323 S.W.3d 702 (Ky. 2010), 2010-SC-000018-DGE, Harrison v. Leach

Docket Nº2010-SC-000018-DGE.
Citation323 S.W.3d 702
Opinion JudgeMINTON, Chief Justice.
Party NameL.D. HARRISON and Debra Harrison, Appellants, v. Christopher LEACH, Appellee.
AttorneyJames Walter Baechtold, Shumate, Flaherty, Eubanks & Baechtold, PSC, Richmond, KY, Counsel for Appellants. Kimberly Carter Blair, Blair & Rowady, P.S.C., Winchester, KY, Counsel for Appellee.
Judge PanelAll sitting. ABRAMSON, NOBLE, SCHRODER, and VENTERS, JJ., concur. CUNNINGHAM, J., dissents by separate opinion in which SCOTT, J., joins. CUNNINGHAM, J., Dissenting: SCOTT, J., joins.
Case DateOctober 21, 2010
CourtUnited States State Supreme Court (Kentucky)

Page 702

323 S.W.3d 702 (Ky. 2010)

L.D. HARRISON and Debra Harrison, Appellants,

v.

Christopher LEACH, Appellee.

No. 2010-SC-000018-DGE.

Supreme Court of Kentucky.

October 21, 2010

Page 703

James Walter Baechtold, Shumate, Flaherty, Eubanks & Baechtold, PSC, Richmond, KY, Counsel for Appellants.

Kimberly Carter Blair, Blair & Rowady, P.S.C., Winchester, KY, Counsel for Appellee.

OPINION

MINTON, Chief Justice.

This case asks us to determine if an appellate court may, on its own motion, dismiss an appeal when it determines a party lacked standing to bring an action in the trial court, even though no party had raised a purported lack of standing at any point in the proceedings below. Because the issue of standing is distinct from the issue of subject-matter jurisdiction and, thus, can be waived, we hold that an appellate court cannot, on its own motion, resolve an appeal based upon a lack of standing before the trial court.

I. FACTUAL AND PROCEDURAL HISTORY.

Because the issue in this appeal is purely a legal one, it is not necessary for us to recite the facts in great detail. Christopher Leach and his former wife, Emily, are the parents of three children, J.L., H.L., and N.L. L.D. and Debra Harrison are the maternal grandparents of these children. Because of allegations of dependency, neglect, or abuse, a family court placed the children in the temporary physical custody of the Harrisons. The Harrisons eventually petitioned a circuit court for full custody of the children. The circuit court referred the custody matter to its domestic relations commissioner (DRC).1

Page 704

The DRC found that the parties had stipulated that the Harrisons did not qualify as de facto custodians even though they had apparently " been the primary care givers of the children for some time as a result of placement by the Cabinet [for Families and Children] and court order...." 2 Although KRS 403.420 was already repealed at the time,3 the DRC, nevertheless, stated that " [t]he right of a non-parent to initiate a custody action in Kentucky is set forth in KRS 403.420(4)(b)." The DRC recounted testimony that Emily abused the children and that Christopher failed adequately to protect the children from Emily's abuse. But the DRC concluded that there was insufficient evidence to establish that Christopher was an unfit parent and that the evidence supported a conclusion that Emily was only an unfit parent of J.L. The DRC's report recommended a conclusion that Christopher be granted sole permanent custody of all three children.

The Harrisons filed exceptions to the DRC's report. The trial court ultimately rejected the DRC's conclusions, finding that Emily presented " a serious danger to the physical, mental, and emotional health of [J.L., H.L.] and [N.L.] and ... that Chris[topher] is incapable of protecting the children from such danger." Memorably, the trial court found that it " fears three potential homicides if the children are returned to Chris[topher]...." So the trial court awarded permanent sole custody of the children to the Harrisons.

Christopher appealed the trial court's decision to the Court of Appeals. Although nobody had questioned the Harrisons' standing to seek custody of the children, the Court of Appeals, acting on its own motion, concluded that the repeal of KRS 403.420 meant that the Harrisons lacked standing to seek custody of the children.4 That lack of standing, the Court of Appeals concluded, also meant that the trial court lacked subject-matter jurisdiction to determine the Harrisons' action for custody of the children. So the Court of Appeals vacated the trial court's order granting custody of the children to the Harrisons and remanded the case to the trial court with directions to dismiss the custody proceedings.

We granted the Harrisons' motion for discretionary review. The question of whether the Harrisons should be granted custody of the children is not before us. The precise question before us is whether an appellate court may act upon its own motion to decide an appeal based upon a purported lack of standing of one of the litigants. We conclude that standing is distinct from subject-matter jurisdiction. And a party may waive a right to contest standing. So an appellate court may not, on its own motion, raise the issue of standing of one of the parties to the appeal and then proceed to adjudicate the appeal on grounds of standing when no party has in

Page 705

any manner questioned another party's standing.

II. ANALYSIS.

The issue of what effect the repeal of KRS 403.420 had upon the ability of a nonparent to seek custody of children is important. But that question is not really before us. Instead, this appeal revolves around the concept of standing. More specifically, the question is whether the Court of Appeals erred by resolving the case on the Harrisons' purported lack of standing even though we have been directed to nothing to indicate, nor have we independently located, anything to show that Christopher had ever raised that issue below. In other words, the question before us is whether a purported lack of standing may be waived or if a lack of standing is not waivable because a lack of standing by a plaintiff deprives a court of subject-matter jurisdiction.

Before we address whether standing may be waived, we must first attempt to define the term. A leading legal dictionary defines standing as " [a] party's right to make a legal claim or seek judicial enforcement of a duty or right." 5 Our precedent similarly defines standing as a " require[ment] that a party have a judicially recognizable interest in the subject matter of the suit." 6 So, in order to have standing, the Harrisons would need to have a judicially recognizable interest in the subject-matter of the suit- i.e., the custody and care of the children. Clearly, the Harrisons had an interest in the custody of the children. Where the Court of Appeals found they lacked standing was the fact that they had no judicially recognizable interest in the custody of the children because, in the Court of Appeals' view, the repeal of KRS 403.420 left the nonparent Harrisons without a statutory mechanism to seek custody of the children. In the Court of Appeals' view, that lack of standing caused the trial court to lack subject-matter jurisdiction over this action.

Some courts follow the Court of Appeals' approach. Admittedly, the concepts of standing and subject-matter jurisdiction are at least somewhat related. But our precedent and strict recognition of the material differences between standing and subject-matter jurisdiction lead us to the conclusion that an appellate court cannot resolve, on its own motion, a case based upon what it perceives to be a lack of standing if the issue of standing has never been raised by any party. The issue of subject-matter jurisdiction cannot be waived because it goes to the very heart of a court's ability to determine an issue in controversy,7 but the issue of standing is a defense that may be waived.

We begin our analysis by discussing why standing and lack of subject-matter jurisdiction are not synonymous. The key difference is that subject-matter jurisdiction involves a court's ability to hear a type of case while standing involves a party's ability to bring a specific case. Our predecessor Court quoted, with approval, an opinion of the New York Court of Appeals that held that " subject matter does not mean ‘ this case’ but ‘ this kind of case.’ " 8 More recently, we reaffirmed our adherence to the proposition that subject-matter jurisdiction depends on whether a court has the

Page 706

ability to hear " this kind of case," instead of " this case." 9 As previously mentioned, however, standing focuses more narrowly on whether a particular party has the legally cognizable ability to bring a particular suit. Although the concepts bear some resemblance to each other, standing is distinct from subject-matter jurisdiction.

Because the 23rd Judicial Circuit of Kentucky does not have a family court division, the trial court, as a general jurisdiction circuit court, certainly had the inherent power and ability to adjudicate child custody cases. 10 The trial court did, therefore, have subject matter jurisdiction over the Harrisons' action. At most, the trial court may have improperly exercised its general jurisdiction over child custody matters by resolving the Harrisons' particular claims.11 But one party's inability to seek a judicial determination of a particular matter ( i.e., a lack of standing) does not mean that a court itself lacks subject-matter jurisdiction. So the Court of Appeals erred by conflating the issue of the Harrisons' standing with the larger issue of whether the trial court had subject-matter jurisdiction over child custody disputes.

Having determined that the trial court had subject-matter jurisdiction over this type of case does not end our inquiry because we must next determine whether a lack of standing by the Harrisons in this particular case may be addressed by the Court of Appeals on its own motion or whether Christopher's failure to raise standing in any manner in the trial court meant that the issue had been waived. Consistent with general Kentucky precedent, we conclude that Christopher had waived any issues related to standing. Because Christopher waived objection to the Harrisons' purported lack of standing to bring the custody action, the Court of Appeals erred by injecting standing into the case.

The Court of Appeals concluded that the repeal of KRS 403.420 meant that there was no statutory vehicle by which the Harrisons could seek custody of the children. Although that issue is interesting, we need not delve into it in this case because we conclude that Christopher waived any objection to the Harrisons' lack of standing. Even were we to presume solely for the sake of argument that the Harrisons lacked standing, the Court...

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73 practice notes
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • October 26, 2012
    ...over this matter was never at issue. "[S]ubject matter does not mean 'this case' but 'this kind of case.'" Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010) (citation omitted). The Fayette Circuit Court, as a court of general jurisdiction, has been vested with subject-matter juris......
  • W.R.L. v. A.H., 041715 KYCA, 2014-CA-001240-ME
    • United States
    • Kentucky Court of Appeals of Kentucky
    • April 17, 2015
    ...relief to a party who lacks standing, i.e., the "legally cognizable ability to bring a particular suit[, ]" Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010), with regard to "the subject matter of the suit" we are reviewing – adoption. Bailey v. Preserve Rural Roads of M......
  • Birchwood Conservancy v. United Brotherhood of Carpenters, 100711 KYCA, 2009-CA-001413-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • October 7, 2011
    ...jurisdiction was never a real issue. "[S]ubject matter does not mean 'this case' but 'this kind of case.' " Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010) (citation omitted). The Scott Circuit Court, as a court of general jurisdiction, has been vested with subject-matter jurisd......
  • Bardstown Junction Baptist Church, Inc. v. Shepherdsville City Council, 120514 KYCA, 2013-CA-001168-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • December 5, 2014
    ...that issue has not been raised, and this court is not authorized to raise the issue of standing sua sponte. See Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010). [5] To the extent that the City Council's brief attempts to do so in support of any particular argument, it chiefly cites an unv......
  • Request a trial to view additional results
73 cases
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • October 26, 2012
    ...over this matter was never at issue. "[S]ubject matter does not mean 'this case' but 'this kind of case.'" Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010) (citation omitted). The Fayette Circuit Court, as a court of general jurisdiction, has been vested with subject-matter juris......
  • W.R.L. v. A.H., 041715 KYCA, 2014-CA-001240-ME
    • United States
    • Kentucky Court of Appeals of Kentucky
    • April 17, 2015
    ...relief to a party who lacks standing, i.e., the "legally cognizable ability to bring a particular suit[, ]" Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010), with regard to "the subject matter of the suit" we are reviewing – adoption. Bailey v. Preserve Rural Roads of M......
  • Birchwood Conservancy v. United Brotherhood of Carpenters, 100711 KYCA, 2009-CA-001413-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • October 7, 2011
    ...jurisdiction was never a real issue. "[S]ubject matter does not mean 'this case' but 'this kind of case.' " Harrison v. Leach, 323 S.W.3d 702, 705 (Ky. 2010) (citation omitted). The Scott Circuit Court, as a court of general jurisdiction, has been vested with subject-matter jurisd......
  • Bardstown Junction Baptist Church, Inc. v. Shepherdsville City Council, 120514 KYCA, 2013-CA-001168-MR
    • United States
    • Kentucky Court of Appeals of Kentucky
    • December 5, 2014
    ...that issue has not been raised, and this court is not authorized to raise the issue of standing sua sponte. See Harrison v. Leach, 323 S.W.3d 702, 706 (Ky. 2010). [5] To the extent that the City Council's brief attempts to do so in support of any particular argument, it chiefly cites an unv......
  • Request a trial to view additional results

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