Rebecca Novak Ashman for Appellant.
Crystal L. Osborne, Britton Osborne Johnson PLLC, Lexington, for Appellee.
Appellant, Shane Thomas Masters, appeals a decision of the Court of Appeals that, based upon our opinion in Petrey v. Cain, 987 S.W.2d 786 (Ky.1999), concluded that the Madison Family Court lacked subject matter jurisdiction to rule upon Appellant's motion to modify a child custody order. As a result of that ruling, the Court of Appeals vacated the trial court's order and remanded the matter for further proceedings.
We granted discretionary review to re-consider the jurisdictional question raised in the Court of Appeals' opinion. Upon that re-consideration and for the reason stated below, we now reverse the opinion of the Court of Appeals and remand this case to the Court of Appeals for further consideration.
I. FACTUAL AND PROCEDURAL HISTORY
At the time of their divorce, Appellant Shane Masters and Appellee Dena Masters had one child. On April 18, 2005, with what is obviously a non-final, non-appealable order, the Madison Family Court granted the parties joint custody of the child and designated Dena as the primary residential custodian. The order also set child support and established a visitation schedule; it provided for payment of an accumulated child-support arrearage; it assigned ownership of the couple's vehicles; and it assigned responsibility for the debts on the vehicles and other marital debts. The order did not dissolve the marital relationship and it reserved for later determination the issues of temporary and long-term maintenance, and the division of marital property, including the marital residence.
On August 12, 2005, a final decree of dissolution of marriage was entered. The decree incorporated by reference the April 18 order and a subsequent visitation agreement dated August 9, 2005.
On May 31, 2007, twenty-five months after the initial custody order of April 2005, but only twenty-two months after entry of the final judgment awarding joint custody, Shane filed a motion to modify child custody so as to grant him sole custody of the child. Shane's motion was supported by his own affidavit, and an exhibit consisting of several letters, each signed by a person supporting the requested custody modification. Each letter was also subscribed by a notary public, but there was no jurat of the notary expressly certifying the identity of the signatory of the letter and attesting that the signatory was under oath, or otherwise had been sworn.
We briefly digress for a review of the applicable statutes. KRS 403.350 provides:
" A party seeking ... modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested order or modification." (emphasis added.). KRS 403.340(2) provides, in part, " 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...." (emphasis added).
We examined these statutory requirements in Petrey v. Cain and we concluded that when " [r]ead together, these two statutes 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. " 987 S.W.2d 786, 788 (Ky.1999). (emphasis added). We then said: " Thus, the circuit court does not acquire subject matter jurisdiction ...