March 14, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:13)
PUBLISHED (COA).
HEER V. CHADWICKThis was a combined appeal interpreting language in an oil and gas lease from the Fraser sisters which included the condition that “[i]f no well be commenced on said premises on or before the 1[sic] day of July 2005 this lease shall terminate as to both parties.” In addition, the property was landlocked so obtaining access to their landlocked property was as important as tapping the oil reserves under it. So, as consideration, the lease agreement included the provision that, “[i]nstead of upfront money for lease, Cody Heer will attempt to get permanent right of way, 20 foot [sic] wide.”
This was not the first time the Fraser sisters leased the property. Approximately 10 to 15 years earlier, East Fork Crude had rights to, and did successfully, extract oil and gas. For part of that leasehold period, East Fork Crude traversed an adjoining property with the permission of the owner, Robert Chadwick. But the withdrawal of Chadwick's permission caused East Fork Crude to end its lease.
COA held that the lessee did not commence a well within the
time period. Having maintenance performed on an existing well that was sufficient to re-establish well and effectuate the successful extraction of commercial quantities of crude oil from the well did not comply with the lease's requirement that he “commence a well,” as lessee neither drilled existing well deeper or wider, nor did he produce commercial quantities of oil from that well for the first time.
Dad appealed from TC’s order sustaining Mom’s motion asking TC to take jurisdiction of child custody matters stemming from a prior dissolution of marriage proceeding in Tennessee. Dad maintained that TC improperly assumed jurisdiction, improperly based its findings on facts not in the record, and erred in failing to maintain a record of its communications with the Tennessee court.
Dad and Mom were divorced in 1998 by TC in the state of Tennessee (“TN TC”). Mom received custody of the parties’ minor child, with Dad being granted visitation. In 1999, Mom and Child moved to KY and established residency. In 2003, Dad filed a motion to for Mom to show cause why she should not be held in contempt for her failure to permit Dad to exercise visitation with Child. In 2004, on the same day that Dad’s TN attorney was granted leave to withdraw in TN case, Mom filed a petition in KY TC to alter visitation schedule. Dad moved to dismiss KY motion for lack of jurisdiction which was subsequently denied for Dad’s failure to prosecute, but TN TC issued order setting a trial date for all pending issues and the order was mailed to Mom’s last known address. DRC conferred with TN TC on the jurisdictional issue. TN TC opined to DRC that jurisdiction should remain with TN TC. KY DRC found that Mom’s KY action, having been filed the same day that Dad’s TN attorney was granted leave to withdraw, represented Mom’s attempt to change jurisdictions, and that as Dad initially sought to enforce the existing TN Order in 2003, Kentucky could not exercise jurisdiction as a TN action was pending. Mom filed exceptions to KY DRC order. KY TC’s order (rendered in 2004) acknowledged that TN retained jurisdiction over a related contempt proceeding, but held that KY had jurisdiction over Child because Child resided in KY since 1999. In 2006, Dad moved KY TC to decline jurisdiction over Child and give full faith and credit to TN TC’s orders. Mom then sought an emergency order from KY TC to suspend visitation based on Child’s allegation that Dad tried to touch her inappropriately. KY TC then rendered an order declining jurisdiction as to the modification of visitation and giving full faith and credit to TN child custody orders, which Mom moved to alter, amend or vacate. KY TC then ruled that the UCCJA and KRS Chapter 403 operated to vest KY with jurisdiction over child custody and visitation matters, finding that KY was Child’s home state and that it was in Child’s best interest for KY to exercise jurisdiction. KY TC also determined that Dad had sexually abused the child, stating that “[t]his court cannot in good conscience place a child in the custody of a person who has been abusive to the same child. Therefore without question this court should assume jurisdiction of the child under this section.”
Dad moved for KY TC to disclose its record of communications with TN TC. KY TC overruled Dad’s motion for disclosures due to the fact that no record of communication between KY TC and TN TC existed. Dad then filed this appeal.
Dad contended that KRS 403.420 (now supplanted by KRS 403.822) allows for jurisdiction to be determined based either upon whether KY is the child’s home state, or whether another state has continued to maintain jurisdiction in the matter, arguing that TN continued to maintain jurisdiction over the action, and that KY TC so acknowledged in 2006, when it stated that TN would have jurisdiction of modification and child custody orders in the case. Dad argued that by reversing this order with the entry of a new order, KY TC placed itself in the position of a review court by attempting to reassert jurisdiction over an issue which it had previously ruled that it did not maintain. CA found no error. Because Mom’s petition to alter visitation was filed before the enactment of KRS 403.822 and KRS 403.826, the law in effect at the time of filing, KRS 403.420 is controlling. KY had jurisdiction to adjudicate Mom’s petition since Child resided with Mom in KY for at least six months prior to the filing of the petition, which is one of the scenarios allowing KY to have jurisdiction per KRS 403.420.
Dad also argued that KY TC erred when it rendered 2006 order based on facts not found in the record, in which KY TC acknowledged relying upon written letters from counselors addressing the child abuse allegation, and that KY TC improperly failed to maintain a record of its communication with TN TC as required by statute, thus preventing him from defending, explaining or rebutting any information contained therein. CA agreed. Given the parties’ right to have the matter adjudicated from the evidence of record, as well as their statutory entitlement to examine a record of KY TC’s communication with TN TC, CA found that KY TC clearly erred by impairing or eliminating Dad’s ability to examine and rebut the evidence relied upon. CA affirmed KY TC’s order as to that portion reflecting KY TC assuming jurisdiction based on its finding that KY is Child’s home state, but reversed and remanded as to that portion of the Order addressing matters not contained in the circuit court record.
Digested by Michelle
Eisenmenger Mapes, Diana
L. Skaggs + Associates.
COA held the trial court had authority to reinstate a dependent's commitment to Cabinet for Health and Family Services for purpose of facilitating
the dependent's college education until the age of 21 in spite of the fact that
the Cabinet had made an earlier decision to suspend such commitment after dependent had previously decided to quit college; dependent sought reinstatement after changing her mind about school and
wishing to go to college. See, KRS 620.140.
NOT PUBLISHED (COA)
Because the trial court did not apportion damages upon request, as required under KRS 411.182,
we reverse and remand.
Debbie Taylor appeals from a summary judgment of the Wayne
Circuit Court finding her jointly and severally liable with Robert Taylor, to
whom she was married when the liability accrued, for monies due and owing to
Southern Belle Dairy Co., LLC. These monies were due on an open account with
Southern Belle for dairy products delivered to three stores operated by the
Taylors. For the reasons stated, we affirm.
HOUSTON V. HOUSTON
REAL PROPERTY: TENANCY
2006-CA-000932
NOT PUBLISHED: 69
DATE RENDERED: 3/14/2008
KING V. COM
2006-CA-002033
NOT PUBLISHED: 145
DATE RENDERED: 3/14/2008
CAUDILL V. COM
2006-CA-002318
NOT PUBLISHED: 61
DATE RENDERED: 3/14/2008
LEWIS V. COM
2007-CA-000021
NOT PUBLISHED: 63
DATE RENDERED: 3/14/2008
EICHER V. COM
2007-CA-000123
NOT PUBLISHED: 117
DATE RENDERED: 3/14/2008
LITTLE V. HALL
REAL PROPERTY: PRESCRIPTIVE EASEMENT
2007-CA-000267
NOT PUBLISHED: 61
DATE RENDERED: 3/14/2008
MEADE V. UPS LOGISTICS
WORKERS COMP
2007-CA-000344
NOT PUBLISHED: 63
DATE RENDERED: 3/14/2008
JENKINS V. ANTOSH
2007-CA-000849
NOT PUBLISHED: 67
DATE RENDERED: 3/14/2008
WILLMAN V. COM
2007-CA-000924
NOT PUBLISHED: 60
DATE RENDERED: 3/14/2008
G.(M.R.) V. CABINET FOR HEALTH AND FAMILY
2007-CA-001206
NOT PUBLISHED: 129
DATE RENDERED: 3/14/2008
CHRISTY V. COM
2007-CA-001304
NOT PUBLISHED: 83
DATE RENDERED: 3/14/2008
QUALITY DISTRIBUTION V. HILL
WORKERS COMP
2007-CA-002398
NOT PUBLISHED: 73
DATE RENDERED: 3/14/2008
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