KATHERINE ZOELLER V. HON. DOLLY WISMAN BERRY, JUDGE JEFFERSON CIRCUIT COURT.
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PR OMUL GA TED BY THE
SUPREME CO URT. CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL NOTBE
CITED OR USED AS A UTHORITY INANY OTHER
CASE IN ANY CO URT OF THIS STA TE.
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2005-SC-000253-MR
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KATHERINE ZOELLER
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
2005-CA-000142
JEFFERSON CIRCUIT COURT NO . 04-AD-500266
V.
HON. DOLLY WISMAN BERRY, JUDGE
JEFFERSON FAMILY COURT, ET AL.
APPELLEES
MEMORANDUM OPINION OF THE COURT
AFFIRMING
This appeal follows the granting of a writ of prohibition by the Court of
Appeals .
Appellant, Katherine L. Zoeller (Zoeller), the petitioner for whom the writ was
granted, nevertheless appeals to this Court seeking further relief. She requests that we
enter an order declaring that the trial court, Jefferson County Family Court, is without
subject matter jurisdiction to hear this grandparent visitation proceeding . This
requested relief was denied in the Court of Appeals . Appellant prevailed however, on
her claim for a stay of the family court's January 11, 2005 order which granted visitation
with the child in question to Appellee/Real Party-in-interest, John K . Gutterman
(Gutterman) .
Mr. Gutterman and Ms . Zoeller were married from 1980 until 1992. Two
children, Ashley and John, II, were born of the marriage . On January 22, 2000, Ashley,
then 15 years of age and unmarried, gave birth to Peyton Michael Gutterman (Peyton) .
In July of 2002, Ashley, the birth mother, formally consented to Appellant Zoeller and
her husband, Robert Zoeller, being the Court-appointed guardians for Peyton. Ashley
died on May 3, 2004. On July 2, 2004, the Zoellers filed a petition for adoption . On
July 13, 2004, Mr. Gutterman filed his petition for grandparent visitation pursuant to
KRS 405.021(1) . The grandparent visitation proceeding is pending before the Appellee
Judge and is the basis of this claim .
The adoption of Peyton was finalized by an August 23, 2004 judgment.
On September 17, 2004, the biological maternal grandfather, Gutterman, filed his first
amended complaint in the family court case . Approximately one week later, Zoeller
filled a response stating, in part, that Gutterman had no standing to seek any
grandparent visitation since the parental rights of the mother, Ashley, had been
terminated by reason of the adoption . Zoeller cited KRS 405 .021, the grandparent
visitation statute, as authority for her position. She claimed that under the statute, a
grandparent's visitation must have been established by court order before the
termination of the parental rights .
In the grandparent visitation case, the trial court appointed a Guardian Ad
Litem (GAL) for the child . On October, 20, 2004, the GAL filed her report and motion .
In that motion, the GAL requested that Gutterman be granted immediate visitation with
Peyton. On October 27, 2004, the family court entered several orders . One of the
orders set an evidentiary hearing for February 7, 2005. Another order entered on that
date stated that the parties could confer prior to the February 7, 2005 hearing date, but
that there would be no actual visitation by Gutterman with Peyton until further order of
court.
On January 5, 2005, Gutterman filed a motion requesting immediate
temporary visitation . By order of January 11, 2005 the trial court directed the GAL to
contact Ashley's brother, John Gutterman, II, to see if he would agree to act as a
visitation supervisor . The order also provided that Gutterman would have temporary
visitation with Peyton every weekend until the February 7, 2005 court date .
On January 21, 2005, Zoeller filed an original action in the Court of
Appeals seeking a writ of prohibition . Zoeller asserted that the Appellee Judge should
be stayed on the grounds that the lower court was acting outside of its jurisdiction or, in
the alternative, that no visitation be ordered before the Family Court conducted an
evidentiary hearing . Gutterman did not file any response to the petition in the Court of
Appeals . On February 24, 2005, the Court of Appeals entered its order partially
granting the petition . Zoeller filed her notice of appeal to obtain appellate review by this
Court. She sought review of the Court of Appeals' failure to hold that the family court
was without jurisdiction by virtue of the adoption .
The posture of this case is somewhat unusual . The party who partially
prevailed in the Court of Appeals is the appellant here . The issue is whether the Family
Court had subject matter jurisdiction to hear Gutterman's petition for grandparent
visitation despite the adoption of the child by the Zoellers .
There are two classes of writ cases, those (1) where the lower court is
acting without jurisdiction, and those (2) where the lower court is acting incorrectly
within its jurisdiction .' Zoeller asserts that this case is encompassed by the former
class of writ cases, and that the family court was acting without jurisdiction when it
heard the grandparent visitation case .
' Bender v. Eaton , 343 S .W.2d 799, 800 (Ky. 1961) .
3
Section 112 of the Kentucky Constitution provides, in relevant part, as
follows :
(5) The Circuit Court shall have original jurisdiction of all
justiciable causes not vested in some other court. It shall
have such appellate jurisdiction as may be provided by law.
(6) The Supreme Court may designate one or more divisions
of Circuit Court within a judicial circuit as a family court
division . A Circuit Court division so designated shall retain
the general jurisdiction of the Circuit Court and shall have
additional jurisdiction as may be provided by the General
Assembly.
A family court's jurisdiction is defined by KRS 23A.100, which provides, in
relevant part, as follows:
(1) As a division of Circuit Court with general jurisdiction
pursuant to Section 112(6) of the Constitution of Kentucky, a
family court division of Circuit Court shall retain jurisdiction in
the following cases:
(a) Dissolution of marriage ;
(b) Child custody ;
(c) Visitation;
(d) Maintenance and support;
(e) Equitable distribution of property in dissolution cases;
(f) Adoption ; and
(g) Termination of parental rights.
(3) Family court divisions of Circuit Court shall be the
primary forum for cases in this section, except that nothing
in this section shall be construed to limit the concurrent
jurisdiction of District Court .
The issues brought before the trial court include adoption, visitation, and
possibly, termination of parental rights . In view of the constitutional and statutory
provisions quoted hereinabove, it would be impossible to reach a conclusion that a
family court was without subject matter jurisdiction . Our view in this regard is
strengthened by numerous cases wherein the issue of subject matter jurisdiction is
addressed . One such decision is Duncan v. O'Nan2 in which this Court said that
subject matter jurisdiction does not mean "this case" but "this kind of case ." s Duncan
also makes it clear that a court will be deprived of subject matter jurisdiction only in
cases "where the court has not been given any power to do anything at all ,A In Gordon
v. NKC Hospitals, Inc.5 we said that in order "[t]o determine subject matter jurisdiction,
the pleadings should be taken at face value and so long as the 'kind of case' identified
in the pleadings is within the court's jurisdiction, one claiming a legal bar must plead it
affirmative ly . ,,6
The family court has not yet had an opportunity to decide whether the
adoption of the child forecloses the biological maternal grandfather from visitation . As a
Court possessing appellate jurisdiction only,7 this Court is not authorized to make such
an initial determination . That determination is for the appropriate general jurisdiction
court .
For the foregoing reasons, we affirm the Court of Appeals .
All concur .
2 451 S .W.2d 626 (Ky. 1970) .
3 _Id. at 631 .
4 _Id. at 631 .
887 S . W .2d 360 (Ky. 1994) .
s _Id. at 362.
7 Ky. Const. ยง 110(2)(a) .
COUNSEL FOR APPELLANT :
Peter L. Ostermiller
1800 Kentucky Home Life Bldg .
239 South Fifth Street
Louisville, KY 40202
COUNSEL FOR APPELLEES :
Hon. Dolly Wisman Berry
Judge, Jefferson Family Court
5th
Floor, Judicial Center
700 West Jefferson Street
Louisville, KY 40202
J . Andrew White
Marion Wersley White Bldg .
734 South First Street
Louisville, KY 40202
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