APPEAL FROM CAMPBELL CIRCUIT COURT FAMILY COURT DIVISION HONORABLE RICHARD A. WOESTE, JUDGE ACTION NO. 08-CI-00878
The opinion of the court was delivered by: Taylor, Judge:
RENDERED: FEBRUARY 8, 2013; 10:00 A.M.
BEFORE: NICKELL, TAYLOR, AND VANMETER, JUDGES.
Kris Wahlke brings this appeal from October 8, 2010, October 11, 2010, March 17, 2011, and December 2, 2011, orders of the Campbell Circuit Court, Family Court Division, granting a motion filed by Kristen Pierce Corrigan to relocate with the parties' minor child to Texas and denying a motion filed by Kris to dismiss Kristen's motion due to lack of jurisdiction. We reverse and remand.
Kris and Kristen were married on October 14, 2000. One child was born of the parties' marriage on September 25, 2006. On June 11, 2008, Kristen filed a Petition for Dissolution of Marriage in the Campbell Circuit Court, Family Court Division (family court). When the petition was filed, Kris, Kristen, and the child lived in Campbell County, Kentucky. Sometime after the petition for dissolution was filed, Kris and Kristen separately moved to Ohio, and the child moved with Kristen. The record is unclear regarding the exact date that each party moved, but it is clear that neither the child nor the parents were residing in Kentucky at the time the decree of dissolution of marriage was entered on November 24, 2009. In the decree of dissolution, Kristen was granted sole custody of the parties' child, and Kris was awarded visitation and ordered to pay child support.
During the next several months, the parties continued to litigate post-decree issues related to child support, visitation, and attorney's fees in the family court. Relevant herein, on June 18, 2010, Kristen filed a motion to relocate and notified the family court that she wished to move with the child to Abilene, Texas. Kristen also filed a motion to modify visitation to accommodate the distance between the parties.*fn1 In response, Kris argued that the relocation to Texas would not be in the best interests of the child.
By orders entered October 8, 2010, and October 11, 2010, the family court granted Kristen's motion to relocate with the child and amended the visitation schedule for Kris. Kris then filed a Motion to Reconsider and Motion to Dismiss for Lack of Jurisdiction. In the motion to dismiss, Kris argued for the first time that the family court lacked subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify custody or visitation. The family court denied Kris's motion to dismiss by order entered March 17, 2011, and determined that it retained subject matter jurisdiction under Kentucky Revised Statutes (KRS) 403.824(1)(a) of the UCCJEA. The family court specifically stated:
Under the standards set forth in KRS 403.824(1)(a), the Campbell Family Court should keep jurisdiction of this matter, at least for the time being. The relocation motion was filed seven (7) months after the Decree of Dissolution was entered. There was an extensive custody evaluation done in Kentucky. A Guardian Ad Litem was appointed and made a report with such in Kentucky. There were other proceedings involving child support, visitation and daycare expenses which were decided post divorce in Kentucky. Consequently, because of the minimal amount of time that lapsed since the Decree of Dissolution and motion to relocate there is still substantial evidence available in this state concerning the child's care, protection, training and personal relationships. Consequently, in addition to the fact that Respondent waived objections to jurisdiction pursuant to the above authority, it is this Court's finding that under KRS 403.824, the Family Court in Campbell County should still exercise exclusive continuing jurisdiction over this matter.
The family court concluded that a "significant connection" existed under KRS 403.824(1)(a) to justify its exercise of exclusive, continuing jurisdiction. Subsequently, the family court also denied Kris's motion to reconsider by order entered December 2, 2011. This appeal follows.
Kris contends that the family court lacked subject matter jurisdiction to modify the original child custody determination*fn2 under the UCCJEA. Specifically, Kris argues that the family court was without exclusive, continuing jurisdiction as he, Kristen, and the child no longer resided in Kentucky. Thus, Kris maintains that the October 8, 2010, and October 11, 2010, orders granting Kristen's motion to relocate with the child are void.
In this Commonwealth, our General Assembly has adopted the UCCJEA. The UCCJEA is codified in KRS 403.800 - 403.880 and governs disputes concerning this state's jurisdiction to decide child custody and visitation matters. Under our enactment of the UCCJEA, KRS 403.822 controls a court's jurisdiction to initially make a custody determination, and KRS 403.824 controls such court's exclusive, continuing jurisdiction to modify that determination. In other words, KRS 403.824 deals with a court's jurisdiction to modify a child custody determination and only comes into play after a court has previously acquired jurisdiction to make a child custody ...