Davis-Johnson ex rel. Davis v. Parmelee

18 S.W.3d 347, 1999 Ky. App. LEXIS 105, 1999 WL 668132
CourtCourt of Appeals of Kentucky
DecidedAugust 27, 1999
DocketNo. 1998-CA-000644-DG
StatusPublished
Cited by7 cases

This text of 18 S.W.3d 347 (Davis-Johnson ex rel. Davis v. Parmelee) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis-Johnson ex rel. Davis v. Parmelee, 18 S.W.3d 347, 1999 Ky. App. LEXIS 105, 1999 WL 668132 (Ky. Ct. App. 1999).

Opinion

OPINION

KNOX, Judge:

This Court accepted discretionary review of the decision of the Jefferson Circuit Court affirming the Jefferson Family Court’s dismissal of a paternity action Cynthia Davis-Johnson (Cynthia) instituted on behalf of her minor son, Ryan Davis, for want of personal jurisdiction over ap-pellee, Charles Parmelee, III. Having reviewed the record, applicable law and briefs of counsel, we reverse and remand.

The record discloses that both Cynthia and appellee were domiciled in Kentucky throughout some period of 1983, during which time, Cynthia alleges, the parties’ relationship resulted in the conception and subsequent birth of a child.1 Apparently, appellee departed Kentucky on or about June 1, 1983. Cynthia remained within the state and gave birth to a child on December 14, 1983, in Louisville, Kentucky. At some undisclosed time following the child’s birth, she removed herself and the child from this Commonwealth.

On December 18, 1995, Cynthia, now a Michigan resident, filed a complaint in the Jefferson Family Court seeking to adjudicate the paternity of her son. The complaint alleged, inter alia, that appellee, now a resident of Texas, was the putative father. The complaint was filed pursuant to KRS 406.021(1), the Uniform Act on Paternity, and further cited KRS 454.210(2)(a)(8)(a) and (b)2 as the basis for the court’s exercise of long-arm personal jurisdiction over appellee.

Notice of the filiation action was served upon appellee in accordance with KRS 454.210(3); however, process was returned to the Secretary of State with a notation on the envelope providing the appellee’s forwarding address. The returned envelope, containing the pleadings, was then filed of record.

Subsequently, in March 1996, Cynthia moved for a default judgment of paternity, giving appellee notice of the hearing thereon to appear on April 1, 1996 at 12:00 noon. Notice was again sent to an inaccurate address; however, in that it was not mailed “restricted delivery,” the notice was delivered to the forwarding address in the normal course of business. Upon receipt of same, appellee contacted his attorney who, upon arriving for the hearing, discovered it had been moved to the 8:30 a.m. paternity docket, during which an order granting the default judgment was entered. Ultimately, the default judgment was set aside and appellee filed a CR 12 motion to dismiss, alleging, inter alia, lack of personal jurisdiction.

[349]*349The Jefferson Family Court entertained appellee’s argument that the court did not have personal jurisdiction over a Texas resident. Appellee argued that KRS 454.220,3 governing actions for support, as opposed to KRS 454.210, controlled since an action under the Uniform Paternity Act provides for a determination of the proper amount of support upon establishing paternity. He further contended, pursuant to KRS 454.220, an action must be brought within one year of the nonresident’s departure from the state. Lastly, appellee argued the rules of statutory construction required application of KRS 454.220 as it is a “later enacted, more specific statute.” The family court dismissed the action.

In subsequent motions to reconsider and on appeal to the circuit court, Cynthia briefed the issues and requested the court consider the scope of jurisdiction provided by KRS 454.210. Ultimately, on October 8, 1997, the circuit court entered its opinion and order affirming the Jefferson Family Court’s dismissal of the action. We accepted discretionary review.

Here, Cynthia argues the Jefferson Family Court erred in dismissing her cause of action for want of jurisdiction pursuant to the one (1) year statute of limitations provision contained in KRS 454.220. She contends KRS 454.210(2)(a)(8) is the operative long-arm statute authorizing the court to exercise jurisdiction over a non-resident putative father for the purposes of establishing paternity and support.

Conversely, appellee posits the Jefferson Family Court and the circuit court correctly applied KRS 454.220 in declining to exercise jurisdiction over the matter. He specifically relies upon language originally stated in Sumner v. Roark, Ky.App., 886 S.W.2d 434 (1992), wherein this Court commented:

The paternity action gives the mother, child, person or agency substantially contributing to the support of the child a remedy to compel support for the illegitimate child. This is a support statute, not a custody statute, and if the parties do not agree to custody or visitation in the paternity action, it must be resolved in circuit court.

Sumner, 836 S.W.2d at 438. (Citation omitted).

By virtue of the above-quoted language, appellee successfully persuaded both the Jefferson Family and Circuit Courts that filiation actions are “support” actions, hence governed by KRS 454.220. We are not so persuaded.

A reading of Sumner reveals the Court’s opinion was rendered in the context of a custody dispute. Apparently, appellants therein argued the Jefferson Family Court was without jurisdiction to determine paternity when, in actuality, there was never a question of paternity before the court. As this Court observed:

Even though the appellants tried to manipulate the different courts, they were unsuccessful because the courts involved realized that even though the Uniform Paternity Act (KRS 406.021) vests district court with exclusive jurisdiction to determine paternity, circuit court is vested with exclusive jurisdiction to determine custody matters (KRS 403.280). These statutes are not conflicting, but address different needs.

Sumner, 836 S.W.2d at 437-38. The Court continued by describing the nature of the differing “needs” addressed by the two (2) statutes as the language seized upon by appellee delineates.

[350]*350We do not believe this Court intended, either explicitly or implicitly, to designate filiation suits as solely “support” actions.

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Cite This Page — Counsel Stack

Bluebook (online)
18 S.W.3d 347, 1999 Ky. App. LEXIS 105, 1999 WL 668132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-johnson-ex-rel-davis-v-parmelee-kyctapp-1999.