RENDERED: DECEMBER 15, 2023; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1260-MR
IJEOMA ODIGWE APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JAMES A. WETHINGTON, JUDGE ACTION NO. 20-CI-00415
LAUREN ANDRINI AND COMMONWEALTH OF KENTUCKY, CABINET FOR HEALTH AND FAMILY SERVICES APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CETRULO, KAREM, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Ijeoma Odigwe (“Odigwe”), an Arizona resident,1 appeals
from two orders2 of the Daviess Circuit Court finding it has personal jurisdiction
1 Odigwe currently resides in Missouri but considers Arizona his legal residence. 2 Odigwe appeals from the November 17, 2021 Orders of Personal Jurisdiction, Subject Matter Jurisdiction and Particular Case Jurisdiction and the September 1, 2022 Order Affirming Jurisdiction and Contempt. over Odigwe and particular case jurisdiction to modify a Michigan child support
order. After careful review, we affirm.
BACKGROUND
Odigwe and Lauren Andrini (“Andrini”) met at Notre Dame Law
School in Indiana in 2017. The two had a brief relationship and Andrini became
pregnant. A year later, Andrini returned to her home state of Michigan to give
birth to their child. Prior to the birth, Odigwe warned Andrini in an email: “I will
. . . make you hunt me down for child support. We will be in and out of court all
day, every day for the next 18 years. Every possible matter that I can take to court,
I will take to court.” The statement proved a self-fulfilling prophecy.
In 2018, following the birth of the child, Andrini filed a paternity
action in Ottawa County, Michigan. Shortly after, the Michigan court entered a
Consent Judgment of Paternity (“Consent Judgment”), which established Odigwe’s
paternity, gave Andrini full custody of the child, and set child support and
parenting time. The court determined it had jurisdiction over the parties’ custody
and parenting time issues under the Uniform Child Custody Jurisdiction and
Enforcement Act (“UCCJEA”) and jurisdiction over the parties’ child support
issues under the Uniform Interstate Family Support Act (“UIFSA”).
After Andrini graduated from law school, she and the child moved to
Daviess County, Kentucky. The Michigan court entered an order granting
-2- Andrini’s request to change the child’s legal residence and domicile to Kentucky,
finding it “no longer ha[d] continuing exclusive jurisdiction over the child[,]” and
that “[a]ny future modifications of the child-custody determination involving the
minor child shall be made by an appropriate Court which obtains appropriate
subject matter jurisdiction under the UCCJEA[.]” The order did not address the
court’s previous child support ruling, but did note that “[e]xcept as provided in this
order, the prior orders of this Court remain in full force and effect.”
Subsequently, Odigwe moved to register the Michigan child custody
determination in Daviess County, Kentucky pursuant to KRS3 403.850. Attached
to his petition was the entire Consent Judgment, including the child support order
and worksheet. Andrini did not contest registration. Prior to the Daviess Circuit
Court’s ruling on the petition to register, Odigwe filed a motion to modify custody
and establish a parenting time schedule.4 Along with the motion, Odigwe tendered
an order which provided, in relevant part:
Father is awarded eight (8) hours of parenting time on each day of the second weekend of every month. . . . Father is responsible for his costs of transportation such as hotel, car rental, gas, etc. Father will receive an appropriate credit towards his monthly child support payment for Minor Child that will be determined by this Court, or agreement of the parents.
3 Kentucky Revised Statutes. 4 Odigwe later withdrew the motion on August 22, 2022.
-3- (Emphasis added.)
A week later, Odigwe filed an emergency motion for summer 2020
parenting time and requested the court to “equitably divi[de] the transportation
time and costs . . . .” The hearing on the motion primarily concerned where the
parties would meet and who would bear the burden of transportation. At one point,
Odigwe’s counsel stated:
One more arrow to the quiver of options here. [Odigwe] has a child support obligation on a monthly basis of, I believe, $150 a month which was set under Michigan law, however they do it. But I think it was done by an agreement . . . . [T]hat $150 a month, which he’s paying, can be utilized towards solving this parenting time problem to some extent. Let me say that another way, if Mrs. Andrini was traveling to facilitate the visitation that would . . . cost her time and . . . money to do that. The travel also costs [Odigwe] time and money. So, if he had a portion of that child support obligation, or all of it, suspended temporarily just to deal with this, it frees up some money for him to have a resource to visit.
However, this option was not further explored or pursued. The parties eventually
agreed Odigwe would travel to Owensboro on June 20-21, 2020, and cover the
costs of the trip.
The Daviess Circuit Court entered an order registering the foreign
custody determination on June 17, 2020. The order found the court had subject
matter jurisdiction over the proceeding and personal jurisdiction over the parties.
-4- The order did not address Odigwe’s motion to modify custody and parenting time,
nor did it address child support.
On August 7, 2020, Andrini filed a motion to modify child support.
Odigwe moved to dismiss the motion, arguing Andrini had failed to register the
child support order in Kentucky as required by the UIFSA.5 He also argued the
Daviess Circuit Court lacked personal jurisdiction over him to modify child
support because none of the grounds for exercising personal jurisdiction under the
UIFSA were applicable.6 Finally, Odigwe claimed the court lacked subject matter
jurisdiction7 to modify the child support order because the requirements of KRS
407.5611 had not been satisfied.
Andrini responded that Odigwe effectively registered the child
support order when he registered the Consent Judgment (with the included child
support order and worksheet) and had waived jurisdictional arguments by not
objecting to UIFSA jurisdiction when he filed his petition to register the Michigan
5 KRS 407.5611. 6 See KRS 407.5201. 7 While Odigwe used the phrase “subject matter jurisdiction” in his motion to dismiss, his arguments actually pertain to particular case jurisdiction. “Subject matter jurisdiction refers to a court’s authority to determine ‘this kind of case’ (as opposed to ‘this case’).” Commonwealth v. Griffin, 942 S.W.2d 289, 290 (Ky. 1997) (citation omitted). Particular case jurisdiction, on the other hand, “refers to a court’s authority to determine a specific case (as opposed to the class of cases of which the court has subject matter jurisdiction).” Id. Odigwe did not argue the circuit court lacked authority to hear child support cases generally, but that it lacked authority to hear this particular case because Andrini did not meet the procedural requirements of UIFSA to invoke the circuit court’s jurisdiction. Odigwe has corrected this error on appeal.
-5- custody determination and by affirmatively seeking modification of his child
support payment to reflect his travel costs for visitation in a proposed order.
A hearing on the motion to dismiss was held on September 14, 2020.
The court informed the parties it had not yet read the pleadings and would
therefore take the motion under advisement. When the parties appeared again to
address Odigwe’s motion to modify parenting time, the court deferred ruling on
both motions until the November 20, 2020 final hearing, but stated it was inclined
to deny Odigwe’s motion to dismiss. On Odigwe’s motion, the hearing was
continued indefinitely.
Four months later, on March 26, 2020, Odigwe filed a petition for a
writ of prohibition in the Court of Appeals, seeking to prevent Daviess Circuit
Court Judge Julia Gordon (“Judge Gordon”) from modifying the Michigan child
support order. Ultimately, the petition was denied, and that ruling was affirmed by
the Kentucky Supreme Court on appeal.8 Also during this time, Odigwe
successfully moved to have Judge Gordon recused and the case was transferred to
Judge Jay Wethington (“Judge Wethington”).
On November 17, 2021, following a hearing, the Daviess Circuit
Court denied Odigwe’s motion to dismiss, finding it had personal jurisdiction over
8 See Odigwe v. Gordon, No. 2021-CA-0347-OA (Ky. App. Sep. 2, 2021); Odigwe v. Wethington, No. 2022-SC-0026-MR, 2022 WL 3640915 (Ky. Aug. 18, 2022).
-6- Odigwe for child support purposes and subject-matter and particular case
jurisdiction to modify Michigan’s child support order, and that the UIFSA
requirements for registering the child support order had been substantially
complied with or waived. Odigwe then moved to alter, amend, or vacate and the
motion was set for hearing on February 16, 2022. On the day of the hearing,
Odigwe moved to disqualify Judge Wethington. He also filed a notice of
unavailability for the months of February, March, and April.
The parties were next set to appear before the court on May 18, 2022.
However, on the eve of the hearing, Odigwe filed a renewed motion to disqualify
Judge Wethington. Odigwe’s motion to alter, amend, or vacate was eventually
denied on September 1, 2022. Odigwe then filed a motion to alter, amend, or
vacate the September 2022 order. Following that denial, Odigwe filed this appeal.9
ANALYSIS
Odigwe argues the circuit court erred when it determined (1) the
Michigan support order was registered in Kentucky, (2) it had personal jurisdiction
over him for child support purposes, and (3) it had particular case jurisdiction over
the Michigan support order. “Jurisdiction is a question of law, and our review is de
9 Since filing the notice of appeal, Odigwe has continued to file motions in the circuit court, including moving to disqualify a third judge, Thomas Castlen. All told, the three-year court case produced 23 volumes of record on appeal, consisting mostly of motions and exhibits filed by Odigwe. It does indeed appear that, in Odigwe’s words, “[e]very possible matter that [he could] take to court, [he did] take to court.”
-7- novo.” Commonwealth v. B.H., 548 S.W.3d 238, 242 (Ky. 2018) (citation
omitted).
Turning to Odigwe’s first argument, the UIFSA requires a party
seeking to modify a child support order issued in another state to register that order
in Kentucky. KRS 407.5609. “The requirements for registration are set out in
KRS 407.5602, and include: a letter of transmittal to the court requesting
registration and enforcement; two copies, one certified, of all orders to be
registered, including modifications thereof; a sworn statement of the movant or the
custodian of the records stating the amount of any arrearage; and identifying
information of the obligor and the obligee, particularly where they live.” Adams-
Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 776 (Ky. 2015).
The circuit court determined the child support order was registered
pursuant to KRS 407.5101(21) and KRS 407.5603 when Odigwe filed it alongside
his petition to register the Michigan custody determination. Attached to Odigwe’s
petition was the entire consent judgment, including the child support order. KRS
407.5101(21) defines “register” as “to file in a tribunal of this state, a support order
or judgment determining parentage of a child issued in another state or foreign
country[.]” Similarly, KRS 407.5603(1) provides that “[a] support order or
income-withholding order issued in another state or a foreign support order is
registered when the order is filed in the registering tribunal of this state.” Because
-8- Odigwe filed the child support order along with his petition to register the child
custody determination, the court ruled it had been effectively registered. The
circuit court did not address the more specific provisions in KRS 407.5602
concerning registration.
Odigwe argues the child support order was never properly registered
because the specific requirements for registering the order, set forth in KRS
407.5602, were not followed. He cites Smyrichinsky, which held that the
“statutory requirements are not optional.” 467 S.W.3d at 777. However,
Smyrichinsky also recognized that “the rules for registering another state’s order
for purposes of modification, though important, can ultimately be waived. They
are claim-processing rules, not substantive, jurisdictional limits on a court’s
authority to act.” Id. (citation omitted). Here, we need not decide whether the
Michigan child support order was properly registered because we hold Odigwe
waived any objection to registration by filing the support order along with his
petition to register the custody determination.
In Smyrichinsky, our Supreme Court held that mother’s failure to
timely object to father’s noncompliance with KRS 407.5602’s requirements for
registration waived any argument concerning improper registration. Here, Odigwe
filed the child support order in the Daviess Circuit Court along with his petition to
register the child custody determination. While he argues he did not intend to
-9- register the child support order, his actions certainly registered the order as defined
in KRS 407.5101(21). So, while Andrini may not have followed KRS 407.5602’s
requirements for registration, Odigwe was the one who filed the order in Kentucky
and thereby waived any later objection to registration.
Further, as in Smyrichinsky, “by this point in time, the statutory
elements required to register a foreign decree or order can be established from
various filings and proof in the record, such that there is substantial if not perfect
compliance with the statute.” 467 S.W.3d at 778. We would note that while this
appeal has been pending, Odigwe successfully moved for modification of his child
support obligation in Daviess Circuit Court, certainly bringing all of KRS
407.5602’s required information before the court. Therefore, we find no error.
As to Odigwe’s next argument, personal jurisdiction is a “court’s
authority to determine a claim affecting a specific person.” Nordike v. Nordike,
231 S.W.3d 733, 737 (Ky. 2007) (citation omitted). “Personal jurisdiction is
required for child support orders to be enforceable because such orders involve the
imposition of a personal obligation to pay money.” Gibson v. Gibson, 211 S.W.3d
601, 606 (Ky. App. 2006) (citation omitted). For child support purposes, personal
jurisdiction is governed by KRS 407.5201, which provides in relevant part:
(1) In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a
-10- nonresident individual or the individual’s guardian or conservator if:
(a) The individual is personally served with summons, or notice within this state;
(b) The individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive pleading having the effect of waiving any contest to personal jurisdiction;
(c) The individual resided with the child in this state;
(d) The individual resided in this state and provided prenatal expenses or support for the child;
(e) The child resides in this state as a result of the acts or directives of the individual;
(f) The individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
(g) The individual asserted parentage of a child in the putative father registry maintained in this state by the Cabinet for Health and Family Services; or
(h) There is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.
KRS 407.5201(1).
The circuit court determined it had personal jurisdiction over Odigwe,
an Arizona resident, pursuant to subsection (b), “[t]he individual submits to the
-11- jurisdiction of this state . . . by filing a responsive pleading having the effect of
waiving any contest to personal jurisdiction[.]” It found Odigwe waived any
jurisdictional objection and subjected himself to Kentucky’s jurisdiction by
affirmatively requesting an abatement of his child support obligation.
The court noted that attached to Odigwe’s May 2020 Motion to
Modify Custody and Parenting Time was a proposed order specifically granting
him credit towards his monthly child support obligation, which it interpreted as a
request to modify his support obligation since he tendered the order. Then, in his
June 2020 Emergency Motion for Summer 2020 Parenting Time, Odigwe sought a
court order “equitably diving [sic] the transportation time and costs for parenting
time.” This request was clarified at the hearing on the motion when Odigwe’s
counsel suggested the court suspend “a portion of [Odigwe’s] child support
obligation, or all of it . . . temporarily[.]”
The court found that while the modification request “was not done
with the formalities anticipated by UIFSA when the parties to a foreign support
order seek . . . initial modification . . . . the plain meaning of [Odigwe’s] requests,
both personally and through counsel . . . indicate Petitioner Odigwe requested a
modification of his child support in Kentucky[.]”
Odigwe argues none of his pleadings can reasonably be construed as a
motion to modify child support because the procedural rules for filing such
-12- motions were not referenced or followed. He also urges us to look to his request
for relief in his Motion to Modify Custody and Parenting Time, which makes no
mention of child support, rather than his tendered order accompanying the motion,
in determining whether he affirmatively sought modification of the Michigan child
support order.
While Odigwe’s Motion to Modify Custody and Parenting Time and
Emergency Motion for Summer 2020 Parenting Time make no mention of child
support, we cannot overlook the plain language of the proposed order that Odigwe
himself tendered along with his motion to modify custody. That order grants a
“credit towards [Odigwe’s] monthly child support payment for Minor Child” to be
determined by the Daviess Circuit Court or agreement of the parties, which is an
explicit reference to a reduction in child support. This is in addition to the clear
statement from Odigwe’s counsel at the June 2020 hearing on the emergency
motion for parenting time which proposed suspending Odigwe’s child support
obligation. While Odigwe may downplay these references to child support as
secondary to his primary objective – parenting time with his son – they remain
unequivocal requests to modify child support.
As noted by the circuit court, Odigwe’s requests may not have been
formal motions to modify child support, but we find them sufficient to waive any
objection by Odigwe to Kentucky exercising personal jurisdiction over him for
-13- child support purposes. Indeed, the UIFSA’s long-arm statute does not require a
formal motion to modify child support to waive personal jurisdiction, only a
pleading “having the effect of waiving any contest to personal jurisdiction[.]” The
Commentary to the UIFSA clarifies that “[s]ubsection (2) expresses the principle
that a nonresident party concedes personal jurisdiction by seeking affirmative relief
. . . .” Unif. Interstate Family Support Act § 201 cmt. (2001). By tendering an
order that gave him credit toward his child support payment, Odigwe effectively
asked for a modification of child support. At the very least, he should have
reasonably foreseen child support issues might be litigated in Kentucky. He cannot
now object to personal jurisdiction after attempting to avail himself of Kentucky’s
courts on child support issues.
But that is not the end of our inquiry. The UIFSA’s long-arm statute
may not be used to acquire personal jurisdiction over a nonresident to modify an
out-of-state child support order unless the requirements of KRS 407.5611 are met.
KRS 407.5201(2). This brings us to Odigwe’s last argument: the circuit court
lacked particular case jurisdiction to modify the Michigan support order.
KRS 407.5611 governs the scope of a Kentucky court’s authority to
modify a child support order issued in another state.10 Pursuant to KRS
10 KRS 407.5613 applies when all parties who are individuals reside in Kentucky, and the child does not reside in the state that issued the child support order. Here, Andrini and the child live in
-14- 407.5611(1), modification may only occur if three requirements are met: (1)
neither the parties nor the child resides in the issuing state; (2) a nonresident
petitioner seeks modification; and (3) Kentucky has personal jurisdiction over the
respondent.11 KRS 407.5611(1)(a). The circuit court found all requirements
satisfied.
First, it is undisputed that none of the parties or the child still reside in
Michigan. As to the second requirement, the circuit court found that Odigwe, a
nonresident, sought modification of his child support in Kentucky through his
pleadings and the arguments of his counsel. The court noted Odigwe’s requests for
modification were prior to Andrini’s motion to modify child support, making him
the petitioner for purposes of the statute. Finally, the court held that Andrini, as
respondent and a resident of Kentucky, was subject to personal jurisdiction in
Daviess Circuit Court.
Odigwe argues Andrini is the only party that moved to modify child
support and therefore she is the petitioner. Because she is a resident of Kentucky
and KRS 407.5611(1)(a)2. requires that the petitioner be a nonresident, the
statutory prerequisites for particular case jurisdiction were not satisfied. Odigwe’s
Kentucky, but Odigwe is a resident of Arizona. Therefore, KRS 407.5611, rather than KRS 407.5613, controls. 11 KRS 407.5611(1)(b) provides an alternate means of modification: if all of the parties can agree in writing that Kentucky can modify the support order and assume continuing, exclusive jurisdiction.
-15- argument raises an interesting question, even if not developed fully. How can he
be the petitioner when it was Andrini’s motion to modify child support that was
before the court, and that was the subject of his motion to dismiss and
jurisdictional objections?
Regardless, we find no error in the circuit court’s exercise of
jurisdiction to modify the Michigan child support order because Odigwe waived
any objection to particular case jurisdiction by his requests to modify child support.
Particular case jurisdiction, like personal jurisdiction, may be waived.
Commonwealth v. Steadman, 411 S.W.3d 717, 724 (Ky. 2013). The Commentary
to the UIFSA clarifies that KRS 407.5611(1)(a)2.’s requirement that the party
seeking modification be a nonresident of the forum in which he seeks modification
“attempts to achieve a rough justice between the parties in the majority of cases by
preventing a litigant from choosing to seek modification in a local tribunal to the
marked disadvantage of the other party.” Unif. Interstate Family Support Act §
611 cmt. (2001). That concern is not present in this case where Odigwe himself
twice moved for modification of the Michigan child support order in Kentucky,
albeit informally, and prior to Andrini’s request for modification. Having moved
himself to modify child support, we find that Odigwe waived his objections to
particular case jurisdiction.
-16- Because of that waiver, the Daviess Circuit Court did not err in
asserting personal jurisdiction over Odigwe and particular case jurisdiction to
modify the Michigan child support order, or in denying Odigwe’s motion to
dismiss Andrini’s motion to modify child support for lack of jurisdiction. The
orders of the Daviess Circuit Court are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE LAUREN ANDRINI: William D. Tingley Nathan R. Hardymon J. Andrew Johnson Louisville, Kentucky Owensboro, Kentucky
-17-