ROBERTS v. BEDARD No. 2011-CA-000212-ME.
357 S.W.3d 554 (2011)
Courtney G. ROBERTS, Appellant, v. Eric BEDARD, Appellee.
Court of Appeals of Kentucky.
Discretionary Review Denied by Supreme Court February 15, 2012.
John Allen Taylor , Louisville, KY, for appellant.
W. Stokes Harris, Jr. , Lexington, KY, for appellee.
Before CLAYTON, STUMBO, and THOMPSON, Judges.
Courtney G. Roberts appeals the Fayette Family Court's order dismissing her
FACTUAL AND PROCEDURAL BACKGROUND
Courtney G. Roberts and Eric Bedard had a child together on July 8, 2005. A paternity judgment was entered in the state of Florida on December 5, 2006. Courtney moved to Kentucky in 2007, and on April 29, 2008, she filed a Notice and Affidavit of Foreign Judgment Registration of the Florida paternity judgment in the Fayette Family Court. Then, on July 2, 2008, Courtney filed a petition and motion to modify the child support.
At the family court hearing, Bedard argued by special appearance that he was not a Kentucky resident, had not been served in this state, and that none of the criteria in Kentucky Revised Statutes (KRS) 407.5201 were met and, therefore, the family court did not have jurisdiction. Roberts maintained that she was in Kentucky as a result of Bedard's directives and, as a result, KRS 407.5201(5) conferred personal jurisdiction on Bedard.
On October 15, 2008, the Fayette Family Court dismissed that action, finding that Roberts was not in Kentucky at the directives of Bedard and, consequently, it did not have personal jurisdiction over Bedard. After Roberts appealed this decision, the Court of Appeals, on April 6, 2010, affirmed the family court's decision. The Court noted in its decision that "any increase in child support requested by the obligee must be sought in the state of residence of the obligor ... [since] the purpose of UIFSA
In the present case, Roberts filed a new motion to modify the child support order on July 7, 2010. And Bedard, who was in Kentucky to spend time with the child, was personally served on July 13, 2010. But the Fayette Family Court, on January 7, 2010, dismissed the new motion to modify the child support order.
In its opinion and order, the family court observed that, while under KRS 407.5201(1) a court may exercise personal jurisdiction over a nonresident who has been personally served in this state, it must also have subject-matter jurisdiction under the requirements of KRS 407.5611 before it can modify a child support order from another state. Additionally, the family court held that, according to KRS 407.5611, a requirement for subject-matter jurisdiction to modify a foreign child support order is that the party seeking modification must not reside in this state. As with the previous case between the parties, since Roberts resides in Kentucky and Bedard does not, Kentucky does not have subject-matter jurisdiction to modify the Florida child support order. And, the family court disagreed with Roberts's contention that the Full Faith and Credit for Child Support Orders Act (hereinafter "FFCCSOA"), 28 United States Code (U.S.C.) § 1738B, preempts the subject-matter jurisdiction requirements of UIFSA and allows the family court to modify
In this appeal, Roberts disputes the family court decision by arguing that the family court had personal jurisdiction over Bedard because he was personally served in Kentucky; that a foreign judgment does not require re-registration; that FFCCSOA preempts UIFSA and provides the family court subject-matter jurisdiction; and, lastly, that the family court should have struck Bedard's responsive motion because it was untimely under the local court rules.
Bedard counters these arguments by noting that the family court properly ruled that personal service of this new motion did not revive Roberts's dismissed action since federal law requires registration in a state that had personal jurisdiction at the time of the registration; that federal and state law both require jurisdiction in order to modify a foreign child support order and, thus, preemption is a nonissue; and, finally, that the family court appropriately applied the local rules regarding the time allowed for motions.
Here, the primary contested issue involves jurisdiction. Since the issue of jurisdiction is a matter of law, we will review it de novo. See Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky.2000). The Kentucky Supreme Court addressed the issue of jurisdiction related to UIFSA in Nordike v. Nordike, 231 S.W.3d 733 (Ky.2007). Therein, the Court described jurisdiction as follows: "[j]urisdiction, broadly defined, is the power of the court to decide an issue in controversy." Id. at 737, citing Black's Law Dictionary 867 (8th ed.2004). The Court then went on to discuss three types of jurisdiction—personal, subject-matter, and jurisdiction over a particular case.
With regard to personal jurisdiction, the Court stated:
Id. Next, the Court discussed subject-matter jurisdiction:
Id. at 737-38. Lastly, the Court addresses jurisdiction over a particular matter and says:
Id. Here, the disputed jurisdiction revolves around the first two types, that is, whether the family court had personal jurisdiction over Bedard and subject-matter jurisdiction over the motion to modify the Florida child support order. Adding to the complexity of the issue is the interrelationship of the UIFSA statutes and the FFCCSOA statutes.
Therefore, the issues before this Court are as follows: whether the family court had personal jurisdiction over Bedard in this current motion for child support; whether the family court properly ruled that it did not have subject-matter jurisdiction because the FFCCSOA requires that the foreign judgment be registered prior to personal service of an obligor or, in this case, whether the foreign order was registered appropriately under the FFCCSOA; whether the FFCCSOA preempts UIFSA and, thus, gives the family court subject-matter jurisdiction; and, finally, whether the family court should have struck Bedard's responsive motion because it was untimely under its local court rules.
Our analysis starts with the issue of personal jurisdiction. As noted in the January 7, 2011, family court opinion, under KRS 407.5201(1) a court may exercise personal jurisdiction over a nonresident if the individual is personally served with summons, or notice, within this state. Therefore, the family court correctly determined that it could have exercised personal jurisdiction over Bedard in the current action since he was personally served in Kentucky.
The complexity, however, lies with the issue of subject-matter jurisdiction, which the court must have. In the January 7, 2011, order, the family court opined as follows:
At this juncture, we take a look at the pertinent provisions of KRS 407.5611, titled "[m]odification of child support order of another state," which states:
Before addressing the statute with specificity, we observe that KRS 407.5613, which is titled "[j]urisdiction to modify child support order of another state when individual parties reside in this state," is not implicated. Hence, in order to ascertain whether this foreign order may be modified in Kentucky, we direct our attention to the above-cited provisions of KRS 407.5611.
Certainly, the case at hand meets the first provision in KRS 407.5611(1)(a)(1), which is that "[t]he child, the individual obligee, and the obligor do not reside in the issuing state[.]" Neither Roberts, Bedard, nor the child live in Florida. The second provision requires that the "petitioner who is a nonresident of this state seeks modification[.]" KRS 407.5611(1)(a)(2). Here, Roberts, the moving party, resides in Kentucky and, therefore, does not meet the requisites of the statute. A resident may not move for modification of a foreign (Florida) order in Kentucky. This factor renders KRS 407.5611(1)(a)(3) irrelevant, that is, whether Bedard was personally served in this state. The three provisions are joined by "and." As is the case in any issue of statutory construction, courts construe meaning "to ascertain and give effect to the intention of the Legislature[.]" Moore v. Alsmiller, 289 Ky. 682, 160 S.W.2d 10, 12 (Ky.App.1942). In so doing, KRS 446.080(4) mandates that words and phrases are construed "according to the common and approved use of language[.]" Here, the legislature's usage of the word "and" demonstrates that its intent was to make all three provisions necessary.
In addition, we also agree with the Fayette Family Court that the FFCCSOA, 28 U.S.C. § 1738B, does not preempt the subject-matter jurisdiction requirements of UIFSA. Roberts argues that FFCCSOA, 28 U.S.C. § 1738B(e), which also addresses authority to modify foreign child support orders, preempts Kentucky's UIFSA statutes:
28 U.S.C. § 1738B(e). Comparing the federal statute with KRS 407.5611 (see above), there are no real distinctions between federal and state law. But 28 U.S.C.1738B(e) only allows a court of one state to modify an order of another state if "the court has jurisdiction to make such a child support order pursuant to subsection (i)[.]" The pertinent subsection states:
Roberts maintains that because the order was registered in 2008, the registration was still effective when Bedard was served in 2010. Her interpretation of the language of the statute, however, is flawed. Contrary to Roberts's assertion, the issue does not concern whether this order, as a foreign order, needs to be re-registered. If the order in 2008 had been registered when Kentucky had personal jurisdiction over Bedard, it would have been effective. But instead, the issue revolves around the federal directive in FFCCSOA that it must have been registered at a time when the state has personal jurisdiction over the obligor.
Here, the family court did not have personal jurisdiction over Bedard in 2008 when the order was registered. In fact, Roberts has never registered the order in a state with personal jurisdiction over Bedard. Therefore, Roberts's arguments that because the family court had personal jurisdiction in July 2010, it necessarily had subject-matter jurisdiction are not persuasive. Moreover, Roberts mistakenly frames the family court's decision concerning a lack of jurisdiction as based on a lack of personal jurisdiction over Bedard. That is incorrect. The Kentucky court determined that it did not have subject-matter jurisdiction.
The crux of the matter is that even though personal jurisdiction was acquired over Bedard in July 2010, the foreign order was not effectively registered in order to confer subject-matter jurisdiction. When Bedard was served, no registered order existed because the 2008 registration occurred when Kentucky did not have personal jurisdiction over him.
Since a court must have both personal and subject-matter jurisdiction to address modification of another state's child support orders, and the family court did not have subject-matter jurisdiction, it had to dismiss Roberts's motion. In fact, the family court did not have subject-matter jurisdiction under either federal or state law. To summarize, according to FFCCSOA, registration of the parties' Florida support order would only have been effective in Kentucky if Kentucky had personal jurisdiction over Bedard at the time of registration. Under Kentucky's UIFSA statutes, the family court would only have had subject-matter jurisdiction if Roberts had been a nonresident of Kentucky when she filed her motion to modify. Thus, the family court found that it does not have subject-matter jurisdiction, and we concur because, contrary to both federal and state law, Kentucky does not have the requisite subject-matter jurisdiction.
Furthermore, the necessity for personal jurisdiction must not be confused with the primacy for subject-matter jurisdiction. Personal jurisdiction is something the court may exercise whereas subject-matter jurisdiction is mandatory. Nordike v. Nordike, 231 S.W.3d 733 (Ky.2007).
Id. The rationale is described:
Id. Turning to other jurisdictions, we note that in Trissler, it was held that FFCCSOA and UIFSA are "virtually identical." Trissler v. Trissler, 987 So.2d 209, 210 (Fla.App. 5 Dist.2008). And again, another state observed that the two statutes are to be viewed as complementary and duplicative, not contradictory. Witowski v. Roosevelt, 199 P.3d 1072, 1077 n. 2 (Wyo.2009); see also LeTellier v. LeTellier, 40 S.W.3d 490, 496-498 (Tenn.2001). Moreover, it has been held in a neighboring jurisdiction that the United States Congress did not intend FFCCSOA to preempt UIFSA. Basileh v. Alghusain, 912 N.E.2d 814, 820 (Ind.2009). Given that in the instant case we find no contradiction between Kentucky's UIFSA provisions and FFCCSOA, it is not necessary to make a determination regarding whether FFCCSOA preempts Kentucky UIFSA statute other than to observe that both federal and state law share a common objective—to maintain adequate and appropriate child support for the children.
The final issue presented by Roberts is whether the family court judge erred and should have struck Bedard's responsive motion because it was untimely under the local court rules. Roberts maintains that Bedard did not file a response to her July 7, 2010, motion to modify the child support order until August 4, 2010, which was two days prior to the hearing. Roberts mistakenly cites to local rules of Fayette Circuit Court to illustrate the untimely nature of Bedard's response. The relevant family court rule, however, states:
Rules of the Fayette Family Court (RFFC) 5(C)(1). Bedard's responsive motion to dismiss was filed on August 4, 2010, which met the 24-hour deadline in the pertinent rule. Here, the Fayette Family Court's decision to allow Bedard's response did not constitute an abuse of discretion.
In sum, we concur with the Fayette Family Court that, while it may have had personal jurisdiction over Bedard in July 2010, it never had subject-matter jurisdiction under federal or state law to modify the Florida child support order. Furthermore, no abuse of discretion occurred when the family court allowed Bedard to file his responsive motion.
The order of the Fayette Family Court dismissing the motion to modify child support
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