Biggs v. Biggs, No. 2008-CA-001219-ME.

CourtCourt of Appeals of Kentucky
Writing for the CourtCombs
Citation301 S.W.3d 32
PartiesMark Owen BIGGS, Appellant v. Amy Sue BIGGS, now Nichols, Appellee.
Decision Date04 December 2009
Docket NumberNo. 2008-CA-001219-ME.
301 S.W.3d 32
Mark Owen BIGGS, Appellant
v.
Amy Sue BIGGS, now Nichols, Appellee.
No. 2008-CA-001219-ME.
Court of Appeals of Kentucky.
December 4, 2009.

Susie H. Moore, Henderson, KY, for appellant.

William B. Norment, Jr., Henderson, KY, for appellee.

Before COMBS, Chief Judge; WINE, Judge; GRAVES,1 Senior Judge.

OPINION

COMBS, Chief Judge.


Mark Biggs appeals the dismissal of his motion to modify custody by the Henderson Circuit Court. After our review, we vacate and remand.

301 S.W.3d 33

Mark Biggs (Mark) and Amy Nichols (Amy) divorced in 1999. At that time, their son, Jesse, was three years of age. The Henderson Circuit Court ordered joint custody with Amy designated as the primary care provider. In 2007, Amy, her new husband, and Jesse moved to Colorado. Mark was deployed to Afghanistan. Mark filed a motion in Henderson Circuit Court to prevent Amy from taking Jesse to Colorado. The court denied the motion because of Mark's deployment but advised him to file another motion once he was "available"—presumably meaning upon his return to Kentucky.

In 2008, Mark filed a motion to modify custody. Citing lack of jurisdiction, the trial court dismissed the motion in April 2008, finding that Kentucky was no longer Jesse's home state. Mark now appeals the trial court's denial of his motion to reconsider. After examining the record and the applicable law, we are persuaded that the trial court erred in its order declining to exercise jurisdiction in this matter.

Kentucky adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2004. Kentucky Revised Statutes (KRS) 403.800, et seq. The UCCJEA was intended to bring states' laws into compliance with the federal Parental Kidnapping Prevention Act (PKPA). UCCJEA Prefatory Note (1999).

UCCJEA directs that an initial custody determination should be made by a court in the child's home state—defined as the state in which the child has resided for six months. KRS 403.800(7). In this case, neither party disputes that the Henderson Circuit Court properly made the initial custody determination under KRS 403.822. Therefore, the issue before us is whether it properly declined to exercise continuing jurisdiction in modification matters. Whether a trial court acts within its jurisdiction is a question of law; therefore, our review is de novo. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004).

The trial court relied on KRS 403.824(1), which provides that the state making an initial custody determination retains jurisdiction unless:

(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships[.]

"Significant connection" is explained by the following comment to UCCJEA § 202:

E]ven if the child has acquired a new home State, the original decree State retains exclusive, continuing jurisdiction ... If the relationship between the child and the person remaining in the State ... becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.

As Kentucky law is sparse in construing our counterpart of the UCCJEA, we have looked to sister states for guidance. Michigan has also adopted the UCCJEA, and its Court of Appeals recently found that a significant connection exists if "one parent resides in the state and exercises at least some parenting time in the state." White v. Harrison-White, 280 Mich.App. 383, 760 N.W.2d 691, 697 (2008). The Court of Appeals of Tennessee has explained that under the principles of the PKPA and the UCCJEA, ...

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27 practice notes
  • State ex rel. Klein v. Winegar, No. 20160281
    • United States
    • United States State Supreme Court of North Dakota
    • April 25, 2017
    ...with other relatives, West v. West , 364 Ark. 73, 216 S.W.3d 557 (2005) ; In re Forlenza , 140 S.W.3d 373 (Tex. 2004) ; Biggs v. Biggs , 301 S.W.3d 32 (Ky. Ct. App. 2009) ; health care within the state, Griffith v. Tressel , 394 N.J.Super. 128, 925 A.2d 702 (2007) ; Shields v. Kimble , 2010......
  • Anderson v. Anderson, NO. 2016-CA-001502-ME
    • United States
    • Court of Appeals of Kentucky
    • April 14, 2017
    ...KRS 403.800(7).3 Thus, where Kentucky law is sparse in construing the UCCJEA, we look to our sister states for guidance. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky. App. 2009). Other states considering what constitutes a temporary absence have evaluated whether the parties intended the child to ......
  • Addison v. Addison, NO. 2012-CA-002210-ME
    • United States
    • Court of Appeals of Kentucky
    • May 16, 2014
    ...more convenient forum according to the factors listed in KRS 403.834. Mauldin v. Bearden, 293 S.W.3d 392, 401 (Ky. 2009).Biggs v. Biggs, 301 S.W.3d 32, 33-34 (Ky. App. 2009). Sub judice, we must reject Lydia's argument that the trial court erred in asserting its jurisdiction to hear the cus......
  • Shafizadeh v. Shafizadeh, Nos. 2010–CA–000758–MR
    • United States
    • Court of Appeals of Kentucky
    • December 14, 2012
    ...divested the family court of jurisdiction. Whether the family court acted outside its jurisdiction is a question of law. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky.App.2009). We review the issue de novo. Id. “[A] party or counsel may seek to disqualify or recuse a judge from proceeding further i......
  • Request a trial to view additional results
27 cases
  • State ex rel. Klein v. Winegar, No. 20160281
    • United States
    • United States State Supreme Court of North Dakota
    • April 25, 2017
    ...with other relatives, West v. West , 364 Ark. 73, 216 S.W.3d 557 (2005) ; In re Forlenza , 140 S.W.3d 373 (Tex. 2004) ; Biggs v. Biggs , 301 S.W.3d 32 (Ky. Ct. App. 2009) ; health care within the state, Griffith v. Tressel , 394 N.J.Super. 128, 925 A.2d 702 (2007) ; Shields v. Kimble , 2010......
  • Anderson v. Anderson, NO. 2016-CA-001502-ME
    • United States
    • Court of Appeals of Kentucky
    • April 14, 2017
    ...KRS 403.800(7).3 Thus, where Kentucky law is sparse in construing the UCCJEA, we look to our sister states for guidance. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky. App. 2009). Other states considering what constitutes a temporary absence have evaluated whether the parties intended the child to ......
  • Addison v. Addison, NO. 2012-CA-002210-ME
    • United States
    • Court of Appeals of Kentucky
    • May 16, 2014
    ...more convenient forum according to the factors listed in KRS 403.834. Mauldin v. Bearden, 293 S.W.3d 392, 401 (Ky. 2009).Biggs v. Biggs, 301 S.W.3d 32, 33-34 (Ky. App. 2009). Sub judice, we must reject Lydia's argument that the trial court erred in asserting its jurisdiction to hear the cus......
  • Shafizadeh v. Shafizadeh, Nos. 2010–CA–000758–MR
    • United States
    • Court of Appeals of Kentucky
    • December 14, 2012
    ...divested the family court of jurisdiction. Whether the family court acted outside its jurisdiction is a question of law. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky.App.2009). We review the issue de novo. Id. “[A] party or counsel may seek to disqualify or recuse a judge from proceeding further i......
  • Request a trial to view additional results

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