Alison Clay, O.B.O. a Minor Child, J.C. v. Kenneth Kirsch ( 2022 )

RENDERED: AUGUST 12, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0898-ME
ALISON CLAY, O.B.O. A MINOR APPELLANT
CHILD, J.C.
APPEAL FROM BOONE FAMILY COURT
v. HONORABLE JENNIFER R. DUSING, JUDGE
ACTION NO. 21-D-00131-001
KENNETH KIRSCH APPELLEE
AND
NO. 2021-CA-0899-ME
ALISON CLAY, O.B.O. MINOR APPELLANT
CHILD, J.C.
APPEAL FROM BOONE FAMILY COURT
v. HONORABLE JENNIFER R. DUSING, JUDGE
ACTION NO. 21-D-00132-001
A.J.K., A MINOR CHILD APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND K. THOMPSON,
JUDGES.
THOMPSON, K., JUDGE: Alison Clay (mother) appeals on behalf of her minor
child, J.C. (child), from an order of the Boone Family Court which dismissed
domestic violence petitions (the petitions) mother filed to protect child from
Kenneth Kirsch (father) and minor child A.J.K., who is J.C.’s half-sibling (sibling).
We affirm as we agree that Kentucky was an inappropriate forum and lacked
personal jurisdiction over father and sibling.
On May 7, 2021, mother filed the petitions in the family court on
behalf of child, seeking protection against father and sibling1 through an
emergency protective order (EPO) and domestic violence order (DVO). The
statements contained in the petitions alleged physical and sexual abuse dating back
to at least 2018.
On the petition concerning father, mother indicated that the parties
were involved in a custody/visitation case in Butler County, Ohio. All the alleged
1
Sibling was thirteen years old when the petition was filed.
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incidents of abuse also occurred in Butler County, Ohio.2 The family court
immediately granted an emergency protective order (EPO) and scheduled a hearing
on the petitions.
The hearing on the petitions was continued several times and the EPO
remained in effect. Father and the guardian ad litem for A.J.K. filed various
motions requesting relief, including that the family court: (1) communicate with
the magistrate of the Ohio court who presided over the custody and visitation
action; and (2) dismiss the petitions for lack of personal and subject matter
jurisdiction.
The family court conducted a status hearing on July 19, 2021. Mother
objected to any communication between the family court and the Ohio court
arguing that she did not request custody in the domestic violence petition and the
only issue before the family court was whether an act of domestic violence had
occurred.
Father explained to the family court that the parties were also parties
in a custody/visitation trial in Ohio where the exact allegations contained in the
petition against him were recently addressed. Father accused mother of forum
shopping.
2
Mother had previously lived in Butler County, Ohio, with child. The record before us is
unclear regarding when mother moved with child to Boone County, Kentucky.
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The family court pointed out that if it entered a DVO it would be,
practically speaking, granting custody of child to mother. The family court
indicated it would contact the Ohio magistrate and the telephone call would be on
the record. The family court denied mother’s request to listen to the live telephone
call.
The telephone call between the family court and the Ohio magistrate
appears in the record before us. The magistrate explained that, while the juvenile
division of the Court of Common Pleas in Ohio had jurisdiction over the custody
matter, it would not have jurisdiction over both domestic violence petitions if
mother chose to file them there. The magistrate explained it did not have
jurisdiction over an adult in a domestic violence matter, so if mother wanted to file
a petition against father in Ohio, it would need to be filed before a separate
division in the Court of Common Pleas. However, the juvenile division would be
the proper venue if mother wished to file a domestic violence petition against
sibling.
The magistrate confirmed awareness of the EPO issued in Kentucky,
as it was an issue raised at the last hearing. The magistrate informed the family
court that the matter had been before him four times already even though child was
only seven years old. The magistrate also informed the family court that mother
had brought the same allegations of physical and sexual abuse in three counties in
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Ohio3 before obtaining an EPO in Kentucky, and the allegations started when child
was an infant.
The parties appeared before the family court again on July 26, 2021,
for a status conference. The family court indicated to the parties that the Uniform
Child Custody Jurisdiction and Enforcement Act (UCCJEA) applied, and the
family court lacked jurisdiction over father and sibling. Rather than immediately
dismissing the EPO, the family court stated that the EPO would instead expire on
August 10, 2021, to give mother time to file petitions against father and sibling in
the proper Ohio courts. The family court entered a written order on the same date
memorializing its decision.
However, rather than file any equivalent domestic violence petitions
in Ohio, mother appealed the family court’s order. On the day the EPO expired,
mother filed a motion for emergency relief in this Court, seeking to abate the
family court’s order of July 26, 2021. This Court denied mother’s motion and the
matter was passed to this panel for adjudication on the merits.4
3
The record before us indicates these allegations were either dismissed or unsubstantiated.
4
We note that mother filed a motion to strike the briefs of father and sibling or, alternatively, to
strike portions of the briefs with references to the proceedings in Ohio that were not properly
admitted into evidence by the family court. We grant mother’s motion for alternative relief by
separate order; however, we note that much of what father and sibling presented in their briefs to
this Court was previously submitted in their responses to mother’s motion for emergency relief.
Mother did not file a motion to strike offending portions of these responses.
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Mother makes multiple arguments on appeal. Mother argues her
statutory and constitutional rights were violated because the family court failed to
conduct a hearing on the petitions. Mother also argues that, because she did not
request custody of child in the petition against father, the UCCJEA is inapplicable
and was misconstrued by the family court. Finally, mother argues the family court
did have personal jurisdiction over father and sibling and, accordingly, had the
authority to enter a limited order to protect child.
Mother’s arguments center around two general inquiries: (1) whether
the UCCJEA applies; and (2) whether the family court had jurisdiction over father
and sibling.
Turning to mother’s first argument, the UCCJEA at Kentucky Revised
Statutes (KRS) 403.800(4) defines a “child custody proceeding” as including
“protection from domestic violence[.]” Although mother urges this Court to view
the petition against father in a vacuum with no consideration for the custody
proceedings in Ohio, we decline to do so.
Mother argues the purpose of the domestic violence statutes is to
“[a]llow victims to obtain effective, short-term protection against further wrongful
conduct in order that their lives may be as secure and as uninterrupted as possible.”
KRS 403.715(1). That is precisely what the EPOs allowed as they were in place
from May 7, 2021, until August 10, 2021, to permit mother to file the appropriate
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petitions in Ohio, where the events were alleged to have occurred, and where
ongoing custody proceedings were taking place. However, any order entered by
the family court was still subject to the UCCJEA.
KRS 403.828 allows Kentucky to exercise temporary emergency
jurisdiction and states, in relevant part:
(1) A court of this state has temporary emergency
jurisdiction if the child is present in this state and the
child has been abandoned or it is necessary in an
emergency to protect the child because the child, or a
sibling or parent of the child, is subjected to or threatened
with mistreatment or abuse.
....
(3) If there is a previous child custody determination that
is entitled to be enforced under KRS 403.800 to 403.880,
or a child custody proceeding has been commenced in a
court of a state having jurisdiction under KRS 403.822,
403.824, and 403.826, any order issued by a court of this
state under this section shall specify in the order a period
that the court considers adequate to allow the person
seeking an order to obtain an order from the state having
jurisdiction under KRS 403.822, 403.824, and 403.826.
The order issued in this state remains in effect until an
order is obtained from the other state within the period
specified or the period expires.
This is precisely what the family court did in issuing the EPO and
setting its expiration on a date certain. The family court, in consideration of the
UCCJEA, acknowledged any order it entered would be temporary until such time
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as Ohio could further address the issue. The family court’s temporary action was
appropriate.
We find mother’s assertion that the family court should have
conducted a hearing because she was not seeking temporary custody of child in the
petition against father and, therefore, the UCCJEA was inapplicable, to be
unpersuasive. Mother’s reliance on Bissell v. Baumgardner, 236 S.W.3d 24 (Ky.
App. 2007), in support of her argument is misplaced.
In Bissell, the mother of the minor child left Utah with the child to
visit family in Kentucky and, shortly thereafter, told the father they would not be
returning. The father then filed for divorce in Utah. At some point thereafter, the
father traveled to Kentucky to visit the child and an incident of domestic violence
occurred between the parents. The circuit court granted an EPO and, after a
hearing, entered a DVO. The DVO protected only the mother, not the minor child,
although the circuit court did award temporary custody of the child to the mother,
pending any orders from the Utah court. This Court held the UCCJEA was
implicated when the circuit court granted temporary custody to the mother
pursuant to its temporary emergency jurisdiction under the UCCJEA and Utah had
superior jurisdiction to make the final custody determination. Id. at 30.
Mother argues this Court’s holding in Bissell means “the UCCJEA
does not apply to DVO cases that lack a request for custody.” We disagree.
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Bissell held “the DVO should clearly reflect that the temporary
custody award was pursuant to the court’s temporary emergency jurisdiction and
was without prejudice to any custody proceeding in an appropriate jurisdiction.”
Bissell, 236 S.W.3d at 27. Bissell did not hold that a party may bypass the
UCCJEA by not specifically requesting temporary custody of the minor child in
the domestic violence petition. We agree with the family court that the DVO
requested by mother would have, for all practical purposes, been the equivalent of
granting custody of child to mother, even if no legal custody determination was
made. We decline to extend our holding in Bissell to allow parents to circumvent
the UCCJEA by deciding not to formally pursue custody.
Importantly, the record before us shows mother’s counsel admitted the
same issues presented in the petition against father were being litigated in the
custody proceedings in Ohio. At the status conference on July 19, 2021, when the
family court asked mother’s counsel to respond to father’s accusation of forum
shopping, counsel replied that KRS 403.725 instructs that a domestic violence
petition should be filed in the county in which the victim resides, but also stated
the parties “have been fighting about these very same issues for three years and
other issues” in the Ohio court. Counsel went on to ask, “what is [mother’s]
option? To wait three more years for it to be heard, for it to finish, or to bring it in
the state in which she resides?”
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Clearly, mother was displeased with the custody proceedings in Ohio.
This is further evidenced by the fact that mother did not attempt to obtain a DVO
in Ohio prior to the expiration of the EPO. However, even if the family court had
conducted a hearing on the domestic violence petitions and granted the DVO, the
order would have been temporary in nature pursuant to KRS 403.828. The EPO
achieved the same outcome in that it provided temporary protection to child while
giving deference to the authority of the Ohio court.
We now turn to whether the family court had personal jurisdiction
over father and sibling. We agree with the family court that it did not. KRS
454.210(2) is known as Kentucky’s long-arm statute and governs Kentucky’s
personal jurisdiction over non-residents. This Court has previously outlined a
three-pronged test to determine personal jurisdiction:
First, the defendant must purposefully avail himself of
the privilege of acting in the forum state or causing a
consequence in the forum state. Second, the cause of
action must arise from the defendant’s activities there.
Finally, the acts of the defendant or consequences caused
by the defendant must have a substantial enough
connection with the forum state to make the exercise of
jurisdiction over the defendant reasonable.
Tube Turns Division of Chemetron Corp. v. Patterson Co., Inc., 562 S.W.2d 99,
100 (Ky. App. 1978).
Neither father nor sibling have ever resided in Kentucky. None of the
allegations contained in the petitions were said to have occurred in Kentucky.
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Rather, all alleged events occurred in Butler County, Ohio. Further, neither father
nor sibling have sufficient connections with Kentucky to make personal
jurisdiction reasonable.
We are also unpersuaded by mother’s argument that father and sibling
waived the defense of lack of personal jurisdiction by failing to raise it in their first
responsive pleading. Neither father nor sibling filed a responsive pleading
pursuant to Kentucky Rules of Civil Procedure (CR) 15.01. Both father and
sibling filed various motions, but a motion is not a pleading per CR 7.01. See also
Vincent v. City of Bowling Green, 349 S.W.2d 694, 696 (Ky. 1961). Therefore, we
agree with the family court that neither father nor sibling waived a defense of lack
of personal jurisdiction.
Accordingly, the order of the Boone Family Court dismissing the
domestic violence petitions is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE KENNETH
KIRSCH, JR:
Tasha K. Schaffner
Crestview Hills, Kentucky Kyle M. Rapier
Hamilton, Ohio
BRIEF FOR APPELLEE A.J.K.:
Erin M. Melcher Beam
Alexandria, Kentucky
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