Foster v. Foster

On April 1, 2011, the Kentucky Court of Appeals (Court of Appeals) reviewed the judgment of the Johnson Circuit Court (Trial Court) registering a foreign order from Georgia and holding that a prior judgment in Kentucky to be void as a matter of law. The Court of Appeals reversed the judgment.

Husband and Wife were divorced in Georgia in 2002. They had one child at the time of their divorce. The Georgia Superior Court determined that Husband would pay wife child support in the amount of $311 per month.

Post divorce, the child lived with Wife until March, 2003, at which time Wife was incarcerated. From March, 2003, until August, 2003, the child lived with Husband who was at the time a resident of Kentucky. In August, 2003, the child was removed from Husband’s care and placed into foster care in Kentucky.

Prior to the child’s removal from Husband’s home, Husband filed a complaint in July, 2003, for standard child support. Wife was physically served with the complaint when she attended at a custody hearing in July, 2003. Default judgment was entered in September, 2003, requiring Wife to pay Husband child support in the amount of $180 per month. However, at the time this order was entered, Husband no longer had custody of the child because the child had been removed by Child Protective Services and placed in foster care.

After her release from prison, Wife regained custody of the child in August, 2004, and the child moved to Wife’s home in Georgia where the child has resided since that time. In December, 2008, the Georgia Office of Child Support Services requested Kentucky to enforce child support arrears against Husband in the amount of $16,711. IN January, 2009, the Georgia Cabinet for Families and Children filed a UIFSA (Uniform Interstate Family Support Act) petition to register a foreign order in the Johnson Family Court. The petition did not seek child support for the period in which the child resided with Husband or for the period in which the child was placed in foster care.

In April, 2010, the Johnson Family Court found that Husband’s complaint for child support, which he filed in 2003, should have been filed as a UIFSA action for Georgia to establish and enforce, and therefore the judgment entered in that case modifying child support was void as a matter of law. Further, the court held that it must honor the UIFSA petition by the state of Georgia, and it registered the Georgia order and ordered Husband to pay $311 per month plus $100 per month to cover child support and the arrearage.

As all of the issues on appeal were purely matters of law, the Court of Appeal reviewed the claims de novo.

The Court of Appeals reasoned that in order for Husband to be required to file a UIFSA petition, the Georgia order must have been registered in the state of Kentucky at the time the Kentucky order was entered. KRS 407.5603(3) provides that a Kentucky court must recognize and enforce, but may not modify, a registered order. Judgment was entered on Husband’s Kentucky complaint in September, 2003, and the Georgia order was not registered until January, 2009. Thus, the Court of Appeals reasoned that the Trial Court was under no duty under UIFSA to enforce or refuse to modify the Georgia order. In Nordike v. Nordike, 231 S.W.3d 733, 738 (Ky. 2007), the Kentucky Supreme Court (Supreme Court) reasoned that until a foreign order is registered, there is no requirement under UIFSA for the court to determine whether the requirements of the statute have been met.

In Nordike, the Supreme Court articulated three types of jurisdiction necessary for a court to hear a case: 1) personal jurisdiction, 2) subject matter jurisdiction, and 3) particular or specific case jurisdiction. Id. at 737-738. Under the present facts, personal jurisdiction was accomplished by serving Wife while she was physically present in Kentucky. KRS 23A.110 vests Kentucky Family Courts with jurisdiction over cases involving child support, thus giving the Trial Court subject matter jurisdiction in this case. Particular-case jurisdiction is where the jurisdictional issue turns in this case.

Husband first contended that Kentucky was his home state under KRS 407.5101(4), and therefore his complaint was properly brought in Kentucky. That statute requires the child and his or her care-giver to reside in the state for six months prior to the bringing of the action. In this instance, the child and Husband had resided in Kentucky for five months prior to the complaint, and therefore Husband’s home state argument fails. However, the Court of Appeals reasoned that the requirements of KRS 407.5101(4) fall within the parameters of UIFSA and therefore do not apply because the foreign order had not been registered until years later.

Husband secondarily contended that even if the Trial Court did not have particular case jurisdiction, Wife waived that argument by not challenging the order or timely contesting particular case jurisdiction. In Hisle v. Lexington-Fayette Urban County Government, the Court of Appeals addressed the effect of lack of particular-case jurisdiction, and it concluded that it merely renders a judgment voidable rather than void ab initio. Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422, 430-31 (Ky. App. 2008). The Court of Appeals in the present case agreed with Husband that Wife waived any argument that the trial court did not have particular-case jurisdiction when it entered the order in September, 2003.

The Court of Appeals also addressed the portion of the Trial Court’s April, 2010, order registering a foreign judgment by pointing out that the arrearages claimed by Georgia were never reduced to a Georgia order. There was no Georgia order or judgment regarding the claimed arrears, and Husband was never given the opportunity to challenge the arrearage. Nonetheless, the Trial Court entered a judgment allowing Husband’s employer to withhold child support in the amount of $311 and arrearages in the amount of $100 per month. The Court of Appeals concluded that this impermissibly deprived Husband of property without due process of law, and therefore reversed the order.

Ultimately, the Court of Appeals reversed the April, 2010, order of the Trial Court holding that the September 2003 judgment was void as a matter of law. Further, the Court of Appeals reversed the judgment ordering withholding of child support and arrearages by Husband’s employer. The matter was remanded to the Trial Court.

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