ADAMS (JESSICA) VS. MAYO (JOHN)Annotate this Case
RENDERED: SEPTEMBER 5, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM LAWRENCE FAMILY COURT
HONORABLE JOHN DAVID PRESTON, JUDGE
ACTION NO. 04-J-00101
VACATING AND REMANDING
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BEFORE: DIXON AND WINE, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
GUIDUGLI, SENIOR JUDGE: Appellant, Jessica Adams pro se, appeals from
findings of fact, conclusions of law, and order of the Lawrence Family Court
modifying a prior agreed child custody order and designating Appellee, John
Mayo, as the residential custodian of the parties’ minor child. Because the record
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
indicates that John’s motion for modification failed to comply with the
requirements of KRS 403.340(2), we are compelled to conclude that the trial court
lacked jurisdiction to consider the motion. Therefore, the trial court's order
granting the requested modification must be vacated.
The parties are the parents of one minor child, Addison Lynn Mayo,
born September 1, 2004. Shortly after the child’s birth, John filed a complaint in
the Lawrence Circuit Court to establish paternity. On October 19, 2004, an agreed
judgment was entered granting the parties joint custody with Jessica designated as
the primary residential custodian. John was awarded standard visitation at his
On August 9, 2005, John filed a motion for a change of custody. In
his supporting affidavit, John alleged that Jessica had a criminal history; that she
slapped the child; that she and her mother, who served as a babysitter, were drug
users and sellers; that Jessica’s residence was unsanitary, infested with bugs and
animal feces; that the child was exposed to cigarette smoke in the home; and that
Jessica had repeatedly violated all visitation orders. During a subsequent hearing,
the trial court heard the testimony of numerous witnesses for both parties.
Thereafter, the trial court entered detailed findings of fact and concluded that as a
matter of law “the child’s present environment seriously endangers the child’s
physical, mental, moral, and emotional heath.” Primary residential custody was
awarded to John. Jessica thereafter appealed to this Court.
KRS 403.350 provides:
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. 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.
Further, KRS 403.340(2) provides:
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 the child's present environment may
endanger seriously his mental, moral, or emotional
In Petrey v. Cain, 987 S.W.2d 786, 788 (Ky. 1999), our Supreme
Court held that when “[r]ead together, these two statutes2 require that a motion to
modify a prior custody decree must be accompanied by at least one affidavit; and if
the motion is made earlier than two years after its date, it must be accompanied by
at least two affidavits. If the applicable requirement is not met, the circuit court is
without authority to entertain the motion.” (Internal citations omitted). See also
Copas v. Copas, 699 S.W.2d 758 (Ky. App. 1985).
At the time the Petrey decision was rendered, KRS 403.340(2) was numbered as KRS
403.340(1). The statute was amended in 2001 and renumbered accordingly.
Clearly, the statutory requirements apply not only to a modification of
sole custody, but also to modification of joint custody through a change in the
primary residential custodian. Fenwick v. Fenwick, 114 S.W.3d 767, 783-84 (Ky.
2003); Crossfield v. Crossfield, 155 S.W.3d 743, 746 (Ky. App. 2005). Thus, if
the requirements of KRS 403.340(2) are not satisfied, the trial court lacks subject
matter jurisdiction to consider a motion for the modification of custody. Petrey,
supra, at 788; Copas, supra, at 759. Such is true even if the error is not preserved
for review, as in this case. Defects in subject matter jurisdiction cannot be waived
and may be raised by the parties or courts at any time. Privett v. Clendenin, 52
S.W.3d 530, 532 (Ky. 2001).
John’s August 2005 motion for a modification of the custody decree
was filed within two years of the October 2004 agreed judgment establishing joint
custody with Jessica as the residential custodian. Thus, KRS 403.320(2) required
John's motion for modification to be accompanied by two or more affidavits
showing that "[t]he child's present environment may seriously endanger his
physical, mental, moral, or emotional health[.]" John, however, only submitted his
own affidavit in support of his motion. Absent compliance with the statutory
mandates, the trial court lacked jurisdiction to entertain the motion for
modification. It follows, therefore, that the trial court's findings of fact,
conclusions of law, and order must be vacated, leaving in place the original agreed
judgment naming Jessica as the child's primary residential custodian.
The order of the Lawrence Family Court is vacated and this matter is
remanded for further proceedings.
WINE, JUDGE, CONCURS.
DIXON, JUDGE, CONCURS AND FILES A SEPARATE
DIXON CONCURRING: Although our decision is mandated by the
statutory requirements and case precedent, I would note that the trial court herein
had the opportunity to evaluate the evidence and the credibility of the witnesses.
See Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986). In my view, the trial court’s
findings and conclusions were supported by substantial evidence and we reverse
merely due to a technical error. Id. While our decision results in vacating the
family court’s custody determination, John is not without immediate recourse.
Either KRS 610.050 or KRS 620.060 may provide an immediate remedy upon
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jessica Adams, pro se
Fort Gay, West Virginia
Leo A. Marcum