Anderson v. Anderson
| Decision Date | 14 April 2017 |
| Docket Number | NO. 2016-CA-001502-ME,2016-CA-001502-ME |
| Parties | CHASE MICHAEL ANDERSON APPELLANT v. KRISTINE ANDERSON APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
The Andersons were married and had two children, a boy and a girl, before they obtained a dissolution decree in Ohio many years ago. The father moved to Kentucky, and the mother moved to South Carolina. Pursuant to the Ohio decree, the mother was granted sole legal custody of the parties' children, and the father was granted visitation. Both children lived in South Carolina with their mother for nearly half a decade. At the request of his mother, on December 27, 2015, the parties' son came to live with the father and attend school in Kentucky. The father asserts that this was to be a permanent relocation "if the child liked the school and arrangement." (Father's Affidavit, ¶13).
The son lived with his father in Kentucky, excepting only a week during spring break when he was at his mother's house in South Carolina. In May of 2016, the mother made known to the father that she wanted the son to return to South Carolina to live with her. Because the Ohio decree permitted the father to have summer visitation with both children, the mother brought the daughter to father's residence for the summer and planned on picking up both children at the end of the summer. However, on June 27, 2016, just over 180 days after the son moved to Kentucky, the father filed a petition to transfer the case to Kentucky and change custody, support, and visitation regarding the son.
The father filed an emergency motion on June 29, 2016, moving the trial court to grant him temporary custody, find that Kentucky is the home state under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"),1 and abate his child support obligation because one of the children was living with him and the other was living with her mother. Mother did not appear at the August1, 2016 hearing, at which the trial court granted father's motion and requested relief.
Two days later, mother filed a special appearance and challenged that Kentucky had jurisdiction because she alleged the parties only intended the son's stay in Kentucky to be temporary - a trial to see if Kentucky was a good fit for the son. Indeed, in a series of text messages between the father and mother that were attached to the father's response to mother's motion to dismiss, the mother stated prior to the son coming to live with the father, "I want to do a trial first." She also agreed that she would sign legal papers to make the stay permanent only after the son had been given a chance to see if he wanted to stay in Kentucky.
Mother claims she informed father in May of 2016 of her desire to have the son return to South Carolina. She stated she would permit the son to remain with the father for his usual parenting time in June, but she wanted the son to return to South Carolina when the visitation was completed. Because the son's residence in Kentucky was a temporary absence from his home state of South Carolina, the mother moved to set aside the trial court's order granting father custody and abating his child support, arguing that the trial court did not obtain jurisdiction to modify the Ohio decree.
A hearing was held on September 20, 2016. At the hearing, the parties stipulated the facts as follows, with only a few disagreements as noted:
The parties called no witnesses, and they elected to put on no additional proof. They discussed with the judge that an action had been filed inSouth Carolina by the mother. The trial court noted it had already contacted the South Carolina courts and discovered that what had been filed down there was a foreign judgment, but no judge had yet been assigned to the case.2 Mother's counsel informed the trial court that a motion for contempt for failing to abide by the foreign judgment was filed on August 31, 2016, and a judge was now assigned to the case. The parties gave the trial court the South Carolina case number and the assigned judge's name so the trial court could contact the South Carolina courts about the matter. The parties then argued their respective positions regarding the jurisdictional question.
The trial court took the matter under consideration and entered an order on September 27, 2016, finding that the trial court did not have jurisdiction to hear the case because Kentucky was not the child's home state. The trial court reasoned that the father's summer parenting time could not be counted toward the sixth-month period required for home-state jurisdiction, thus the pre-petition time spent in Kentucky did not equal at least six months. Alternatively, the trial court found that Kentucky was an inconvenient forum and that South Carolina was the more convenient forum. The trial court vacated its previous order. This appeal follows.
We ultimately hold that the trial court properly found it did not have jurisdiction because the son's home state was not Kentucky for the requisite six-month period, albeit for different reasoning than the trial court found. The evidence of record indicates that both the mother and the father understood the son was moving to Kentucky for a trial period to see if he liked living in Kentucky, thus his move here was a temporary absence from his home state of South Carolina. Being a temporary absence rather than a permanent placement, the six-month clock never began to run, thus Kentucky never acquired jurisdiction. We arrive at this conclusion by analyzing the father's first issue.
Father first argues that the trial court erred by allegedly utilizing an improper time computation when calculating whether Kentucky was the home state under Kentucky Revised Statutes (KRS) 403.826, which outlines when a Kentucky court may modify a child custody determination made by another state. Pursuant to that statute, when a Kentucky court determines that the child and the child's parents do not presently reside in the state that made the initial custody determination, the Kentucky court may have jurisdiction to modify the custody determination if the provisions of KRS 403.822(1)(a) or (b) apply. Those provisions read:
"Home state" is further defined as:
. . .the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period.
KRS 403.800(7) (emphasis added). Reading the statutes together, for Kentucky to have jurisdiction to modify custody pursuant to KRS 403.822(1)(a), the child needed to live with the father in Kentucky for at least six consecutive months immediately before the filing of the petition, and that living arrangement needed to be a non-temporary absence from another state. See also Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767, 773 (Ky. 2015) ().
Alternatively, if South Carolina is the child's home state, then for Kentucky to acquire jurisdiction pursuant to KRS 403.822(1)(b), South...
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