Ijeoma Odigwe v. Honorable Jay Wethington ( 2022 )

IMPORTANT NOTICE
NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.”
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
RENDERED: AUGUST 18, 2022
NOT TO BE PUBLISHED
Supreme Court of Kentucky
2022-SC-0026-MR
IJEOMA ODIGWE APPELLANT
ON APPEAL FROM COURT OF APPEALS
V. NO. 2021-CA-0347
DAVIESS CIRCUIT COURT NO. 20-CI-00415
HON. JAY WETHINGTON, JUDGE, APPELLEE
DAVIESS CIRCUIT COURT
AND
LAUREN ANDRINI REAL PARTY IN INTEREST
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Ijeoma Odigwe (Mr. Odigwe) appeals a Court of Appeals opinion that
denied his writ of prohibition. Mr. Odigwe’s writ sought to prevent the Daviess
Circuit Court from exercising jurisdiction over the child support issues present
in the underlying litigation. After review, we affirm the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Odigwe and Lauren Andrini (Ms. Andrini) met while they were both
law students at Notre Dame in Indiana. The two were never married. Ms.
Andrini became pregnant while both parties were still in law school and gave
birth to their only child together (Child) on May 16, 2018. Following the Child’s
birth, Ms. Andrini returned to her home state of Michigan. Shortly thereafter,
a paternity action was filed in Ottawa County, Michigan. On August 22, 2018,
the Michigan court entered a Consent Judgment of Paternity (Consent
Judgment). The Consent Judgment established Mr. Odigwe’s paternity, in
addition to custody, visitation, and child support.
Nearly two years later, on March 2, 2020, the Michigan court entered an
order granting Ms. Andrini’s motion to change the Child’s legal residence and
domicile to Kentucky. The Michigan court found that it “no longer [had]
continuing jurisdiction over the child-custody determination regarding the
minor child,” and that “[a]ny future modifications of the child-custody
determination involving the minor child shall be made by an appropriate Court
which obtains appropriate subject matter jurisdiction under the UCCJEA1.”
The order did not address the court’s prior child support ruling, but noted that
“[e]xcept as provided in this order, the prior orders of this Court remain in full
force and effect.” Ms. Andrini and the Child moved to Daviess County,
Kentucky where they both currently reside. Mr. Odigwe currently resides in
Missouri, but considers Arizona his home state. He has never lived in
Kentucky.
On April 21, 2020, Mr. Odigwe filed a Petition to Register a Foreign Child
Custody Determination Pursuant to KRS2 403.850 in the Daviess Circuit
Court, Family Division (Daviess Circuit Court). With his petition, he filed a
1 Uniform Child Custody Jurisdiction and Enforcement Act.
2 Kentucky Revised Statute.
2
copy of the entire Michigan Consent Judgment, including the child support
calculations worksheet. Ms. Andrini did not object to the Consent Judgment
being registered in Kentucky. On May 26, before the court had ruled on his
petition to register the foreign custody judgment, Mr. Odigwe filed a Motion to
Modify Custody and Parenting time and a proposed Order Regarding Custody
and Parenting Time. Mr. Odigwe’s motion to modify custody sought joint legal
custody and a parenting time schedule; his proposed order included the
following language:
Father is awarded eight (8) hours of parenting time on each day of
the second weekend of every month. A weekend constitutes
Saturday and Sunday. Father is responsible for his costs of
transportation such as hotel, car rental, gas, etc. Father will
receive an appropriate credit towards his monthly child
support payment for Minor Child that will be determined by
this Court, or agreement by the parties.3
On June 2, Mr. Odigwe filed an Emergency Motion for Summer 2020 Parenting
Time. In it, he stated, inter alia,
[p]etitioner/Father is currently studying for the bar exam, which
he will take in July 2020. After the bar exam, his anticipated
relocation is to Kansas City, MO, but either way he will be leaving
South Bend, IN in July 2020. He is originally from Arizona.
Petitioner/Father would very much like to see his son before he
relocates from South Bend and requests a reasonable Court
Order allow Summer 2020 parenting time, and equitably
[dividing] the transportation time and costs for parenting
time.4
Later, on June 17, Judge Julia Gordon (Judge Gordon) entered an order
registering the foreign custody determination. The order found that the
3 Emphasis added.
4 Emphasis added.
3
Daviess Circuit Court had subject matter jurisdiction over the proceedings, as
well as personal jurisdiction over the parties. The order did not address Mr.
Odigwe’s motions to modify custody and parenting time, nor did it address
child support.
On August 7, Ms. Andrini filed a Motion to Modify Child Support and
requested that the child support payments set by the Michigan Consent
Judgment be modified. In response, Mr. Odigwe filed a motion to dismiss. He
contended that, although he properly registered the child custody portion of
the Michigan Consent Judgment under the UCCJEA,5 Ms. Andrini had not yet
registered the child support order of the Consent Judgment in accordance with
the Uniform Interstate Family Support Act (UIFSA).6
Mr. Odigwe further argued that, while the Daviess Circuit Court had
jurisdiction over him regarding custody, it had not acquired personal
jurisdiction or subject matter jurisdiction over him for the purpose of
addressing child support. Specifically, he contended that the court did not
have personal jurisdiction over him because none of the criteria listed in KRS
407.5201, which provides a number of bases for a Kentucky court to exercise
personal jurisdiction over a non-resident for the purposes of modifying a child
support order, were met. Similarly, he reasoned that the court lacked subject
matter jurisdiction over the child support order because all of the requirements
of KRS 407.5611 had not been met. KRS 407.5611 states in relevant part that
5 See KRS 403.850.
6 See KRS 407.5602.
4
a Kentucky court may modify a child support order issued by another state if,
after notice and hearing, the court finds that: “1. Neither the child, nor the
obligee who is an individual, nor the obligor resides in the issuing state; 2. A
petitioner who is a nonresident of this state seeks modification; and 3. The
respondent is subject to the personal jurisdiction of the tribunal of this state.”
In Ms. Andrini’s response to Mr. Odigwe’s motion to dismiss, she argued
that the Michigan child support order was effectively registered in Kentucky by
Mr. Odigwe when he registered the Consent Judgment on June 17, 2020, and
that by filing that motion he availed himself to the jurisdiction of the Daviess
Circuit Court. Additionally, she argued that he had waived any jurisdictional
arguments: Mr. Odigwe did not object to the court’s jurisdiction to address
child support issues under UIFSA when he registered the Consent Judgment,
he asked the court to modify his child support payments to reflect his travel
costs for visitation in his May 26 Proposed Order, and he requested that the
court equitably divide transportation costs in his June 2 Emergency Motion for
Parenting Time.
The parties appeared for a hearing on the motion to dismiss on
September 14, 2020. However, Judge Gordon informed the parties that she
had not yet read their pleadings, and that she would take the matter under
advisement. When the parties appeared again on November 2 to address Mr.
Odigwe’s motion to modify parenting time, Judge Gordon passed ruling on both
the jurisdictional issue and the motion to modify until the previously scheduled
trial on November 20. She stated that her inclination was to deny Mr. Odigwe’s
5
motion to dismiss, and that they should be prepared to address child support
at the November 20 hearing. Judge Gordon also advised Mr. Odigwe to retain
counsel, as he had been appearing pro se. Mr. Odigwe took her advice, and his
counsel filed an entry of appearance on November 12. According to Mr.
Odigwe’s brief to this Court, the November 20 trial date was thereafter
indefinitely continued.
Four months later, in March of 2021, there still had not been a trial or
an order concerning the court’s jurisdiction over child support. Nevertheless,
Mr. Odigwe filed a petition requesting a writ of prohibition in the Court of
Appeals on March 26. In it, he argued that he was entitled to a writ of
prohibition under the first class of writs. In other words, he argued that the
Daviess Circuit Court was proceeding or was about to proceed outside of its
jurisdiction, and that he would have no adequate remedy by appeal.7 He
reiterated his argument that the Daviess Circuit Court lacked subject matter
jurisdiction to rule on child support because the Michigan Consent Judgment
had not been properly registered in Kentucky. He contended that he lacked an
adequate remedy by appeal because under Kentucky law, with certain
exceptions, he would be unable to recoup any excess payments made under a
court order, even if the order was entered as a result of judicial error.8
7 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
8 See, e.g., Denzik v. Denzik, 197 S.W.3d 108, 112 (Ky. 2006) (“Cases involving
excess child support payments made by judicial error have determined that
recoupment or restitution of the excess payments is inappropriate unless there exists
an accumulation of benefits not consumed for support.”).
6
After Mr. Odigwe filed his petition for a writ of prohibition, but before the
Court of Appeals ruled on said writ, Mr. Odigwe successfully moved to have
Judge Gordon recused from the case. Judge Gordon’s order recusing herself
from the case was entered on August 27, 2021. Per the order, the case was
transferred to Judge Jay Wethington (Judge Wethington).
Later, on September 2, the Court of Appeals denied Mr. Odigwe’s motion
for a writ of prohibition. For clarity, we note that at that time Judge Gordon
was still the named respondent. The court began its analysis by clarifying that
although Mr. Odigwe was seeking a writ under the first class of writs, his
argument should have been under the second class of writs. It reasoned:
The Petitioner argues he is entitled to a writ under the first class
because the circuit court lacks jurisdiction to hear the issue of
child support in his underlying case. Jurisdiction, as used in the
first class of writ, means subject matter jurisdiction which is “the
authority not simply to hear this case, but this kind of case.”
Davis v. Wingate, 437 S.W.3d 720, 725 (Ky. 2014) (internal
quotation marks and citation omitted). “A court acts outside its
jurisdiction, accordingly, only where it has not been given, by
constitutional provision or statute, the power to do anything at all.”
Id.Particular case jurisdiction, on the other hand, “refers to a court’s
authority to determine a specific case (as opposed to the class of
cases of which the court has subject matter jurisdiction).”
Commonwealth v. Steadman, 411 S.W.3d 717, 722 (Ky. 2013)
(citations omitted). “Errors directed at particular-case jurisdiction
belong in the second category of writs, not the first.” Delahanty v.
Commonwealth, 558 S.W.3d 489, 500 (Ky. App. 2018). Moreover,
the Kentucky Supreme Court has held that “[e]rrors in the
procedural invocation of a court’s jurisdiction relate to particular-
case jurisdiction, not general subject-matter jurisdiction.”
Steadman, 411 S.W.3d at 723.
7
In the case sub judice, the Petitioner’s jurisdictional challenge is
actually directed at particular case jurisdiction. The Petitioner’s
argument is not that the circuit court entirely lacks the authority
to hear child support cases, but that the circuit court cannot hear
this particular child support case because Andrini did not meet the
procedural requirements in the UIFSA to invoke the circuit court’s
jurisdiction. As a result, the Petitioner’s request should have been
brought under the second class of writs.
Nevertheless, the court goes on to hold that even if Mr. Odigwe had
argued under the second class of writs, he would still not have been entitled to
a writ of prohibition:
In order to qualify for a second-class writ, the Petitioner must show
the circuit court is acting or about to act erroneously, there is no
adequate remedy by appeal, and he will suffer irreparable harm.
[Maricle, 150 S.W.3d at 10].
The Petitioner claims that an appeal is inadequate and that he will
suffer irreparable injury in the absence of a writ. The reasoning
put forth by the Petitioner is that he “will be left without remedy,
and an unjustified taking will occur, resulting in [Andrini]
becoming unjustly enriched” because Kentucky generally does not
allow recoupment or restitution for the overpayment of child
support. This is an insufficient reason to grant the extraordinary
relief afforded through a writ of prohibition.
To begin, [Judge Gordon] has not entered a ruling that the circuit
court has jurisdiction over the child support issue, nor is there an
order increasing the Petitioner’s child support obligation.
Petitioner’s argument at this point is mere speculation based on
comments made by [Judge Gordon] as an initial reaction to the
motions that, as she repeatedly told the parties, she had not yet
read. Even assuming the circuit court is about to act erroneously,
once a final order has been entered the Petitioner may file a direct
appeal from that order. He cannot circumvent the process by filing
a petition for a writ of prohibition. Moreover, as the Supreme
Court stated in Lee v. George, the Petitioner’s claimed injury “is no
different from the result in every [] case in which a parent does not
get what he or she requested.” 369 S.W.3d 29, 34 (Ky. 2012).
Thus, the Court cannot say the Petitioner’s perceived harm rises to
the level of irreparable injury.
8
Thereafter, on September 20, Mr. Odigwe filed a motion for reconsideration of
the Court of Appeals’ ruling.
On October 13, while Mr. Odigwe’s motion for reconsideration was still
pending in the Court of Appeals, Judge Wethington held a hearing in Daviess
Circuit Court on the jurisdictional issue. On November 17, Judge Wethington
entered an order finding that the Daviess Circuit Court had “in personam
jurisdiction, subject matter jurisdiction and particular case jurisdiction over
the parties and all controversies herein.” The order denied Mr. Odigwe’s
motion to dismiss, and sustained Ms. Andrini’s motion to modify child support.
There is no indication in the record before us that the Court of Appeals’
record was supplemented with Judge Wethington’s order, or that the Court of
Appeals was otherwise aware of that order when it denied Mr. Odigwe’s motion
for reconsideration on December 14. The Court of Appeals order denying the
motion for reconsideration states in its entirety:
This cause is before the Court on Petitioner’s motion for
reconsideration pursuant to Kentucky Rule of Civil Procedure (CR)
76.38. Petitioner argues in his motion for reconsideration that the
Court mischaracterized his argument and that the circuit court
lacked subject-matter jurisdiction to consider the matter under the
Uniform Interstate Family Support Act (UIFSA), Kentucky Revised
Statutes (KRS) 407.5101-407.5902. This does not change the
Court’s decision.
KRS 23.100(2)(b) grants Kentucky’s family courts with jurisdiction
over proceedings under UIFSA. Petitioner properly registered the
foreign child support order in Kentucky pursuant to the
aforementioned statutes. The circuit court may modify a foreign
child support order if the requirements of KRS 407.5611 or KRS
407.5613 are met. The circuit court has been granted jurisdiction
to conduct a hearing to determine whether or not it can modify a
foreign child support order. KRS 407.5611(1). The arguments
raised by Petitioner in his petitioner for a writ and motion to
9
reconsider are better suited for the eventual hearing on the motion
to modify child support and motion to dismiss. Moreover, the
Petitioner has failed to show that he lacks an adequate remedy by
appeal.
This Court having reviewed the record, and being otherwise
sufficiently advised; IT IS HEREBY ORDERED that Petitioner’s
motion for reconsideration be, and is hereby, DENIED.
On January 12, 2022, Mr. Odigwe filed a notice of appeal to this Court.
His notice specifically states that he is appealing from “the Findings of Fact,
Conclusions of law entered by the Kentucky Court of Appeals on September 2,
2021,” and “the denial of his Petition for Rehearing entered by the Kentucky
Court of Appeals on December 14, 2021.”
II. ANALYSIS
Preliminarily, this Court clarifies that it will not be addressing Judge
Wethington’s order finding that the Daviess Court has jurisdiction on the
merits. Mr. Odigwe’s notice of appeal clearly stated that he is appealing the
Court of Appeals’ order denying his writ of prohibition, and its subsequent
order denying his motion for reconsideration. And, as the Court of Appeals
was unaware of Judge Wethington’s order, it did not address that ruling. It
would accordingly be inappropriate for this Court to do so now.
Rather, our sole inquiry is whether the Court of Appeals’ decision to deny
the writ was reversible. That standard of review can be stated succinctly as
follows:
We employ a three-part analysis in reviewing the appeal of a writ
action. We review the Court of Appeals' factual findings for clear
error. Legal conclusions we review under the de novo standard.
But ultimately, the decision whether or not to issue a writ of
10
prohibition is a question of judicial discretion. So review of a
court's decision to issue a writ is conducted under the abuse-of-
discretion standard. That is, we will not reverse the lower court's
ruling absent a finding that the determination was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.9
It is well-established in this Commonwealth that “writ petitions should
be reserved for extraordinary cases” and are therefore generally disfavored.10 A
petitioner may prove entitlement to a writ under one of two classes of cases.
Under the first class, a petitioner must show that “the lower court is
proceeding or is about to proceed outside of its jurisdiction and there is no
remedy through an application to an intermediate court[.]”11 Under the second
class, a petitioner must demonstrate that “the lower court is acting or is about
to act erroneously, although within its jurisdiction, and there exists no
adequate remedy by appeal or otherwise and great injustice and irreparable
injury will result if the petition is not granted.”12 Additionally, under the
second class, there are “certain special cases” wherein a petitioner need not
show great injustice and irreparable injury if they can demonstrate that a
“substantial miscarriage of justice will occur if the lower court proceeds
erroneously,” and correction of the error “is necessary in the interest of orderly
9 Appalachian Racing, LLC. v. Commonwealth, 504 S.W.3d 1, 3 (Ky. 2016)
(internal quotation marks omitted).
10 See, e.g., Cox v. Braden, 266 S.W.3d 792, 796 (Ky. 2008).
11 Maricle, 150 S.W.3d at 10.
12 Id.
11
judicial administration.”13 The special cases exception is generally reserved for
“those limited situations where the action for which the writ is sought would
blatantly violate the law,”14 and the petitioner must still demonstrate that they
lack an adequate remedy by appeal.15
The common thread running through each class of writ is that a
petitioner is not entitled to a writ if he or she cannot show a lack of adequate
remedy by appeal.16 It is here that Mr. Odigwe’s writ petition fails. Mr. Odigwe
may file a direct appeal from the Daviess Circuit Court order that found it has
jurisdiction to proceed over the child support matters in this case. He
accordingly has an adequate remedy by appeal and may not use writ
proceedings to circumvent the appellate process wherein these issues can be
more appropriately addressed.17
Furthermore, his alleged harm does not rise to the level required for the
issuance of a writ. His only alleged injury is monetary. Specifically, that he
will not be able to recover any child support he is ordered to pay under a
Kentucky court order, even if the order is entered erroneously. This alleged
13 Lee v. George, 369 S.W.3d 29, 32 (Ky. 2012).
14 Id.15 Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 617 (Ky. 2005) (“[T]he
exception allows a petitioner to avoid only the requirement of great and irreparable
injury, not the requirement of lack of an adequate remedy by appeal.”).
16 See, e.g., Bailey v. Bertram, 471 S.W.3d 687, 693 (Ky. 2015) (“The first prong
of this test, whether there is an adequate remedy by appeal, is a mandatory inquiry.”).
17 See Lee, 369 S.W.3d at 34 (“[T]he extraordinary writs are no substitute for the
ordinary appellate process, and the interference with the lower courts required by
such a remedy is to be avoided whenever possible.”).
12
financial injury simply is not of the “ruinous nature or . . . incalculable damage
to the petitioner”18 required to justify the issuance of a writ of prohibition.
III. CONCLUSION
Based on the foregoing, the Court of Appeals did not abuse its discretion
by denying Mr. Odigwe’s petition for a writ of prohibition, and that ruling is
hereby affirmed.
All sitting. All concur.
COUNSEL FOR APPELLANT:
Jason Anthony Bowman
Bowman Legal
COUNSEL FOR APPELLEE:
Hon. Jay Wethington
COUNSEL FOR APPELLEE/REAL PARTY IN INTEREST:
James Andrew Johnson
Gordon Law Offices
18 Lehmann v. Gibson, 482 S.W.3d 375, 385 (Ky. 2016) (internal quotation
marks omitted).
13