Jamie Alan Day v. Angela Fiorita Day

• Court: Court of Appeals of Kentucky
• Decided: August 3, 2023
• Docket: 2022 CA 001250
• Status: Unknown

Opinion

RENDERED: AUGUST 4, 2023; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2022-CA-1250-MR

JAMIE ALAN DAY APPELLANT

APPEAL FROM MCCRACKEN FAMILY COURT v. HONORABLE BRANDI H. ROGERS, SPECIAL JUDGE ACTION NO. 15-CI-00018

ANGELA FIORITA DAY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.

CETRULO, JUDGE: This is an appeal from an order of the McCracken Family

Court declining to exercise jurisdiction and rule upon a motion to modify

timesharing, on the grounds that both parties and the child now reside in Florida.

FACTUAL AND PROCEDURAL BACKGROUND

Husband/father (“Jamie”) and wife/mother (“Angela”) were married

in Paducah, Kentucky, but lived for a time in Hollywood, California, where their minor child T.A.D. (“Child”) was born in 2014. During that same year, Angela

moved with the Child to Paducah and filed for divorce. Within months of

Angela’s move, Jamie also purchased a home in Paducah, and the parties entered

into a separation agreement providing for joint custody and a timesharing plan.

The agreement recognized that Angela would be the primary residential parent, as

Jamie was still traveling back and forth to California where his employer was

located. The separation agreement, incorporated into the decree, further indicated

that Angela would be moving back to California and would give at least 30 days’

notice of the move. However, Angela did not move back to California, and Jamie

continued to commute between the two states, spending six to seven days each

month in Paducah with Child.

In 2018, Jamie filed the first motion to modify the timesharing

arrangement, seeking to obtain more time with Child. Angela responded with a

motion for sole custody, and both parties identified witnesses and prepared for a

hearing in McCracken County. That hearing did not occur as the parties entered

into an agreed order following mediation, making further modifications to the

parenting time provisions since Jamie had continued to maintain a residence in

California and Angela had never moved.

In 2020, Angela filed a notice of relocation with the McCracken

Family Court, stating that she now intended to move to Florida with Child. In

-2- response, Jamie filed a motion to modify the timesharing schedule and objected to

the planned move of their son to Florida. Again, a hearing was set but cancelled

when the parties entered into another agreed order in which Jamie agreed not to

contest the move of the Child to Florida, in consideration of certain modifications

to the prior timesharing orders. Of particular note, this agreed order included a

forum selection clause which stated in its entirety:

3. The parties agree that the McCracken Family Court will retain jurisdiction of this matter, and all future modifications of this agreement will be through the McCracken Family Court.

This agreed order, signed by all parties and counsel, was tendered to

the family court. On the record, the family court confirmed that it was the

knowing and voluntary agreement of the parties. The family court found it was in

the best interest of the Child that the agreed order be entered. The order was then

signed by the family court judge. Interestingly, the agreed order specifically stated

that Jamie was attempting to sell the house in Paducah at that time and, of course,

Angela and the Child were relocating to Florida. The record reflects that Jamie’s

house was indeed sold shortly thereafter, and Jamie again relocated to be near

Child, now in Florida.

The record is then silent for two years until Jamie filed another motion

for modification in McCracken Family Court seeking equal timesharing with

Child. Therein, he affirmed that he had again moved to be near Child in Florida;

-3- that he was no longer required to travel to California as often; that he was very

involved in Child’s life; and that Child desired to have more time with him. Of

course, at this point, both parents and Child had all been living in Florida for two

years.

In response, Angela moved to dismiss the action in Kentucky, arguing

that the family court no longer had jurisdiction under Kentucky Revised Statute

(“KRS”) 403.824, Kentucky’s codified version of the Uniform Child Custody

Jurisdiction and Enforcement Act (“UCCJEA”). The family court agreed and

declined to rule on the motion, thereby resulting in this appeal.

STANDARD OF REVIEW

The sole issue presented on appeal is whether the McCracken Family

Court had jurisdiction to modify timesharing pursuant to the prior agreed order of

the parties who had since moved out of Kentucky. Connected to that issue is the

question of whether the parties can be bound by a forum selection provision that

had been entered into and adopted by the court as part of an agreed order.

“Whether a Kentucky court has jurisdiction under the UCCJEA is a

question of law that [this Court] review[s] de novo.” Ball v. McGowan, 497

S.W.3d 245, 249 (Ky. App. 2016) (citing Addison v. Addison, 463 S.W.3d 755,

764 (Ky. 2015)); see also 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)).

-4- In its ruling, the family court stated in pertinent part, that “a clause

agreeing to forum selection is not binding on the Court[,]” and that jurisdiction

under the UCCJEA is “in the nature of general subject matter jurisdiction. It

cannot be created by agreement, is not subject to waiver, and, if absent, renders the

underlying judgment void.” Thus, the family court concluded that the parties’

forum selection agreement could not be enforced, even though it had also signed

off on that agreed order.

ANALYSIS

We affirm the denial of relief sought by Jamie in this instance,

although for slightly different reasons. The family court was correct that initial

jurisdiction under the UCCJEA is generally in the nature of subject matter

jurisdiction. However, our Supreme Court has clarified that this is in regard to an

initial custody ruling. Lawson v. Woeste, 603 S.W.3d 266, 274 (Ky. 2020). Once

the family court has made an initial custody (or in this case a timesharing)

determination, it retains exclusive, continuing jurisdiction over the matter unless it

is deprived of the same by the provisions of the UCCJEA. Id.

As our Supreme Court explained in Lawson, “the exclusive,

continuing jurisdiction determination required by KRS 403.824” is actually one of

particular case jurisdiction. Id. In Lawson, a Kentucky family court had made

numerous rulings concerning rights of two parties who had divorced elsewhere but

-5- had registered the separation and custody agreement in Kentucky. Id. The mother,

who was the primary residential parent, then filed a motion with the Kentucky

court to relocate to Mississippi. Id. at 268. That motion was granted, which left

only the father residing in Kentucky, with visitation/parenting time. Id.

Subsequently, the father, during one such visit, filed a motion in

Kentucky to modify the timesharing and allow him to serve as primary residential

parent, which the trial court granted. Id. at 269. The mother objected, arguing

under KRS 403.824(1)(a) that the Kentucky court had lost jurisdiction because the

court previously allowed the children to relocate to Mississippi. Id. In Lawson,

the Supreme Court explained the difference between subject matter jurisdiction

and particular case jurisdiction, stating that challenges to a court’s judgment once

it has acquired subject matter jurisdiction “are questions incident to the exercise of

jurisdiction rather than to the existence of jurisdiction.” Id. at 276 (internal

quotation marks, emphasis, and citation omitted). As the Lawson Court stated,

“[r]egardless of whether the trial court correctly applied the exclusive, continuing

jurisdiction standard set forth in KRS 403.824(1)(a) it had the subject-matter

jurisdiction to make that determination and, in fact, was the only court with

authority to make that determination.” Id.

-6- Jamie points to Lawson for his contention that the family court did

have continuing jurisdiction, particularly since no court in Florida had accepted the

case. We agree. As Lawson held,

a court that has had and exercised subject-matter jurisdiction in a child custody matter is deciding whether it should continue to exercise jurisdiction or whether it should “decline jurisdiction” over the case due to a change in circumstances. This determination is manifestly one of particular-case jurisdiction.

Id. at 274. However, Lawson further held that “when one or more parties move out

of Kentucky, the court must still decide whether it should continue to exercise

jurisdiction over that particular case, a determination that it alone can make under

KRS 403.824.” Id. at 275 (emphasis added).

That statute provides that the court that made the initial custody

determination retains jurisdiction until one of two things occurs:

(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or

(b) A court of this state or a court of another state determines that the child, the child’s parents, and any other person acting as a parent do not presently reside in this state.

KRS 403.824(1).

-7- The family court concluded that under section (b) of the statute, its

continuing jurisdiction to modify prior rulings had ceased as both the parents and

Child no longer resided in Kentucky.

In Roper v. Roper, 594 S.W.3d 211, 225 (Ky. App. 2019), as modified

(Jan. 17, 2020) (citing Wahlke v. Pierce, 392 S.W.3d 426, 430 (Ky. App. 2013))

this Court held that “[a] trial court’s jurisdiction to modify custody and parenting

time continues until it determines that the conditions described by either (a) or (b)

of KRS 403.824(1) exist.”

Similarly, in Officer v. Blankenship, 555 S.W.3d 449, 456-57 (Ky.

App. 2018) (citing Wahlke, 392 S.W.3d at 431), this Court held that the family

court was divested of authority to adjudicate custody issues once the parties had

moved out of Kentucky. “As the family court determined that neither the parents

nor child resided in Kentucky at the filing of the motion to modify visitation, we

conclude that the family court no longer possessed exclusive, continuing

jurisdiction per KRS 403.824(1)(b) to adjudicate custody issues.” Id. at 457.

Jamie is correct in asserting that Lawson clarified Kentucky’s

approach to continuing jurisdiction under the UCCJEA, and that it referred to the

family court’s authority to modify custody decisions as particular case jurisdiction

rather than subject matter jurisdiction, as outlined above. However, we disagree

that Lawson requires the family court to retain jurisdiction over a matter where

-8- both the parties and the child have resided out of state for over two years. Further,

we note that Lawson concerned continuing jurisdiction under section (1)(a) where

the court has to determine factually where the substantial evidence concerning the

child exists. In contrast, under section (1)(b), the home state does appear to lose its

authority over modification when a court finds that both parties and the child have

left the state.

The family court here correctly concluded that it no longer had

authority over these parties based upon the language of KRS 403.824(1)(b). While

it may have used the incorrect description of that authority, in light of Lawson, it

did not err in its conclusion. Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr.

Co., 434 S.W.3d 489, 496 (Ky. 2014) (citation omitted) (“If an appellate court is

aware of a reason to affirm the lower court’s decision, it must do so, even if on

different grounds.”).

Here, as in Lawson, there was no evidence that any party had sought

to obtain jurisdiction in their new state of Florida. Undoubtedly, Jamie assumed he

was required to file his motion to modify in McCracken County based upon the

agreement of the parties. The family court did not proceed to determine whether

-9- Kentucky was the appropriate or convenient forum under KRS 403.834, because it

had already concluded its jurisdiction was lost under KRS 403.824(1)(b).1

1 Pursuant to KRS 403.834, a court may also decline to exercise its jurisdiction at any time if it determines “it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” KRS 403.834(1). Before determining whether it is an inconvenient forum, the court must consider whether it is appropriate for a court of another state to exercise jurisdiction. KRS 403.834(2). To that end, the court is required to consider “all relevant factors,” including the following:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(h) The familiarity of the court of each state with the facts and issues in the pending litigation.

KRS 403.834(2).

Declining jurisdiction due to the inconvenience of the forum would have also been specifically authorized by KRS 403.834 under these circumstances.

-10- However, a court that has jurisdiction is not required to exercise its

jurisdiction. The determination must be made based upon the factual

circumstances as they existed at the time the request for modification was filed.

The issue can be raised by the parties, by the court itself, or even upon request of a

court of another state. If the court determines that the other state would be more

suitable, it can stay the proceedings and direct the parties to initiate custody

proceedings in the other state. While the court below may have still had authority

to exercise its jurisdiction over this case, it did not err by declining to do so and we

believe the result would have been the same.

Thus, we will only briefly address Jamie’s claim that the forum

selection agreement required the family court to exercise jurisdiction. Kentucky

recognizes that parties to an agreement may agree to a forum selection clause if it

is reasonable. Prudential Res. Corp. v. Plunkett, 583 S.W.2d 97, 99 (Ky. App.

1979). We agree that 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) (citation omitted).

However, it is equally clear that such an agreement cannot deprive a

court of its discretion to accept or deny continuing jurisdiction under the UCCJEA.

Jamie refers this Court to non-published opinions which indirectly refer to forum

selection clauses or address agreements between parties ratified by the trial courts.

-11- We have reviewed those and do not find them applicable. We also note that the

vast majority of courts across the 49 states that adhere to the UCCJEA have not

allowed such agreements to trump the UCCJEA itself as to do so would be

antithetical to the purposes of the UCCJEA.2 Rather, a forum selection clause is

only one of the eight factors to be determined by a court when it proceeds under

KRS 403.834 to determine if a particular venue is now inconvenient. Again, while

this family court did not proceed under KRS 403.834, finding that its jurisdiction

was limited by the provisions of KRS 403.824, the forum selection clause did not

require the McCracken Family Court to address the motion.

CONCLUSION

Florida now appears to be the more convenient forum to consider the

evidence and decide the best interests of the Child. The agreed order of the parties

does not require the family court to retain authority over a case indefinitely. If

either of the parties had returned to Kentucky with issues arising from that agreed

order within months of the entry, the result would likely be different. However,

two years have passed, and there was no argument presented below that the

Commonwealth still had any significant contacts with this case. We conclude that

2 See, e.g., A.D. v. M.A.B., 989 A.2d 32 (Pa. Super. Ct. 2010); Friedman v. Eighth Jud. Dist. Ct. of State, ex rel. Cnty. Of Clark, 264 P.3d 1161, 1167 (Nev. 2011) (“The UCCJEA gives forum selection agreements a role to play in child custody proceedings, but it is a supporting, not a lead, role.”); Horgan v. Romans, 851 N.E.2d 209 (Ill. App. Ct. 2006).

-12- the family court did not err in declining to exercise its jurisdiction and that the

parties’ agreement did not require such exercise of jurisdiction where the

circumstances had so dramatically changed. To remand the matter for the family

court to weigh the factors outlined in KRS 403.834 and/or stay the action and

direct the parties to initiate proceedings in Florida would only further delay the

matter for all concerned. Accordingly, we affirm the order of the McCracken

Family Court.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Bradly A. Miller Robert B. Frazer Paducah, Kentucky Marion, Kentucky

-13-