Evans v. Hess, NO. 2013-CA-002072-ME

CourtCourt of Appeals of Kentucky
Writing for the CourtD. LAMBERT, JUDGE
PartiesRAYMOND EVANS APPELLANT v. APRIL (EVANS) HESS; HON. MICHAEL J. McMAIN; BUSALD, FUNK, ZEVELY, P.S.C.; HON. BRIAN P. HALLORAN; WILLIAM HESCH; AND JUDGE LINDA RAE BRAMLAGE APPELLEES AND M.K.G.E. AND L.M.P.E., MINOR CHILDREN BY AND THROUGH THEIR GUARDIAN AD LITEM RICHARD KONKOLY-THEGE APPELLANTS v. APRIL PRACHT (FORMERLY EVANS) AND RAYMOND EVANS APPELLEES AND RAYMOND EVANS APPELLANT v. APRIL (EVANS) HESS APPELLEE
Decision Date08 April 2016
Docket NumberNO. 2013-CA-002072-ME,NO. 2015-CA-000043-ME,NO. 2014-CA-001512-ME

RAYMOND EVANS APPELLANT
v.
APRIL (EVANS) HESS; HON. MICHAEL J. McMAIN; BUSALD, FUNK, ZEVELY, P.S.C.;
HON. BRIAN P. HALLORAN; WILLIAM HESCH; AND JUDGE LINDA RAE BRAMLAGE APPELLEES
AND
M.K.G.E. AND L.M.P.E., MINOR CHILDREN BY
AND THROUGH THEIR GUARDIAN AD LITEM RICHARD KONKOLY-THEGE APPELLANTS
v.
APRIL PRACHT (FORMERLY EVANS) AND RAYMOND EVANS APPELLEES
AND
RAYMOND EVANS APPELLANT
v.
APRIL (EVANS) HESS APPELLEE

NO. 2013-CA-002072-ME
NO. 2014-CA-001512-ME
NO. 2015-CA-000043-ME

Commonwealth of Kentucky Court of Appeals

APRIL 8, 2016


TO BE PUBLISHED

APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA RAE BRAMLAGE, JUDGE
ACTION NO. 09-CI-01869

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OPINION
AFFIRMING IN PART AND REVERSING IN PART

** ** ** ** **

BEFORE: D. LAMBERT; COMBS; AND DIXON, JUDGES.

D. LAMBERT, JUDGE: This matter is before the Court on three separate appeals from rulings issued by the Boone Family Court. The Appellant in the first appeal (2013-CA-002072-ME), Raymond Evans (hereinafter "Raymond"), seeks this Court to review the lower court's modification of an existing child custody order, an existing child support order, and to review the order directing him to pay a portion of the attorney fees and expert witness fees expended by the Appellee, April (Evans) Hess (hereinafter "April").1 The Appellants in the second appeal

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(2014-CA-001512-ME) are M.K.G.E. and L.M.P.E., the minor children of Raymond and April, who seek this Court's review of the Boone Family Court's denial of a motion to strike testimony of their psychotherapist from the proceedings below. The Appellant in the third appeal (2015-CA-000043-ME) is Raymond, who seeks this Court's review of the Boone Family Court's denial of his motion for review of child support following another of the children attaining age eighteen, the Boone Family Court's failure to award make-up parenting time after finding April in contempt, and the court's failure to award immediate payment of attorney fees upon finding April in contempt. For the reasons described herein, we affirm in part, and reverse in part.

I. FACTUAL AND PROCEDURAL HISTORY

This action has an extensive procedural history spanning several years and two states. The Court will address the general factual and procedural history here, and later supplement it with more specific information as necessary to dispose of the issues presented.

Raymond and April were married for eighteen years and lived in Montana with their five children. On April 14, 2009, they filed a joint petition for the dissolution of the marriage in Montana. Seven days later, they filed a joint parenting plan, which the Montana court accepted and made part of the final decree dissolving the marriage. On July 15, 2009, Raymond filed an emergency

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motion for interim parenting order, a temporary restraining order, a motion for a show cause order, and a motion to amend the parenting plan. The Montana court denied these motions, but set a date for a settlement conference. April moved to Kentucky and filed a petition for the Kentucky courts' recognition of the foreign divorce, custody, and child support order, on August 5, 2009. In this petition, she also requested "the Decree of Shared Parenting be modified." She moved the Montana court to decline jurisdiction on September 4, 2009.

At that point parties began simultaneously litigating the issue of jurisdiction in both states. Raymond filed a response to the petition on September 23, 2009, and moved the Kentucky trial court2 to dismiss the petition for lack of subject-matter jurisdiction on October 16, 2009. The Montana court granted April's motion and declined to continue exercising its exclusive jurisdiction over the matter in an order entered on December 22, 2009. Specifically, the Montana court ceded its jurisdiction to Kentucky on the basis that Montana was, at that point, an inconvenient forum. Raymond withdrew his motion to dismiss in Kentucky on January 8, 2010, following the Montana court's ruling on April's motion.

Having established Kentucky as the state with jurisdiction over the subject matter, the parties proceeded to extensively litigate the issues of custody and child support, filing multiple motions and conducting multiple hearings.

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Raymond filed two different motions for contempt in February of 2010, and a third motion for contempt along with a motion to modify custody and parenting time on March 29, 2010. All of these were denied by the trial court. Raymond also filed a motion for custody on September 28, 2011, which he amended on October 27, 2011. He also moved to modify child support on November 11, 2011.

This litigation culminated in an order, following multiple hearings, issued by the trial court on April 17, 2013. This order denied Raymond's motions to award him sole custody of the parties' four minor children,3 denied his motion for joint custody of the parties' four minor children, and awarded April sole custody of the parties' four minor children. The same order also directed Raymond to pay child support, calculating the amount based on an income of $181,870.00 annually for Raymond for 2011, 2012, and thereafter, and for April an annual income of $40,406.00 for 2011, and $49,570.95 for 2012. The trial court designated this order as final and appealable. Raymond then filed a motion to alter, amend, or vacate, which the trial court denied on November 15, 2013. On that same day, the trial court also granted April's motion for attorney fees and expert witness fees. Raymond filed the notice for the first appeal on December 9, 2013.

The trial court granted a second motion for attorney fees in favor of April on January 14, 2014. Raymond filed a petition in this Court, seeking a writ

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of prohibition to prevent the enforcement of the trial court's orders. This Court denied the writ, in an unreported opinion entered on July 9, 2014.4 Raymond argued that the trial court had lacked jurisdiction to hear both issues concerned in the petition: child custody and child support. This Court explicitly determined that "the family court had subject-matter jurisdiction to entertain April's petition to register the Montana custody determination" and further that "...the family court properly exercised subject-matter jurisdiction over April's motion to modify the foreign child support order." Raymond appealed this Court's ruling to the Supreme Court, which dismissed it for failure to perfect the appeal.

On May 29, 2014, Raymond filed a motion for contempt, alleging that April had interfered with his parenting time by not allowing the children to see him. April filed a series of motions in June, including a motion for contempt, and a motion for supervised visitation, in which she contended that Raymond had harmed the welfare of the children by manipulating, abusing, or acting inappropriately with them. The trial court held seven hearings on these motions, spanning the entire month of July 2014.

During the hearing on July 1, 2014, April attempted to call the children's psychotherapist to the stand. The guardian ad litem appointed to represent the children objected to the testimony. The trial court overruled the objection and the psychotherapist gave testimony as to the content of the children's

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therapy sessions. The guardian ad litem later moved to strike the testimony, citing Rule 507 of the Kentucky Rules of Evidence ("KRE"), which the trial court overruled. Consequently, the guardian ad litem filed notice of the second appeal.

The third appeal stems from an order issued by the trial court on April 6, 2014. That order found April in contempt for failure to abide by a prior order regarding Raymond's parenting time with the children. The trial court awarded Raymond attorney fees, but denied his request to modify child support, which he had made as the result of one of the minor children reaching age eighteen and switching residences from April's to Raymond's. The trial court also denied, as moot, Raymond's request to make up missed parenting time with the children. Raymond filed a motion to alter, amend, or vacate, the portions of that order denying the child support modification and his make-up parenting time. April filed a motion to alter, amend, or vacate, the portion of the order awarding Raymond attorney fees. She requested the trial court suspend her payment of Raymond's attorney fees. The trial court entered an order on December 11, 2014, which denied Raymond's motion, and granted April's motion. It is from the December order that Raymond appeals.

II. ANALYSIS
A. THE FIRST APPEAL, 2013-CA-002072-ME
1. JURISDICTION WAS PROPER

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The Court will first address, as a threshold issue, Raymond's challenge to the trial court's exercise of subject-matter jurisdiction. Raymond contends in this appeal that the trial court lacked subject-matter jurisdiction because April's petition to register the foreign custody and child support order contained language seeking a modification of the terms of the Montana order.

Raymond argues that because the Montana court had not determined Kentucky was the more convenient forum before the petition was filed, and further because the petition requested a modification of the custody terms of the Montana order, the trial court lacked subject-matter jurisdiction. Jurisdiction to modify a foreign court's custody ruling is determined at the time the motion to modify is filed. Wahlke v. Pierce, 392 S.W.3d 426, 429 (Ky.App. 2013).

April argues that Kentucky courts had jurisdiction to modify custody because Raymond voluntarily submitted himself to the jurisdiction of the Kentucky courts by participating in the proceedings before the trial court. This argument appears to conflate the requirements for personal jurisdiction with those for subject-matter jurisdiction. While personal jurisdiction may be established by a party's availing himself of the benefits and protections of the laws of the forum state (Cox v. Cox, 170 S.W.3d 389 (Ky. 2005) (citing Int'l Shoe Co. v. State of Washington,...

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