Kentucky Court of Appeals Decisions (Minutes) for November 15, 2013 (Nos. 1039-1057). Re: family law on modification of child support (Uniform Interstate Family Support Act (UIFSA)).

Justice John Marshall Harlan

Justice John Marshall Harlan from Kentucky and Centre College served on the Supreme Court of the United States for almost 34 years (1877-1911). His grandson John Marshall Harlan II was also a Supreme Court justice serving 1955-1971.

Kentucky Court of Appeals Decisions (Minutes) for November 15, 2013 (Nos. 1039-1057).

15 decisions were announced by COA this date, with 1 of those decisions designated “To Be Published”).

For a copy of this week’s minutes filed at the AOC web site, click here.

Click here for complete list of all archived Court of Appeals Minutes that you can download from the Administrative Office of the Courts web site.

Short summary of the published decisions for this week are (click on the link for the full text of the decision from AOC):

1053. Family Law.  Child Support Modification. Uniform Interstate Family Support Act (UIFSA)
Adams-Smyrichinsky v s. Smyrichinsky
COA, Affirming, Published 11/15/2013
Oldham County, Judge Timothy E. Feeley

COMBS, JUDGE: Rachel Adams (f/k/a Smyrichinsky) appeals the order of the Oldham Family Court which set child support and assigned tax deductions. After our review, we affirm.

Rachel argues that the family court erred by not applying Indiana law to the modification of the child support order. She relies on Kentucky Revised Statute[s] (KRS) 407.5611(3), which directs that the law of the issuing state controls. However, KRS 407.5611 only applies if the petitioner does not live in this state. KRS 407.5611(1)(a)(2). The petitioner was Peter, and he resides in Kentucky.

In this case, the court properly relied upon KRS 407.5613, which permits a family court to modify an order of child support if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state[.]” KRS 407.5613(1). The issuing state was Indiana, and both the parties and the children live in Kentucky. Therefore, the court did not err by modifying the child support order that had been issued by Indiana.

Kentucky has adopted the Uniform Interstate Family Support Act (UIFSA). KRS 407.5101. It provides that “[t]he law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order.” KRS 407.5604. Although Kentucky courts have not applied this statute, all fifty states have adopted the UIFSA. With regard to its choice-of-law provision, sister states have consistently held that once a child support order is modified by a state that has continuing and exclusive jurisdiction, the law of the forum state supersedes and controls. A Florida court has reasoned as follows: “once a judgment is registered and modified in another state, that state becomes the issuing state and the forum state’s law governs modification of the support order.” Spalding v. Spalding, 907 So.2d 1270, 1272 (Fla. Dist. Ct. App. 2005). Alaska’s highest court has pointed out that this interpretation is consistent with the official comments to the UIFSA. State, Child Support Enforcement Div. v. Bromley, 987 P.2d 183, 190 (Alaska 1999).

In this case, there is no dispute that Kentucky has assumed continuing and exclusive jurisdiction. Indiana transferred its jurisdiction over all child custody, visitation, and support matters and divested itself of the matter. As the Alaska Supreme Court pointed out, application of local law “to the maximum degree possible” promotes judicial efficiency. Id. at 190 (quoting Unif. Interstate Family Support Act § 303 commentary, 9 U.L.A. 360 (Supp. 1998)). Thus, in the case before us, it was entirely appropriate for the family court to base its decisions on the laws of Kentucky.

Although Rachel charges that Peter is forum shopping, she did not object to the application of Kentucky law until the third time that the court modified the child support order. Arguably, her failure to object sooner constitutes a waiver at this juncture. See Ballard v. American Hemp Co., 30 Ky. L. Rptr. 1080, 100 S.W. 271 (1907).

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