ERIN JOHNSTON NOW MUSE APPELLANT v. MIKE STRACK NELORENE STRACK AND MINOR APPELLEES

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Court of Appeals of Kentucky.

ERIN JOHNSTON (NOW MUSE) APPELLANT v. MIKE STRACK, NELORENE STRACK, AND M.C.J., A MINOR APPELLEES

NO. 2011–CA–000408–DGE

Decided: June 15, 2012

BEFORE:  CAPERTON AND THOMPSON, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEFS FOR APPELLANT:  Stephen W. Cessna London, Kentucky BRIEF FOR APPELLEE:  Mary–Ann Smyth Corbin, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING

Erin Johnston (now Muse) appeals from the February 3, 2011, order of the Whitley Circuit Court affirming the July 19, 2010, findings of fact, conclusions of law, and final judgment of the Whitley District Court.   For the following reasons, we reverse.

In 2007, Muse entered the United States Army. On March 27, 2007, Whitley District Court Judge Dan Ballou issued an order granting permanent custody of Muse's minor child, M.C.J., to his maternal grandparents, Michael Stuart Strack and Nelorene Gaye Strack (the Stracks).   The district court record, which was not created until 2010, contains no evidence of why the order was entered.   There is no petition, no filing fee, and no proof that notice was given to Muse.

On June 15, 2010, Muse filed a motion to set aside the March 27, 2007, order.   On the same date, a district court file was created and given case number 10–J–00078–001.   Additionally, the permanent custody order was retroactively entered effective March 27, 2007.   In her motion to set aside, Muse alleged that the March 27, 2007, custody order was entered without her presence or knowledge and, therefore, she was not afforded appropriate due process.

A hearing was held on June 21, 2010, but no recording of the hearing exists.   The district court issued its July 19, 2010, findings of fact, conclusions of law, and final judgment denying Muse's motion.   No findings were made regarding the procedural history of the March 27, 2007, order or whether Muse was served with notice of a custody proceeding.   Instead, the district court made the following legal conclusion:

[t]he Court takes judicial notice that Judge Dan Ballou, 34th Judicial Circuit, Whitley County, District Court, regularly signed and entered Orders regarding custody of minor children for individuals who were entering the active military service.

Muse appealed the district court's July 19, 2010, judgment to the Whitley Circuit Court.   In an order entered on February 3, 2011, the circuit court affirmed the district court's order.   No opinion was attached.   Muse then filed a motion for discretionary review with this Court and that motion was granted.

Muse argues that the March 27, 2007, district court order is invalid because she was not afforded the prerequisite jurisdictional and procedural due process.   The Stracks argue that the district court order is valid because it was issued at the request of Muse and, therefore, she submitted to the court's jurisdiction.   However, neither this Court nor the circuit court has been presented with any evidence supporting this argument.   Accordingly, we hold that the March 27, 2007, order of the district court was void ab initio.

The district court does not possess jurisdiction to make permanent custody determinations except as provided by Kentucky Revised Statutes (“KRS”) Chapter 620.  KRS 610.010(8).  KRS Chapter 620 pertains to dependency, neglect, and abuse actions, which are commenced by the filing of a petition.  KRS 620.070(1).   In the underlying action, no petition was filed, no filing fee was paid and no service was made upon Muse. Indeed, a case number was not created for the order until three years after its entry.   Accordingly, the district court did not have jurisdiction to issue the May 27, 2007, order.

Although we are troubled by the blatant disregard of procedure in this action, we are not unaware that M.C.J. has been in the physical custody of the Stracks for many years.   It appears that the last valid order regarding custody of M.C.J. can be found in the Laurel Circuit Court dissolution of marriage action no.   04–CI–01107, between Muse and M.C.J.'s biological father, Jason Dean Johnston.   That court's June 29, 2005, findings of fact, conclusions of law, and decree of dissolution of marriage awarded the sole care, custody, and control of M.C.J. to Muse. Consequently, Muse must seek enforcement of that order in the Laurel Circuit Court.   Additionally, any attempt by the Stracks to obtain custody of M.C.J., either temporarily or permanently, should be pursued in that action.   See KRS 403.270.

For the foregoing reasons, the February 3, 2011, order of the Whitley Circuit Court is reversed.

ALL CONCUR.

THOMPSON, JUDGE: