Theresa Johnson v. Michael Johnson ( 2021 )

RENDERED: APRIL 16, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0270-MR
THERESA JOHNSON APPELLANT
APPEAL FROM LAUREL FAMILY COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 18-CI-00368
MICHAEL JOHNSON APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: Theresa Johnson appeals from an order of the Laurel
Family Court granting Michael Johnson’s motion to terminate his South Carolina
maintenance obligation. Upon review of the record and the applicable legal
authorities, we reverse and remand based on lack of subject matter jurisdiction.
In January 2001, the Johnsons were divorced by decree of the Sixth
Judicial Circuit Family Court in Lancaster, South Carolina (South Carolina Family
Court); several issues, including maintenance, were held in abeyance. On March
11, 2003, pursuant to the Johnsons’ settlement agreement, an order of the South
Carolina Family Court was entered resolving all outstanding issues. The order
included a provision requiring Michael to pay Theresa permanent spousal
maintenance in the amount of $1,000 per month beginning June 1, 2003. Michael
paid maintenance as ordered through 2016. Then, without notice or court order,
Michael made a unilateral decision regarding his obligation. In January, February,
and March 2017, Michael paid Theresa $500 per month in maintenance.
Thereafter, he stopped paying Theresa maintenance altogether.
In May 2018, after locating Michael in Laurel County, Kentucky,
Theresa, then residing in Minnesota, filed a notice and affidavit of foreign
judgment registration and had Michael served, thereby properly registering the
South Carolina spousal maintenance order in Kentucky. In June 2018, Theresa
filed a motion for contempt and enforcement of the South Carolina order in Laurel
Family Court. In July 2018, Michael appeared before the Laurel Family Court for
a show cause hearing; Michael paid Theresa $16,500 in open court, bringing him
current through June 2018. In August 2018, Michael again appeared for a show
cause hearing; the Laurel Family Court ordered Michael to pay Theresa for July
and August 2018 within seven days and scheduled a final hearing on the issues of
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Theresa’s travel expenses and attorney fees. Michael did not pay as ordered, and
in September 2018, Theresa filed a motion for contempt.
In October 2018, Michael filed a motion in Laurel Family Court to
modify the South Carolina spousal maintenance order by terminating his
obligation. He asserted the South Carolina order had become unconscionable
because his prior employment was no longer available due to injury and disability.
On December 11, 2018, the Laurel Family Court conducted a final
hearing on Theresa’s motions for contempt, travel expenses and attorney fees, and
Michael’s motion to terminate his South Carolina maintenance obligation. It found
Michael in contempt, imposed a contempt sentence and ordered that he could
purge himself by paying Theresa $11,700 within thirty days. Michael paid Theresa
$11,700 by check dated December 11, 2018. Additionally, the Laurel Family
Court granted Michael’s motion, modifying the South Carolina spousal
maintenance order by terminating Michael’s obligation as of January 1, 2019.
Theresa appealed. Michael did not file a responsive brief. Kentucky
Rules of Civil Procedure (CR) 76.12(8)(c) “provides the range of penalties that
may be levied against an appellee for failing to file a timely brief.” St. Joseph
Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). “The
decision as to how to proceed in imposing such penalties is a matter committed to
our discretion.” Roberts v. Bucci, 218 S.W.3d 395, 396 (Ky.App. 2007). Having
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considered this matter and the particular circumstances of this case, we choose not
to impose a sanction against Michael.
On appeal, Theresa argues the Laurel Family Court lacked subject
matter jurisdiction over Michael’s motion to modify the South Carolina spousal
maintenance order by terminating his obligation.
“When the lower court is alleged to be acting outside its jurisdiction,
as alleged in the present case, the proper standard is de novo review because
jurisdiction is generally only a question of law.” Karem v. Bryant, 370 S.W.3d
867, 869 (Ky. 2012). “The time at which the issue of subject-matter jurisdiction
[is] first raised . . . is of no legal consequence.” Privett v. Clendenin, 52 S.W.3d
530, 532 (Ky. 2001). “Specifically, subject-matter jurisdiction may be raised for
the first time on appeal.” Id. Accordingly, we review the legal question before us,
whether the Laurel Family Court had subject matter jurisdiction to modify the
South Carolina spousal maintenance order by terminating Michael’s obligation, de
novo.
Kentucky Revised Statutes (KRS) 407.5211(2) (emphasis added)
dictates: “A tribunal of this state may not modify a spousal support order issued by
a tribunal of another state . . . having continuing, exclusive jurisdiction over that
order under the law of that state[.]” Reciprocally, S.C. Code Ann. § 63-17-
3110(A) (emphasis added) dictates: “A tribunal of this State issuing a spousal-
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support order consistent with the law of this State has continuing, exclusive
jurisdiction to modify the spousal-support order throughout the existence of the
support obligation.” The plain text of these complementary statutes, and their
inverse counterparts contained in KRS 407.5211(1) and S.C. Code Ann. § 63-17-
3110(B), makes clear that Kentucky and South Carolina have commonly agreed
upon limits to each state’s jurisdiction over spousal maintenance orders.
In Giese v. Giese, 529 S.W.3d 791, 792-93 (Ky.App. 2017), this Court
considered facts directly on point and held that pursuant to KRS 407.5211(2) and
Tenn. Code Ann. § 36-5-2211(a), which is nearly identical to S.C. Code Ann. § 63-
17-3110(A), the family court’s ruling on the merits of a motion to modify a
Tennessee spousal maintenance order was barred by statutory law in Kentucky and
Tennessee because “Kentucky courts lack[ed] subject-matter jurisdiction.” Based
on the “clear statutory scheme” between the two states, the Court concluded,
“Kentucky and Tennessee have commonly agreed that spousal maintenance is not
to be modified by other states and any further motion on modification in this
matter must be heard by the court in Tennessee.” Giese, 529 S.W.3d at 793. The
Court further held that while Kentucky lacked jurisdiction to modify Tennessee’s
spousal maintenance order, it had jurisdiction to enforce the registered order and
was required to do so under KRS 407.5211(2) and Tenn. Code Ann. § 36-5-
2211(a). Id.-5-
Kentucky’s agreement with South Carolina mirrors its agreement with
Tennessee; therefore, the Court’s holding in Giese is applicable to South Carolina
spousal maintenance orders pursuant to KRS 407.5211(2) and S.C. Code Ann. §
63-17-3110(A). Such application is consistent with S.C. Code Ann. § 63-17-
3110(C)(1): “A tribunal of this State that has continuing, exclusive jurisdiction
over a spousal-support order may serve as [] an initiating tribunal to request a
tribunal of another state to enforce the spousal-support order issued in this State[.]”
Further, under KRS 426.955, a foreign judgment, properly registered in Kentucky,
“has the same effect . . . as a judgment of a court of this state and may be enforced
or satisfied in like manner.”
The South Carolina Family Court never modified or terminated
Michael’s spousal support obligation, or relinquished its continuing, exclusive
jurisdiction. Additionally, it is undisputed that the South Carolina spousal
maintenance order is consistent with that state’s laws. Therefore, the Laurel
Family Court lacked subject matter jurisdiction to modify the South Carolina
spousal maintenance order by terminating Michael’s obligation.
The South Carolina order was properly registered in Kentucky.
Therefore, the Laurel Family Court had jurisdiction to enforce the South Carolina
spousal maintenance order and was required to do so under the common agreement
between the states.
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We reverse and remand the Laurel Family Court’s order modifying
the South Carolina spousal maintenance order by terminating Michael’s obligation.
The Laurel Family Court must enforce the South Carolina spousal maintenance
order as is until such time as it is modified, terminated, or jurisdiction is ceded by
South Carolina.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE
Kelly Kirby Ridings
London, Kentucky
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