Justin Aldava v. Alyssa Baum

• Court: Court of Appeals of Kentucky
• Decided: March 28, 2024
• Docket: 2023 CA 001038
• Status: Unknown

Opinion

RENDERED: MARCH 29, 2024; 10:00 A.M. TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2023-CA-1038-ME

JUSTIN ALDAVA APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT v. HONORABLE ANGELA JOHNSON, JUDGE ACTION NO. 20-D-503107-001

ALYSSA BAUM APPELLEE

OPINION VACATING AND REMANDING

** ** ** ** **

BEFORE: ACREE, CETRULO, AND TAYLOR, JUDGES.

ACREE, JUDGE: Appellant, Justin Aldava, appeals the Jefferson Family Court’s

August 10, 2023 Orders granting a Domestic Violence Order (DVO) to Appellee,

Alyssa Baum, and denying Appellant’s motion to dismiss pursuant to CR1 12.02(b)

for lack of personal jurisdiction. We conclude the Jefferson Family Court lacked

personal jurisdiction of Appellant and, consequently, certain portions of the DVO

1 Kentucky Rules of Civil Procedure. entered against him impermissibly violated his Due Process rights. Accordingly,

we vacate and remand for further proceedings.

BACKGROUND

Aldava and Baum are not married but together conceived a child.

Until just before Baum initiated this action, all three lived in Texas. The incident

Baum cites as initiating a change in that fact occurred on October 12, 2020.

According to Baum, she and the child were riding as passengers in a

vehicle Aldava was driving. They took the trip to pick up Aldava’s motorcycle

from where it was being repaired. Aldava began verbally abusing Baum and

driving erratically. (Record (R.) at 2.)

Once Aldava retrieved his motorcycle, Baum drove away in the

vehicle. She went to the house of a friend who was willing to watch the child for a

few hours, and then proceeded to the location of a fifth-wheel camper Aldava and

Baum were remodeling. Aldava met her at the camper and again became verbally

abusive. Baum alleges he became physical.

Sometime thereafter, Aldava’s employer assigned him to work away

from home. Baum took the opportunity to flee Texas with the child for her

parent’s residence in Bullitt County. They arrived on November 22, 2020 and

have been there ever since. (R. at 7.)

-2- Eight days after arriving in Kentucky, on November 30, 2020, Baum

filed a petition for a protective order against Aldava in the Jefferson Family Court.

In her initial petition, Baum sought an emergency protective order (EPO) and

temporary custody of their minor child. It is unclear to this Court why Baum filed

the petition in Jefferson County and not Bullitt County, the county to which she

fled. The petition recounted the events in Texas on October 12, 2020, described

above, but also says Aldava has several pending and/or past criminal charges,

including misdemeanor domestic violence charges, aggravated robbery, and

association with organized crime.

The Jefferson Family Court granted Baum’s petition the same day she

filed it, entering an EPO against Aldava and awarding temporary sole custody of

their minor child to Baum. After entering the EPO ex parte, the Jefferson Family

Court issued multiple summonses that Baum attempted to serve on Aldava. All

these attempts failed.

Notwithstanding that Aldava was not served,2 the Jefferson Family

Court held a domestic violence hearing on April 7, 2021, without Aldava present,

to determine whether to enter a DVO. At the conclusion of the hearing, the family

2 Baum asserts in her brief that someone told her legal counsel that Aldava had been served prior to this hearing. (Appellee’s brief, p. 4.) It may be true that Aldava was aware of the Kentucky legal action. However, we are constrained to the facts established by the certified record which shows “EPO never served.” (R. 81.)

-3- court issued a DVO: (1) prohibiting Aldava from contacting Baum or the minor

child and from being closer to them than 500 feet; (2) prohibiting Aldava from

possessing firearms; and (3) granting temporary sole custody of the child to Baum.

Once Aldava learned of the DVO, he hired Kentucky legal counsel

who filed a motion to vacate the DVO pursuant to CR 60.02. Aldava also

informed the family court of a separate but related child custody matter pending in

a Texas court that determined the temporary custody of the minor child in favor of

Aldava.3

3 According to an order entered in Alyssa Baum v. Justin Aldava, No. 21-CI-500526 (Jefferson Fam. Ct., Div. 1, Nov. 23, 2022):

• On December 14, 2020, Aldava filed a custody action in a Texas court.

• On January 26, 2021, the Texas court held a hearing without Baum’s presence and granted Aldava temporary custody of the minor child.

• On March 2, 2021, Baum filed a custody action in Jefferson Family Court.

• On May 3, 2021, Baum filed a motion for a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) conference between the Kentucky Court and the Texas Court so that appropriate subject matter jurisdiction could be determined.

• The Kentucky court determined it “may not exercise Initial Jurisdiction or Jurisdiction to Modify under UCCJEA but does exercise Emergency Jurisdiction pursuant to Baum’s EPO request. This Court notes that if Texas, or any other state, could be said to have initial jurisdiction under UCCJEA at the time of filing, that jurisdiction would supersede the emergency jurisdiction, and the case would continue in that forum.”

• The court further determined that “Kentucky, as the only state with any level of jurisdiction, has priority to hear this case and retained jurisdiction.”

We take judicial notice of this court order but make no judgment regarding any of it. We reference the order only for a more complete background not presented in the certified record in this case.

-4- The family court heard arguments and then ruled on Aldava’s CR

60.02 motion on October 5, 2022. The order did not set aside the DVO but did set

a new hearing date to revisit Baum’s DVO petition.

Prior to that new hearing, Aldava moved to dismiss for lack of

personal jurisdiction pursuant to CR 12.02(b). Aldava argued this Court’s

reasoning in Spencer v. Spencer, 191 S.W.3d 14 (Ky. App. 2006), precluded the

family court from entering any DVO against a party over whom the court lacked

personal jurisdiction. On July 26, 2023, the family court heard arguments and

entered separate orders on Aldava’s CR 12.02(b) motion and the DVO petition.

(R. 217-31.)

The family court denied Aldava’s motion to dismiss. The court began

by applying the three-prong test for determining personal jurisdiction as set out in

Spencer and said: “Under this test, this court does not have personal jurisdiction

over [Aldava].” (R. 224.) Nevertheless, the family court concluded it had “proper

jurisdiction to hear the case as illustrated in Spencer.” (R. 247.)

The family court then entered a DVO, ordering the parties as follows:

(1) Aldava shall commit no acts of violence, stalking, or of threatening violence;

(2) Aldava shall have no unauthorized contact with Baum or child and cannot be

within 500 feet of either; (3) Aldava shall refrain from disposing of or damaging

the parties’ property; (4) Baum shall have sole custody of their child; and (5)

-5- Aldava is “ordered not to possess, purchase, obtain or attempt to possess, purchase

or obtain a firearm” during the three years the DVO would last. (R. 238-39.)

This appeal follows.4

STANDARD OF REVIEW

This Court may only reverse the family court’s decision to issue a

DVO if the family court’s decision is clearly erroneous or constitutes an abuse of

discretion. Guenther v. Guenther, 379 S.W.3d 796, 802 (Ky. App. 2012) (“We

bear in mind that in reviewing the decision of a trial court the test is not whether

we would have decided it differently, but whether the findings of the trial court

were clearly erroneous or that it abused its discretion.”) (citing Cherry v. Cherry,

634 S.W.2d 423, 425 (Ky. 1982); CR 52.01; Reichle v. Reichle, 719 S.W.2d 442,

444 (Ky. 1986)). Conversely, when reviewing a CR 12.02(b) motion to dismiss for

lack of personal jurisdiction, we afford the family court no discretion as this is a

question of law this Court reviews de novo. Doe 1 v. Flores, 661 S.W.3d 1, 4 (Ky.

App. 2022).

4 The Kentucky Supreme Court rendered an opinion on March 14, 2024, regarding the parties’ related custody action. Aldava v. Johnson, __ S.W.3d __, 2024 WL 1114869 (Ky. Mar 14, 2024).

-6- ANALYSIS

Aldava contends the family court lacked personal jurisdiction over

him and reads Spencer, supra, as precluding any court from entering a DVO

against a party over whom the court exercises no personal jurisdiction.

Baum argues Aldava waived personal jurisdiction. We begin with

Baum’s waiver argument and conclude Aldava did not waive his objection to the

family court’s exercise of personal jurisdiction.

Our starting point is this: “No personal judgment shall be rendered

against a defendant constructively summoned, and who has not appeared in the

action, except as provided in KRS[5] 454.210.” KRS 454.165. Of course, KRS

454.210 is generally referred to as our “long-arm statute.” Caesars Riverboat

Casino, LLC v. Beach, 336 S.W.3d 51, 54 (Ky. 2011). We need not quote the

statute here because even the family court held it could not exercise personal

jurisdiction over Aldava. (R. 224.) This part of our analysis focuses on Baum’s

argument that Aldava procedurally waived his right to contest personal

jurisdiction.

“A defense of lack of jurisdiction over the person . . . is waived (a) if

omitted from a motion in the circumstances described in Rule 12.07, or (b) if it is

neither made by motion under Rule 12 nor included in a responsive pleading or an

5 Kentucky Revised Statutes.

-7- amendment thereof permitted by Rule 15.01 to be made as a matter of course.” CR

12.08(1). The “circumstances described in Rule 12.07” do not apply to these

facts.6 That leaves CR 12.08(1)(b). We can ignore the final part of CR 12.08(1)(b)

addressed to amended responsive pleadings because that circumstance is not

present either.

It boils down to this: Aldava waived the defense if he failed to raise it

“by motion under Rule 12” or if the defense was “no[t] included in a responsive

pleading . . . .” CR 12.08(1)(b). We will now look to the record to see whether

either of these occurred.

The record shows Aldava filed his Rule 12 motion on January 31,

2023. (R. 94.) Thus, he did not waive the defense by failing to file a motion. That

leaves this final question: Did Aldava file a responsive pleading that did not

include the defense of lack of personal jurisdiction before he filed his Rule 12

motion? If so, he waived the defense. If not, his defense of lack of personal

6 That rule says:

A party who makes a motion under Rule 12 may join with it the other motions herein provided for and then available to him. If a party makes a motion under Rule 12 but omits therefrom any defense or objection then available to him which Rule 12 permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in paragraph (2) of Rule 12.08 on any of the grounds there stated.

CR 12.07. The only Rule 12 motion Aldava made was to dismiss for lack of personal jurisdiction.

-8- jurisdiction remains viable. We conclude he did not file a responsive pleading

before he filed his Rule 12 motion.

The only filing in the record attributable to Aldava prior to his Rule

12 motion is his CR 60.02 motion. A CR 60.02 motion cannot be a responsive

pleading because it is not a pleading of any kind. CR 7.01. The exclusive list of

pleadings appears in CR 7.01 and that list includes only a complaint, answer,

counterclaim, reply to a counterclaim, an answer to a cross-claim, a third-party

complaint, and any answer thereto. Bingham Greenebaum Doll, LLP v. Lawrence,

567 S.W.3d 127, 131 (Ky. 2018) (pleadings are limited to those listed in CR 7.01).

However, Baum implies in her brief that Aldava’s CR 60.02 motion

was the equivalent of a Rule 12 motion and that Aldava’s counsel’s statements at

the December 7, 2022 established as much. Baum asserts that Aldava’s counsel

orally moved the court to dismiss this action pursuant to CR 12.02(e)

(insufficiency of service of process) and, by failing to also cite CR 12.02(b) (lack

of jurisdiction over the person), he waived the defense. However, there is nothing

in the record to support these assertions.

The record contains the court docket from December 7, 2022, and the

court’s notes on that docket read: “Parties agree to pass to circuit docket. Hearing

set for 2/6/23 @ 10:00 am.” (R. at 93.) Nothing on the docket indicates any

-9- motions were argued. Neither of the two CDs the parties included in the record

contains a recording of the December 7, 2022 hearing.

As indicated in footnote 2, supra, we cannot apply the law to mere

assertions of fact not supported by the certified record. Before this Court applies

the law to an advocate’s assertion that a fact exists, the advocate must specifically

cite to evidence of that fact in the record as required by our Rules of Appellate

Procedure. RAP7 32(A)(3), (A)(4). Absent the opposing party’s stipulation to a

fact or express factfinding in the judgment being appealed, this Court is justified in

treating uncited assertions as unfounded. One reason RAP 32 requires such

citation is to protect the advocate and his client from a reputation with the Court

for making unfounded assertions.

Because the family court addressed Aldava’s motion for lack of

personal jurisdiction and treated the issue as not being waived, we presume

evidence of the December 7, 2022 hearing contradicts Baum’s unfounded assertion

that Aldava waived personal jurisdiction. See Rockcastle Cnty. v. Bowman, 120

S.W.2d 385, 388 (Ky. 1938) (absent record evidence to the contrary, “it will be

presumed that the evidence heard sustained” the judgment or order).

The issue of waiver being resolved, we begin addressing the issue of

personal jurisdiction itself by noting a point of the parties’ agreement – the

7 Kentucky Rules of Appellate Procedure.

-10- Jefferson Family Court lacked personal jurisdiction of Aldava. But Spencer v.

Spencer shows that does not end the analysis.

In Spencer, our Court was tasked with deciding whether under KRS

403.725(1) “a Kentucky court may issue a protective order against an individual

over whom the court does not have personal jurisdiction.” Spencer, 191 S.W.3d at

16. As in the instant case, Kentucky courts did not have personal jurisdiction over

the respondent because the alleged abuse took place outside Kentucky between

non-Kentucky residents. However, the Court noted that “the language of KRS

403.725 clearly envisions a court granting a protective order when a victim of

domestic abuse has fled to this state.” Id. at 17.

The Court explained “[w]e must balance the due process rights of the

defendant against the interest of the Commonwealth in protecting the victims of

domestic violence.” Id. Because it was an issue of first impression in Kentucky,

the Court looked to other jurisdictions before deciding to adopt the reasoning of a

New Jersey opinion, Shah v. Shah, 875 A.2d 931 (N.J. 2005). Id. at 17-19

(footnote omitted). The Spencer Court said:

In its opinion [in Shah], the [New Jersey] court drew a distinction between a prohibitory order that serves to protect the victim of domestic violence, and an affirmative order that requires that a defendant undertake an action.

The former, which allows the entry of an order prohibiting acts of domestic violence against a defendant over whom no personal jurisdiction

-11- exists, is addressed not to the defendant but to the victim; it provides the victim the very protection the law specifically allows, and it prohibits the defendant from engaging in behavior already specifically outlawed. Because the issuance of a prohibitory order does not implicate any of defendant’s substantive rights, the trial court had jurisdiction to enter a temporary restraining order to the extent it prohibited certain actions by defendant in New Jersey. [Shah, 875 A.2d at 939.]

An affirmative order, on the other hand, involves the court attempting to exercise its coercive power to compel action by a defendant over whom the court lacks personal jurisdiction. [Id.]

The court held that minimum contacts considerations forbid the entry of a final restraining order because by statutory definition it had to include affirmative relief, such as the surrender of firearms and firearm permits, the payment of a civil penalty, and surcharge, and collateral consequences such as enrollment in a central offenders registry.

In our view, the distinction made by New Jersey’s highest court between prohibitory and affirmative orders represents the fairest balance between protecting the due process rights of the nonresident defendant and the state’s clearly-articulated interest in protecting the plaintiff and her child against domestic violence.

Spencer, 191 S.W.3d at 18-19 (footnotes omitted).

Although the language of KRS 403.725 was amended after Spencer, it

still provides in KRS 403.725(2) that “[t]he petition may be filed in . . . a county

where the victim has fled to escape domestic violence and abuse.” We are required

by law to interpret this language broadly because the purpose of our domestic

-12- violence statutes is to provide victims with “short-term protection against further

wrongful conduct in order that their lives may be as secure and as uninterrupted as

possible” while also providing law enforcement officers with the means to protect

victims. KRS 403.715(1), (2), and (3).

Just as the EPO in Spencer included both prohibitory orders and

affirmative orders, the family court’s EPO and DVO in the instant case included

both. We follow Spencer in holding that to the extent the order prohibits Aldava

from breaking the law by approaching Baum, it comports with due process.

Spencer, 191 S.W.3d at 19.

On the other hand, Spencer indicates that Aldava’s due process rights

are violated to the extent the EPO or DVO orders “affirmative relief, such as the

surrender of firearms and firearm permits, the payment of a civil penalty, and

surcharge, and collateral consequences such as enrollment in a central offenders

registry.” Id. The DVO in this case offends Aldava’s due process rights to the

extent it orders any of these or any other affirmative relief.

As for the issue of the parties’ custody of their child, Spencer gives us

only a little help. In Spencer, as part of the domestic violence order, the mother

was awarded temporary custody of the child. After repeating that “[i]nsofar as the

order prohibits [respondent Ken Spencer] from breaking the law in Kentucky by

approaching Ava or [their child], it comports with due process[,]” the Court

-13- identified everything else as unconstitutional affirmative relief. Id. “In all other

respects,” said the Court, “it goes beyond the permissible limits of Kentucky

courts’ jurisdiction. Id. We recognize that the passage of time since the entry of

the order may well mean that the circuit court now has jurisdiction to make

custody and status determinations if Ava has continued to reside in Kentucky.” Id.

(emphasis added).

By awarding custody of the parties’ minor child to Baum without

personal jurisdiction over Aldava, the family court went beyond “prohibit[ing] the

defendant from engaging in behavior already specifically outlawed.” Id. at 18.

Aldava’s right to parent is protected by the U.S. Constitution as a fundamental

right. “[U]nder the Fourteenth Amendment of the United States Constitution, a

parent, who is not unfit, has the fundamental right to make decisions as to the care,

custody, and control of his or her child.” Hoskins v. Elliott, 591 S.W.3d 858, 861

(Ky. App. 2019) (citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054,

2060, 147 L. Ed. 2d 49 (2000)). Unless another court, in the proper exercise of

jurisdiction, determined custodial rights differently, Kentucky courts are bound by

our law that says: “The father and mother shall have the joint custody, nurture, and

education of their children who are under the age of eighteen (18).” KRS

405.020(1).

-14- No court has the authority to deprive any person of the constitutional

right to parent their children, or such person’s Second Amendment right to bear

arms, without first obtaining personal jurisdiction of that person. Accordingly, this

Court now follows the lead of Spencer and decides this nearly identical case with a

nearly identical conclusion and decree.

CONCLUSION

The order from which this appeal is taken is vacated, and the case is

remanded to Jefferson Circuit Court for further proceedings in accordance with this

Opinion.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Miles Devon Skeens IV Samantha Jo Hall Louisville, Kentucky Louisville, Kentucky

-15-