Rankin v. Coffman, No. 2006-CA-001559-ME (Ky. App. 4/27/2007)
| Decision Date | 27 April 2007 |
| Docket Number | No. 2006-CA-001559-ME.,2006-CA-001559-ME. |
| Parties | Debra RANKIN, Appellant v. Brad COFFMAN, Appellee. |
| Court | Kentucky Court of Appeals |
Appeal from Hardin Circuit Court, Honorable Pamela Addington, Judge, Action No. 04-CI-00984.
Barry Birdwhistell, Elizabethtown, Kentucky, Brief for Appellant.
William L. Hoge, III Louisville, Kentucky, Brief for Appellee.
Before: NICKELL and TAYLOR, Judges; PAISLEY,1 Senior Judge.
Debra Rankin has appealed the Hardin Family Court's May 30, 2006, order modifying custody of her two children, and its July 9, 2006, order denying her motion to alter, amend, or vacate its prior order. For the following reasons, we reverse.
Debra Rankin and Brad Coffman were divorced by a decree of the Barren Circuit Court on January 8, 2001. Within the divorce action, the parties were awarded joint custody of their two minor children, with Debra being the primary residential custodian and Brad being granted standard visitation according to the Barren Circuit Court's local rules. Both parties and their children continued to reside in Hardin County.2 There was never an issue regarding visitation, and the parties routinely modified the standard schedule in an effort to ensure that both saw the children as much as possible. Both parties subsequently remarried, and continued to work together amicably with respect to all matters concerning the children.
Debra divorced her second husband in 2003, and shortly thereafter she became engaged to be married to Dr. Tom Rankin, with plans to relocate from Hardin County. Brad became troubled by information he obtained from an investigation of Dr. Rankin, particularly regarding Dr. Rankin's past history of oral narcotics addiction, depression, and suicidal tendencies. Brad concluded that Debra was unstable due to her numerous failed relationships, and that Dr. Rankin's troubled past would only exacerbate her instability.
On May 20, 2004, Brad filed a petition for child custody in the Hardin Family Court, as all parties involved were current residents of that jurisdiction. While styled as though this was a motion for initial determination of custody, the petition was actually a request for modification of the prior Barren Circuit Court's custody order.3 Brad failed to file a separate affidavit along with his moving papers as technically required by Kentucky Revised Statutes (KRS) 403.350, but the petition was verified and Brad's signature was witnessed by a Notary Public. Brad's motion alleged that Debra had become unstable since the divorce, that the children now attended school in a district not associated with their actual place of residence, and that Debra's forthcoming marriage to Dr. Rankin would be detrimental to the children.
On June 23, 2004, Debra filed her verified response in which she denied the substantive allegations contained in Brad's motion. An affidavit was attached to the response addressing some of the issues Brad raised, and raising different concerns with respect to the relationship between the children, Brad, and the paternal grandmother. Concurrently with the filing of the above verified response, Debra filed a motion for leave to relocate with the children to Jefferson County. Debra attached an affidavit to her motion stating that the request was based upon her impending marriage to Dr. Rankin, who was then a resident of that county, that her employment was located in Jefferson County, that she would fully cooperate with Brad to accommodate his visitation with the children, and setting forth the facts and circumstances leading up to the filing of the motion, including discussions she allegedly had with Brad regarding the proposed move. Brad filed no written response to Debra's motion.
On July 31, 2004, a hearing was held on Debra's motion. Brad objected to the proposed move. Both parties testified and were cross-examined by counsel. Upon consideration of the testimony given and arguments presented by the parties' counsel, the family court granted Debra's motion.4 Shortly thereafter, Debra and Dr. Rankin were married and relocated with the children to Jefferson County.
Subsequent to the move, Brad continued to exercise his visitation with the children, and Debra continued to allow him more time than was required by the prior court orders. She testified that this was done in an effort to maintain as strong of a bond as possible between the children and their father and paternal grandmother. The children attended and became active in their schools in Jefferson County and participated in some extracurricular activities which they had previously enjoyed in Hardin County. The children had near perfect attendance and seemed to be doing quite well with their studies, as evidenced by information presented by a school representative at trial.
Brad's motion for modification of custody remained pending until a trial on the matter was held on February 23, 2006. While several discovery depositions were taken in the interim time period, no explanation was advanced for the lengthy delay experienced by the parties in obtaining a trial date for this portion of the case. However, a review of the record indicates that both parties requested continuances at differing times throughout the nearly two-year period of delay.
At trial, testimony was taken from the parties, the children,5 11 witnesses, and the depositions of two additional witnesses who were unavailable on the date of trial were admitted into evidence. Much of the testimony centered upon the history of Dr. Rankin, including his mental and emotional stability and issues relating to his career. There was testimony that each of the parties were good parents to their children. No testimony was elicited as to the past or current psychological status of the children, and no experts were requested to perform evaluations. In fact, little of the testimony involved the children in more than a cursory manner.
After the lengthy trial, the family court took the matter under advisement and issued its written findings of fact, conclusions of law, decree and order on May 21, 2006. That order set forth, in great detail, the facts and law the family court utilized in making its decision. The family court ultimately granted Brad's motion for modification making him primary residential custodian of both children, granted Debra visitation in accordance with the local rules, recalculated the child support obligations of the parties, and dealt with the issue of health care expenses and insurance for the children. Debra promptly filed a motion to alter, amend, or vacate the May 21, 2006, order. A hearing was held on June 27, 2006, and the family court entered an order denying the requested relief on July 9, 2006. This appeal followed.
Debra assigns error to the family court on three separate matters. First, Debra argues that the family court abused its discretion in evaluating the evidence before it, and that the ruling was ultimately made in contravention of the weight of the evidence presented. She next argues that the family court committed error by failing to grant her motion to alter, amend, or vacate the prior order. Finally, Debra alleges that Brad failed to comply with the requirements of KRS 403.350, thus depriving the family court of subject matter jurisdiction.
We find Debra's jurisdictional argument to be both persuasive and dispositive. We will therefore focus our discussion on that point, addressing the other issues only as necessary.
Brad argues that Debra failed to preserve the jurisdictional issue for our review and insists we summarily dismiss this part of her argument. However, subject matter jurisdiction cannot be obtained by consent nor can it be waived. The issue can be raised at any time and is reviewable by the appellate courts whenever it is raised. Kentucky Rules of Civil Procedure (CR) 12.08(3). See also Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky.App. 2005); Goff v. Goff, 172 S.W.3d 352, 358 (Ky. 2005); Gullett v. Gullett, 992 S.W.2d 866, 868 (Ky.App. 1999); and Commonwealth, Department of Highways v. Berryman, 363 S.W.2d 525, 526 (Ky. 1962). Therefore, it is not only proper, but imperative, that we discuss the jurisdictional issue complained of herein.
KRS 403.350 provides, in pertinent part, as follows:
A party seeking a temporary custody order or modification of a custody decree shall submit together with his moving papers an affidavit setting forth facts supporting the requested order or modification and shall give notice, together with a copy of his affidavit, to other parties to the proceeding, who may file opposing affidavits. . . . The court shall deny the motion unless it finds that adequate cause for hearing the motion is established by the affidavits, in which case it shall set a date for hearing on an order to show cause why the requested order or modification should not be granted.
Brad failed to file a separate affidavit along with his petition. Debra argues that this failure is fatal to his request. While we believe the better practice would be to file a separate document, the verified petition herein technically meets the requirements of being an "affidavit."
CR 43.13(1) defines an affidavit as "a written statement or declaration sworn to or affirmed before an officer authorized to take depositions by [these rules]." Subsection 2 of this rule sets forth further requirements for subscriptions and certifications for affidavits. Here, there is no argument that Brad's verified complaint was a written statement or declaration, signed by Brad, and sworn to before a Notary Public6 who was authorized by CR 28.01 to take depositions and who inscribed the date and location of such affirmation. Thus, while not holding that a verified complaint will always meet the legal requirements of being an affidavit, we find in this case that Brad's verified complaint technically fulfilled the requirements of CR 43.13.
Having found that Brad...
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