KOERNER (CHERYL) VS. KOERNER (WILLIAM)Annotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM OLDHAM FAMILY COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 06-CI-00405
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BEFORE: MOORE AND THOMPSON, JUDGES; HENRY,1 SENIOR JUDGE.
THOMPSON, JUDGE: This is an appeal from an order of the Oldham Family
Court modifying a Georgia child support decree. Cheryl Koerner alleges that the
family court lacked jurisdiction over the subject matter and that, if it had
jurisdiction, there was no material change in circumstances warranting the
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
modification. We conclude that the family court lacked jurisdiction to modify the
Georgia child support decree pursuant to the Uniform Interstate Family Support
Act (UIFSA) and reverse.
At the time of the dissolution of their marriage in 2000, Cheryl
Koerner, William (Bill) Koerner and their two minor children resided in Georgia.
The Superior Court of Dawson County, Georgia, entered a final judgment and
decree of divorce in which Cheryl and Bill were awarded joint custody of the
children with Cheryl having primary physical custody. Based on the income of the
parties, Bill was ordered to pay child support in the greater amount of no less than
$1,500 per month or 23 percent of his gross income.
In 2003, Cheryl and the children moved to Kentucky. Soon after their
move, Bill filed a motion in Georgia requesting a modification of custody. The
Georgia court found that there was no material and substantial change of
circumstances justifying modification and denied the motion.
On June, 14, 2006, Bill, who remained a Georgia resident, filed a
motion in the Oldham Family Court requesting that primary physical custody of
the oldest child be changed from Cheryl to him. The motion was accompanied by
a “Notice and Affidavit of Foreign Judgment Registration,” properly certified
copies of the orders of the Superior Court of Dawson County, Georgia, and an
“Act of Congress Letter” from the clerk of Dawson County, Georgia.
In July, Bill filed a motion for modification of child support alleging
that the application of the Kentucky child support guidelines would result in a 15
percent change in the amount of support due, which he cited as a material change
in circumstances. Kentucky Revised Statutes (KRS) 403.213(2).
Following discovery and four hearings, the family court denied an
immediate modification of custody but ordered that the oldest child reside with Bill
during the summer of 2007, subject to further modification at the end of that
summer. On August 10, 2007, primary residential custody was transferred to Bill.
Cheryl timely filed a Kentucky Rules of Civil Procedure (CR) 59 motion to alter,
amend or vacate the order.
One week after the order modifying the custody decree and, before
Cheryl’s CR 59 motion was ruled upon, Bill filed a motion to modify the child
support paid to Cheryl on the basis that the Georgia decree was premised on both
children being in Cheryl’s custody, so that the transfer of residential custody of the
oldest child to him was a change in circumstances that justified modification.
Subsequently, the family court granted Cheryl’s CR 59 motion and
returned the oldest child to Cheryl’s primary residential custodianship. The court
directed that the parties submit memoranda addressing Bill’s motions for
modification of child support. Bill argued that for the ten weeks during which the
oldest child resided with him, he should receive a credit of $2,654.80 against the
child support paid and that pursuant to the Kentucky child support guidelines his
child support should be reduced to $1,122.41 per month.
Cheryl opposed the modification on the basis that the family court
lacked jurisdiction under KRS Chapter 407 et. seq. Furthermore, she contended
that since there was no final modification of the parenting schedule, the family
court’s order was not a sufficient basis on which to find a change in circumstances.
The family court disagreed with both contentions and reduced Bill’s child support
to $1,122.41 per month and found that he was entitled to a credit of $2,654.80.
The reduction was based on Bill’s income of $98,925 per year and Cheryl’s
income of $39,000 per year and the corresponding amount set forth in KRS
Our initial inquiry is into the application of KRS Chapter 407 et. seq.,
and its jurisdictional requirements. KRS Chapter 407, enacted in 1998, is modeled
after the UIFSA and was adopted as a result of the Personal Responsibility and
Work Opportunity Reconciliation Act passed by the United States Congress. In an
effort to have uniformity among the states in the application of jurisdictional
prerequisites to the enforcement of spousal and child support orders, Congress
required that all states enact statutes substantially similar to the UIFSA by January
1, 1998, as a condition to receiving certain federal funds.
The purpose of the
was concisely stated in Gibson v. Gibson, 211 S.W.3d 601, 606 (Ky.App. 2006):
In replacing the Uniform Reciprocal Enforcement of
Support Act (URESA), the UIFSA brought changes to
child support enforcement by expanding personal
jurisdiction over non-resident obligors ... and eventually
creating a single-order system that applies nationally.
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. (internal
quotations and footnotes omitted).
To further its purpose of ensuring a system where only one support
order is in effect at any one time, the UIFSA dictates the circumstances under
which the tribunal can assert personal and subject matter jurisdiction. Pertinent to
our present discussion, in addition to expanding personal jurisdiction over
nonresident obligors, the Act obligates states to enforce child support orders issued
by another state and imposes limitations on a state’s authority to modify child
support orders from another state.
Bill voluntarily submitted to personal jurisdiction of the Kentucky
court. The present controversy concerns subject matter jurisdiction. Subject
matter jurisdiction “is not for a court to ‘take,’ ‘assume’ or ‘allow.’” Nordike v.
Nordike, 231 S.W.3d 733, 738 (Ky. 2007). It either exists or it does not. In this
case, it can exist only if conferred by the UIFSA. Whether the Oldham Family
Court had the authority to modify the Georgia decree requires an interpretation of
the applicable provisions of the UIFSA and, therefore, is a question of law subject
to de novo review. Revenue Cabinet v. Comcast Cablevision of South, 147 S.W.3d
743 (Ky.App. 2003).
At the core of the UIFSA is the concept that the state that issued the
child support decree or order retains “continuing, exclusive jurisdiction” unless one
of the delineated exceptions are met. Its pervasive presence throughout the Act is
exemplified by Kentucky’s version of the UIFSA that states: “A tribunal of this
state shall recognize the continuing, exclusive jurisdiction of a tribunal of another
state which has issued a child support order pursuant to a law substantially similar
to KRS 407.5101 to 407.5902.” KRS 407.5205(4). Like Kentucky, Georgia
enacted its version of the UIFSA which is similar to that adopted by Kentucky.
O.C.G.A. § 19-11-100 et. seq.
Modification of a child support decree is addressed in article six of the
UIFSA codified in KRS 407.5601-407.5701, and is entitled “Enforcement and
Modification of Support Order After Registration.” It provides the “bright line”
rules that must be met before a court can modify an existing child support order.
Linn v. Delaware Child Support Enforcement, 736 A.2d 954, 963 (Del.Supr.
1999). The requirements are concisely set forth and leave no opportunity for
variance or judicial discretion. Prefatory to the conditions which must be met prior
to the assertion of subject matter jurisdiction, the statute provides an explicit
directive: a child support order issued in another state and registered in this state
may be modified by a responding tribunal of this state only if KRS 407.5613 does
not apply and, if after notice and hearing, it finds that conditions for modification
established in KRS 407.5611(1)(a) are met. KRS 407.5611(1).
Although Kentucky appellate courts have had few opportunities to
address the UIFSA, the rudimentary distinction between registration of a child
support decree for the purpose of its enforcement and modification of the decree
was addressed in Nordike, where the court stressed that the Act limits the authority
of a court to act after a child support decree has been issued in another state. “The
available options are (1) registration and enforcement of a decree as it exists, KRS
407.5201-.5608, and (2) registration and modification of the decree, KRS
407.5609-.5614.” Id. at 738.
In Gibson, 211 S.W.3d. 601, the court reaffirmed the distinction
between enforcement jurisdiction and modification jurisdiction. Although
enforcement of a child support decree and modification require that the decree be
registered in the foreign state, the Act imposes additional requirements before the
court has authority to modify an existing child support decree. Id. at 610. Thus,
Bill’s proper registration of the child support decree in Kentucky did not
axiomatically confer jurisdiction in the Oldham Family Court to modify the decree.
To hold otherwise would ignore the basic concept of the continuing, exclusive
jurisdiction of the Georgia court. Our discussion then must focus on the
requirements of KRS 407.5611 and KRS 407.5613.
KRS 407.5613 provides that jurisdiction to modify a child support
order of another state exists if “all of the parties who are individuals reside in this
state and the child does not reside in the issuing state . . . .” Because Bill remains a
Georgia resident, KRS 407.5613 has no application. Therefore, Kentucky’s
jurisdiction to modify the decree must be conferred by KRS 407.5611.
In relevant part, that statute provides:
(1) After a child support order issued in another state has
been registered in this state, the responding tribunal of
this state may modify that order only if KRS 407.5613
does not apply and if after notice and hearing it finds
(a) The following requirements are met:
1. The child, the individual obligee, and the
obligor do not reside in the issuing state;
2. A petitioner who is a nonresident of this
state seeks modification; and
3. The respondent is subject to the personal
jurisdiction of the tribunal of this state; or
(b) The child, or a party who is an individual, is
subject to the personal jurisdiction of the tribunal
of this state and all of the parties who are
individuals have filed written consent with the
issuing tribunal for a tribunal of this state to
modify the support order and assume continuing,
exclusive jurisdiction over the order. However, if
the issuing state is a foreign jurisdiction that has
not enacted a law or established procedures
substantially similar to the procedures under this
chapter, the consent otherwise required of an
individual residing in this state is not required for
the tribunal to assume jurisdiction to modify the
child support order. 2
Although Kentucky caselaw is scant, because the UIFSA is a uniform act, the
treatises and authorities from other states are persuasive. It has been uniformly
held that pursuant to statutes similar to KRS 407.5611, if the obligor or obligee
remains a resident of the issuing state and no written consent is filed as required by
The UIFSA was amended in 2001. However, the prefatory note of the 2001 UIFSA explains
that the amendments do not make fundamental changes in the policies and procedures previously
published. See Draper v. Burke, 450 Mass. 676, 881 N.E.2d 122 (2008).
statute, that state retains continuing, exclusive jurisdiction to modify its child
In Tate v. Fenwick, 766 N.E.2d 423 (Ind.App. 2002), the court held
that Indiana was without jurisdiction to modify a child support order when the
obligor continued to reside in Kentucky, the issuing state. Reaching the same
result, in Watkins v. Watkins, 802 So.2d 145 (Miss.Ct.App. 2001), the court denied
jurisdiction because the mother continued to live in Georgia which had continuing,
exclusive jurisdiction. Likewise, in Peddar v. Peddar, 43 Mass.App.Ct. 192, 683
N.E.2d 1045 (1997), the court held that Massachusetts lacked jurisdiction to
modify a Georgia child support order when the father continued to reside in
Georgia. These cases represent but a sample of the plethora of states that have
denied jurisdiction on facts similar to the present. See generally, Kurtis A.
Kemper, J.D., Annotation, Construction and Application of the Uniform Interstate
Family Support Act, 90 A.L.R.5th 1 (2001). We now join those states that have
concluded that under the UIFSA, the issuing state has continuing, exclusive
jurisdiction over its child support order if the obligor or the obligee continues to
reside in that state. Thus, the Oldham Family Court had no jurisdiction to modify
the Georgia child support decree.
We are cognizant that our decision results in bifurcated jurisdiction
between Kentucky, which has jurisdiction over custody and visitation matters, and
Georgia, which has jurisdiction over child support modification. As we explained
in Wallace v. Wallace, 224 S.W.3d 587 (Ky.App. 2007), custody and visitation
issues are governed by the Uniform Child Custody Jurisdiction Act and the
Parental Kidnapping Prevention Act, both of which contain jurisdictional
prerequisites distinct from those in the UIFSA. Although arguably not a desired
result, one state may retain jurisdiction to modify child support while another
obtains subject matter jurisdiction over child custody and visitation. See Straight
v. Straight, 195 S.W.3d 461 (Mo.App. W.D. 2006). Critical of this result, a Texas
court was nevertheless compelled to follow the UIFSA:
By adopting these uniform acts, the legislature has
created an unsatisfactory situation in which a suit
affecting a parent-child relationship is severed into
parallel proceedings in different states. However, any
remedy for this awkward result must come from the
legislature, not the courts.
In re Hattenbach, 999 S.W.2d 636, 639 (Tex.App.-Waco, 1999). With the same
reservations, we hold that Kentucky did not have jurisdiction to modify the
Georgia child support decree.
Based on the foregoing, the order modifying the Georgia child support
decree is vacated.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Mary Janice Lintner
Michael R. Slaughter