Opinion
NO. 2013-CA-000377-MR
04-25-2014
AUTUMN ROSE MAGGI APPELLANT v. MICHAEL JOHN MAGGI APPELLEE
BRIEF FOR APPELLANT: Derrick R. Staton Lexington, Kentucky NO BRIEF FOR APPELLEE:
NOT TO BE PUBLISHED
APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 13-CI-00004
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, CLAYTON, AND NICKELL, JUDGES. CLAYTON, JUDGE: Autumn Rose Maggi appeals from the February 18, 2013, findings of fact, conclusions of law, and order of the Hardin Family Court. That order granted Michael John Maggi's motion to dismiss Autumn's petition for dissolution of marriage based on a lack of subject matter jurisdiction. We reverse and remand.
On January 2, 2013, Autumn filed a verified petition for dissolution of marriage with the Hardin Family Court. Shortly thereafter, Michael filed a motion to dismiss the action for lack of subject matter jurisdiction, in which he argued that neither party had met the residency requirements. Michael maintained that both parties had resided in Virginia from July of 2012 until December of 2012, at which time Autumn moved to Kentucky. In her response to Michael's motion to dismiss, Autumn maintained that she had, in fact, lived in Kentucky since June of 2012, at which time she obtained a Kentucky driver's license and registered to vote, with the intention of making Kentucky her permanent residence. Autumn also maintained that she temporarily travelled to Virginia on two occasions, in July and November, in order to procure specialized medical treatment for the parties' child, to encourage a relationship between Michael and the child, to procure her belongings from Michael, and to settle her affairs. The issue was taken under submission and on February 18, 2013, the court concluded that it did not have subject matter jurisdiction and granted Michael's motion to dismiss. This appeal followed.
Subject matter jurisdiction is "the court's power to hear and rule on a particular type of controversy." Nordike v. Nordike, 231 S.W.3d 733, 737 (Ky. 2007). Subject matter jurisdiction of a dissolution action is automatically conferred to the family court via Kentucky Revised Statutes (KRS) 23A.100. Personal jurisdiction, on the other hand, is "the court's authority to determine a claim affecting a specific person." Id. (citation omitted). Personal jurisdiction in a dissolution action is conferred by KRS 403.140(1)(a), which requires a finding that one of the parties, at the time the action was commenced, resided in the state for 180 days immediately preceding the filing of the petition. "Contrasted to a claim that personal jurisdiction is lacking, subject matter jurisdiction cannot be waived or otherwise conferred by the parties. It either exists or it is absent." Fehr v. Fehr, 284 S.W.3d 149, 152 (Ky. App. 2008). "The question of jurisdiction is ordinarily one of law, meaning that the standard of review to be applied is de novo." Harrison v. Park Hills Bd. of Adjustment, 330 S.W.3d 89, 93 (Ky. App. 2011); (quoting Appalachian Regional Healthcare, Inc. v. Coleman, 239 S.W.3d 49, 53-54 (Ky.2007)).
On appeal, Autumn incorrectly argues that subject matter exists based on her residency requirements. As previously stated, subject matter jurisdiction is automatically conferred to the family court by statute. KRS 23A.100. By contrast, the personal jurisdiction statute enforces residency requirements. KRS 403.140(1)(a). It appears as though the confusion regarding jurisdiction was shared by the parties and the trial court alike. Indeed, both Michaels' motion and the trial court's judgment also contain conflicting language. The trial court states:
[j]urisdiction over the person and subject matter is essential for any court to have the authority to rule in a case. Clearly in the case at bar the court has jurisdiction over the parties since there was proper service and this is not being disputed. However, the issue of subject matter jurisdiction is being disputed.The trial court clearly concluded that the parties conceded personal jurisdiction, and that conclusion has gone unchallenged. To further complicate matters, Michael has failed to file an appellee's brief.
We find it safe to assume that the trial court intended to dismiss for lack of personal jurisdiction. Setting aside its erred language however, the trial court's application of the facts to the law remains flawed. In support of its judgment, the trial court stated:
[c]learly, the Petitioner has produced evidence to show that she was in Kentucky to establish Kentucky as her domicile. However, domicile and residence are not the same. The statu[t]e uses residence and not domicile which in this case is significant. The Petitioner testified that it was her intent to establish Kentucky as her residence but that she did return to Virginia on two separate occasions. The parties' child has a serious heart condition and the child had been referred to a specialist for her condition and she indicated that she wanted the Respondent to be able to form a relationship with the child. The Petitioner provided two separate reasons for leaving Kentucky and returning to Virginia. The Petitioner testified that she did not intend to leave Kentucky permanently nor resume residence back in Virginia, nor did the parties resume any intimate relations while she was there.In short, the trial court concluded that personal jurisdiction did not exist because Autumn was not physically present in the state for every one of the 180 days preceding the filing of the petition. While the statute is clear that actual residence must be maintained for 180 days, exception has been made when a parties' absence is temporary in nature. McGowan v. McGowan, 663 S.W.2d 219, 223 (Ky. App. 1983). Here, the trial court found that Autumn had successfully shown that she resided in Kentucky and intended to continue doing so. Nonetheless, it found that residency was not established because Autumn left the state, for temporary periods of time, in order to procure medical treatment for her child and in order to cultivate a relationship between Michael and the child. Such a strict reading of the statute would restrict parties from leaving the Commonwealth for any purpose, be it business; leisure; or, as in this case, medical treatment and parental timesharing. It is our holding, in conjunction with McGowan, that this is not the intention of KRS 403.140(1)(a). Thus, we hold that the trial court's February 18, 2013, judgment is logistically flawed.
. . .
Here it is undisputed that the Petitioner acknowledges that although her intent to make Kentucky her domicile perhaps she did leave twice, so she would not have been physically present in Kentucky during the 180 days next preceding the filing of the petition[]; therefore this Court does not have the necessary subject matter jurisdiction.
For the foregoing reasons, the February 18, 2013, judgment of the Hardin Circuit Court is reversed and remanded with instructions to remedy the faulty language and apply KRS 403.140(1)(a) as interpreted by McGowan.
NICKELL, JUDGE, CONCURS.
CAPERTON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Derrick R. Staton
Lexington, Kentucky
NO BRIEF FOR APPELLEE: