Gibson v. Gibson

• Citation: 211 S.W.3d 601
• Decision Date: 22 December 2006
• Docket Number: No. 2004-CA-000313-MR.,No. 2004-CA-001924-MR.,2004-CA-000313-MR.,2004-CA-001924-MR.
• Parties: Sheri Hoskins GIBSON, Appellant, v. Douglas A. GIBSON, Appellee.
• Court: Court of Appeals of Kentucky

211 S.W.3d 601

Sheri Hoskins GIBSON, Appellant, v. Douglas A. GIBSON, Appellee.

No. 2004-CA-000313-MR.

No. 2004-CA-001924-MR.

Court of Appeals of Kentucky.

December 22, 2006.

Thomas K. Stone, Louisville, KY, for appellant.

Brian Schuette, James Blake Hornal, Bowling Green, KY, for appellee.

Before JOHNSON and TAYLOR, Judges; HUDDLESTON,¹ Senior Judge.

OPINION

JOHNSON, Judge.

Sheri Hoskins Gibson has appealed, separately, two orders of the Oldham Circuit Court, respectively entered on January 15, 2004, and August 18, 2004, in which the trial court modified the visitation rights of her former husband, Douglas A. Gibson, with the parties' two minor children, reduced Doug's child support and his medical reimbursement arrearages, and failed to award interest on child support that was vested and remained unpaid. Having concluded that there is no relief to be granted on the January 15, 2004, order, and that the trial court did not abuse its discretion as to the medical reimbursement arrearages, we affirm in part. Having concluded that the trial court lacked personal jurisdiction to reduce Doug's child support, we reverse in part. Having further concluded that the trial court abused its discretion in failing to enter a judgment on Doug's child support arrearages, including interest on the arrearages, we vacate in part and remand.

Sheri and Doug were divorced by the Oldham Circuit Court by a decree entered on March 31, 1999. Prior to entry of the decree, the parties orally entered into a separation agreement which was read into the record at the time the March 31, 1999, decree was entered, but not reduced to writing at that time. However, it is undisputed that the separation agreement provided that Sheri and the parties' two minor children would be living in North Carolina after the divorce. By agreed order entered on March 8, 1999, the parties agreed to a visitation schedule for Doug and the children, which was incorporated into the decree.² Pursuant to the decree, Doug was to pay $1,500.00 per month in child support and he was to be responsible for all of the childrens' uninsured medical expenses. Doug paid the child support as agreed from March 1999 until February 2002.

Sheri moved to North Carolina with the children during 1999. While the question of whether she ever changed her residence back to Kentucky is disputed, it is conceded that in July 2003 she returned to Kentucky and stayed here until late September or early October 2003. Sheri's position is that her relocation to Kentucky was only temporary so she could take care of her ailing mother and seek a potential job opportunity "to determine if in fact, she wished to return to Kentucky."

No further action was taken in the case until Doug filed a motion with the trial court on September 30, 2003, requesting the trial court to modify the previous visitation agreement and to "issue a rule against Sheri to show cause why definite periods of visitation should not be established for [Doug] to have visitation with the parties' minor children." At the time Doug filed this motion, he resided in Indiana. Sheri did not receive notice of either the motion or the hearing held on October 2, 2003. The trial court entered an order on October 2, 2003, which set a specific one-week visitation schedule with the minor children from October 2, 2003, through October 9, 2003, and allowed Doug to take the children to East End Pediatrics during this visitation period. Contrary to what Sheri has stated in her brief, the trial court also passed the remaining matters until October 10, 2003, at which time Sheri was to appear with the children so they could be interviewed.

Sheri apparently received notice of this order and filed a motion on October 7, 2003, asking the trial court to remove the matter from its docket for lack of jurisdiction because none of the parties resided in Kentucky.³ She also filed a motion at that time asking that the parties' oral separation agreement, previously read into the record, be reduced to writing. The trial court held the previously scheduled hearing on October 10, 2003, but Sheri and the children failed to appear. The trial court then entered an order on October 10, 2003, finding Sheri in contempt and stating that for her to avoid arrest, she must return the children to Oldham County and ensure they attend Crestwood Elementary, not medicate the children without a doctor's specification, grant certain visitation with the children as set out by the trial court, and report to court with the children on October 17, 2003.

On October 14, 2003, the trial court entered an order denying Sheri's motion to dismiss the action based upon lack of jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA). The trial court based its denial of dismissal on the fact that Sheri "relocated to [Kentucky] in July [2003], has resided with her parents since that time, and the children have been enrolled at Crestwood Elementary for the 2003-2004 school year." The order further noted that "[a]t the termination of the hearing, the [trial] court checked with Crestwood Elementary and was advised that the children have not been withdrawn from school."

Sheri then filed a motion on October 14, 2003, to have the trial court's October 2, 2003, and October 3, 2003, orders set aside. A hearing was held on October 17, 2003, and subsequent thereto, the parties reached an agreement which the trial court approved in an order entered on October 22, 2003. The order allowed Sheri and the children to return to North Carolina⁴ and allowed the children to withdraw from enrollment at Crestwood Elementary School and to enter school at North Raleigh Christian Academy in North Carolina. The order also required the parties to resolve Doug's visitation with the children based upon their new school calendar. The trial court, on that same date, also entered, in writing, the separation agreement that the parties agreed to on March 31, 1999, and incorporated it into an amended decree.

On October 22, 2003, Doug filed a motion to decrease his child support obligation as set by the Separation Agreement. Sheri filed a response on October 30, 2003, and moved for a common-law judgment against Doug for child support and medical reimbursement arrearages and for dismissal of Doug's motion based on lack of jurisdiction.

After the hearing on November 4, 2003, on the issue of visitation, the trial court entered an order on November 14, 2003, establishing visitation⁵ and also stating that it retained jurisdiction over the case regarding child support, but that it would lose jurisdiction regarding custody and visitation six months post-September 2003. Then, on January 13, 2004, the trial court entered an order stating that the trial court would consult with the circuit court in Wake County, North Carolina to determine which court had "appropriate jurisdiction at the present time." On January 15, 2004, the trial court entered an order stating as follows:

This matter came before the Court and was addressed by Court order entered January 13, 2004. In that [o]rder, the Court indicated that it would contact Judge Stubbs to make a determination as to appropriate custodial jurisdiction for the present time.

After contacting Judge Alice Stubbs by telephone conference on January 12, 2004, the judges agreed that this Court would retain jurisdiction for custody and visitation purposes until March 10, 2004[,] which represents the expiration of the six (6) month term after Sheri['s] removal from the state of Kentucky.

. . . .

As such, this Court retains jurisdiction for matters of custody and visitation until March 10, 2004.

Sheri then appealed this order.

After several continuances, a hearing was held on April 6, 2004, on Doug's motion to modify child support and Sheri's motion for a common-law judgment on child support and medical reimbursement arrearages. It appears from the record that the continuances were due to Doug's failure to provide documents requested by Sheri through the discovery process.⁶ On August 18, 2004, the trial court, after hearing testimony and reviewing numerous exhibits placed in the record, entered its findings of fact and conclusions of law regarding the amount of child support and medical arrearages due from Doug to Sheri, as well as modifying downward Doug's child support obligation. This second appeal followed.⁷

Sheri raises five issues in her brief. The first issue pertains to her appeal of the trial court's January 15, 2004, order. The remaining four issues pertain to her appeal of the trial court's August 18, 2004, order. Sheri argues that the trial court abused its discretion in entering its January 15, 2004, order because it did not have jurisdiction under the UCCJA (now the Uniform Child Custody Jurisdiction and Enforcement Act) (UCCJEA) to modify a visitation order when none of the parties resided in Kentucky.⁸ It should be pointed out that prior to the trial court's order of January 15, 2004, it had entered orders regarding custody and visitation on October 2, 2003, October 10, 2003, October 22, 2003, October 24, 2003, November 17, 2003, and January 13, 2004, none of which Sheri appealed. However, in Sheri's brief she argues "all of the orders from September 30, 2003, forward in regard to visitation are null and void for a lack of subject matter jurisdiction and must be set aside and vacated." While none of the above-mentioned orders were final and appealable at the time they were entered, by the time Sheri filed her notices of appeal in the consolidated cases they had become final and appealable. Further, in reviewing the orders that Sheri failed to appeal and failed to reference in her pre-hearing statements, there does not appear to be any matter which currently affects the parties or the children. Because those orders were not timely appealed, we cannot review any order prior to the January 15, 2004, order.

Thus, on the issues of custody and visitation, ...