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Heidi Jill Officer v. Blankenship

Court of Appeals of Kentucky

June 15, 2018

HEIDI JILL OFFICER APPELLANT
v.
ROGER LEE BLANKENSHIP APPELLEE

          APPEAL FROM WARREN CIRCUIT COURT HONORABLE CATHERINE RICE HOLDERFIELD, JUDGE ACTION NO. 15-CI-00853

          BRIEF AND ORAL ARGUMENT FOR APPELLANT: Mark A. Gilbert Hopkinsville, Kentucky.

          BRIEF FOR APPELLEE: Ashlea Shepherd Porter Brian Schuette Bowling Green, Kentucky.

          ORAL ARGUMENT FOR APPELLEE: Brian Schuette Bowling Green, Kentucky.

          BEFORE: ACREE, JOHNSON, AND JONES, JUDGES.

          OPINION

          JONES, JUDGE.

         The central issue in this appeal is whether the parties had the ability to vest the Warren Family Court with jurisdiction to adjudicate the custody of their two minor children under Kentucky's Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") by agreeing that Kentucky qualified as the children's home state. The Appellant, Heidi Jill Officer, the children's mother, asserts that the Warren Family Court never had the authority to adjudicate custody notwithstanding the parties' property settlement agreement designating Kentucky as the children's home state, and that the Warren Family Court's continuing jurisdiction over this matter is improper. The Appellee, Roger Lee Blankenship, the children's father, contends that Heidi waived her ability to contest jurisdiction because she initially agreed to the Warren Family Court adjudicating custody and failed to timely object to its exercise of jurisdiction thereafter.

         We have carefully reviewed the facts in conjunction with all applicable legal authority. Our review convinces us that the Warren Family Court acted in error. The Warren Family Court never had subject matter jurisdiction to decide the custody of the parties' two minor children because Kentucky was not the children's home state. The Warren Family Court should have granted Heidi's CR[1] 60.02 motion to set aside the dissolution decree, to the extent it resolved custody issues, and relinquished all custody determinations to the Oregon court.

         I. Background

         Heidi Jill Officer and Roger Lee Blankenship were married on May 10, 2003, in Aiken County, South Carolina. They had two children together, one born in 2007 and the other born in 2009. In August of 2014, Heidi and Roger separated. Heidi moved from Fort Meade, Maryland, to Adair Village, Oregon, with the children. Roger stayed in Fort Meade, Maryland, until October of 2014, when he moved to Bowling Green, Kentucky. The children visited Roger in Kentucky over Christmas break in December of 2014, [2] and subsequently returned to Oregon until their summer break.

         In July of 2015, during the children's summer break, Roger filed a verified petition for dissolution of marriage in the Warren Family Court. The petition cited Roger's and Heidi's separation since August of 2014, and stated that it was in the best interest of the children that Heidi and Roger be awarded joint custody, with Heidi designated as the primary residential parent. Heidi and Roger subsequently entered into a Marital Settlement Agreement (the "MSA"). The MSA made arrangements for parenting time, child support, and division of property, among other things. It also stated: "The parties understand that, at this time, Kentucky is considered the 'home state' of the children for all custody and time-sharing issues. Likewise, the parties understand that Kentucky shall continue to have ongoing, exclusive jurisdiction of all custody and co-parenting issues, unless the Court of another state assumes jurisdiction." The parties now concede, however, that Kentucky did not actually qualify as the children's "home state" as that term is defined in the UCCJEA.[3] Nevertheless, based on the MSA, the Warren Family Court assumed jurisdiction over the marriage dissolution and custody of the parties' children. On November 20, 2015, the Warren Family Court entered a decree of dissolution, incorporating, by reference, the MSA. The Warren Family Court found that the MSA was not unconscionable and that its provisions with respect to custody and time-sharing were in the children's best interest.

         On March 7, 2016, Roger filed a motion to modify the children's primary residential parent and a motion for Heidi to submit to hair follicle drug testing. After the Warren Family Court ordered Heidi to submit to the drug testing on April 1, 2016, Heidi completed the test and filed two reports. Her first report filed on April 29, 2016, indicated that she had tested positive for marijuana but did not include levels.[4] Her second report filed on May 27, 2016, included levels.

         After the Warren Family Court granted Heidi's motion to continue the June 14, 2016 hearing on the primary residential parent, a dispute arose regarding the children's summer visitation with Roger. Roger had purchased tickets for a flight on June 20, 2016, for the children to visit him in Kentucky. Heidi, however, did not want to put the children on the plane until July 3 so that one of the children could celebrate his birthday with his friends in Oregon. A number of motions were subsequently filed, [5] resulting in an order granting Roger emergency sole custody of the children on June 23, 2016. That same day, Heidi moved to alter, amend, or vacate the Warren Family Court's order, pursuant to CR 59.05, given that the emergency prompting the order of sole custody had ended. Roger returned to Kentucky with the children on June 24, 2016. On July 13, 2016, the Warren Family Court restored joint custody of the children, pending other motions and further court orders.

         On August 16, 2016, the Warren Family Court held a hearing on Roger's motion to modify the primary residential parent, among other motions. On September 14, 2016, however, before the Warren Family Court entered its ruling, Heidi filed a custody action in Oregon, arguing that Kentucky had neither initial nor continuing jurisdiction under the UCCJEA. Then, on September 20, 2016, Heidi filed a motion in Kentucky to vacate the custody and parenting provisions of the MSA, challenging the Warren Family Court's subject matter jurisdiction under the UCCJEA. That same day, the Warren Family Court ordered that the children be enrolled in a Kentucky school, that Heidi only be permitted to see the children under the supervision of the Family Enrichment Center, and that the children remain with Roger until the Warren Family Court ruled on Roger's motion to modify the primary residential parent, which was under submission.

         On October 10, 2016, the Warren Family Court entered an order granting Roger's motion to grant him primary residential parent status. Critically, the Warren Family Court retained continuing, exclusive jurisdiction over the matter pursuant to KRS 403.824, despite Heidi's pending motion challenging the Warren Family Court's subject matter jurisdiction under the UCCJEA. After a hearing on November 22, 2016, over subject matter jurisdiction, the Warren Family Court and the Oregon Court had a UCCJEA conference on December 7, 2016. Both parties were present and presented arguments to both courts. Ultimately, the two courts concluded that the case would be "transferred" to Oregon based on Kentucky's lack of home state status under the UCCJEA.[6]

         The Warren Family Court entered an order relinquishing jurisdiction regarding custody and time-sharing issues to the Oregon court on January 3, 2017. On January 5, 2017, however, Roger filed a motion to alter, amend, or vacate the order. After a hearing on February 21, 2017, regarding the order, during which Roger argued that Heidi had waived any opportunity to challenge jurisdiction, the Warren Family Court granted Roger's motion, vacated its January 3, 2017 order, and retained jurisdiction. In its order entered May 10, 2017, the Warren Family Court agreed with Roger's waiver argument and found that it had continuing, exclusive jurisdiction over the matter pursuant to KRS 403.824. As part of this same order, the Warren Family Court denied Heidi's CR 60.02 motion to set aside the dissolution decree to the extent it resolved custody issues. This appeal followed.

         II. Standard of Review

         "Whether a Kentucky court has jurisdiction under the UCCJEA is a question of law that we review de novo." Ball v. McGowan, 497 S.W.3d 245, 249 (Ky. App. 2016) (citing Addison v. Addison, 463 S.W.3d 755, 764 (Ky. 2015)).

         III. ...


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