848 S.W.2d 457 (Ky.App. 1993), 91-CA-2106, Karahalios v. Karahalios

CourtCourt of Appeals of Kentucky
Writing for the CourtWILHOIT, Judge.
JudgeBefore LESTER, C.J., and GARDNER and WILHOIT, JJ.
Citation848 S.W.2d 457
Docket Number91-CA-2106-MR.
PartiesMichael KARAHALIOS, Appellant, v. Sheila KARAHALIOS, Appellee.

Page 457

848 S.W.2d 457 (Ky.App. 1993)

Michael KARAHALIOS, Appellant,

v.

Sheila KARAHALIOS, Appellee.

No. 91-CA-2106-MR.

Court of Appeals of Kentucky

March 5, 1993

Page 458

William P. Sturm, Sturm & Sturm, Frankfort, for appellant.

John Paul Jones II, Frazier and Jones, PSC, Monticello, for appellee.

Before LESTER, C.J., and GARDNER and WILHOIT, JJ.

WILHOIT, Judge.

On October 19, 1984, the appellant Michael Karahalios and the appellee Sheila Karahalios were married in Tennessee. Their only child, Kristina Elaine Karahalios, was born on January 16, 1988. The parties lived in Tennessee until the time of their separation in September 1990. The exact date of their separation is disputed. The appellant asserts that the separation occurred, at the earliest, on September 16, 1990, while the appellee asserts, and the Wayne Circuit Court found, that the separation occurred on September 1, 1990. It is undisputed that the appellee has lived in Kentucky since the date of separation. The appellant has continued to reside in Tennessee.

On February 26, 1991, the appellant filed a complaint in the Chancery Court for Rutherford County, Tennessee, seeking a divorce and custody of Kristina. On March 13, 1991, the appellee filed a petition for dissolution of marriage in the Wayne Circuit Court. 1 The next day, March 14, 1991, the appellee was served with a summons and a copy of the complaint in the Tennessee divorce action. The appellee attempted to serve the appellant in her Kentucky divorce action by certified mail sent by the Kentucky Secretary of State. The Secretary of State was unable to serve the appellant at the address provided by the appellee. As a result, the Wayne Circuit Court appointed a warning order attorney on April 17, 1991. On April 23, 1991, the appellee filed a motion to dismiss in the Tennessee court. She made no mention of the Kentucky action.

On June 10, 1991, the warning order attorney appointed by the Wayne Circuit Court filed a report with that court stating that he had not been able to serve the appellant at the address provided by the appellee. On June 20, 1991, the appellee filed a deposition in support of her motion to submit her action to the Wayne Circuit Court for default judgment. In the deposition, the appellee acknowledged that the appellant had filed a divorce action in Tennessee. This was the first time that the appellee mentioned the Tennessee action in the Kentucky proceeding.

On June 26, 1991, the Wayne Circuit Court entered an order dissolving the parties' marriage and granting custody of

Page 459

Kristina to the appellee. On that very same day, the Tennessee court denied the appellee's motion to dismiss the appellant's complaint. On July 8, 1991, the appellant, pursuant to CR 60.02, moved the Wayne Circuit Court to set aside its order. On August 9, 1991, the Wayne Circuit Court denied the appellant's motion, and it is that denial which is the subject of this appeal.

The appellant asserts that he is entitled to post-judgment relief under CR 60.02 because the appellee's conduct throughout the Wayne Circuit Court proceedings was rife with fraud. The appellee used the warning order procedure set forth in CR 4.05 through CR 4.07 to constructively serve the appellant. Civil Rule 4.06 requires that the plaintiff provide an affidavit stating, among other things, the last known address of the defendant. The appellee stated in her affidavit that the last known address of the appellant was 1061 West Broad Street in Smithville, Tennessee. The appellant acknowledges that he and the appellee had lived at the Smithville address during their marriage. He claims, however, that he and the appellee had resided at 119 Hanes Haven Drive in Murfreesboro, Tennessee, at the time of their separation, that he had continued to reside at that address, and that she knew it. He claims that the appellee committed fraud affecting the proceedings by stating in her affidavit that the Smithville address was the appellant's last known address.

The Wayne Circuit Court, after a hearing on the appellant's CR 60.02 motion, determined that the Smithville address was the last known address of the appellant. We may not set aside a trial court's finding of fact unless we determine the finding to be clearly erroneous. CR 52.01. It is undisputed that the parties had lived at the Smithville address at some point during their marriage. Water and electric service at the Smithville residence continued in the appellant's name until June of 1992. Furthermore, a copy of the Wayne Circuit Court's decree of divorce and custody entered on June 26, 1991, was served upon the appellant at the Smithville address. This constitutes substantial evidence to support the circuit court's finding that the Smithville address was the last known address of the appellant. This finding is not clearly erroneous and cannot be set aside.

The appellant next claims that the appellee committed fraud by not giving the warning order attorney the addresses of his Tennessee lawyer, the restaurant operated by him, or his brother. However, CR 4.06 requires only that the plaintiff state the last known address of the defendant. As the Supreme Court stated in Unknown Person on Behalf of Englert v. Whittington, Ky., 737 S.W.2d 676, 678 (1987), "[w]e have not found a case in this Commonwealth setting out additional requirements for the affidavit for warning order in addition to the last known address." We will not now broaden the requirements of CR 4.06 in a manner in which our Supreme Court has explicitly refused to do so.

The appellant's next assertion is that the appellee fraudulently procured the circuit court's jurisdiction under KRS 403.140 by misrepresenting the duration of her residency in Kentucky. KRS 403.140(1)(a) requires that at least one party to a dissolution of marriage action must have been residing in Kentucky for 180 days before...

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12 practice notes
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Court of Appeals of Kentucky
    • October 26, 2012
    ...or the court at any time and cannot be waived." Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky. 2001); see Karahalios v. Karahalios, 848 S.W.2d 457, 460 (Ky. App. 1993). In Prudential Resources Corp. v. Plunkett, 583 S.W.2d 97 (Ky. App. 1997), the Court of Appeals affirmed the dismissal ......
  • 301 S.W.3d 35 (Ky.App. 2009), 2009-CA-000211-ME, Cabinet for Health and Family Services v. J.T.G.
    • United States
    • Court of Appeals of Kentucky
    • December 4, 2009
    ...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 " v......
  • No. 00-01447 and 98-62170 (2002). Tempur-Pedic, Inc. v. Hall.
    • United States
    • Workers' Compensation Board Kentucky
    • May 21, 2002
    ...time, even on appeal when not originally preserved as an issue at the time of an original proceeding. Karahalios v. Karahalios, Ky. App., 848 S.W.2d 457 (1993). Unfortunately, the term "jurisdiction" is sometimes more easily used than understood. Duncan vs. O'Nan, Ky., 451 S.W.2d ......
  • 447 S.W.3d 179 (Ky.App. 2014), 2013-CA-001725-WC, Basin Energy Co. v. Howard
    • United States
    • Court of Appeals of Kentucky
    • August 8, 2014
    ...time even on appeal even when not originally preserved as an issue at the time of the original proceedings. See Karahalios v. Karahalios, 848 S.W.2d 457 (Ky. App. 1993). Further, jurisdiction cannot be conferred by consent of the parties. Therefore, it is appropriate for this Board to make ......
  • Request a trial to view additional results
11 cases
  • Pal Oil, LLC v. United American Energy, LLC, 102612 KYCA, 2011-CA-000744-MR
    • United States
    • Court of Appeals of Kentucky
    • October 26, 2012
    ...or the court at any time and cannot be waived." Privett v. Clendenin, 52 S.W.3d 530, 532 (Ky. 2001); see Karahalios v. Karahalios, 848 S.W.2d 457, 460 (Ky. App. 1993). In Prudential Resources Corp. v. Plunkett, 583 S.W.2d 97 (Ky. App. 1997), the Court of Appeals affirmed the dismissal ......
  • 301 S.W.3d 35 (Ky.App. 2009), 2009-CA-000211-ME, Cabinet for Health and Family Services v. J.T.G.
    • United States
    • Court of Appeals of Kentucky
    • December 4, 2009
    ...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 " v......
  • 447 S.W.3d 179 (Ky.App. 2014), 2013-CA-001725-WC, Basin Energy Co. v. Howard
    • United States
    • Court of Appeals of Kentucky
    • August 8, 2014
    ...time even on appeal even when not originally preserved as an issue at the time of the original proceedings. See Karahalios v. Karahalios, 848 S.W.2d 457 (Ky. App. 1993). Further, jurisdiction cannot be conferred by consent of the parties. Therefore, it is appropriate for this Board to make ......
  • 936 S.W.2d 770 (Ky.App. 1996), 94-CA-002691, Wolfenbarger v. Commonwealth
    • United States
    • Court of Appeals of Kentucky
    • June 14, 1996
    ...decision in particular types of cases. Gordon v. NKC Hospitals, Inc., Ky., 887 S.W.2d 360, 362 (1994); Karahalios v. Karahalios, Ky.App., 848 S.W.2d 457, 460 (1993). An argument that subject matter jurisdiction is lacking may be raised for the first time on appeal and cannot be "born o......
  • Request a trial to view additional results

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