Masters v. Masters
2013 Ky. LEXIS 638
| Ky. | 2013Background
- Divorce between Shane and Dena Masters; they share one child.
- April 18, 2005 order granted joint custody with Dena as primary residential custodian, plus child support, visitation, and debts/vehicle assignments; other marital issues reserved.
- August 12, 2005 final dissolution decree incorporated the April 2005 order and August 9, 2005 visitation agreement.
- May 31, 2007 Shane moved to modify custody to sole custody; motion included letters from supporters, notarized but without jurats.
- KRS 403.340(2) and KRS 403.350 require affidavits with a custody modification motion; Petrey v. Cain previously held jurisdiction hinged on affidavit compliance; Court of Appeals vacated order for lack of subject matter jurisdiction.
- Madison Family Court held a hearing in May 2010 and granted Shane sole permanent custody; Dena appealed; Court of Appeals vacated for lack of subject matter jurisdiction under Petrey; Kentucky Supreme Court granted discretionary review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether noncompliance with KRS 403.340 affidavits divests jurisdiction | Masters contends affidavits (notarized letters) suffice; noncompliance should not defeat subject matter jurisdiction. | Masters’ motion lacking proper affidavits falls short per Petrey; jurisdiction premised on proper affidavit compliance. | No jurisdictional loss; Petrey overruled to the extent it held lack of affidavits destroys jurisdiction. |
| Whether Dena waived challenge to affidavit deficiency by not raising it in trial court | waiver not explicit; can raise on appeal | Dena failed to object in trial court as required; cannot seek reversal on this ground on appeal. | Dena waived the affidavit-deficiency challenge on appeal; appellate review limited accordingly. |
| Whether the two-year/fourteen-day timing provisions affect subject matter jurisdiction | Timing should govern admissibility, not jurisdiction | Timing tied to jurisdiction per Petrey; earlier motion requiring affidavits within period. | Not dispositive; jurisdiction remains intact despite timing issues. |
| Whether notarized letters qualify as affidavits and whether two affidavits were required | Letters should qualify as affidavits given notarization | Jurats missing; not proper affidavits; analysis unnecessary since waiver forecloses review. | Court did not address merits; waiver forecloses ruling on this point. |
Key Cases Cited
- Petrey v. Cain, 987 S.W.2d 786 (Ky.1999) (affidavit requirement governs jurisdiction over modification motions; not the sole determinant of jurisdiction)
- Daugherty v. Telek, 366 S.W.3d 463 (Ky.2012) (subject matter jurisdiction over class of cases; error in procedure affects power, not jurisdiction per se)
- Dix v. Dix, 222 S.W.2d 839 (Ky.1949) (initio jurisdiction principles; distinguishes class vs. case jurisdiction)
- Commonwealth v. Griffin, 942 S.W.2d 289 (Ky.1997) (distinction between subject matter and particular case jurisdiction)
- Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705 (Ky.2009) (appellate review limitations; issues not raised below generally not reviewable)