RENDERED: NOVEMBER 17, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 1348

- MR
SHAWNTINA TROTTER

- DANIEL APPELLANT

v. APPEAL FROM CHRISTIAN CIRCUIT COURT

HONORABLE JASON S. FLEMING, JUDGE ACTION NO. 21

- CI

- 00064

ADRIAN DANIEL APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: ACREE, DIXON, AND M C NEILL, JUDGES. DIXON, JUDGE: Shawntina Trotter

- Daniel appeals from the F indings of F act , C onclusions of L aw and F inal D ecree of D issolution of M arriage, P roperty I ssues and C ustody , as well as the order denying her motion to alter, amend , or vacate said judgment , entered by the Christian Circuit Court on October 13, 2022, and November 2, 2022, respectively . Following a careful review of the record, briefs, and applicable law, we aff irm

.- 2

- FACTS AND PROCEDURAL BACKGROUND
Shawntina and Adrian Daniel were married in Kentucky in 2012, after
which there were four children born of the marriage. In March 20 20 , t he Daniels visited Shawntina’s parents in Arizona

. The y discussed relocat ing to Arizona and
listed their Kentucky home for sale in April 2020

.

According to Shawntina, b eginning on or about May 31, 2020 , she
and the children stayed with her parents in Arizona while she sought a new residence, job, school for the children, and healthcare

.

According to Adrian, i n August 2020, he helped move the family from Kentucky in to an apartment in Arizona

. The following month, a fter learning
his job transfer to Arizona was not approved, Adrian returned to Kentucky.

In November 2020, Shawntina petitioned an Arizona court for
divorce

. In January 2021, the Arizona court entered an order dismissing the action , due to lack of jurisdiction over the children , a nd recognized Kentucky as their
home s tate. Three days later, Adrian petitioned Kentucky’s Christian Circuit Court
for divorce

. The circuit court found it had jurisdiction over the parties and the
children and , following a hearing, entered its F indings of F act, C onclusions of
L aw, and F inal D ecree of D issolution of M arriage, P roperty I ssues and C ustody

. Shawntina moved the circuit court to alter, amend , or vacate its judgment, but her motion was denied. This appeal followed.- 3

- STANDARD OF REVIEW
Shawntina first argues the cir cuit court did not have subject matter jurisdiction. Subject matter jurisdiction is “the court ’ s power to hear and rule on a particular type of controversy

. ” Nordike v. Nordike , 231 S.W.3d 733, 737 (Ky. 2007). “The question of jurisdiction is ordinarily one of law, meaning that the standard of review to be applied is de novo.” Harrison v. Park Hills Bd. of Adjustment , 330 S.W.3d 89, 93 (Ky. App. 2011) (internal quotation marks and citation omitted).
LEGAL ANALYSIS

On appeal , Shawntina argues that Kentucky lack s subject matter jurisdiction because Arizona has proper jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) . We disagree.

The UCCJEA is codified in KRS 1 403.800 through 403.880 and applies to proceedings “in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence[.]” KRS 403.800(4). 2

1 Kentucky Revised Statutes

.
2 Arizona has also adopted the UCCJEA. See Arizona Revised Statutes ( A .R.S.) 25

- 1001 et seq .- 4

- Shawntina argues that the determination of which state has proper jurisdiction under the UCCJEA depends on the home state of the children. Under KRS 403.800( 7 ) , “ ‘ Home state ’ means the state in which a child lived with a parent or a person acting as a parent for at least six (6) consecutive months immediately before the commencement of a child custody proceeding .” ( E mphasis added

. )

KRS 403.822 provides that a court “ shall have jurisdiction to make an initial child custody determination only if ” the “ state is the home state of the child on the date of the commencement of the proceeding [.]” ( E mphasis added

. ) Shawntina filed her Arizona petition on November 24, 2020, claiming that she and the children had lived in Arizona since May 31, 2020

. Adrian moved to dismiss her petition , asserting that the children did not move to Arizona until August 2020.
T he Arizona court correctly found:

Under eit her scenario, the children had not lived in Arizona for six full consecutive months at the time the petition was filed thereby making Kentucky, and not Arizona, the home state of the children. The Court therefore has no jurisdiction over the children . And because the Court has no jurisdiction over the children, the Court finds that it would be an inconv enient forum to litigate the other issues associated with [Shawntina’s] petition. After Adrian filed his petition in Kentucky , the Christ i an C ircuit
Court heard the testimony of the parties and found Adrian’s assertion that the- 5

-

children did not move to Arizona until August 2020 more credible than
Shaw n tina’s claim that they moved in May 2020. The c ircuit c ourt ’ s determination
of the children’s home state was a factual finding

. Danaher v. Hopkins , 449 S.W.3d 765, 769 (Ky. App. 2014)

. A court ’ s findings of fact may be set aside only if those findings are clearly erroneous. Moore v. Asente , 110 S.W.3d 336, 354 (Ky. 2003). Findings of fact are clearly erroneous if they are not supported by
substantial evidence. Id

. “Substantial evidence is ev idence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence,

. . . has sufficient probative value to induce conviction in the minds of reasonable men.” Id

. ( interna l quotation marks and
citations omitted).

In the case h ere in , Adrian’s testimony constitutes substantial
evidence . Moreover, Shawntina admitted that the children moved to Arizona in August 2020 in her answer to Adrian’s petition. A ccordingly, since the trial court’s finding that the children did not move to Arizona until August 2020 was supported by substantial evidence, it cannot be set aside. The fact that substantial evidence may also support a contrary conclusion is immaterial. 3 Consequently,

3 It is well

- established that:

Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” because judging the- 6

-

Kentucky was the children’s home state at the time Adr i an filed his petition in Kentucky , and the circuit court did not err in its conclusion that it had jurisdiction
over the case under the UCCJEA

.

Even if the trial court err ed in finding that the child ren did not move to Arizona until August 2020 , we may affirm a correct result

– that the circuit court had jurisdiction under the UCCJEA

– upon any ground supported by the record.
Commonwealth v. Fields , 194 S.W.3d 255, 257 (Ky. 2006)

. KRS 403.822 further provides that a court “shall have jurisdiction to make an initial child custody
determination ” if :

(a) This state

. . . was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state; or (b) A court of another state does not ha ve jurisdiction under paragraph (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under KRS 403.834 or 403.836; and
1. The child and the child ’ s parents, or the child and at least one (1) parent or a person acting as a parent,

credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal,” and appellate courts should not disturb tri al court findings that are supported by substantial evidence.
Id . at 354 (footnotes omitted).- 7

- have a significant connection with this state other than mere physical presence; and
2. Substantial evidence is available in this state concerning the child ’ s care, protectio n, training, and personal relationships[.]
Here , Kentucky ’s Christian Circuit Court properly exercise d jurisdiction in making the initial custody determination of the children because

even if Kentucky was not the “home state” on the date Adrian’s petition was filed,
it certainly had been within the preceding six months , and Adrian still lived in Kentucky

. Alternatively , Arizona did not have or exercise jurisdiction ; Adrian and the children have significant connections with Kentucky , including family and
f riends who live herein; and s ubstantial evidence is available in Kentucky concerning the child ren ’s care, protection, training, and personal relationships

. Either way, the Kentucky court had jurisdiction under the UCCJEA.
CONCLUSION
For the foregoing reasons, the order s of the Christian Circuit Court are AFFIRMED

.

ALL CONCUR

.- 8

-

BRIEF S FOR APPELLANT: Nancy E.S. Calloway Elkton, Kentucky BRIEF FOR APPELLEE: James G. Adams, III Hopkinsville, Kentucky