Ellis v. Ellis, 2013–CA–000815–ME.

Decision Date24 January 2014
Docket NumberNo. 2013–CA–000815–ME.,2013–CA–000815–ME.
Citation420 S.W.3d 528
CourtKentucky Court of Appeals
PartiesDonald G. ELLIS, Appellant v. Theresa ELLIS, Appellee.

OPINION TEXT STARTS HERE

Jennifer Scharnoski Nelson, Princeton, KY, for appellant.

Before CLAYTON, MAZE, and NICKELL, Judges.

OPINION

MAZE, Judge:

Donald Ellis appeals from an order of the Livingston Circuit Court which denied his petition to exercise jurisdiction to modify the provisions of an Indiana decree relating to custody and visitation with the parties' son. We conclude that the specific home state provisions of KRS 403.822 and the factors set out in KRS 403.834(2) to determine the appropriate forum must control over the more general policy against splitting custody matters between two states. In the current case, only Kentucky has the relevant evidence relating to custody and visitation of the son. Therefore, we conclude that the trial court abused its discretion by declining to exercise jurisdiction in this matter. Hence, we reverse and remand.

The relevant facts of this matter are not in dispute. Donald and Theresa Ellis were divorced by a decree of the Circuit Court of Lake County, Indiana in February 2012. During those proceedings, they agreed upon split custody of their two children, with Donald having primary custody of their son and Theresa having primary custody of their daughter. Shortly before the entry of the final decree in that case, Donald and the son moved to Livingston County, Kentucky. Around the same time, Theresa and the daughter relocated from Indiana to Maricopa County, Arizona.

On December 19, 2012, Donald filed a petition in the Livingston Circuit Court seeking full faith and credit for the Indiana decree and modification of its terms as to custody and visitation of both children. However, in February of 2013, Theresa filed a petition with the Superior Court for Maricopa County, Arizona asking that court to accept jurisdiction over custody and visitation matters. Also in February 2013, the Indiana court relinquished jurisdiction since the parties and the children no longer resided there.

Since neither Kentucky nor Arizona entered the initial custody decree, neither state would have “exclusive continuing jurisdiction” pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). KRS 403.824. The parties have also stipulated that their son has never resided in Arizona and their daughter has never resided in Kentucky. In addition, the trial court recognized that all information concerning the son is available in Kentucky and all information concerning the daughter is available in Arizona. Consequently, either state would have jurisdiction over one child, but not over both.

In addressing this matter, the trial court concluded that splitting jurisdiction over the two children would be contrary to the spirit and intent of the UCCJEA. The trial court looked to the “inconvenient forum” provision of KRS 403.834(2). After examining the applicable factors, the court determined that it should defer jurisdiction over the son to Arizona, which would be a more convenient forum. Donald now appeals.

As a preliminary matter, we note that Theresa has not filed a brief in this appeal. While a party's failure to file a brief may be taken as a confession of error, CR 76.12(8)(c), such a sanction is inappropriate in appeals involving child custody or support. Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky.1971). Furthermore, the issues presented in this appeal may be decided based upon the law and the undisputed evidence of record.

In the current case, Kentucky did not issue the original custody decree and consequently does not have exclusive continuing jurisdiction to modify custody or visitation under KRS 403.824. Rather, Donald has asked a Kentucky court to modify the provisions of the Indiana decree under the provisions of KRS 403.826. Indiana has declined to exercise its exclusive continuing jurisdiction. Under such circumstances, Kentucky may exercise jurisdiction to modify if it would have jurisdiction to make an initial determination under KRS 403.822(1). KRS 403.826.

KRS 403.822(1) sets out the “home state” requirements for jurisdiction to make an initial determination of custody as follows:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or

(b) A court of another state does not have jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836; and

1. The child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

2. Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships; or

(c) All courts having jurisdiction under paragraph (a) or (b) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under KRS 403.834 or 403.836; or

(d) No court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b), or (c) of this subsection.

As the trial court recognized, Kentucky is clearly the home state of the son, while Arizona is clearly the home state of the daughter. The only issue is whether Kentucky should decline to exercise jurisdiction because Arizona is a more appropriate forum to exercise jurisdiction over both children. In making this determination, KRS 403.834(2) directs the court to consider “all relevant factors,” including:

(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(b) The length of time the child has resided outside this state;

(c) The distance between the court in this state and the court in the state that would assume jurisdiction;

(d) The relative financial circumstances of the parties;

(e) Any agreement of the parties as to which state should assume jurisdiction;

(f) The nature and location of the evidence required to resolve the pending litigation, including...

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  • Serrano v. Serrano
    • United States
    • Kentucky Court of Appeals
    • March 13, 2020
    ...two children, with [the father] having primary custody of their sonand [the mother] having primary custody of their daughter." 420 S.W.3d 528, 529 (Ky. App. 2014). The legislative scheme made calculating support in the split custody arrangement simple and logical. And it used the existing s......
  • Anderson v. Anderson
    • United States
    • Kentucky Court of Appeals
    • April 14, 2017
    ...to exert jurisdiction, if it had any, because it found South Carolina was a more appropriate forum. KRS 403.834; Ellis v. Ellis, 420 S.W.3d 528 (Ky. App. 2014). The issue was squarely presented by the mother and discussed at the September 20, 2016 hearing. The trial court informed the parti......
  • J.L.P. v. Cabinet for Health & Family Servs.
    • United States
    • Kentucky Court of Appeals
    • September 25, 2020
    ...confession of error, CR 76.12(8)(c), such a sanction is inappropriate in appeals involving child custody or support." Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App. 2014) (citing Galloway v. Pruitt, 469 S.W.2d 556, 557 (Ky. 1971)). Because these matters involve termination of parental rights......
  • Wilson v. Renick
    • United States
    • Kentucky Court of Appeals
    • March 24, 2017
    ...of error, such a sanction is usually inappropriate in appeals involving child custody, support or visitation. Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App. 2014). Furthermore, we conclude that neither Jenny's brief nor the circuit court's findings justify reversal. Jenny first argues to thi......
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