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R.B. v. S.M.

Court of Appeals of Kentucky

February 22, 2019



          BRIEF FOR APPELLANT: Henry S. Queener, III Nashville, Tennessee.

          BRIEF FOR APPELLEE: Lisa L. Fugate Barbourville, Kentucky.



          DIXON, JUDGE.

         R.B. ("Father") appeals from an order of the Knox Circuit Court, Family Division, rescinding its prior temporary order granting him custody of the parties' minor child, K.B. ("Child"). After careful review, we affirm in part and vacate in part.

         On October 18, 2013, a dependency, neglect, and abuse (DNA) petition was filed in Knox Circuit Court pursuant to KRS 620.060, [2] alleging S.M. ("Mother") had been arrested for driving under the influence while Child, who was five years of age, had been left unattended in their residence. A temporary removal hearing[3] was held wherein the court granted temporary custody of Child to Father, as Mother was incarcerated on criminal charges related to the DNA petition. After several additional court dates, eventually a dispositional hearing was held[4] on April 16, 2014, at which Mother stipulated to the allegations, and Child was adjudicated neglected. Temporary custody was maintained with Father and visitation was established for Child and her half-siblings, who are not the subject of this action, as well as with Child and Mother.

         In June of 2017, Mother, who was no longer incarcerated, moved the Knox Circuit Court to rescind its temporary custody order. Father filed a response and requested discovery, the appointment of a guardian ad litem, and a full hearing. After several continuances, a hearing on Mother's motion was finally held in January 2018. After this hearing the court entered an order finding: 1) the court had jurisdiction, 2) Mother had sufficiently addressed her substance abuse issues to be able to provide proper care for Child, and 3) it was in Child's best interest to rescind the order granting Father temporary custody. The court rescinded the temporary order but decreed that visitation exchanges were moved from Columbia, Kentucky, to Athens, Tennessee, to be closer to a midway point between Mother and Father.

         Thereafter, Father timely filed a motion to vacate judgment of custody pursuant to CR 59.05. For the first time, Father contended the court was without subject matter jurisdiction to proceed. Unbeknownst to the Knox Circuit Court, a prior temporary custody order had apparently been entered in Tennessee in 2010. That order had given temporary custody to Mother.[5] Father argued that, while Kentucky had jurisdiction to enter the original emergency order, it had lost jurisdiction to rescind that order pursuant to the provisions of the UCCJEA.[6]Father argued that, pursuant to KRS 403.822, since Tennessee is the Home State for child custody, and, as the emergency which had permitted Kentucky to assume jurisdiction had passed, only Tennessee possessed jurisdiction to amend any custody order in effect.

         The trial court disagreed. It determined that pursuant to KRS 403.828(3), once an emergency custody order was necessary, Kentucky retained jurisdiction until the "Home State" made a subsequent custody determination, which is something it had not done. Therefore, the Knox Circuit Court denied Father's motion, and Father has appealed to this court.

         The sole issue presented on appeal is whether the Knox Circuit Court had subject matter jurisdiction to enter the order rescinding its prior order of temporary custody to Father. Subject matter jurisdiction is the court's authority, either by statute or constitutional provision, to hear and decide the type of case presented to it. Daugherty v. Telek, 366 S.W.3d 463, 466 (Ky. 2012). A court is to review the pleadings and determine if, when taken at face value, the pleadings reveal a type of action that is assigned to that court by statute or constitutional provision. Id. "Whether a trial 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) (citing Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004)).

         In 2004, Kentucky adopted the UCCJEA. Tennessee likewise has adopted the UCCJEA, codified in TCA[7] 36-6-201 et seq. The UCCJEA establishes which state has jurisdiction to render initial child custody determinations as well as jurisdiction to modify or enforce orders from other states. KRS 403.800(4) et seq. The purpose of the UCCJEA is the avoidance of jurisdictional competition and conflict with other states in child custody matters. Hearld v. Hearld, 278 S.W.3d 162, 164 (Ky. App. 2009).

         The parties concede, and this Court agrees, Tennessee had jurisdiction to issue the initial custody determination in 2011.[8] Generally, an issuing state retains exclusive, continuing jurisdiction so long as one parent remains in the issuing state, herein Tennessee, and the issuing state has not declined jurisdiction. KRS 403.824 (Tennessee analog TCA 36-6-217). Neither of these conditions occurred herein and, therefore, Tennessee had exclusive, continuing jurisdiction over child custody issues when the DNA petition was filed in Kentucky in 2013.

         Nevertheless, while Tennessee possesses Home State jurisdiction, an exception to the general rule of exclusive and continuing jurisdiction arises where temporary emergency jurisdiction is sought. KRS 403.828(1) provides, "[a] court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse."

         Both parties agree the Knox Circuit Court had emergency jurisdiction and, therefore, had subject matter jurisdiction to enter the temporary order of custody. We likewise agree. This action was initiated by the filing of a DNA petition which alleged Child was present in Kentucky and neglected based on facts sufficient to establish emergency jurisdiction pursuant to KRS 403.828(3), as necessary to protect the child from mistreatment. The facts here clearly satisfy the emergency jurisdictional requirements of the UCCJEA. The parties disagree whether the circuit court retained subject matter jurisdiction to enter the order rescinding temporary custody.

         On appeal, Father makes two arguments: first, that the Knox Circuit Court failed to adhere to the statutory requirements of the UCCJEA; and second, the order rescinding temporary custody qualifies as a modification and, as ...

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