McCormick v. McCormick
McCormick v. McCormick
Dissenting Opinion
dissenting.
I respectfully dissent.
The parties’ divorce became final on February 2, 1968. Shortly thereafter, movant established residence in Georgia. In April of 1975, respondent took the parties’ two infant children and moved to Louisiana. Since movant’s departure, both parties have voluntarily consented to four separate actions in the Jefferson Circuit Court, relative to and supplemental to the divorce judgment. They are as follows:
(1) June 4, 1971 — entry of an agreement increasing child support;
(2) July 9, 1974 — transfer of temporary custody of the younger child to father;
(3) April 21, 1975 — agreed order returning custody of said child to mother;
(4) January 13, 1977 — agreed order increasing child support.
The latter two agreed orders were made after both parties had terminated their Kentucky residence.
On August 9, 1978, approximately seventeen months after the final joint voluntary appearance by both parties, respondent filed a motion for an increase in child support. This is the vehicle which has brought the present controversy before us.
Since the divorce was granted, movant has lived in Georgia, moved to and worked in New York while allegedly maintaining his residence in Georgia, and more recently, has moved to and worked in California while allegedly still residing in Georgia.
The majority of the Court has declared that the Kentucky court is no longer a “convenient forum” for hearing the motion to increase child support. In so doing, the Court has, in this case, placed an outer limit to the continuing jurisdiction of the Kentucky courts to decide child support matters authorized in Benson v. Benson, Ky., 291 S.W.2d 27 (1956) and Hall v. Hall, Ky., 585 S.W.2d 384 (1979).
As a basis for the termination of jurisdiction, the Court relies on an analogy to the child custody statute, KRS 403.420. I do not agree. That statute was enacted as an anti-kidnapping measure, and is a creation of the legislature. The wrongs intended to be prevented there, in my opinion, are not and should not be controlling in this case which is a policy decision to be made by this Court.
Under the terms of the child custody statute the Kentucky courts are to decline jurisdiction wherever possible, in order to prevent parents from kidnapping their own children and bringing them to Kentucky for a new adjudication of custody rights. The best interests of the child are served, in the legislature’s judgment, by declining jurisdiction in such cases. In child support cases, by contrast, the jurisdictional considerations are quite different. What could be more important to the welfare of the child than providing adequate child support? To this end the legal forum for providing such support should be one which is readily accessible to the custodial parent. This clearly serves the best interest of the child.
In declaring Kentucky a non-convenient forum, the majority has not held that the classic “minimum contacts” standard of due process declared in Kulko v. Supreme Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978), has not been met. It is clear to me that, under Kulko, the four joint voluntary appearances of movant and respondent, following the entry of the divorce judgment, were more than sufficient to fulfill the due process requirement of minimum contacts necessary to retain jurisdiction in Kentucky. There is a serious question in my mind whether the Kentucky courts have the power to decline jurisdiction in such cases, absent a special statutory scheme such as that created for child custody cases.
Up to seventeen months prior to the present motion the movant had voluntarily
I would affirm the decision of the Court of Appeals.
I am authorized to state that STERN-BERG, J., joins me in this dissent.
Opinion of the Court
OPINION OF THE COURT
This is an appeal from a civil case in which the Jefferson Circuit Court determined that it had jurisdiction to order an increase in child support. On appeal to the Court of Appeals the judgment was affirmed. We now reverse.
The facts of the case may be simply stated. Mr. and Mrs. McCormick were granted a divorce in the Jefferson Circuit Court on February 2, 1968. Shortly thereafter Mr. McCormick moved to Georgia, where he has maintained permanent residency to this day.
Between 1968 and the date on which the current action was initiated Mr. McCormick voluntarily submitted to this state’s jurisdiction on three separate occasions concerning changes in custody or child-support payments. Both parties agree that Mr. McCormick has at all times been prompt with the support payments for his children. We view these past voluntary submissions to
We have in the past expressed the view that courts of this Commonwealth have continuing jurisdiction to modify support orders originally entered here. See Benson v. Benson, Ky., 291 S.W.2d 27 (1956).
While there is no comparable statute governing child support, the factors set forth in the child-custody statute, KRS 403.-420, offer instructive guidelines for determining this state’s interest in assuming jurisdiction. KRS 403.420 provides that a court of this state has jurisdiction to make a child-custody determination by initial or modification decree if (1) this is the home state of the child and one parent, or (2) it is in the best interest of the child that this state assume jurisdiction because the child and his parents or at least one parent has a significant connection with this state, and there is available in this state substantial evidence concerning the child’s present or future care, protection training, and personal relationships, or (3) the child is abandoned, neglected or abused in this state, or (4) it appears that no other state would have jurisdiction under (1), (2), or (3) above, or that another state has declined jurisdiction because this state is the more appropriate forum.
The jurisdictional requirements of KRS 403.420 were enacted to remedy a particularly odious practice unique to the area of child custody.
[cjertainly it does no violence to traditional notions of fair play and substantial justice to require a person to defend a claim conveniently at home, where he has every reason to anticipate that he may be sued and where the state has a strong general interest in his economic health. Shaeffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). At 386.
Applying that language to an opposite set of facts, we find that it does violate traditional notions of fair play and substantial justice to require that the appellant submit repeatedly to the jurisdiction of a Kentucky court for determination of an issue in which his state of residency or domicile has a great interest and in which we in fact have no interest at all.
Full court sitting.
. The decision in Benson was based on KRS 403.070 which was repealed 1972 S 133, Sect. 29, effective 6/16/72.
. We do not decide the issue of whether Kentucky has sufficient contacts to satisfy due process under Kulko v. California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).
.See Simpson v. Simpson, Ky., 586 S.W.2d 33 (1979).
. The evidence indicates that Mr. McCormick is presently living in New York because his employment requires him to do so. However, he still considers Georgia to be his place of permanent residency and domicile.
Reference
- Full Case Name
- Henry Thomas McCORMICK, Movant v. Sandra Jean McCORMICK
- Status
- Published