Family Law, UCCJA: NORDIKE V. NORDIKE (SC 8/23/2007)

DATE RENDERED: 08/23/2007

SC affirmed CA’s opinion denying Mother’s motion to amend an Agreed Order transferring jurisdiction over child custody and visitation from Kansas to Kentucky so that the Order also transferred child support jurisdiction to Kentucky. CA and TC both held that such an amendment could not be made due to lack of personal and subject matter jurisdiction. SC held that even this was not necessary, as jurisdictional problem was more fundamental: Mother did not move the Court to register and enforce or modify the child support decree, providing no justiciable controversy; and without a justiciable controversy, a court cannot obtain jurisdiction in the first instance.

On discretionary review, SC considered Mother’s appeal of CA’s denial of her motion to amend an Agreed Order transferring jurisdiction over issues of child custody and visitation to Kentucky, so that the Agreed Order also transferred jurisdiction of child support to Kentucky. For reasons other than those given by TC or CA, SC affirmed the opinion of CA.

After a long history of child-related disputes, and after both Father and Mother relocated from Kansas to other states, they entered an Agreed Order transferring jurisdiction of child custody and visitation to Kentucky. Mother moved KY TC to amend the Agreed Order to state that jurisdiction over all issues of child support were transferred to KY, claiming that child support was mistakenly not included in the Agreed Order. TC denied Mother’s motion, noting that it had not accepted jurisdiction over child support matters and lacked jurisdiction to do so per the Uniform Interstate Family Support Act, because it did not have personal jurisdiction over Father, who lived in Colorado. On appeal, CA noted the different statutory schemes necessary for modification of custody and support, and finding generally that both personal jurisdiction over Father and subject matter jurisdiction over child support matters were lacking.

SC affirmed opinion of CA and TC, but on different grounds. SC noted that the case presented a jurisdictional problem, but it was not the type of jurisdictional problem contemplated by TC or CA. Rather, jurisdiction was not available in this case due to a procedural misstep by Mother: she never moved the court to register or modify the Kansas child support order, so there was no justiciable controversy. Essentially, Mother’s motion asked TC only to declare that it had jurisdiction over child support, so Mother could at some time in the future ask that support be modified. However, without a request by a party to take some action in a case, a court can never have jurisdiction over that particular matter. Because of the limitations of the UIFSA, only two actions could have been taken by TC at Mother’s request: register and enforce a child support decree; or register and modify a child support decree. In both situations, the petitioner must ask the court to do something with the decree by actively seeking registration and either enforcement or modification of it. There is no provision that allows a party—prior to seeking to register and then enforce or modify a decree—to ask the court to declare whether the requirements of either set of statutes has been met. A court would be required to address those specific requirements before reaching the merits of the motion for registration and enforcement or modification. But the question of the court’s authority to modify child support does not arise until it is actually put in dispute by the motion. Such a determination is not ripe absent a motion to modify.

SC also explained why Mother’s motion to amend could not be treated as a Motion for a Declaratory Judgment: “There is a temptation in this case to suggest that [Mother]’s motion was analogous to a Declaratory Judgment action, in that she sought to have jurisdiction declared before she proceeded. However, such a suit still requires that ‘an actual controversy exists . . . .’ The question of a court’s jurisdiction by itself, much like any dispute over a pure question of law not grounded in an actual claim, simply is not ‘a present actual controversy.’ Jurisdiction can only be addressed within an action itself, whether initiated through a complaint or a motion requesting relief, neither of which has been made in this case.”

As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

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