Cabinet for Health & Family Svcs. v. J.T.G.

• Decision Date: 04 December 2009
• Docket Number: No. 2009-CA-000211-ME.,2009-CA-000211-ME.
• Citation: 301 S.W.3d 35
• Parties: CABINET FOR HEALTH AND FAMILY SERVICES, Appellant v. J.T.G. and A.G., an Infant, Appellees.
• Court: Kentucky Court of Appeals

301 S.W.3d 35

CABINET FOR HEALTH AND FAMILY SERVICES, Appellant v. J.T.G. and A.G., an Infant, Appellees.

No. 2009-CA-000211-ME.

Court of Appeals of Kentucky.

December 4, 2009.

Jerry M. Lovitt, Georgetown, KY, for appellant.

J.T.G., Sadieville, KY, pro se.

Before LAMBERT and VANMETER, Judges; HARRIS,¹ Senior Judge.

OPINION

LAMBERT, Judge.

The Cabinet for Health and Family Services appeals from the Scott Circuit Court, Family Division's order finding it in contempt for failing to pay child care assistance costs. After careful review, we vacate and remand.

This action began as a child custody case and originated in Jefferson Family Court. Initially, the child, A.G., resided with her mother and maternal grandmother in Louisville, Kentucky. A.G. was removed from her mother's care following a juvenile neglect petition filed by the Cabinet for Health and Family Services (hereinafter "the Cabinet") on or about November 17, 2004. The initial removal of the child was based upon displays of mental instability by the mother, including suicidal ideations, which resulted in the child's maternal grandmother taking out a Mental Inquest Warrant (MIW) on the mother. Following the MIW, the mother was hospitalized at the University of Louisville medical center.

Shortly after A.G.'s removal, the mother identified the child's maternal uncle, Appellee J.T.G., as a suitable relative placement for her daughter. Following a background check and a thorough home evaluation completed by the Cabinet, A.G. was then placed in the temporary custody of J.T.G., with supervised visitation allowed to the mother. Although A.G. was thriving in her uncle's home, visitations with her mother became increasingly more disruptive and difficult. One major complication was that J.T.G. resided in Scott County and A.G.'s mother was still living in Jefferson County. It became apparent that the best interests of the child would be served by giving permanent custody to J.T.G. and his paramour, C.S.

By order entered June 2, 2005, the Jefferson Family Court granted permanent custody of A.G. to J.T.G. and his long-time paramour, C.S. J.T.G. claims that he advised the Cabinet and the Jefferson Family Court that he would not be able to agree to permanent custody of A.G., due to limited finances, unless the Cabinet agreed to provide and pay for child care assistance and provide Kinship Care until the child was out of grade school. J.T.G. claims that the Cabinet considered this information and then advised the Jefferson Family Court Judge in open court that it would agree to provide and pay for childcare and provide Kinship Care. The June 2, 2005, order makes no mention of this agreement and we cannot find written evidence of the agreement in the record.

On August 10, 2005, the Jefferson Family Court transferred the action to Scott County at the request of J.T.G. and C.S. On or about August 23, 2005, the Scott Family Court accepted the transferred case and officially assigned it the case number of 05-J-00205-001. The Cabinet set up and paid for childcare from June 2005 through September 2008. Thereafter, the Cabinet advised J.T.G. that childcare payments for A.G. were not going to be made any longer. J.T.G. claims that he told the Cabinet he would not be able to pay for childcare and that the Cabinet advised him to return to Jefferson Family Court to get a written order for childcare.

On September 11, 2008, despite having transferred the action to Scott Family Court, the Jefferson Family Court ordered the Cabinet to provide daycare assistance for A.G. and to assist J.T.G. and C.S. in accessing other appropriate or available services such as Jumpstart. On November 21, 2008, J.T.G. returned to the Scott Family Court and filed a pro se motion to have the Jefferson Family Court's order enforced. The Scott Family Court issued an order for the Cabinet to show cause as to why it was not in contempt for failing to comply with the Jefferson Family Court's order to pay daycare costs and ordered the Cabinet to immediately make the daycare account current.

On January 5, 2009, the Scott Family Court ordered the Cabinet to pay the outstanding balance and ongoing expenses per the "law of the case." On January 8, 2009, the Scott Family Court again ordered the Cabinet to pay daycare costs for A.G. and stated that per the law of the case and the order of the Jefferson Family Court, the Cabinet was ordered to pay the outstanding daycare balance and to continue paying the ongoing daycare expenses in addition to the kinship care J.T.G. received.

The Cabinet then filed a motion to alter, amend, or vacate the Scott Family Court's order, arguing that the September 11, 2008, order of the Jefferson Family Court was unconstitutional on its face, as its express terms violated the provisions of KRS 610.010(12) and the precedents set forth in both Cabinet for Health & Family Services v. Huddleston, 185 S.W.3d 222 (Ky. App.2006), and Cabinet for Health & Family Services v. G.W.F., 229 S.W.3d 596 (Ky.App.2007).

On February 2, 2009, the Scott Family Court denied the Cabinet's motion to alter, amend, or vacate by reiterating that the Jefferson Family Court order was the "law of the case" and that the Cabinet had to pay A.G.'s daycare costs plus all arrearages by February 6, 2009, or be held in contempt of court. The Cabinet now appeals to this Court.

The Cabinet argues on appeal that the order of the Jefferson Circuit Court was void ab initio and was unconstitutional on its face. Further, the Cabinet argues that the Scott Family Court's reliance on the "law of the case" doctrine is misplaced and was in error. After careful review, we agree that the Jefferson Family Court order was void ab initio and that the Scott Family Court's reliance on the law of the case doctrine was erroneous.

We review the trial court's denial of a motion to alter, amend, or vacate pursuant to Kentucky Rules of Civil Procedure (CR) 59.05 for an abuse of discretion. See Batts v. Illinois Central Railroad Co., 217 S.W.3d 881, 883 (Ky.App.2007). The test for an abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

The Cabinet argues that the Scott Family Court did not utilize sound legal principles when it found that the Jefferson Family Court's order was "law of the case" since this order was void ab initio. We agree that the Jefferson Family Court lost jurisdiction over the matter once it was transferred to Scott Family Court and that the August 10, 2005, order of the Jefferson Family Court was therefore void ab initio.

Although the Jefferson Family Court order does not specifically state so, it appears that the transfer to the Scott County Family Court was pursuant to KRS 452.010. Section (1) of that statute states that "[t]he parties to any civil action in a Circuit Court may, by consent, have an order in or out of court for its removal to any other Circuit Court." Although the specific question of the transferor court's jurisdiction after a transfer takes place is one of first impression regarding civil matters, this issue has been addressed by Kentucky courts in the criminal law context.

In Woods v. Commonwealth, 285 Ky. 275, 147 S.W.2d 690, 691 (1941), the Court held that "when a case has been removed the court from which it came has been divested of jurisdiction[.]" Similarly, section 25:14 of the Kentucky Criminal Practice Manual, entitled "Procedure after venue is changed," provides that "[t]he original court making the transfer has no further jurisdiction to prosecute the action as long as the transfer is in effect." 9 Ky. Prac. Crim. Prac. & Proc., § 25:14 (2008-2009).

This principle certainly makes sense in the context of child custody cases—if shared jurisdiction was possible, individuals would simply forum shop until they found a favorable court and then claim that their custody order was superior to the other courts' orders. In fact, addressing this problem was one of the fundamental reasons for the creation of the family court system in Kentucky. For example, in Wallace v. Wallace, 224 S.W.3d 587, 591 (Ky.App.2007), this Court expressly held that "Kentucky has created the family court system. The `one judge, one family' approach is a remedy to the fractionalization of family jurisdiction."

Although the Cabinet did not challenge the validity of the September 11, 2008, Jefferson Family Court order until the denial of its CR 59.05 motion to alter, amend, or vacate, we are still permitted to address this issue on appeal. Questions of general jurisdiction "may be raised by the parties or the court at any time and cannot be waived." Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky.2001) (citing Commonwealth Health Corp. v. Croslin, 920 S.W.2d 46, 47 (Ky.1996)). Moreover, the issue "may be raised for the first time on appeal." Id. (citing Karahalios v. Karahalios, 848 S.W.2d 457, 460 (Ky.App. 1993)).

It is well established in Kentucky law that any order issued by a court that did not have proper jurisdiction is "void ab initio ... is not entitled to any respect or deference by the courts." S.J.L.S. v. T.L.S., 265 S.W.3d 804, 833 (Ky.App.2008) (internal citations omitted). Moreover, the Jefferson Family Court order is considered "a legal nullity, and a court has no discretion in determining whether it should be set aside." Id. (citing Foremost Ins. Co. v. Whitaker, 892 S.W.2d 607, 610 (Ky.App.1995)); see also Wedding v. Lair, 404 S.W.2d 451 (Ky.1966).

Applying the foregoing to the facts of the instant case, it is clear that the Jefferson Family Court did not have general jurisdiction when it issued the order dated September 11, 2008, given that it transferred the action to Scott Family Court on August 10, 2005. As a result, this order had no legal effect whatsoever, and the Scott Family Court's adoption and reliance on it was an abuse of...