Ryan James Richardson v. Asia Nicole Richardson ( 2021 )

RENDERED: APRIL 30, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1709-MR
RYAN JAMES RICHARDSON APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
v. HONORABLE S. MARIE HELLARD, JUDGE
ACTION NO. 19-CI-00446
ASIA NICOLE RICHARDSON APPELLEE
OPINION
AFFIRMING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
LAMBERT, JUDGE: Ryan James Richardson appeals from the Shelby Circuit
Court’s order dismissing his motion for temporary custody. We affirm.
Ryan and Asia Nicole Richardson were married in Kentucky in March
2014. The couple has two daughters, born in 2014 and 2017. Asia is an active
member of the United States Army. She has been stationed in Fort Hood, Texas,
since 2018, and at one point she expected to be deployed to South Korea.
The parties separated in March 2019. Ryan returned to Kentucky to
look for employment, and the children remained in Texas with Asia. Asia allowed
the children to visit Ryan in June of that year, where according to him they have
remained. Asia maintained that he refused to return them.
Asia filed a petition for dissolution of marriage in Texas on August
19, 2019. Four days later, Ryan filed a similar petition in Shelby County,
Kentucky. Asia responded that, because she has not been a resident of Kentucky
for the previous 180 days, there was no jurisdiction in Shelby County. On
September 27 of that year, Ryan filed a motion for temporary custody of the
children. He also filed a motion to file an amended complaint.
The Shelby Circuit Court held a hearing on October 16, 2019. The
parties voiced their respective positions over jurisdiction, each asserting that their
state of residence was proper. Ryan stated that he was preparing to go to Texas the
next week to attend a hearing on the petition that Asia had filed there. The circuit
court, at the hearing’s conclusion, indicated that there would be a conference call
with the Texas court, after which a ruling would be made, or another hearing
would be convened on November 6, 2019.
On October 17, 2019, the Shelby Circuit Court ordered Ryan’s
motions dismissed, holding that, after speaking with Texas Judge LePak,
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jurisdiction was in Bell County, Texas. Ryan filed his notice of appeal on
November 15, 2019.
We note at the outset that Asia has not filed a brief before this Court.1
These are the options ordinarily afforded us:
If an appellee brief has not been filed within the time
allowed, the court may:
(i) accept the appellant’s statement of the
facts and issues as correct; (ii) reverse the
judgment if appellant’s brief reasonably
appears to sustain such action; or (iii) regard
the appellee’s failure as a confession of error
and reverse the judgment without
considering the merits of the case.
Kentucky Rules of Civil Procedure (CR) 76.12(8)(c).
“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).
Because the issues and facts are straightforward, we
choose not to penalize [the Cabinet] for its failure to file
a brief.
Cabinet for Health and Family Services v. Loving Care, Inc., 590 S.W.3d 824, 826
(Ky. App. 2019). However, we are mindful that “[w]hile a party’s failure to file a
brief may be taken as a confession of error, CR 76.12(8)(c), such a sanction is
inappropriate in appeals involving child custody or support.” Ellis v. Ellis, 420
1
Asia was represented by counsel before the circuit court. Counsel moved this Court to
withdraw on December 27, 2019. On January 21, 2020, counsel’s motion was granted, and the
appeal was held in abeyance for 30 days for Asia to either find new counsel or file a pro se
appellee brief. She has done neither. The matter was returned to the active docket February 21,
2020.
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S.W.3d 528, 529 (Ky. App. 2014) (citing Galloway v. Pruitt, 469 S.W.2d 556, 557
(Ky. 1971)). Because this matter involves temporary custody of two children, we
shall not impose any of the three penalties but rather shall consider the merits of
the appeal. We accept Ryan’s statements of the facts as correct, insofar as they do
not conflict with the record, and proceed to the merits of this appeal.
We next enunciate our standard of review, namely:
The primary issue before us on appeal is whether
the trial court properly declined to exercise continuing
exclusive jurisdiction in this matter. “Whether a trial
court acts within its jurisdiction is a question of law;
therefore, our review is de novo.” Biggs v. Biggs, 301
S.W.3d 32, 33 ([Ky. App.] 2009).
Kentucky adopted the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) in 2004.
Wallace v. Wallace, 224 S.W.3d 587 (Ky. App. 2007).
Under the UCCJEA, a state making the initial custody
determination retains “exclusive, continuing jurisdiction
over the determination” until such time as:
[a] court of this state determines that neither
the child, nor the child and one (1) parent,
nor the child and person acting as a parent
have 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[.]
KRS 403.824(1)(a). “[T]he state having original
jurisdiction maintains exclusive continuing jurisdiction
though the child has acquired a new home state if the
general requirement of the substantial connection
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jurisdictional provisions are met.” Wallace, 224 S.W.3d
at 590.
Curry v. Curry, 430 S.W.3d 909, 911 (Ky. App. 2014).
Here, the circuit court ruled that Texas was the proper forum for the
parties’ dissolution and child custody determinations. We find no error in this
regard. The Richardsons had moved to Texas in October 2018. Even though Ryan
insists that the children had been with him at his mother’s home in Shelby County
since June 2019, it has always been Asia’s contention that the children remained
here without her consent, making their absence from Texas temporary. See
Dellapenta v. Goldy, 575 S.W.3d 697, 700 (Ky. App. 2018), where this Court held:
KRS 403.800(7) indicates that temporary absences from
a state are included in the home state residency
calculation period. This means that the children lived in
Colorado from April of 2015 until the custody petition
was filed on December 1, 2015. This is well beyond the
6-month home state requirement. Seeing as Colorado
had jurisdiction over the children, the trial court erred in
invoking KRS 403.822(1)(d).
Thus, in the present case, the children’s temporary absence from Texas was
included in the home state residency calculation (which had at that time already
exceeded the 180-day period required for residency). Texas was the proper
jurisdiction for these matters, and the circuit court correctly declined jurisdiction in
Kentucky.
Accordingly, the order of the Shelby Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE
Jonathan D. Miller
Louisville, Kentucky
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