Opinion
NO. 2011-CA-002236-MR
01-04-2013
DANNY COOPER APPELLANT v. RUTHIE L. COOPER APPELLEE
BRIEFS FOR APPELLANT: Elmer J. George Lebanon, Kentucky BRIEF FOR APPELLEE: William R. Erwin Danville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO. 10-CI-00637
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; KELLER AND MAZE, JUDGES. KELLER, JUDGE: Danny Cooper (Danny) appeals from an order of the Boyle Family Court denying his motion to set aside a decree of dissolution of marriage for lack of personal jurisdiction. For the following reasons, we affirm in part, reverse in part, and remand.
FACTS
The parties were married on September 20, 2008. On November 24, 2010, Ruthie Cooper (Ruthie) filed the underlying petition for dissolution of marriage in the Boyle Family Court. After unsuccessfully attempting to serve Danny, the family court appointed a warning order attorney to constructively serve Danny. On January 13, 2011, the warning order attorney filed a report stating that he "mailed a copy of the Divorce file, by certified mail, return receipt requested" to Danny and that he "received a copy of the return receipt signed by C. Galey on January 6, 2011."
Thereafter, the family court entered an order setting a case management conference, which was held on May 12, 2011. It is undisputed that Danny was not present at the case management conference. The family court entered a Decree of Dissolution of Marriage on June 6, 2011, and an Amended Decree of Dissolution of Marriage on August 12, 2011, (collectively the Decree) awarding Ruthie the real estate located on Scrubgrass Road in Gravel Switch, Kentucky; granting Ruthie ownership and possession of the parties' "road truck"; and ordering Danny to pay Ruthie $5,354 to fix the truck and to return various items he removed from the truck.
On September 19, 2011, Danny, through counsel, filed a motion to set aside the Decree. In his motion, Danny contended that he was never properly served and that the family court erred in its division of the parties' property and debt. In his affidavit attached to his motion, Danny stated that "the secretary of his employer signed for certified mail addressed to him regarding the proceedings, however, he was advised by his previous attorney, Theodore H. Lavit, that same did not constitute service."
In an order entered on November 21, 2011, the family court denied Danny's motion to set aside the Decree, concluding that Danny "had actual and constructive notice of this action and failed to appear." The family court also concluded that Danny was in contempt for failing to pay the $5,354 set forth in the Decree and ordered Danny to pay Ruthie's attorneys fees in the amount of $350. It is from that order that Danny appeals.
STANDARD OF REVIEW
On appeal, Danny argues the family court abused its discretion by denying his Kentucky Rule of Civil Procedure (CR) 60.02 motion to set aside the Decree in the underlying proceeding for lack of personal jurisdiction. CR 60.02(e) provides an avenue by which a party may move the court to relieve it from a judgment, order, or proceeding on the basis that the judgment is void. A trial court's denial of a motion for CR 60.02 relief is reviewed for an abuse of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). An abuse of discretion occurs if the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky. 2004) (citation omitted).
ANALYSIS
A court must have personal jurisdiction to hear a matter affecting a specific person. Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007). Here, Danny argues the family court lacked personal jurisdiction to enter a judgment or order personally affecting him because service of process was insufficient. The record in this case reveals Ruthie used the warning order procedure set forth in CR 4.05 through CR 4.08 to constructively serve Danny. As provided in CR 4.08, service is deemed to have occurred on the thirtieth day after issuance of the warning order. Therefore, Danny was constructively served thirty days after the warning order was issued.
Kentucky Revised Statute (KRS) 454.165 provides that "[n]o personal judgment shall be rendered against a defendant constructively summoned, and who has not appeared in the action, except as provided in KRS 454.210." In Smith v. Gadd, 280 S.W.2d 495, 497 (Ky. 1955), the term appearance was described as arising "by implication from the defendant's seeking, taking, or agreeing to, some step or proceeding in the cause, beneficial to himself or detrimental to the plaintiff, other than one contesting jurisdiction only." (Quoting 13 Am.Jur., Appearances, § 10) (emphasis in original). As set forth in Miller v. McGinty, 234 S.W.3d 371, 376 (Ky. App. 2007), "the fact that a defendant has knowledge that a lawsuit is pending against him is not sufficient to give the court personal jurisdiction over him in the absence of a voluntary appearance by him or service of process to him." Because Danny merely had knowledge of the pending lawsuit, but did not make an appearance in this case, the family court did not exercise personal jurisdiction over him.
KRS 454.210 is Kentucky's long-arm statute and is not applicable to the instant case.
We note that constructive service on Danny did permit the family court to dissolve the marriage. See Karahalios v. Karahalios, 848 S.W.2d 457, 460 (Ky. App. 1993). Therefore, the family court's dissolution of the parties' marriage was not erroneous, and we affirm that portion of the family court's Decree. Even though it appears that Danny was avoiding service, the family court did not possess jurisdiction sufficient to divide the parties' property and debt and therefore erred in doing so.
CONCLUSION
The order denying Danny's motion to set aside the Decree is reversed in part, and this case is remanded to the Boyle Family Court to set aside the portion of the Decree dividing the parties' property and debt as void.
ALL CONCUR. BRIEFS FOR APPELLANT: Elmer J. George
Lebanon, Kentucky
BRIEF FOR APPELLEE: William R. Erwin
Danville, Kentucky