Soileau v. Bowman, Ky Court of Appeals, CR60.02, Personal Jurisdiction

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Soileau v. Bowman, 2011-CA-001230-ME

Issue:  Rule 60.02 motion, personal jurisdiction

Published:   Reversing and Remanding   

County:  Anderson

Father appealed FC’s order denying his CR 60.02 motion to set aside prior orders and judgments for lack of personal jurisdiction.    

FACTS:

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. 

ANALYSIS:

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 void. 

Reversed and Remanded.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates  

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