parties be
only for the purposes of discussing circumstances with the child; a motion seeking an
5
Mrs. Auberry also had motions pending before the circuit court. However, they are not
relevant to the appeal at hand.
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order requiring civility between the parties, including Mr. Harper's highly inappropriate
name-calling of the stepfather in front of the child; the use of foul language in front of the
child by Mrs. Auberry; the use of the child as a messenger between the parties;
unfounded allegations by Mr. Harper (based upon findings by the circuit court's prior
orders) that the child was in serious danger of harm to her mental, emotional, moral or
physical well being; and at least four calls made to the Department of Protective Services
regarding Mrs. Auberry's home environment, which were investigated and found to
contain unsubstantiated claims.
Moreover, Mr. Harper has changed the child's school without the prior
consent of Mrs. Auberry. Mr. Harper has sent a hand-written note to school officials,
communicated through the child's school log which the child had access to, discussing the
lack of supervision at her mother's house, the “fact” that her mother has exposed the child
to sex, and the violence at her mother's house. Based upon the record in this matter, we
query whether the wisdom of Solomon could even resolve the issues between these
parties, and as is the usual case, it is the child who suffers. We note that the circuit court
has shown the patience of Job in dealing with the antics of the parties, in particular Mr.
Harper. Indeed, in an order dated October 29, 2003, the circuit court found “[t]hat the
parties have a difficult time communicating goes without saying.” The circuit court also
admonish[ed] both parents to refrain from the use of bad
language around the child and derogatory statements about
the significant others or current spouses of either parties. The
court considers that such behavior is harmful to the child's
well being, and encourages misbehavior and defiance on the
part of the child toward both parties.
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Id.
In the same order the circuit court commented that “this child is in the
middle of a tremendous conflict with her parents.” Also, in the October 29, 2003 order
the circuit court ordered that in reference to Mr. Harper's unilaterally switching the child's
school, a parenting coordinator be appointed.
In this Court's opinion, the record verifies that the parties have traded the
best interests of their child for several years now for an on-going power struggle using
the court system; we note that Mr. Harper has particularly done so. Fortunately, the
circuit court has shown great wisdom in ordering counseling for the child.
Regarding child support, Mr. Harper pays to Mrs. Auberry, for the support
of the child, $100.00 per week; he provides health insurance coverage; and he pays for all
expenses of the child, including day care. Unhappy about this arrangement, Mr. Harper
has filed numerous motions for modification of child support. With only minor
adjustments, these motions have been denied by the circuit court. And, as noted earlier,
prior to his September 28, 2004 motion, the circuit court denied by written order a prior
motion for modification on August 18, 2004.
Returning now to the September 28th motion, after a detailed hearing held
over several dates, the circuit court, by written order, denied Mr. Harper's motion to be
named as the primary residential custodian. In the order, the circuit court did not address
the modification of child support issue. Upon review of the evidence of the record, we
would like to agree with the circuit court's detailed findings; however, as will be
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explained infra, the circuit court lacked subject matter jurisdiction to hear Mr. Harper's
motion to be named as primary residential custodian. Therefore, we regret that we must
vacate that portion of the circuit court's order. Our regret in vacating is particularly
weighty in light of the time the circuit court spent on this matter and because a review of
the hearing supports the court's findings. We mourn for the child in this matter and at
best hope that our vacating the order will not result in a rehashing of the prior hearing. It
is time for the parties to focus jointly on working together for the best interests of their
child.
As to Mr. Harper's appeal regarding child support, we find his appeal
untimely. Thus, we dismiss that portion of his appeal for lack of this Court's subject
matter jurisdiction.
II. ANALYSIS
A. The Oldham Circuit Court lacked subject matter jurisdiction to hear Mr.
Harper's motion to be named as primary residential custodian.
A Decree of Dissolution was entered in this matter on October 1, 2002,
which incorporated the parties' separation agreement. The parties' agreement included
provisions regarding shared legal custody and shared physical custody over their minor
child. Neither party has ever been named as primary residential custodian of the minor
child.
In less than two years after the entry of the divorce decree, Mr. Harper filed
a motion on September 28, 2004, seeking “an order modifying the living arrangements of
the parties' minor child....” However, in the supporting memorandum, he states that it is
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in support of his “Motion to Modify Custody Arrangements regarding custody of the
child....” And, in his request for relief, he seeks that the minor child reside full time with
him. Finally, in his Prehearing Statement before this Court, he states that “Appellant
filed for change in custody.”
Regardless of how Mr. Harper's styles his motion, whether it be a change in
custody or primary residential custodian designation, the outcome is the same: the circuit
court lacked subject matter jurisdiction to hear the motion.
The genesis for this determination is found in Crossfield v. Crossfield, 155
S.W.3d 743, 746 (Ky. App. 2005), where this Court held that a change in the primary
residential custodian amounts to a modification of a joint custody arrangement.6 And,
subsequently, in Brockman v. Craig, 205 S.W.3d 244, 248-49 (Ky. App. 2006), our Court
decided that the holding in Crossfield is no different where a primary residential
custodian has never been named. Indeed, the facts in Brockman are relatively
indistinguishable from the salient facts in the case at hand.
The significance of Crossfield, and subsequently Brockman, is that the
movant seeking to be named as primary residential custodian must meet the requirements
for modification of custody pursuant to Kentucky Revised Statutes (KRS) Chapter 403.
“The basis for the ruling in Crossfield was not the amount of time spent, but what the
effect would be of changing the assignment of primary residential custodian status.”
Brockman, 205 S.W.2d at 249 (citing Crossfield, 155 S.W.2d at 746). Consequently, the
6
In Crossfield, a primary residential custodian was named in the parties' agreement.
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statutory provisions regarding modifying custody in KRS Chapter 403 apply and must be
met by the movant.
As in Brockman, with no primary residential custodian having been
designated, Mr. Harper was required to obtain a modification of custody to become the
minor child's primary residential custodian. Id. Because Mr. Harper's motion was filed
less than two years since the divorce decree was entered, which incorporated the custody
agreement by the parties, he was obligated to comply with the provisions under KRS
403.340(2)(a). This statutory provision provides that
(2) No motion to modify a custody decree shall be made earlier than
two (2) years after its date, unless the court permits it to be made on
the basis of affidavits that there is reason to believe that:
(a) The child's present environment may endanger seriously his
physical, mental, moral, or emotional health[.]
Accordingly, we are compelled, pursuant to Crossfield, to treat Mr.
Harper's motion as a motion for a modification in custody made within two years after
the parties' decree; thus, KRS 403.340(2)(a) applies. Where the requirements of KRS
340.340(2) are not satisfied, the circuit court lacks subject matter jurisdiction to consider
the motion. Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999); Crossfield, 155 S.W.3d at
746. Defects in subject matter jurisdiction cannot be waived and can be reviewed, even
sua sponte, at any stage in litigation, including while on appeal. Privett v. Clendenin, 52
S.W.3d 530, 532 (Ky. 2001).
The Kentucky Supreme Court has interpreted KRS 403.340(2), along with
its companion, KRS 403.350,7 as requiring a party to file at least two affidavits to support
7
This statutory provision provides that
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any motion for modification that is made within two years of the prior custody order.8
Petrey, 987 S.W.2d at 788. “'If the applicable requirement is not met, the circuit court is
without authority to entertain the motion.'” Robinson v. Robinson, 211 S.W.3d 63, 69
(Ky. App. 2006) (quoting Petrey, 987 S.W.2d at 788). “The filing of affidavits,
therefore, is a jurisdictional requirement.” Robinson, 211 S.W.3d at 69 (citing Crouch v.
Crouch, 201 S.W.3d 463, 465 (Ky. 2006)).
As the record in this case demonstrates, Mr. Harper's motion was supported
only by his own self-serving affidavit, without a second affidavit. Consequently, he
failed to meet the requirements under KRS 403.340(2), divesting the circuit court of
subject matter jurisdiction to consider his motion. Accordingly, the portion of the circuit
court's November 29, 2005 order regarding Mr. Harper's motion, whether it be styled to
modify custody or declare him as primary residential custodian, is hereby vacated and set
aside. Because the circuit court was presiding over numerous other motions by the
parties, the remainder of the order remains in effect.
a party seeking a temporary custody order or modification of a
custody decree shall submit together with his moving papers an
affidavit setting forth facts supporting the requested order or
modification and shall give notice, together with a copy of his
affidavit, to other parties to the proceeding, who may file opposing
affidavits. If a court determines that a child is in the custody of a
de facto custodian, the court shall make the de facto custodian a
party to the proceeding. The court shall deny the motion unless it
finds that adequate cause for hearing the motion is established by
the affidavits, in which case it shall set a date for hearing on an
order to show cause why the requested order or modification
should not be granted.
8
KRS 403.340(2) requires a motion to modify within two years be accompanied by affidavits.
Clearly, more than one affidavit is required.
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2. Mr. Harper's motion seeking modification of child support is dismissed as
untimely.
In Mr. Harper's Notice of Appeal, filed on December 22, 2005, he states he
is appealing from the “Judgments entered by the Oldham Circuit Court, on November 30
and December 6, 2005.”9 And, in his Prehearing Statement, he states that one issue he is
raising on appeal is a “child support issue”; he gives no further indication regarding the
child support matter he appeals.
Throughout the history of this case, Mr. Harper has filed several motions to
reduce his child support obligations. The circuit court has reviewed these motions and
filed orders regarding child support on the following dates: June 9, 2003; July 8, 2003;
August 24, 2004; and November 16, 2004. Throughout these various orders only slight
changes have been made to Mr. Harper's child support obligation. One change was that
in the circuit court's November 16, 2004 order, it limited Mr. Harper's responsibility to
68% of the costs for the minor child to attend counseling. Otherwise, Mr. Harper's
obligations have remained virtually the same, despite his frequent attempts to modify
child support. Mr. Harper is obligated to pay $100 per week, pay the child's expenses,
and provide health care insurance for the minor. As stated above, the parties share the
child's counseling expenses.
9
The December 6, 2005 order was also a product of the three-day hearing. However, it dealt
with modification of the shared custody arrangements to accommodate the parties' schedules, not
whether one party would be named as the primary residential custodian. It also dealt with
overdue payments the parties owed to each other, which is not relevant to the appeal at hand.
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Despite the prior, and frequent, motions for modification, Mr. Harper
included in his September 28, 2004 motion a request for modification of child support
even if the primary residence remained unchanged, without citing any new grounds for
modification. The circuit court did not address this request in either of the orders from
which Mr. Harper appeals.
A review of the hearing held on December 17, 2004, illustrates the reason
for this omission in the circuit court's written order.10 Our review evidences that it is
10
Court:
Frankly, Julie, the real issue I'm concerned with is if the residence
of the child changes, because it has not been, it seems to me, six
months since I re-did the child support and at that time he had the
child half the time.
Ms. Curry:
You entered an order on August 18 and affirmed his obligation to
pay $100.00 a week and that was after an extensive hearing.
Ms. House:
Your honor, I understand that, but the issue is he has the child half
the time. The order considers him to be a non possessory parent, a
non-custodial parent. There is no consideration given in any of the
orders for the fact that he has the child at least half the time. The
case law is clear that if he has the child half the time he is at least
entitled to a reduction of the normal support based upon either one
of two formulas. One being, that her support is figured, his
support is figured and you take the difference between the two and
that's what he pays. The other one being the percentage of time he
has the overnights and subtract that from his obligation.
Ms. Curry:
Your honor, the visitation arrangement, as you already indicated,
was the very same when we had these hearings in April and May
of this year as they are now. The visitation arrangement has not
changed. Those arguments could have been made when we were
here in April and May. We could have had a motion to modify,
vacate or amend your order if those were the arguments. We are
now here, at a considerable expense to my client, once again
arguing the same thing we've argued two times now. We don't
have a motion to modify child support, we have a motion to
change the residence. Obviously, if the residence is changed, we
may be re-looking [at] child support, but I really have a problem
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beyond question that Mr. Harper sought the circuit court's review of its prior order of
August 18, 2004, for which a two-day hearing had been held in April and May of 2004.
The circuit court stated at the beginning of the December 17th hearing that it was not
inclined to revisit the issue of child support again, after having reviewed it only a few
months earlier. Mr. Harper's counsel argued the circuit court had erred in its prior order
for failing to take into consideration that Mr. Harper had the minor child one-half of the
time. The circuit court indicated that it was unlikely to change its mind but stated that
the proof will be whatever the proof will be; however, the court was not inclined to
with starting new on this issue when all of these facts are the same
as they were when we were here in April and May. If he wants to
move on a basis of a reduction of income, which is what he did in
April and May, and the court did not modify the child support and
the 15% rule kicks in. I just don't know how many times we're
going to go through this two-day hearing on him moving to modify
child support because you keep affirming the orders.
Court:
I think the proof will be whatever the proof is on that. I don't think
it's going to take any extra time. Julie, I am advising you that I'm
not inclined to re-visit it because I do agree if you all felt it was
wrong before you probably should have made a motion to have me
reconsider the order or something.
Ms. House:
Your honor, that proof was submitted in the hearings. It's just
never been ruled that way.
Court:
Then I didn't do it.
Ms. House:
I understand.
Court:
Why would I do it now if I didn't do it then?
Ms. House:
Because the law says he's entitled to a reduction from the normal
support because he has the child at least half the time.
Court:
Well, you can make your arguments. I just don't know if I'm going
to change it.
(HR of December 17, 2004; 1:34:44-1:37:24)(emphasis added).
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revisit the issue. Mr. Harper's counsel then stated that “[b]ut that proof was put on in
May and the court didn't consider it.” Despite this allegation, Mr. Harper did not file a
motion for the court to modify or reconsider its August 18th order. Moreover, Mr.
Harper failed to appeal that order. The hearing video clearly evidences that Mr. Harper
disagreed with the court's earlier order regarding child support and instead of appealing, it
sought review of it again by way of his September 28, 2004 motion.
Our conclusion is further evidenced by the fact that no proof was put on
during the three-day hearing at issue regarding Mr. Harper's income, Mrs. Auberry's
income, or any reason to deviate from the court's earlier order beyond the fact that the
child resides with Mr. Harper one half of the time. This was the same situation that
existed when the circuit court entered its August 18th order and the same reason for
which Mr. Harper had previously moved for a modification. Thus, we have nothing on
appeal to review that is within our subject matter jurisdiction.
Indeed, Mr. Harper's brief before this Court does not attack the circuit
court's orders from which he appeals, namely the November 29, 2005 order or the
December 5, 2006 order. Indeed, the circuit court did not even address Mr. Harper's
child support modification request, and he failed to ask the circuit court for a ruling on
this. Mr. Harper's current attack on the court's child support orders are based on the
earlier child support orders of the circuit court. Clearly, he failed to timely file notices of
appeal from these orders. This Court cannot review these orders, as we lack jurisdiction
to entertain them; our Court's jurisdiction is limited to those issues that are timely
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appealed. Accordingly, Mr. Harper's appeal regarding child support is dismissed as
untimely.
For the reasons as stated, the portions of the Oldham Circuit Court's order
dated November 19, 2005, regarding Mr. Harper's motion to be named as primary
residential custodian are hereby vacated and set aside. Regarding Mr. Harper's appeal
pertaining to child support, his appeal on this issue is hereby dismissed for lack of this
Court's subject matter jurisdiction.
ALL CONCUR.
ENTERED: August 17, 2007
/s/ Joy A. Moore
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Juliette Stewart House
Crestwood, Kentucky
Glenna Jo (Jody) Curry
Crestwood, Kentucky
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