FROM KNOX CIRCUIT COURT HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 12-J-00055-002
FOR APPELLANT: Henry S. Queener, III Nashville, Tennessee.
FOR APPELLEE: Lisa L. Fugate Barbourville, Kentucky.
BEFORE: DIXON, KRAMER, AND LAMBERT, JUDGES.
("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.
October 18, 2013, a dependency, neglect, and abuse (DNA)
petition was filed in Knox Circuit Court pursuant to KRS
620.060,  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 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 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.
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rescinded the temporary order but decreed that visitation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 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. 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.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.
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
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)).
2004, Kentucky adopted the UCCJEA. Tennessee likewise has
adopted the UCCJEA, codified in TCA 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).
parties concede, and this Court agrees, Tennessee had
jurisdiction to issue the initial custody determination in
2011. 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.
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."
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
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 ...