Waddell v. Commonwealth

893 S.W.2d 376, 1995 Ky. App. LEXIS 37, 1995 WL 72381
CourtCourt of Appeals of Kentucky
DecidedFebruary 24, 1995
DocketNo. 93-CA-2058-MR
StatusPublished
Cited by4 cases

This text of 893 S.W.2d 376 (Waddell v. Commonwealth) 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
Waddell v. Commonwealth, 893 S.W.2d 376, 1995 Ky. App. LEXIS 37, 1995 WL 72381 (Ky. Ct. App. 1995).

Opinion

McDonald, judge.

On July 13, 1993, the appellant, Terry L. Waddell, entered a conditional plea of guilty to the charge of Flagrant Nonsupport, KRS 530.050, a class “D” felony. The plea was specifically conditioned on Waddell’s right to appeal the trial court's denial of his motion to dismiss the indictment. Waddell was sentenced to a term of five years, all of which was probated and he was fined $10, plus costs, for a total of $65. An order of wage assignment was entered requiring the withholding of $30 per week, $10 of which was to be applied toward the arrearage of over $16,-000 in unpaid child support.

The sole basis offered to the trial court as requiring the dismissal of the indictment was that the judgment entered against the appellant in the original paternity action was void for lack of personal jurisdiction over the appellant. In addition to repeating that argument in this appeal, Waddell also contends the Commonwealth failed to prove an essential element of KRS 530.050, specifically that he knew he had a “duty to provide [support] by virtue of a court or administrative order.” He also contends that KRS 530.050 is unconstitutional as it violates Section 18 of our Kentucky Constitution.

The facts leading to Waddell’s indictment are not complex. In 1975 the mother of a child born out-of-wedlock filed a petition to establish paternity of her child in the Porter Juvenile Court in Valparaiso, Indiana. Wad-dell was named as the respondent/father. A summons was issued to Waddell in care of his mother who resided in East Gary, Indiana. It was returned with the notation, “not found — Terry Waddell’s mother Mrs. Cornett stated he moved out, 6 mos Ago— Last heard from him somewhere in Calif.” On December 15, 1975, the petitioner/mother filed a praecipe for service by publication and the affidavit of her attorney, Robert M. Bly, concerning the efforts to locate and serve Waddell, portions of which read:

1. That on August 6,1975, Petitioner filed a Petition for determination of paternity of minor child, Cathy Jo Havlin and requested personal service.

2. That Respondent, Terry Lee Waddell, at that time was reputed to live with his mother, Mrs. Johnnie Cornett, 3301 Minnesota Street, East Gary, Indiana.

3. That the summons was directed at the aforementioned address, but was returned “not found”.

4. That diligent search has been made for the respondent, Terry Lee Waddell and the Respondent has been reported living in a motel in Corbin, Kentucky, and most recently in California.

5. That it is clear that the Respondent now no longer lives within the State of Indiana, or if he does has effectively concealed his whereabouts so as to render ineffective any type of personal service.

6. That it is the belief of your affiant that the only way effective service can be had on the Respondent is by publication.

The motion of the mother was granted and notice of the paternity action was published on three successive weeks in accordance with the Indiana Rules of Trial Procedure, Rule 4.13.1 Waddell did not answer the petition, and proof was ultimately heard in his absence. On March 18, 1976, an order was entered by default finding Waddell to be the father of Cathy Jo Havlin and ordering him to pay the sum of $20 per week and the medical expenses incurred in the child’s birth. It is this order that Waddell insists is void and not entitled to full faith and credit by our courts.

In 1978 the child’s mother petitioned the court for a citation of contempt. Her affidavit alleged Waddell had an arrearage of $3,000. A citation for contempt was issued by the Porter Superior Court which was personally served on Waddell at his mother’s house. The summons notified Waddell of the hearing set for March 8, 1978. Not surpris[379]*379ingly, Waddell did not appear. A bench warrant was issued for his arrest on March 8, 1978, but was not served before it expired. In 1983 Waddell voluntarily made some payments of $20 and $30 and the State of Indiana was successful in intercepting his income tax returns. He also made voluntary payments totaling $210 in 1990.

In 1989 the State of Indiana learned that Waddell was residing in Covington, Kentucky. Appropriate requests and documentation were sent to the Cabinet for Human Resources seeking enforcement of the Indiana support order pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA).

A warrant was issued for Waddell's arrest on August 7,1991. At that time Waddell had not paid any support for over a year and had an arrearage in excess of $13,000. The warrant was served June 1, 1992. Waddell was released upon payment of bond in the amount of $2,500. The charge was referred to the grand jury which returned its indictment on December 4, 1992. A pretrial hearing was conducted on May 17, 1993, at which time the court overruled Waddell’s motion to dismiss. The trial court suggested that Waddell attack the validity of the Indiana judgment in Indiana and set the trial date far enough away to give Waddell the opportunity to take that action. If Waddell did attempt to get relief from the 1976 judgment in that forum, such is not indicated in the record. Ultimately, Waddell entered his plea acknowledging his guilt and retaining the right to appeal the court’s ruling on his motion to dismiss.

The United States Constitution requires our courts to give full faith and credit to the judgments of the courts of all our sister states. U.S. Const., Art. 4, § 1. A foreign judgment is presumptively valid and the party attacking it has the burden to demonstrate its invalidity. Dant v. Progress Paint Manufacturing Company, Ky., 309 S.W.2d 187 (1958). To this end Waddell insists that the 1976 Indiana judgment is void due to insufficiency of service of process, and not entitled to full faith and credit. To succeed in this collateral attack, Waddell must show that the judgment is void under Indiana law. Thus, his discussion regarding our CR 4.05-4.07 and the procedure outlined therein for a warning order are completely irrelevant.

Clearly, Indiana allows for service by publication when “the person to be served cannot be served personally and cannot be found, has concealed his whereabouts, or has left the state.” Smith v. Tisdal, 484 N.E.2d 42, 43-44 (Ind.App.1985); Ind.Rules of Procedure, Trial Rules 4.5; 4.9(B)(3).2 While Indiana recognizes that notice by publication is “generally ... not a proper means of service in actions in personam,” id., it nevertheless permits notice by publication to substitute for personal service or mail under circumstances where it is not practical or possible to give more adequate notice. Note 2 infra; see also, Milosavljevic v. Brooks, 55 F.R.D. 543 (N.D.Ind.1972); Bays v. Bays, 489 N.E.2d 555 (Ind.App.1986); Mueller v. Mueller, 259 Ind. 366, 287 N.E.2d 886 (1972).

Waddell relies on the following passage in

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Cite This Page — Counsel Stack

Bluebook (online)
893 S.W.2d 376, 1995 Ky. App. LEXIS 37, 1995 WL 72381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waddell-v-commonwealth-kyctapp-1995.