Cann v. Howard

• Decision Date: 19 February 1993
• Docket Number: No. 90-CA-2684-MR,90-CA-2684-MR
• Citation: 850 S.W.2d 57
• Parties: Steven CANN, Appellant, v. Tonda B. HOWARD, Appellee.
• Court: Kentucky Court of Appeals

Page 57

850 S.W.2d 57

Steven CANN, Appellant, v. Tonda B. HOWARD, Appellee.

No. 90-CA-2684-MR.

Court of Appeals of Kentucky.

Feb. 19, 1993.

Gordon J. Dill, Ashland, for appellant.

Charles D. Oppenheimer, Ashland, for appellee.

Before LESTER, C.J., and HAYES ¹ and JOHNSON, JJ.

JOHNSON, Judge.

This is an appeal from an Order of the Greenup Circuit Court modifying the visitation and child support ordered by a divorce decree from Allen County, Ohio. Appellant challenges the Order based on lack of personal jurisdiction. We agree with appellant, and further sua sponte find that the trial court lacked subject-matter jurisdiction. Accordingly, we reverse the trial court, and remand with directions.

Tonda (Cann) Howard and Steven Cann (hereinafter "Tonda" and "Steven") were married in Ohio and had one child (Mark) in Ohio during their marriage. Tonda initiated a divorce action against Steven in Allen County, Ohio and obtained a decree of divorce there on March 20, 1989. Tonda had moved to Kentucky prior to that date, taking Mark with her. On April 19, 1989 Steven filed a motion in Allen County, Ohio seeking to have Tonda held in contempt for interfering with Steven's visitation rights. The Ohio court by order dated August 21, 1989, did not decline jurisdiction over the dispute, but instead held Tonda in contempt and imposed a set of specific requirements on the parties regarding Steven's visitation with Mark. Seven months later, on April 24, 1990, Tonda filed a complaint in Greenup Circuit Court in Kentucky requesting that child support and visitation be modified. Steven received notice of these actions by mail in Ohio, and in his answer he raised the issue of lack of personal jurisdiction. He later conceded, however, that the Kentucky court had subject-matter jurisdiction over the visitation issue. After an evidentiary hearing before a Master Commissioner, the Kentucky court modified the visitation order of the Ohio court, but held that Kentucky lacked personal jurisdiction over Steven and could not affect his child support. Later, the Greenup Circuit Court on a motion to vacate this order, agreed with Tonda and held that Steven had made a general appearance and thereby subjected himself to the personal jurisdiction of the Kentucky court because he had asked for affirmative relief from the Master Commissioner in the form of increased visitation. The court then adopted the recommendations of the Master Commissioner as to both visitation and child support.

On appeal, Steven argues that the Kentucky court erred in modifying the Ohio visitation order, and that the court did not have jurisdiction so as to permit the entry of a valid child-support order. We agree that the orders of the circuit court should be vacated and the case remanded for further proceedings.

The first issue is whether the Kentucky court had subject-matter jurisdiction over the visitation dispute. This question must be resolved by looking to the language of the Parental Kidnapping Prevention Act (hereinafter "PKPA"), 28 U.S.C.S. § 1738A, and the Uniform Child Custody Jurisdiction Act (hereinafter "UCCJA"), KRS 403.400--403.630; Ohio Rev.Code Ann. §§ 3109.21--3109.37 (Anderson 1989). Although the parties agreed that the Kentucky court had subject-matter jurisdiction, they were in error. Since subject-matter jurisdiction may not be waived or conferred by agreement of the parties, Rodney v. Adams, Ky., 268 S.W.2d 940 (1954), the error voids the order of the Kentucky court.

"The Parental Kidnapping Prevention Act (PKPA or Act) imposes a duty on the States to enforce a child custody determination entered by a court of a sister State if the determination is consistent with the provisions of the Act." [Footnote omitted.] Thompson v. Thompson, 484 U.S. 174, 175-76, 108 S.Ct. 513, 514-15, 98 L.Ed.2d 512, 517 (1988). A " 'custody determination' means a judgment, decree, or other order of a court providing for the custody or visitation of a child, and includes permanent and temporary orders, and initial orders and modifications...." 28 U.S.C.S. § 1738A(b)(3). It is clear from the record that the Ohio custody decision in this case was made consistently with the PKPA. Thus, there is a question as to whether a Kentucky court could modify the Ohio decree without violating its duty under the Supremacy Clause, U.S. Const. Art. VI, to obey the mandate of the PKPA (which Congress enacted pursuant to its powers under the Full Faith and Credit Clause, U.S. Const. Art. IV, § 1). The PKPA mandates that Kentucky "shall not modify except as provided in subsection (f) of this section, any child custody determination made consistently with the provisions of this section by a court of another State." 28 U.S.C.S. § 1738A(a) (Emphasis added). Subsection (f) provides that Kentucky "may modify a determination of [ ] custody [made by Ohio], if--

(1) [Kentucky] has jurisdiction to make such a child custody determination; and

(2) [Ohio] no longer has jurisdiction, or it has declined to exercise such jurisdiction to modify such [custody] determination." 28 U.S.C.S. § 1738A(f) (Emphasis added).

The difficulties in this area of the law stem from the fact that, under the PKPA as under the UCCJA, either Kentucky or Ohio could have jurisdiction to modify previous custody determinations in cases such as this one. Kentucky could have "home state" jurisdiction under 28 U.S.C.S. § 1738A(c)(2)(A)(i), ² and Ohio could have "continuing jurisdiction" under 28 U.S.C.S. § 1738A(d). ³ Whether Ohio has continuing jurisdiction is a question of Ohio law which must be determined under the UCCJA, see 28 U.S.C.S. § 1738A(d), and any decision made by an Ohio court on the issue should be binding on sister states unless that decision is so manifestly unreasonable as to violate the limits of Due Process. See 28 U.S.C.S. § 1738A(a); Thompson, supra. Whether Kentucky has home state jurisdiction depends not only on Kentucky law, determined under KRS 403.420(1), but also on whether Ohio has lost or declined to exercise its continuing jurisdiction. See 28 U.S.C.S. § 1738A(b)(4), (c)(2), (f). This last point is the important addition which the PKPA made to the law.

That is, the PKPA's full faith and credit requirement is violated when a Kentucky court proceeds to exercise its jurisdiction without making a determination that Ohio has lost or declined to exercise its jurisdiction. If Steven were now to petition the Ohio court for a modification of custody, and that court granted his petition, Kentucky courts would be bound to give full faith and credit to that decree. See 28 U.S.C.S. § 1738A; Thompson, 484 U.S. 174, 108 S.Ct. 513; Cf. Bock v. Graves, Ky., 804 S.W.2d 6 (1991) (discussed below, wherein a Kentucky court had asserted continuing jurisdiction over non-resident mother and children notwithstanding the passage of three years and the entry of two orders by an Alaskan court). In short, Ohio could nullify any determination made by the Kentucky court. The only grounds that a Kentucky court could conceivably have for refusing to give full faith and credit would be: 1) the Ohio court had erred in its application of Ohio law (i.e. by deciding Ohio still had jurisdiction under the UCCJA), or 2) the Ohio court violated the Due Process Clause by retaining jurisdiction over a dispute with which it had insufficient contacts. In view of the clearly expressed policies of the Kentucky Legislature, either determination would be unwarranted. ⁴ Moreover, such determinations are beyond the jurisdiction of Kentucky courts, since the Constitution of this Commonwealth does not provide for review on any grounds, much less federal due process grounds, of the decisions of courts in other states.

In the present case, Ohio had already exercised continuing jurisdiction by issuing its order of August 21, 1989. That order was issued more than a year after Tonda and Mark left Ohio, and only seven months before Tonda filed her petition in Greenup Circuit Court, and there is no indication in the record that there was any material change in circumstances between August 1989 and April 1990. Ohio was still the residence of one parent, that parent and the child still had significant connections with Ohio, and an Ohio court could easily have determined that it was in the child's best interest for Ohio to assume continuing jurisdiction. See Ohio Rev.Code Ann. § 3109.22(A)(2) (Anderson 1989). In Willis v. Willis, 25 Ohio Misc.2d 1, 25 OBR 50, 495 N.E.2d 478 (Ohio Com.Pl.1985), an Ohio court held that even though children resided with their mother in West Virginia, it had jurisdiction under the Uniform Child Custody Jurisdiction Act over contempt, visitation, and change of child custody matters relating to those children. The parties in that case had previously entered into a consent order in Ohio for custody and visitation; Ohio had at least equal family ties as compared to West Virginia; and substantial evidence concerning the children's care, protection, training, and relationship was located in Ohio. Cf. KRS 403.420(1)(b), 403.450, 403.460. Similarly, in Bock v. Graves, Ky., 804 S.W.2d 6 (1991), a Kentucky circuit court had granted a divorce and child-custody to the wife in December 1986. Wife and children had previously moved to another state. More than three years later, in June 1990, the Kentucky court refused to relinquish jurisdiction to Alaska--then the residence of the wife and children. ⁵ The Kentucky Supreme Court held that the Kentucky circuit court did not err in refusing to give Full Faith and Credit to intervening custody orders of the Alaska courts. Although it was said that the PKPA did not apply because the Alaska orders were not final orders, Bock, 804 S.W.2d at 9, this appears to be a misstatement--the PKPA purports to apply to any "judgment, decree, or other order of a court providing for the custody or visitation of a child [including] permanent and temporary orders, and initial orders and modifications."...