OPINION
This is an appeal by Tammie Gullett (Tammie) seeking to vacate the supplemental decree of the Greenup Circuit Court on the basis that, under the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), the trial court was without jurisdiction to consider the post-dissolution proceedings as to child custody and visitation. We affirm.
Tammie and the appellee Michael Gul-lett (Michael) were married on October 22, 1994. The marriage produced one child, Jacob Thomas Gullett (Jacob), born September 28, 1995. On September 14, 1995, two weeks prior to the birth of Jacob, Michael filed a petition to dissolve the marriage. The petition specifically sought custody of the unborn child. On the dаy of Jacob’s birth, Tammie responded and likewise sought custody of the child. Following various litigation, including proceedings to establish Michael’s paternity of Jacob, on January 2, 1997, the trial court entered a decree dissоlving the marriage and reserving all other issues, including child custody issues. On October 7, 1997, prior to the commencement of a scheduled final hearing before the Domestic Relations Commissioner, the parties announced that а settlement had been reached and that an agreed order would be prepared and presented resolving all pending issues in the dissolution action.
Under the agreement, inter alia, the parties were to have joint custody of Jacob, with Tammie being the primary residential custodian; Michael was to have visitation rights pursuant to the Greenup Circuit Court uniform visitation schedule; and Michael was to pay child support. Tammie subsequently rеfused to sign the agreement. On December 10, 1997, Michael filed a motion requesting that the trial court enforce the agreement. On December 11, Tammie’s counsel filed a motion to withdraw on the basis that “[Tammie] has failed to сommunicate with counsel concerning representation in this matter.”
Tammie retained new counsel and a hearing was held on Michael’s motion to enforce the agreement. On March 6, 1998, the trial court entered аn order and supplemental decree enforcing and incorporating the agreement made between the parties. This appeal followed.
Tammie contends that the trial court did not have jurisdiction over the post-dissolution proceedings relating to custody and visitation because she was a resident of Ohio at the time of the filing of the petition to dissolve the marriage and because she and Jacob have lived in Ohiо since the child’s birth. Tammie acknowledges that the issue of jurisdiction was not brought to the attention of the trial court prior to entry of the March 6, 1998, supplemental decree; however, she nevertheless argues that the issue may now be raised because subject matter jurisdiction may not be waived by a party.
Jurisdiction of the subject matter cannot be conferred by waiver or consent.
Commonwealth, Dept, of Highways v. Berryman,
Ky.,
The UCCJA is codified in KRS 403.400, et seq. The jurisdictional rules are codified in KRS 403.420(1) and provide, in relevant part, as follows:
A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state is the home state of the child at the time of commencement of the proceeding, or had been the child’s home state within six (6) months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other ■reasons, and a parent or person acting as parent continues to live in this state; or
(b) It is in the best interest of the child that a court of this state assume jurisdiction because the child and his parents, or the child and at least one (1) contеstant, have a significant connection with this state, and there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(c) The child is physically present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse оr is otherwise neglected or dependent; or
(d)It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs (a), (b), or (c), or another state has deсlined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction.
Tammie states in her brief that “[a]t the timе of the filing of the petition [she] and the parties’ child were residents of the State of Ohio.” 1 This assertion, however, is not supported by the record. The petition was filed on September 14, 1995, and Jacob was bom on Septеmber 28, 1995. As an unborn child, Jacob was not a “resident” of Ohio at the time of the filing of the petition for dissolution in this action.
Jacob’s status as an unborn child at the time of the filing of the petition for dissolution creates an anomaly in the application of KRS 403.420(1). KRS 403.420(l)(a) confers child custody jurisdiction upon a state if that state is the home state of the child “at the time of commencement of the proceeding.” 2 A proceeding is commenced in thе circuit court when a parent files a petition for dissolution of the marriage. KRS 403.420(4)(a). For a child less than six months old, KRS 403.410(5) defines the child’s home state to be “the state in which the child lived from birth.” (emphasis added). Since Michael filed his pеtition for dissolution prior to the birth of Jacob, Jacob did not have a “home state” at the time of the “commencement of the proceedings.” Hence, as of the time of the filing of the petition for dissolution, we dо not discern a home state jurisdictional preference in favor of Ohio under KRS 403.420(l)(a).
Under the circumstances of this case, the most appropriate subsection of KRS 403.420(1) to apply is subsection (d). Under this subsection a state may assume jurisdictiоn if no other state has jurisdiction in accordance with subsections (a) — (c) and it is in the best interest of the child for the state to assume jurisdiction. We conclude that no other state, including Ohio, appeared to have custody jurisdiction over the unborn child at the time the dissolution petition was filed. We do not have before us a best interest jurisdictional analysis under the facts as they existed at the time the dissolution petition was filed. In her brief, Tammie hаs failed to set forth a case showing that it was not in the best interest of Jacob that Greenup Circuit Court assume jurisdiction or that the best interests of Jácob would have been better served by litigating child custody issues in Ohio. “[A] circuit court is а court of general jurisdiction; its judgments are presumed to be within its jurisdiction until the contrary appears. If the judgment is void it is a nullity and may be disregarded everywhere; but he who assails a judgment as void must state facts showing it to be void.”
Goodmаn v. Board of Drainage Com’rs of McCracken County, Mayfield Creek Drainage Disk No. 1,
Ky.,
Upon thе birth of Jacob, Ohio became his home state. Thereafter, Ohio was authorized under the UCCJA to assume jurisdiction to determine Jacob’s custody under its equivalent of KRS 403.420(l)(a). See Ohio Revised Code (ORC) 3109.22. However, pursuant to ORC 3109.24, the equivalent of KRS 403.450, an Ohio Court
shall not exercise its jurisdiction ... if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity [with the Ohio equivalent of KRS 403.420 to KRS 403.620], unless the proceeding is stayed by the court of the other state because [Ohio] is a more appropriate forum or for other reasons. 3
Hence, upon the birth of Jacob, Ohio attained сoncurrent jurisdiction to decide custody matters concerning Jacob; however, the fact that Ohio later became Jacob’s home state did not divest Kentucky of the jurisdiction it theretofore had properly еxercised under KRS 403.420(l)(d). The mere fact that the child and his custodial parent live in another state does not, as a matter of law, divest the trial court of jurisdiction.
Dillard v. Dillard,
Ky.App.,
In her brief, Tammie specifically objects to the trial court’s jurisdiсtion to hear the “post dissolution proceeding as to
In summary, at the time of the filing of the petition to dissolve the marriage, Kentucky wаs a proper forum to litigate child custody issues pursuant to KRS 403.420(l)(d). While Ohio later became the home state of Jacob and hence a proper forum under the Ohio version of KRS 403.420(l)(a), no event occurred following the filing of the original petition that would have divested the trial court of its initial jurisdiction.
For the foregoing reasons, the trial court had jurisdiction over the subject matter and the supplemental decree of the trial court is affirmed.
All concur.
Notes
. Sometime in July 1995, while pregnant with Jacob, Tammie moved to Ohio to live with her parents and has remained a resident of Ohio since that time.
. Or if the state was the home state within six months prior to the commencement of the рroceedings.
. See also the Parental Kidnapping Prevention Act, 28 U.S.C.A. 1738(g); "A court of a state shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another state where such court of that- other state is exercising jurisdiction consistently with the provisions [substantially similar to those set forth in KRS 403.420(1)].”