Soileau v. Bowman, 2011-CA-001230-ME
Issue: Rule 60.02 motion, personal
Published: Reversing and Remanding
Father appealed FC’s order denying his
CR 60.02 motion to set aside prior orders and judgments for lack of personal
Mother and Father resided in Texas
with their minor Child prior to separation.
After separation, Mother moved to Kentucky with Child and commenced
divorce action. Mother was unsuccessful
in serving Father and warning order attorney was appointed to constructively
serve him. FC issued temporary order
requiring Father to pay child support or $1,096 monthly. Father subsequently made some payments of
child support in amounts of $100-$300.
FC then issue final decree with child support at $1,096 per month. County attorney’s office intervened for
judgment on the arrearage, and FC entered a arrearage judgment against Father
for $6,815. Case was later transferred
to Anderson FC, and a flagrant non-support arrest warrant issued, with
arrearage amounting to nearly $50,000.
Years later, Father moved FC to set aside all previous orders pursuant
to CR 60.02 on the basis that each was void for lack of personal jurisdiction,
which FC denied. Father appealed.
FC denied Father’s motion on the basis
that it was not filed within a reasonable amount of time. CA noted that void judgments are legal
nullities that must be set aside regardless of when made. Absent an appearance by the party,
constructive service alone is not sufficient to subject nonresidents to a
personal judgment by a court of this state.
Thus, because warning order service is only constructive, FC had no
personal jurisdiction over Father.
Commonwealth asserted that under KRS 454.210, Kentucky’s long arm
statute, and KRS 407.520, Kentucky’s UIFSA’s long arm statute, FC had personal
jurisdiction over Father because he made child support payments, because Child
resided in Kentucky per Father’s directive, and because Father’s attorney made
a phone call on Father’s behalf to Commonwealth’s office. CA noted that neither of those steps did not
“constitute steps taken which are beneficial to him or detrimental to
[Mother]”, nor had Father taken any other steps that would place him within the
purview of the long-arm statutes. As FC
had no personal jurisdiction over Father, the orders issued affecting him are
Reversed and Remanded.