Corns v. Corns, Ky COA, Child Custody Modification, Subject Matter Jurisdiction, Due Process, Continuance

Corns v. Corns


Published: Reversing and Remanding

County: Lewis

Gary Lee Corns appealed from an Order of Family Court, Lewis Circuit Court modifying an award of joint custody of his minor daughter to a grant of sole custody to his former wife, Taffy Lynn Corns (now Ratliff).  The Court of Appeals reversed for lack of subject matter jurisdiction and denial of due process and remanded for further proceedings consistent with this Opinion.

The parties entered into a Separation Agreement on August 30, 2007 and their Divorce Decree was entered that day incorporating the Agreement.  They agreed to share joint legal custody of their daughter, Allison, and did not designate a primary residential custodian.

In 2008, the parties could not agree about where to send Allison to school and Taffy asked the court to decide what was in the child’s best interest.  The court treated the motion as a request to modify custody and permitted Taffy to file an amended motion and two affidavits.  In August, 2008 the court denied Taffy’s request to allow the child to attend school in Carter County rather than in Lewis County where she had attended preschool.  The court did not specifically rule on Taffy’s motion to modify custody and designate a primary residential custodian.

In 2009, the parties disagreed about Allison’s need for a tonsillectomy.  The court authorized Taffy to schedule the procedure, but allowed Gary to seek a second opinion.  If the independent exam produced a contrary medical indication, a hearing could be scheduled.  In November, 2009, the second medical examiner concluded the tonsillectomy was unnecessary so in July, 2010 Gary filed a motion requesting a hearing on the tonsillectomy issue and “shared parenting decision making.”  Taffy filed a verified response which, in part, agreed that she and Gary could no longer share joint custody.  Taffy also filed a motion for the court to hold Gary in contempt for failure to pay his share of medical expenses.

At the hearing on September 9, 2010, Gary appeared without counsel, and requested a continuance because he was not aware that custody was at issue.  His request was denied and the hearing was conducted, after which the court sustained Taffy’s motion for a directed verdict on the tonsillectomy issue.  On the custody matter, Taffy elicited testimony from Gary regarding his filing a grievance against one of the child’s physicians and contacting the FBI.  Witnesses from the Cabinet for Health & Family Services testified about Gary’s claims of fraud against Taffy and eleven reports about Taffy’s family, none of which were substantiated. The child’s teacher testified about Gary’s conduct when the child was mildly disciplined.  Taffy told the court that Allison had 14 throat infections between 2008 and 2010

The trial court’s order entered September 14, 2010 granted custody and decision-making authority to Taffy and set out the parenting schedule.  Gary’s motion to alter, amend or vacate the order argued that Gary did not receive notice of the hearing for custody modification and objecting to the tonsillectomy procedure.  Gary’s motion was denied and the appeal followed.

The Court of Appeals found no abuse of discretion in the trial court going forward and found Gary’s claim of lack of notice “disingenuous.”  There were procedural errors, however, which resulted in the trial court’s lack of subject matter jurisdiction.  Gary failed to file an affidavit, his motion was not verified, and Taffy’s attempt to join Gary’s motion was ineffectual because Gary’s motion was statutorily inadequate to raise the issue of custody modification.  It was error for the court to hear Taffy’s motion to change custody because it had not been scheduled for hearing and Gary had no notice of a hearing.

The orders of Lewis Circuit Court were reversed and remanded for proceedings consistent with this Opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.