Jeffrey v. Jeffrey, No. 2002-CA-000336-MR.

• Decision Date: 09 April 2004
• Docket Number: No. 2002-CA-000336-MR.
• Citation: Jeffrey v. Jeffrey, 153 S.W.3d 849 (Ky. Ct. App. 2004)
• Parties: Clifford Eugene JEFFREY, Appellant, v. Naomi Gail Birley JEFFREY, Appellee.
• Court: Kentucky Court of Appeals

153 S.W.3d 849

Clifford Eugene JEFFREY, Appellant, v.Naomi Gail Birley JEFFREY, Appellee.

No. 2002-CA-000336-MR.

Court of Appeals of Kentucky.

April 9, 2004.

Discretionary Review Denied by Supreme Court February 9, 2005.

Otis Doan Jr., Doan Law Office, Harlan, KY, for appellant.

Gerald L. Greene, Greene & Lewis, Pineville, KY, for appellee.

Before COMBS, KNOPF, and McANULTY, Judges.

OPINION

McANULTY, Judge.

Clifford Jeffrey appeals from a default judgment of the Bell Circuit Court, granted in a divorce action to his former wife, Naomi Gail Birley Jeffrey.Clifford's primary claim is that the circuit court lacked personal and subject matter jurisdiction to grant the divorce and divide the marital property.Having concluded that the circuit court had jurisdiction over this divorce action pursuant to Kentucky Revised Statutes (KRS) 454.220, we affirm.

Naomi and Clifford Jeffrey were married in West Virginia in 1956.They resided in Kentucky throughout the marriage although for the last several years, Clifford worked in West Virginia.He returned to Kentucky on weekends and during vacations.Naomi and Clifford separated on September 26, 2001, after Naomi learned that Clifford had been having a long-term relationship with a woman who lived in West Virginia.After the separation, Clifford moved permanently to West Virginia.On October 10, 2001, Naomi filed a Petition for Dissolution of Marriage and an affidavit for the appointment of a warning order attorney in the Bell Circuit Court.A warning order was issued on the same day.

On November 6, 2001, Clifford petitioned for divorce in the Family Court of Cabell County, West Virginia.Although Clifford claims that he filed his petition in West Virginia prior to the commencement of the Bell County action, the report of the warning order attorney indicates that Clifford received notice of Naomi's divorce petition on October 18, 2001, well before the date he filed his action in West Virginia.

The warning order attorney advised Naomi's counsel that Clifford did not intend to enter an appearance or to contest the action in Kentucky.Naomi thereafter filed an amended petition stating that she and Clifford were both residents of Kentucky before their separation.The petition also stated that "the respondent[Clifford] is within the personal jurisdiction of the Court pursuant to KRS 454.220 and under that statute, the Kentucky Secretary of State is deemed the statutory agent for service of process."Accordingly, on November 23, 2001, Clifford was served with a copy of the summons by the Secretary of State of Kentucky.

Clifford made no response to the summons, nor did he make a personal appearance in the Bell Circuit Court.On January 2, 2002, Naomi and Teresa Justice(Naomi and Clifford's daughter) gave their depositions; they were filed in the circuit court on the same day.Naomi thereafter filed a motion for default judgment.On January 8, 2002, the Bell Circuit Court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage.The circuit court divided Naomi and Clifford's marital assets, awarding Naomi the marital residence, furniture, an automobile, a lump sum of $25,000 in maintenance, and a share of Clifford's retirement fund.Clifford appealed the order on February 7, 2002.

Meanwhile, the West Virginia action, which had been stayed on September 18, 2001, pending the outcome of the Kentucky case, proceeded with a hearing on April 1, 2002, to determine Clifford's residency.On January 9, 2003, the West Virginia Family Court entered an order holding that the Kentucky court did not have jurisdiction to adjudicate spousal support and marital assets located in West Virginia, and that Clifford could pursue those issues in West Virginia pursuant to the "divisible divorce" doctrine.Naomi appealed this order.

Clifford meanwhile had filed a motion pursuant to Rules of Civil Procedure (CR) 60.02 in Bell Circuit Court, seeking relief from the default judgment.There is no copy of this motion in the record.The motion was denied in an order entered on February 11, 2003.That order indicates that Clifford raised two issues in the CR 60.02 motion: he challenged the jurisdiction of the Bell Circuit Court and argued that inadequate notice was given of Naomi and Teresa's depositions.Clifford then filed a "Motion for Reconsideration and Motion to Alter, Amend, or Vacatethe Court's Order of February 11, 2002."These motions were also denied by the circuit court on May 6, 2003, on the grounds that such reconsideration was not permitted under the Civil Rules, and that Clifford's proper avenue of redress was an appeal.Clifford failed to file a timely appeal of the denial of his CR 60.02 motion, however, and this Court denied his motion to add the latter two orders of the Bell Circuit Court to this appeal.

Finally, on April 28, 2003, the Circuit Court of Cabell County, West Virginia, reversed the order of the family court on the grounds that it had misapplied KRS 403.140 and the divisible divorce doctrine in its ruling.

Clifford raises four arguments on appeal.First, that the Bell Circuit Court lacked personal and subject matter jurisdiction to enter the default judgment; second, that default judgments are disfavored in Kentucky and that he should be afforded the right to present his case before the circuit court; third, that Naomi deceived the circuit court as to Clifford's residency in Kentucky, thus leading it to base its jurisdiction on the mistaken belief that Clifford had resided in Kentucky for 180 days immediately prior to the filing of the initial divorce petition; and finally, that notice of the depositions of Naomi and their daughter was insufficient under CR 30.01.

In Kentucky, it is permissible to appeal directly from a default judgment."However, the issue in such an appeal [is] limited to determining whether the pleadings were sufficient to uphold the judgment, or whether the appellant was actually in default."Mingey v. Cline Leasing Service, Inc., Ky.App., 707 S.W.2d 794, 796(1986)citingRouse v. Craig Realty Co.,203 Ky. 697, 262 S.W. 1083(1924).

The exception to this rule is that subject matter jurisdiction is "open for the consideration of the reviewing court whenever it is raised by any party[.]"Commonwealth, Dept. of Highways v. Berryman, Ky., 363 S.W.2d 525, 526-27(1962).

Our review of the pleadings in this case shows them to be sufficient to uphold the default judgment.Moreover, Clifford has not challenged their sufficiency, except in his prehearing statement, where he listed as one of the issues to be addressed on appeal the "[v]agueness of pleadings making grant of relief in KY divorce inequitable and illegal."He did not, however, pursue this issue in his appellate brief.Nor is there any question that Clifford was in default, nor does he contest that fact, except insofar as it relates to the circuit court's jurisdiction.

The only issue that may be properly addressed in this appeal, therefore, is whether the Bell Circuit Court had jurisdiction over this divorce action.

Clifford argues that the Bell Circuit Court was without personal or subject matter jurisdiction to issue the default judgment because he is a resident of West Virginia.He claims that West Virginia, where he filed his action, has sole jurisdiction over the issues of equitable distribution and alimony.He accuses Naomi of fraud and perjury for stating that Clifford had been a resident of Kentucky for 180 days immediately prior to the filing of her divorce petition, arguing that this led the Circuit Court mistakenly to conclude in its judgment that "[t]he record establishes and this Court finds that both the petitioner and respondent were citizens and residents of Pineville, Bell County, Kentucky for at least 180 days prior to the filing of this action."

Clifford does not indicate where...