OSTER (PAULA) VS. OSTER (ALAN)
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RENDERED: APRIL 1, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000135-ME
AND
NO. 2009-CA-001444-ME
PAULA OSTER
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NOS. 06-CI-503122 AND 07-D-500373
ALAN OSTER
APPELLEE
OPINION AND ORDER
AFFIRMING IN PART AND
VACATING IN PART
** ** ** ** **
BEFORE: CAPERTON, COMBS AND KELLER, JUDGES.
KELLER, JUDGE: Paula Oster (Paula) appeals from an order of the Jefferson
Family Court modifying a Massachusetts custody order and granting Alan Oster
(Alan) sole custody of the parties’ two minor children. Consolidated with that
appeal is Paula’s appeal from the three-year Domestic Violence Order (DVO)
entered by the family court. For the reasons set forth below, we affirm in part, and
vacate in part.
FACTUAL AND PROCEDURAL BACKGROUND
Paula and Alan were married in Boston, Massachusetts, on April 2, 1998. In
October 1999, Paula filed a Complaint for Divorce in the Probate and Family
Court of Suffolk County, Massachusetts. It appears that the parties had an ongoing
relationship for the next five years. At the time Paula filed for divorce, she was
pregnant with the parties’ first child, a son, born February 22, 2000. The parties
had a second son who was born on June 6, 2002.
The older son was removed from the parties’ care and placed into foster care
on two occasions as a result of neglect and domestic violence. On the first
occasion, the parties’ son was approximately four months old. He sustained a head
injury, lost consciousness, and suffered a seizure when Paula allegedly struck him
in the head when she attempted to hit Alan during an argument. The second
removal occurred in September of 2001 when the parties reportedly had an
altercation in which the police became involved. Because of the parties’
involvement with law enforcement and ongoing difficulties, the older son was
again placed in foster care.
On December 16, 2004, and five years after Paula filed her Complaint for
Divorce, the parties entered into a Separation Agreement. Under the terms of this
agreement, Paula was to have “sole custody legal and physical custody” of the two
children and was granted leave to move the children from Massachusetts to
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Delaware. Alan was to have overnight visitation with the children two weekends
each month. Additionally, Alan was to pay Paula $288 per week as child support
and was to continue to pay health insurance for the children. Paula was
responsible for the first $100 of any uninsured healthcare expenses, and the parties
were to equally share the responsibility of such expenses thereafter. The
Separation Agreement was incorporated into a Judgment of Divorce Nisi that
became final on March 16, 2005.
Alan remarried in April 2005. In August 2005, Alan and his current wife
relocated to Louisville, Kentucky. On or about October 29, 2005, Paula and the
two children moved to Louisville so that the children could have access to both of
their parents. On August 10, 2006, Alan filed a Petition to Register a Foreign
Custody Decree in the Jefferson Family Court and filed a motion requesting a
temporary restraining order to prohibit Paula from removing the children from the
Louisville Metro area. The next day, the family court issued the requested
restraining order. Paula moved to Massachusetts with the children sometime near
the date the family court issued the restraining order.1 After Paula left Kentucky
with the children, the family court issued a subsequent restraining order on August
18, 2006, requiring Paula to return the children to Alan’s custody. Additionally, on
September 27, 2006, Alan filed a Motion to Enforce Custody Agreement Between
Parties or in the Alternative to Modify Custody.
1
Paula alleges that she moved to Massachusetts on August 9, 2006, prior to the issuance of the
restraining order. However, Alan alleges that Paula left for Massachusetts after discovering that
Alan was bringing an action to modify custody and on the same day the restraining order was
issued.
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Eventually, the Massachusetts Probate and Family Court entered an order on
October 5, 2006, ordering Paula to return the children to Alan in Kentucky within
forty-eight hours. Thereafter, Paula returned to Kentucky with the children. On
October 9, 2006, the Jefferson Family Court entered an order accepting jurisdiction
over the issue of child custody after concluding that the children had resided in
Kentucky as their home state for more than six months.
On July 3, 2007, Alan filed a Supplemental Motion to Modify Custody. On
December 20, 2007, the family court entered an order awarding temporary sole
custody of the minor children to Alan. It also ordered Paula’s time with the
children to be supervised at The Family Place.
The trial court held a two-day hearing on May 21 and May 22, 2008.
Because additional time was required, the hearing continued and concluded on
August 13, 2008. On December 19, 2008, the family court entered an order
granting Alan sole custody of the two children. The order further provided that
Paula was to have therapeutic visitation with the children only, through the
children’s therapist. Paula was also ordered to pay Alan $60 per month in child
support, plus $2.39 per month as her share of the cost of the children’s health
insurance. It is from this order that Paula appeals.
On January 4, 2009, and two weeks after the family court entered the
December 19, 2008, order, Paula sent an e-mail of an article about a non-custodial
parent who killed his son instead of paying child support to her sister with a copy
to Alan (the E-mail). The E-mail contained no text other than the article.
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On January 5, 2009, Alan filed a Domestic Violence Petition on behalf of
himself and the two children. In the petition, Alan stated that Paula engaged in an
act of domestic violence when she sent him the E-mail only two weeks after the
family court ordered her to pay child support. Alan stated that he took this as a
threat to harm the children. He noted that Paula had been diagnosed with a
personality disorder. Alan further stated that Paula had no other purpose in
sending this article other than to cause him fear and intimidate him. On that same
day, the family court entered an Emergency Protective Order (EPO) on behalf of
Alan and the two children against Paula.
Due to various continuances, the domestic violence hearing was continued
until March 10, 2009. On that day, the family court entered a DVO, which
provided that Paula could not have contact with Alan or the children for a period of
three years. On March 20, 2009, Paula filed a Kentucky Rule of Civil Procedure
(CR) 59.05 motion to alter, amend, or vacate the DVO. The family court held a
hearing on the motion on March 26, 2009, and denied the motion in an order
entered on July 9, 2009. It is from the DVO that Paula also appeals.
By order entered on April 13, 2010, this Court consolidated Paula’s appeal
from the December 19, 2008, order granting Alan sole custody of the children, and
her appeal from the July 9, 2009, order denying her motion to alter, amend, or
vacate the DVO. On February 14, 2011, Paula filed a motion for leave to argue
subject matter jurisdiction during the oral argument scheduled for February 17,
2011. Because the response time on that motion did not expire until February 22,
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2011, in the interest of fairness to the parties and judicial economy, this Court
cancelled oral argument. Alan filed a response and a motion to strike Paula’s
motion.
Because we deem it unnecessary, oral argument was not rescheduled. Thus,
Paula’s motion for leave to argue subject matter jurisdiction at oral argument is
moot. Likewise, Alan’s motion to strike Paula’s motion is moot. However, the
substantive issue of subject matter jurisdiction raised in Paula’s motion and
responded to in Alan’s response is addressed below.
Additional facts will be developed as necessary.
STANDARDS OF REVIEW
The issues raised by Paula have different standards of review. Therefore, we
set forth the appropriate standard of review as we address each issue.
ANALYSIS
1. Custody Order
With respect to the December 19, 2008, order, Paula first contends
that the Jefferson Family Court lacked subject matter jurisdiction to modify the
Massachusetts custody order. Although Paula raises this issue for the first time on
appeal, “[t]he question of subject matter jurisdiction may be raised at any time and
is open for the consideration of the reviewing court whenever it is raised by any
party.” Gullett v. Gullett, 992 S.W.2d 866, 869 (Ky. App. 1999). “Whether a trial
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court acts within its jurisdiction is a question of law; therefore, our review is de
novo.” Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky. App. 2009).
In 2004, the General Assembly adopted the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). Kentucky Revised Statutes (KRS)
403.800, et seq. Paula contends that, pursuant to KRS 403.826, the trial court did
not have jurisdiction to modify the Massachusetts custody order. We disagree.
KRS 403.826 provides the following:
Except as otherwise provided in KRS 403.828, a court of
this state shall not modify a child custody determination
made by a court of another state unless a court of this
state has jurisdiction to make an initial determination
under KRS 403.822(1)(a) or (b) and:
(1) The court of the other state determines that it no
longer has exclusive, continuing jurisdiction under KRS
403.824 or that a court of this state would be a more
convenient forum under KRS 403.834; or
(2) A court of this state or a court of the other state
determines that the child, the child's parents, and any
person acting as a parent do not presently reside in the
other state.
First, we note that KRS 403.822(1)(a) provides that:
(1) Except as otherwise provided in KRS 403.828, a
court of this state shall have jurisdiction to make an
initial child custody determination only if:
(a) This state is the home state of the child on the date of
the commencement of the proceeding, or was the home
state of the child within six (6) months before the
commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent
continues to live in this state; . . .
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Because the children lived in Kentucky for a period six months before Alan
commenced the proceeding, and because Alan continued to live in Kentucky, the
family court would have initial jurisdiction pursuant to KRS 403.822(1)(a).
Next, the requirements under KRS 403.826(1) were met because the
Massachusetts Probate and Family Court relinquished any jurisdiction it may have
had over these custody proceedings to Kentucky in its order entered on October 5,
2006. In that order, the Massachusetts Probate and Family Court ordered Paula to
return the children to Alan in Kentucky within forty-eight hours. The court then
stated that “[t]he issue of custody and visitation is solely within the jurisdiction of
the Kentucky court.” Accordingly, the Jefferson Family Court did have
jurisdiction pursuant to KRS 403.826 to modify the Massachusetts custody order.
Paula next contends that even if the family court had subject matter
jurisdiction, it applied the wrong standard in modifying custody of the parties’
children. Specifically, Paula argues that the family court incorrectly applied the
“best interest” standard instead of the “serious endangerment” standard.
As provided in London v. Collins, 242 S.W.3d 351, 354 (Ky. App. 2007):
Findings of fact may be set aside only if they are clearly
erroneous. Whether or not the findings are clearly
erroneous depends on whether there is substantial
evidence in the record to support them. If the findings
are supported by substantial evidence, then appellate
review is limited to whether the facts support the legal
conclusions made by the finder of fact. The legal
conclusions are reviewed de novo. Finally, if the factual
findings are not clearly erroneous and the legal
conclusions are correct, the only remaining question on
appeal is whether the trial court abused its discretion in
applying the law to the facts.
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(Citations omitted).
Pursuant to KRS 403.340(2)(a), no motion to modify a custody order shall
be made earlier than two years after its date unless there is reason to believe “[t]he
child’s present environment may endanger seriously his physical, mental, moral, or
emotional health[.]” As noted above, Alan filed a motion to Enforce Custody
Agreement Between Parties or in the Alternative to Modify Custody on September
27, 2006. Because Alan’s custody modification request came within two years of
the Massachusetts order granting sole custody to Paula, the “serious
endangerment” standard provided in KRS 403.340(2)(a) applies to the instant case.
Having reviewed the December 19, 2008, order, we believe that the family
court did apply the “serious endangerment” standard. First, the family court
specifically noted that it was applying the “serious endangerment” standard
provided in KRS 403.340(2) when it stated the following:
Pursuant to KRS 403.350, the Court reviewed Dr. [Alan]
Oster’s motion and the allegations contained in the two
(2) affidavits attached to the motion. Following that
review the Court found adequate cause to proceed.
Under KRS 403.340(2), the Court may modify a custody
decree that has been in existence less than two (2) years
when the children’s present environment may seriously
endanger their physical, mental, moral, or emotional
health.
Additionally, the family court noted that:
The Court finds that the environment created by Ms.
[Paula] Oster’s emotional and mental issues in
conjunction with the parties’ inability to cooperate in the
children’s best interest seriously endangers the children’s
long term physical, mental, moral, and emotional health.
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Therefore the Court will grant Dr. [Alan] Oster’s motion
for sole custody.
Although the family court made a reference to “the children’s best interest,”
it is clear from the order that the court only did so with respect to the parties’
inability to cooperate with one another, not to support its change of custody. Thus,
despite Paula’s argument to the contrary, the family court did not apply the “best
interest” standard.
We note Alan’s argument that the family court was not required to apply the
“serious endangerment” standard. Having concluded that the family court properly
applied the “serious endangerment” standard, this argument is moot. Thus, we do
not address it.
Having determined that the family court applied the correct standard, we
address whether there was sufficient evidence to support the court’s conclusion
that the “serious endangerment” standard was met. In its order, the family court
noted that the court-ordered custody evaluator, Dr. Cebe, and other healthcare
professionals, provided testimony regarding their concerns for Paula’s “personality
issues and mental health status.” The court noted that these professionals testified
that they believe Paula “suffers from symptoms of severe depression as well as
‘compulsive, borderline, histrionic and dependency features that impair her
functioning.’” The court further noted that Paula’s mental health issues are having
a negative impact on the children.
Additionally, the court noted that while Alan has issues of his own, he has
demonstrated the capacity to better provide for the children. However, Paula “has
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a great deal of work to do toward her mental health and stability. She must get
herself into a position emotionally, mentally, and professionally whereby she can
support herself and provide financial and emotional support for the children, and
move beyond the break up of her marriage.”
Based on the testimony at the hearing, the court was not clearly erroneous in
determining that Paula may seriously endanger the physical, mental, moral, or
emotional health of the parties’ two children. Therefore, the family court did not
abuse its discretion in granting Alan’s motion to modify custody.
2. Domestic Violence Order
In Paula’s February 14, 2011, motion she argues that the family court
lost subject matter jurisdiction to hold the domestic violence hearing and enter the
DVO because it did not hold the hearing within fourteen days from the entry of the
EPO. In his response to that motion, Alan argues to the contrary. Although this
issue was not raised in the lower court, “[t]he question of subject matter
jurisdiction may be raised at any time and is open for the consideration of the
reviewing court whenever it is raised by any party.” Gullett, 992 S.W.2d at 86869. Additionally, [j]urisdiction of the subject matter cannot be conferred by waiver
or consent.” Id. Therefore, we address whether the family court had subject
matter jurisdiction. As previously noted, “[w]hether a trial court acts within its
jurisdiction is a question of law; therefore, our review is de novo.” Biggs, 301
S.W.3d at 33.
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To determine whether the family court had jurisdiction to hold a hearing and
enter a DVO, we must turn to KRS 403.470(4) and KRS 403.475. The version of
KRS 403.740(4) in effect at the time of the events of this case states as follows:
An emergency protective order issued in accordance with
this section shall be effective for a period of time fixed in
the order, but not to exceed fourteen (14) days. Upon the
issuance of an emergency protective order, a date for a
full hearing, as provided for in KRS 403.745, shall be
fixed not later than the expiration date of the emergency
protective order. An emergency protective order shall be
reissued for a period not to exceed fourteen (14) days if
service has not been made on the adverse party by the
fixed court date and time or as the court determines is
necessary for the protection of the petitioner.2
2
The General Assembly amended KRS 403.740(4), which took effect on July 15, 2010, and now
reads as follows:
An emergency protective order issued in accordance with this
section shall be effective until the full hearing provided for in this
subsection or in KRS 403.745, or until withdrawn by the court.
Upon the issuance of an emergency protective order, the court
shall set a date and time for a full hearing, within fourteen (14)
days as provided for in KRS 403.745, and shall summon the
adverse party to appear. If, at the hearing, the adverse party is not
present and has not been served, the emergency protective order
shall remain in place, and the court shall direct the issuance of a
new summons for a hearing set not more than fourteen (14) days in
the future. If service has not been made on the adverse party prior
to seventy-two (72) hours before that hearing or a subsequent
hearing, the emergency protective order shall remain in place and
the court shall continue the hearing and issue a new summons with
a new date and time for the hearing to occur, which shall be within
fourteen (14) days of the originally scheduled date for the
continued hearing. Before issuing the new summons, the court
shall note the length of time that has passed since the issuance of
the emergency protective order, during which the adverse party has
not been served. The court shall repeat the process of continuing
the hearing and reissuing a new summons after noting the lapse of
time since the issuance of the emergency protective order until the
adverse party is served at least seventy-two (72) hours in advance
of the scheduled hearing. In issuing the summons, the court shall
simultaneously transmit a copy of the summons or notice of its
issuance and provisions to the petitioner.
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KRS 403.745(2) provides that a “hearing shall be fixed not later than fourteen (14)
days following issuance of the summons.” Finally, KRS 403.745(4) provides that
“[a] summons may be reissued if service has not been made on the adverse party
by the fixed court date and time.”
In this case, the family court did not hold a hearing within fourteen days
from the entry of the EPO. As previously noted, the family court entered the EPO
against Paula on January 5, 2009, and scheduled the domestic violence hearing for
January 15, 2009. Paula was served on January 7, 2009. Both parties were present
with counsel in the family court on January 15, 2009. However, the family court
continued the hearing and re-issued the EPO. While it is unclear from the record
before us why the hearing was continued, in his response to Paula’s motion for
leave to argue subject matter jurisdiction, Alan explained that the family court
judge ordered them to reschedule for another date.
Because the court was closed due to weather on January 15, 2009, the family
court again re-issued the EPO and continued the hearing until February 12, 2009.
On February 12, 2009, the family court re-issued the EPO and continued the
hearing until February 24, 2009. It is unclear from the record why the hearing was
again continued; however, it does appear from the record that neither party was
present at the scheduled hearing. On February 24, 2009, the hearing was continued
until March 10, 2009, on the family court’s own motion due to a conflict with a
trial in an unrelated matter. A re-issued EPO does not appear in the record.
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Finally, on March 10, 2009, the family court held the domestic violence hearing
and entered the DVO.
KRS 403.740(4) limits the reissuance of an EPO to those situations where
the adverse party was not served.
Because Paula was served on January 7,
2009, the family court did not have the requisite statutory authority to re-issue the
EPO. Thus, the family court lost jurisdiction to hold a hearing and enter the DVO
when a hearing was not held within fourteen days from the entry of the EPO.3
We note that Paula raises two other arguments with respect to the DVO.
First, she argues that her constitutional right to due process was violated when the
family court admitted evidence of prior alleged domestic violence that was not
pled in the domestic violence petition. Second, she argues that there was not
sufficient evidence to support the family court’s finding that an act or acts of
domestic violence occurred and will occur again. Because the family court lacked
jurisdiction to enter the DVO, these arguments are moot. Thus, we do not address
them.
CONCLUSION
For the foregoing reasons, we affirm the order of the Jefferson Family
Court modifying the Massachusetts custody order and granting Alan sole custody
of the parties’ two minor children. The DVO entered on March 10, 2009, is
vacated.
3
We note that this issue is similar to the issue recently addressed by this Court in Telek v.
Daugherty, 2009-CA-001993, 2010 WL 5128651 (Ky. App. Dec. 17, 2010). Because a motion
for discretionary review was filed and is still pending, this case is not final. However, due to its
similarity, we find its analysis of KRS 403.470(4) and KRS 403.475 to be instructive.
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Further, as set forth above, Paula’s motion for leave to argue subject
matter jurisdiction at oral argument and Alan’s motion to strike are DENIED as
moot.
ALL CONCUR.
ENTERED: April 1, 2011
/s/ Michelle M. Keller
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEFS FOR APPELLEE:
Louis P. Winner
Stacy A. Hoehle
Louisville, Kentucky
Allen McKee Dodd
Louisville, Kentucky
Linda J. Noll
Louisville, Kentucky
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