Opinion
NO. 2013-CA-002166-ME
01-09-2015
TRACY WAYNE BAILEY APPELLANT v. KIMBERLY BAILEY APPELLEE
BRIEF FOR APPELLANT: Charnel M. Cornett Booneville, Kentucky BRIEF FOR APPELLEE: Melissa C. Howard Tammy E. Howard Jackson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LEE CIRCUIT COURT
HONORABLE THOMAS P. JONES, JUDGE
ACTION NO. 98-CI-00149
OPINION
AFFIRMING
BEFORE: CAPERTON, LAMBERT AND TAYLOR, JUDGES. CAPERTON, JUDGE: Tracy Wayne Bailey appeals from the Lee Circuit Court's finding that Kentucky is an inconvenient forum concerning the modification of custody and/or time-sharing regarding the parties' minor children. Kimberly Bailey argues that the court did not err in finding that Michigan is the more convenient forum. After a thorough review of the parties' arguments, the record, and the applicable law, we affirm.
Judge Caperton authored this opinion prior to Judge Debra Lambert being sworn in on January 5, 2015, as Judge of Division 1, Third Appellate District. Release of this opinion was delayed by administrative handling.
This matter was initially brought before the Domestic Relations Commissioner ("DRC") upon Tracy's pro se motion to modify custody. The parties had been married and had three children together. In 1998, the dissolution of marriage was entered and Kimberly moved to Michigan with the children. The youngest child was born in Michigan and the children were raised in Michigan, with the children visiting Tracy in Kentucky. At the time of the motion to modify custody, only two children were still minors. The trial court first determined that the DRC incorrectly determined that Kentucky had not retained jurisdiction. The court remanded the matter to the DRC to have a hearing on the custody issue and to first determine if Kentucky, as the initial decree state, retained jurisdiction and then whether Kentucky was the most convenient forum.
The court determined that this motion was instead a motion to modify time-sharing/visitation upon further review. This ruling was beneficial to Tracy as he had failed to provide the required affidavit to modify custody. See Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), and Kentucky Revised Statutes ("KRS") 403.340.
At the hearing, evidence was presented that the children and Kimberly had resided in Michigan since the parties separated, that Tracy pays child support to Kimberly in the amount of $628.00 per month, and that Kimberly's other income was from food stamps in the amount of $640.00 per month, and her part-time employment at a nail salon earning $120.00 per month. The parties agreed that the distance between their homes was 430 miles and takes eight to nine hours to travel one way.
The DRC concluded that Kentucky had retained jurisdiction but that it was an inconvenient forum per KRS 403.834. The DRC recommended that the action be stayed on the condition that a custody proceeding be initiated in Michigan by November 14, 2013, or that it proceed in this court if such a proceeding was not brought in Michigan.
The circuit court reviewed the evidence, the DRC's recommendations, and Tracy's exceptions thereto and agreed with the DRC that Kentucky had retained jurisdiction but Michigan was the more convenient forum. In reaching this conclusion, the court went through each factor listed in KRS 403.834 to determine which state was the more convenient forum. The court noted that the children had moved from the Commonwealth thirteen years ago; that all of Kimberly's witnesses would reside in Michigan, including school employees who would be lay witnesses, whereas Tracy's witnesses resided in Kentucky; and that Tracy was employed, paid Kimberly child support and that Kimberly was only employed part-time and drew food stamps. It is from this determination that Kentucky was an inconvenient forum that Tracy now appeals.
On appeal, Tracy argues: (1) the issue of jurisdiction was not raised for over ten years after Kimberly and the children moved to Michigan and, thus, it has been waived; and (2) Kentucky is not an inconvenient forum based upon the factors in the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). We shall not further address Tracy's first argument, as the court below correctly determined that Kentucky retained jurisdiction but instead concluded that Kentucky was an inconvenient forum. Thus, we shall restrict our review to Tracy's second argument regarding whether Kentucky is an inconvenient forum.
In support of his argument that Kentucky is not an inconvenient forum, Tracey further argues: (1) that for him to have to travel to Michigan to litigate the issue would burden both parties with economic hardship as his income supports both parties and the travel would put his job in jeopardy; and (2) Kimberly's witnesses were all professional witnesses and could testify telephonically and/or submit certified copies of their records and reports, whereas, Tracy's witnesses were all lay witnesses who will be burdened by traveling to Michigan.
Kimberly disagrees with Tracy's arguments. She asserts that her witnesses would include teachers, counselors, and the family doctor, all Michigan residents, and that Tracy's witnesses from Kentucky would be himself and his parents. Kimberly asserts that Tracy has the financial resources to travel to Michigan to participate in litigation there. Further, Kimberly argues that as the youngest child has never resided in Kentucky, the bulk of evidence regarding the child's education and mental health would be available in Michigan. With these arguments in mind, we turn to our applicable law.
At the outset we note that our review is de novo, as "[w]hether a trial court acts within its jurisdiction is a question of law." Biggs v. Biggs, 301 S.W.3d 32, 33-34 (Ky. App. 2009), citing Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004).
This Court addressed the continuing jurisdiction of a court in custody disputes and the UCCJEA:
UCCJEA directs that an initial custody determination should be made by a court in the child's home state—defined as the state in which the child has resided for six months. KRS 403.800(7). In this case, neither party disputes that the Henderson Circuit Court properly made the initial custody determination under KRS 403.822. Therefore, the issue before us is whether it properly declined to exercise continuing jurisdiction in modification matters. Whether a trial court acts within its jurisdiction is a question of law; therefore, our review is de novo. Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky.2004).
The trial court relied on KRS 403.824(1), which provides that the state making an initial custody determination retains jurisdiction unless:
(a) A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships[.]
"Significant connection" is explained by the following comment to UCCJEA § 202:
[E]ven if the child has acquired a new home State, the original decree State retains exclusive, continuing jurisdiction ... If the relationship between the child and the person remaining in the State ... becomes so attenuated that the court could
Biggs v. Biggs, 301 S.W.3d 32, 33-34. Sub judice, the trial court properly concluded that it had continuing jurisdiction and looked to KRS 403.834 to determine if Michigan would be a more convenient forum.no longer find significant connections and substantial evidence, jurisdiction would no longer exist.
As Kentucky law is sparse in construing our counterpart of the UCCJEA, we have looked to sister states for guidance. Michigan has also adopted the UCCJEA, and its Court of Appeals recently found that a significant connection exists if "one parent resides in the state and exercises at least some parenting time in the state." White v. Harrison-White, 280 Mich.App. 383, 760 N.W.2d 691, 697 (2008). The Court of Appeals of Tennessee has explained that under the principles of the PKPA and the UCCJEA, "continuing jurisdiction trump[s] 'home state' jurisdiction." Staats v. McKinnon, 206 S.W.3d 532, 546 (Tenn.Ct.App.2006) (quoted by Wallace v. Wallace, 224 S.W.3d 587, 589-90 (Ky.App.2007)).
Our Supreme Court has recently held that a new state may not exercise jurisdiction for purposes of custody unless a Kentucky court first determines that the new state would be a more convenient forum according to the factors listed in KRS 403.834. Mauldin v. Bearden, 293 S.W.3d 392, 401 (Ky.2009).
The entirety of the statute reads:
(1) A court of this state which has jurisdiction under KRS 403.800 to 403.880 to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court.
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;(3) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper.
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
(4) A court of this state may decline to exercise its jurisdiction under KRS 403.800 to 403.880 if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.
At issue, KRS 403.834(2) states:
(2) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is
appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(a) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(b) The length of time the child has resided outside this state;
(c) The distance between the court in this state and the court in the state that would assume jurisdiction;
(d) The relative financial circumstances of the parties;
(e) Any agreement of the parties as to which state should assume jurisdiction;
(f) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(g) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
(h) The familiarity of the court of each state with the facts and issues in the pending litigation.
The court below went through each factor listed in KRS 403.834(2) before concluding that Michigan was the more convenient forum given that the children had been gone from Kentucky for thirteen years. The court noted that Tracy had the greater financial resources and that Kimberly intended to call lay witnesses just as Tracy intended to do. The court below has addressed Tracy's argument that all of Kimberly's witnesses were professionals and found to the contrary. Tracy has not provided this Court with any law countering the court's decision that some of Kimberly's intended witnesses would be lay witnesses. We are not persuaded by Tracy's blanket statement that his witnesses were all lay witnesses whereas Kimberly's were all professional witnesses. Accordingly, we decline to reverse on this ground.
Tracy's economic hardship argument with respect to both parties was not properly supported by adequate citation to the record. While our review of the record shows that this argument was indeed presented below, we are unclear if Tracy offered any evidentiary support thereof. There has been no citation as to the preservation of this error. See Kentucky Rules of Civil Procedure ("CR") 76.12(4)(c)(iv)-(v). Kimberly advocates that Tracy's brief should be stricken for such a failure. While we would be justified in not considering the portion of the briefs where the requirements of CR 76.12 are deficient, or in striking the briefs, we shall confine ourselves to a review for manifest injustice. See Pierson v. Coffey 706 S.W.2d 409, 413 (Ky. App. 1985); Elwell v. Stone, 799 S.W.2d 46, 47-48 (Ky. App. 1990); and CR 76.12(8). The parties informed the trial court of their financial resources. It is uncontested that Tracy makes substantially more income than Kimberly. The court concluded that Tracy was better able to bear the financial burden of out-of-state litigation than Kimberly. We do not find such a finding to result in manifest injustice and decline to reverse on this ground.
We are not required to consider portions of the Appellant's brief not in conformity with CR 76.12, and may summarily affirm the trial court on the issues contained therein. See Leamon v. Phillips, 423 S.W.3d 759, 762 (Ky. App. 2014), citing Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947 (Ky.1986), and Pierson, infra.
Moreover, absent specific citations as required by CR 76.12, we are required to assume that the evidence supported the findings of the lower court. See Porter v. Harper, 477 S.W.2d 778 (Ky.1972). See also Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006), where this Court addressed a similar issue:
Carolyn is correct that it is not our responsibility to search the record to find where it may provide support for Jim's contentions. But rather than striking Jim's brief, we choose to give little credence to the arguments by either party that are not supported by a conforming citation to the record.
If Tracy's claims were accurate and substantiated that he would put his job in jeopardy by out-of-state litigation, we may have reached a different decision.
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Finding no error, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Charnel M. Cornett
Booneville, Kentucky
BRIEF FOR APPELLEE: Melissa C. Howard
Tammy E. Howard
Jackson, Kentucky