SHAWN MIRACLE v. JANICE K. WALKER (NOW COLLIER)
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RENDERED: NOVEMBER 21, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-002332-MR
SHAWN MIRACLE
v.
APPELLANT
APPEAL FROM MCCRACKEN FAMILY COURT
HONORABLE CYNTHIA E. SANDERSON, JUDGE
ACTION NO. 01-CI-00309
JANICE K. WALKER (NOW COLLIER)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND MOORE, JUDGES; GRAVES,1 SENIOR JUDGE.
KELLER, JUDGE: In this child custody matter, Shawn Miracle has appealed from the
October 12, 2006, order of the McCracken Family Court denying his motion to transfer
or decline jurisdiction. We affirm.
Shawn Miracle and Janice Collier, who were never married, are the parents
of Steven Blake Miracle, born on March 27, 1997. Shawn, who lives in the State of
Ohio, has never been a resident of Kentucky. Janice is currently a resident of Kentucky.
1
Senior Judge John W. Graves, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
In a suit filed by Shawn in Livingston Circuit Court in 1997, Janice was awarded sole
custody of Steven, while Shawn was ordered to pay child support and afforded
reasonable visitation. This order was entered on March 31, 2000, and visitation was
amended on October 6, 2000. No further orders were entered by the Livingston Circuit
Court.
On March 19, 2001, Janice filed a Petition to Modify Visitation and Child
Support in McCracken Family Court, as she had moved from Livingston to McCracken
County by this time. Shawn objected to Janice's petition, arguing that Livingston Circuit
Court was the proper court of jurisdiction, as it had entered the previous orders relating to
this matter. After conferring with then-Judge Cunningham, the family court decided that
it had venue to hear the petition. The parties eventually came to an agreement concerning
visitation, and the family court modified child support to increase the amount owed by
Shawn to $409.78 per month.
On December 1, 2005, the family court modified custody and support based
upon Janice's arrest and subsequent conviction on drug and wanton endangerment
charges. Steven had been in the temporary custody of Shawn in Ohio since his removal
from Janice the previous January. In the order, the family court awarded sole custody to
Shawn
with the proviso that Mr. Miracle must complete his [Special
Forces] training and be back in the home with the child by the
time the child completes the second grade in May, 2006. If
Mr. Miracle has not completed his training or has been
deployed overseas, Mrs. Collier shall become the primary
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residential custodian as long as she is continuing to remain
clean and sober and is not participating in any drug activity.
Janice was permitted visitation with Steven, and child support was to be recalculated. No
appeal was taken from this order. The family court later clarified the visitation
arrangement to allow Janice to purchase airline tickets for optional second visits each
month.
On June 14, 2006, Janice filed a motion to enforce the December 2005
order and to return Steven to her custody, asserting that Shawn had not returned to Ohio
on a full-time basis as of June 1, 2006. She also indicated that she would be objecting to
any further continuances requested by Shawn's attorney, describing these requests as a
ploy to change forum. She pointed out that Shawn had filed an action in the Common
Pleas Court of Marion County Ohio, Family Division, seeking to modify visitation and
support, as well as to enforce the December 1, 2005, order.
On July 12, 2006, Shawn filed a motion to transfer the case to Ohio or for
the family court to decline jurisdiction. Under KRS 403.824(1), he argued the family
court no longer had continuing, exclusive jurisdiction, as Kentucky was no longer
Steven's home state and as both he and Steven were residents of Ohio and had been for
more than one year. In the alternative, Shawn requested that the family court decline to
exercise further jurisdiction pursuant to KRS 403.834, as it was an inconvenient forum
and the Common Pleas Court of Marion County, Ohio, was a more convenient forum to
the greater number of witnesses and evidence to be produced. Janice objected to the
motion, stating that Steven had been in Ohio on a “conditional” modification of custody,
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that the family court was more familiar with the proceedings, and that she had been a
continuous resident of the Commonwealth.
On July 14, 2006, the family court heard arguments on the pending
motions, including a motion for rule requiring Shawn to show cause why he should not
be held in contempt for his failure to allow visitation. Early in the hearing, the family
court addressed Shawn's jurisdiction motion and indicated that it was going to retain
jurisdiction, as the purpose of the December 2005 order was to verify that Shawn had
returned to Ohio by the time Steven completed the 2nd grade. The family court then heard
testimony on the remaining issues. On August 11, 2006, the family court entered its
Findings of Fact and Order, which solely addressed Janice's motion to enforce and the
motion for rule. While the family court found Shawn in contempt regarding visitation, it
denied Janice's request that custody revert to her. However, the family court ordered that
“if Shawn Miracle is out of the home for more than fourteen (14) consecutive days while
being deployed in military service, primary residential custody shall revert to Janice
Collier[.]” No appeal was taken from this order.
On October 3, 2006, Shawn filed a notice of his intent to obtain a ruling on
his pending motion to transfer or decline jurisdiction. He filed an affidavit in further
support of his motion. On October 12, 2006, the family court entered an order ruling on
the pending motion:
This case comes before the Court upon a renotice of
[a] prior motion filed by Shawn Miracle on July 12, 2006 to
transfer or decline jurisdiction. Petitioner filed a response
and objection to that motion. The Court never issued a
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formal order overruling that motion, but its subsequent
actions clearly showed the motion was to be overruled. Two
days after the motion was filed to transfer or decline
jurisdiction, the Court conducted an evidentiary hearing on
motions which were pending at that time and entered an order
on August 11, 2006. No timely motion to alter, amend or
vacate or notice of appeal was filed from the Order of August
11, 2006. The Order of August 11, 2006 clearly had the
effect of this Court continuing jurisdiction in this matter. In
order to clarify the record, the Court is now entering an order
formally overruling the motion which was previously orally
overruled by the Court at the initiation of the hearing on July
14, 2006. The Court being otherwise advised;
IT IS HEREBY ORDERED, ADJUDGED AND
DIRECTED that Shawn Miracle's motion to transfer or
decline jurisdiction be and hereby is denied. Under KRS
403.822, et seq, this Court retains exclusive continuing
jurisdiction on all issues related to custody and visitation of
Steven Blake Miracle.
It is from this order that Shawn has taken the present appeal.
On appeal, Shawn continues to argue that the family court erred in denying
his motion to transfer or decline jurisdiction, as it no longer had continuing and exclusive
jurisdiction pursuant to KRS 403.824 of the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). In her brief, Janice argues that the family court properly
retained jurisdiction. Furthermore, she suggests that Shawn's notice of appeal was
untimely filed, as the family court initially retained jurisdiction in the August 11, 2006,
order, and that his renotice of the original motion was merely an attempt to expand the
time to file an appeal.
We shall first address Janice's argument that Shawn's appeal was untimely
filed. Janice contends that because the judge orally ruled on the jurisdiction issue at the
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July 14, 2006, hearing and entered a substantive ruling on the other pending motions in
the August 11, 2006, order, Shawn should have appealed from that order. We note that
Shawn did not file a reply brief contesting this argument. However, we disagree with
Janice that the appeal was untimely. While the judge stated her intention of retaining
jurisdiction during the July 14, 2006, hearing, a written order formally denying the
motion was not entered until October 12, 2006. Pursuant to CR 73.02, a notice of appeal
is to be filed within thirty days “after the date of notation of service of the judgment or
order under Rule 77.04(2).” The Clerk of the McCracken Circuit Court certified that the
order ruling on the motion to transfer or decline jurisdiction was mailed on October 12,
2006; therefore, Shawn's appeal was timely. Accordingly, we decline Janice's request to
dismiss Shawn's appeal as untimely filed.
We shall now address the merits of Shawn's appeal; namely, whether the
family court properly decided to retain jurisdiction, based upon its determination that it
had exclusive, continuing jurisdiction over the custody matter.2 Our standard of review
in this matter is set forth in CR 52.01:
In all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specifically and
state separately its conclusions of law thereon and render an
appropriate judgment . . . . Findings of fact shall not be set
aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of
the witnesses.
2
Because it was not raised in his brief, we shall infer that Shawn has waived his inconvenient
forum argument.
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The Supreme Court of Kentucky addressed this standard in Moore v. Asente, 110 S.W.3d
336, 354 (Ky. 2003), and held that a reviewing court may set aside findings of fact,
only if those findings are clearly erroneous. And, the
dispositive question that we must answer, therefore, is
whether the trial court’s findings of fact are clearly erroneous,
i.e., whether or not those findings are supported by substantial
evidence. “[S]ubstantial evidence” is “[e]vidence that a
reasonable mind would accept as adequate to support a
conclusion” and evidence that, when “taken alone or in the
light of all the evidence, . . . has sufficient probative value to
induce conviction in the minds of reasonable men.”
Regardless of conflicting evidence, the weight of the
evidence, or the fact that the reviewing court would have
reached a contrary finding, “due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses” because judging the credibility of witnesses and
weighing evidence are tasks within the exclusive province of
the trial court. Thus, “[m]ere doubt as to the correctness of
[a] finding [will] not justify [its] reversal,” and appellate
courts should not disturb trial court findings that are
supported by substantial evidence. (Citations omitted.)
With this standard in mind, we shall review the family court’s decision in this matter.
In Wallace v. Wallace, 224 S.W.3d 587 (Ky.App. 2007), a case that was
rendered after Shawn's brief was filed and the day Janice's brief was filed, this Court
addressed the UCCJEA:
To make Kentucky laws consistent with the provisions
of the federal Parental Kidnapping Prevention Act, in 2004
the General Assembly replaced the Uniform Child Custody
Jurisdiction Act (UCCJA) with the UCCJEA. While the
fundamental purpose of the UCCJEA remains the avoidance
of jurisdictional competition and conflict with other states in
child custody matters, the UCCJEA contains substantive
changes when making determinations of initial jurisdiction
and modification jurisdiction.
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...
A detailed analysis of the reason for the distinction between
initial and modification jurisdiction contained in the UCCJEA
was given in Staats v. McKinnon, 206 S.W.3d 532, 546
(Tenn.Ct.App. 2006):
The PKPA also significantly altered the analysis
for modification jurisdiction. The UCCJA
applied the same basic jurisdictional tests to
both the initial entry and the modification of
child custody determinations. UCCJA §§ 3(a),
14(a), 9 U.L.A. at 307, 580. The PKPA added
the concept of “continuing jurisdiction,” 28
U.S.C.A. § 1738(A)(c)(2)(E), (d), and provided
that once a state had entered or modified a child
custody determination in compliance with the
statute's jurisdictional requirements, its
jurisdiction would “continue[ ] as long as . . .
such State remains the residence of the child or
of any contestant,” 28 U.S.C.A. § 1738A(d).
The PKPA prohibited courts from modifying
another state's child custody determination if
the other state had continuing jurisdiction over
the determination and had not declined to
exercise it. 28 U.S.C.A § 1738A(g)-(h). Thus,
while “home state” jurisdiction was at the top of
the jurisdiction hierarchy under the UCCJA,
under the PKPA, continuing jurisdiction
trumped “home state” jurisdiction.
Wallace, 224 S.W.3d at 589-90. The Wallace Court then stated that “[t]he concept of
continuing jurisdiction incorporated into the UCCJEA was adopted by Kentucky and is
contained in KRS 403.824[.]” Id. at 590. KRS 403.824 provides:
(1) Except as otherwise provided in KRS 403.828, a court of
this state which has made a child custody determination
consistent with KRS 403.822 or 403.826 has exclusive,
continuing jurisdiction over the determination until:
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(a) A court of this state determines that neither the
child, nor the child and one (1) parent, nor the child
and a person acting as a parent have a significant
connection with this state and that substantial evidence
is no longer available in this state concerning the
child's care, protection, training, and personal
relationships; or
(b) A court of this state or a court of another state
determines that the child, the child's parents, and any
other person acting as a parent do not presently reside
in this state.
(2) A court of this state which has made a child custody
determination and does not have exclusive, continuing
jurisdiction under this section may modify that determination
only if it has jurisdiction to make an initial determination
under KRS 403.822.
The Wallace Court concluded:
Thus, the state having original jurisdiction over custody
maintains exclusive continuing jurisdiction though the child
has acquired a new home state if the general requirement of
the substantial connection jurisdictional provisions are met.
As stated by the court in Ruth v. Ruth, 32 Kan.App.2d 416,
421, 83 P.3d 1248, 1254 (2004), exclusive, continuing
jurisdiction prevails under the UCCJEA until the
“relationship between the child and the person remaining in
the state with exclusive, continuing jurisdiction becomes so
attenuated that a court could no longer find significant
connections and substantial evidence.”
Wallace, 224 S.W.3d at 590.
In Wallace, the Court addressed a situation where the parents, while they
both were Kentucky residents, were divorced and granted joint custody of their three
children, with the mother named as the primary residential custodian. Eventually, the
mother and two of the children moved to Tennessee. The father had previously obtained
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custody of the third child, and they continued to live in Kentucky. When the father, a
military police officer in the United States Army, received orders requiring him to
relocate to Hawaii, he moved to modify his visitation with the children in Tennessee.
This Court had:
no difficulty in concluding that Kentucky has exclusive,
continuing jurisdiction . . . . [The father] is a Kentucky
resident and visitation with the younger children has taken
place in Kentucky. Just as important, the children's sibling,
Cody, is a resident of the state. It is clear to this court that
information relevant to the issue of visitation with all three
children would be found in Kentucky.
Id. at 591.
Turning to the case before us, we agree with Janice that the family court
properly determined that it had exclusive, continuing jurisdiction over the custody case.
Although we recognize that Shawn and Steven reside in Ohio and that Steven has
significant connections to Ohio, there remains a significant enough connection with
Kentucky to justify continuing jurisdiction in the family court. It is undisputed that
Janice has at all times lived in Kentucky and that visitation continues to take place in
Kentucky. Furthermore, the family court itself made its position clear as early as
December 2005 that it intended to continue to review the matter to ensure that Shawn
complied with its order to return to Ohio by a specified date. We also note that the
family court has dealt with this case for several years and has an extensive knowledge of
the facts and issues that have arisen during the course of the litigation. The record clearly
establishes that a significant connection to Kentucky exists, supporting the family court's
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decision that it had exclusive, continuing jurisdiction over this matter. Therefore, we
hold that the family court did not commit any error in making this determination, or
abuse its discretion in denying Shawn's motion to transfer or decline jurisdiction.
For the foregoing reasons, the order of the McCracken Family Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Judy
Frankfort, Kentucky
John T. Reed
Paducah, Kentucky
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