Foster v. Fortner, Kentucky Court of Appeals
Dad appealed TC’s decision registering a foreign child support order from Georgia and holding a prior KY child support judgment void as a matter of law.
Mom and Dad were divorced in GA in 2002. Decree provided that Child would live with Mom and ordered Dad to pay child support to Mom. Mom was incarcerated in 2003 and Child went to live with Dad. Dad filed a Motion for Child Support 3 months later in July 2003 and issued a summons to Mom. This summons was returned unserved, but Mom was personally served in KY a few weeks later. In August 2003, Child was removed from Dad’s home and placed in foster care. In September 2003, a default judgment was entered requiring Mom to pay Dad child support of $180 per month. Mom regained custody of Child in 2004 and Child has lived in GA since then. In December 2008, GA child support office requested KY to enforce child support arrears against Dad in amount of $16,711 but no judgment accompanied the request. In January 2009, GA CFC filed a UIFSA petition in KY to register the GA Order for child support, seeking to enforce child support orders only for the period when Child lived with Mom. TC found that KY action should have been filed as a UIFSA action for GA to enforce, and therefore the KY judgment was void as a matter of law; that KY was required to honor the GA child support order and UIFSA petition from GA; and that if Dad wanted to modify child support or dispute arrearages, he could do so only in GA. TC registered the GA order and ordered Dad to pay an additional $100 towards his arrearage in addition to his monthly amount of $311.
CA held that had GA Petition to register child support order been filed prior entry of KY order, then KY would have had no authority to modify child support in this case. However, CA held that since UIFSA only allows a court to either register and enforce an order or register and modify an order, Kentucky was free to modify the order if it otherwise had jurisdiction to do so. KY TC had subject matter jurisdiction over matters of child support and KY TC had personal jurisdiction over Mom. CA held that although KY TC may not have had “particular case jurisdiction” over the case, Mom waived that argument by not challenging the order or particular case jurisdiction at the time the motion was filed in KY. Lack of particular case jurisdiction renders a judgment voidable, not void ab initio, and a voidable judgment is subject to consent, waiver, and estoppel.
CA also noted that KY TC should not have registered a foreign judgment for child support arrearages that had not been reduced to a judgment in GA, as this impermissibly deprived Dad of the opportunity to challenge the arrearage and thus deprives him of due process of law.