Divorce and Custody Jurisdiction - temporary absence from state - published opinion from Ky Court of Appeals

Brockman v. Brockman

 

On appeal, Former Husband argued the Trial Court lacked Subject Matter jurisdiction to enter a divorce decree because neither party resided in Kentucky for 180 days prior to the filing of the petition. Former Husband also argued the Trial Court lacked jurisdiction to make a custody determination under KRS 403.800.

 

At the hearing held by the Trial Court, Former wife testified that the parties had moved from state to state during the marriage due to Former Husband’s military service. Former wife also testified that 180 days prior to the filing of her divorce petition, she and the parties’ minor child resided in Pennsylvania, Kentucky, and North Carolina. Although Former Wife and Former Husband were separately residing in North Carolina at the time of the hearing, each of the parties maintained Kentucky Driver’s licenses, filed income taxes in Kentucky, and frequently returned to Kentucky with the minor child to visit both sets of grandparents.

 

The Court of Appeals affirmed the Trial Court’s decision denying Former Husband’s motion to dismiss for lack of jurisdiction. The Court held that “when the divorcing parties’ absence from the state is temporary in nature” jurisdiction is permitted even if neither party has resided in the state for 180 days prior to the filing of the petition. The Court found that military service qualifies as a temporary absence and that the evidence proffered at the hearing supported a finding that Kentucky was her legal residence.

 

Additionally, the Court of Appeals held that the Trial Court had jurisdiction in making a final custody determination. Although the minor child resided in three different states, including Kentucky, during the 180 days prior to the commencement of the divorce action “the child and at least one parent have a significant connection with this state other than mere physical presence” as required by KRS 403.822(1)(b). The Trial Court properly exercised jurisdiction because Kentucky was the legal residence of both the parents.

 

Digested by: Emily T. Cecconi