Koerner v. Koerner, Ky COA, Child Support Modification Jurisdiction

DATE RENDERED: 10/17/2008

Mom alleged that TC lacked subject matter jurisdiction over child support modification.

At the time of the dissolution, Mom and Dad and their two minor children resided in GA. Their divorce decree gave Mom and Dad joint custody of the children with Mom having primary physical custody, and Dad was ordered to pay child support to Mom. In 2003, Mom and the children moved to KY. In 2006, Dad, who remained a GA resident, registered the GA decree in KY and filed a motion in KY TC requesting primary physical custody of oldest child. TC denied immediate modification of custody but ordered that oldest child reside with Dad during that summer, subject to further modification at the end of the summer. In August of that summer, primary residential custody was transferred to Dad. Mom timely filed a CR 59 motion to alter, amend or vacate the order. One week after the order modifying the custody decree and, before Mom’s CR 59 motion was ruled upon, Dad filed a motion to modify the child support paid to Mom on the basis that the GA decree was premised on both children being in Mom’s custody, so that the transfer of residential custody of the oldest child to him was a change in circumstances that justified modification. Subsequently, TC granted Mom’s CR 59 motion and returned the oldest child to Mom’s primary residential custodianship. In memoranda to TC addressing Dad’s motion for modification of child support, Dad argued that pursuant to the KY child support guidelines his child support should be reduced. Mom opposed the modification on the basis that the family court lacked jurisdiction under KRS Chapter 407 et. seq. TC reduced Dad’s child support based on the parties’ incomes and the corresponding child support amount in the guidelines.

Whether TC had the authority to modify the GA decree requires an interpretation of the applicable provisions of the UIFSA as incorporated into KRS Chapter 407. CA held that the state that issued the child support decree or order retains “continuing, exclusive jurisdiction” unless KRS 407.5613 applies or conditions for modification established in KRS 407.5611(1)(a) are met. Although enforcement of a child support decree and modification both require that the decree be registered in the foreign state, there are additional requirements to be met before the court has authority to modify an existing child support decree. Thus, Dad’s proper registration of the child support decree in KY did not confer jurisdiction in KY TC to modify the decree.
KRS 407.5613 provides that jurisdiction to modify a child support order of another state exists if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state . . . .” Because Dad remained a GA resident, KRS 407.5613 has no application. KRS 407.5611 provides that a KY TC will have jurisdiction to modify if it finds that the child, the individual obligee, and the obligor do not reside in the issuing state, that the petitioner is a nonresident of KY, and that KY would have personal jurisdiction of respondent; or, that the child or one of the parties is subject to KY’s personal jurisdiction and that the parties have filed written consent for KY TC to assume continuing, exclusive jurisdiction over the order. If the obligor or obligee remains a resident of the issuing state and no written consent is filed, the issuing state retains continuing, exclusive jurisdiction to modify its child support decree. Although arguably not a desired result, one state may retain jurisdiction to modify child support while another obtains subject matter jurisdiction over child custody and visitation. Thus, KY TC had no jurisdiction to modify the GA child support decree, although KY has jurisdiction over custody matters in this case.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates