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MARY DIANE CLEMENTS APPEAL FROM COURT OF APPEALS NO . 98-CA-001343 DAVIESS CIRCUIT COURT NO . 96-CI-01177

APPELLANT

V.

JAN HARRIS, EXECUTRIX OF THE ESTATE OF THOMAS LEROY CLEMENTS

APPELLEE

OPINION OF THE COURT BY JUSTICE STUMBO AFFIRMING The instant action concerns the validity of a decree of the Daviess Circuit Court, which dissolved the marriage of Thomas Leroy Clements (Leroy) and the Appellant, Mary Diane Clements (Mary) . Leroy has since passed away and the interests of his estate are being represented by Jan Harris, the Executrix and Appellee herein . The Court of Appeals below affirmed the dissolution decree, but reversed the circuit court's decision concerning the property disposition . Mary now requests we reverse only that part of the Court of Appeals' decision that upheld the dissolution decree . For the reasons set forth in the remainder of this opinion, we affirm . Mary and Leroy became acquainted at church functions in Owensboro . The two became romantically involved and decided to move from Owensboro to Florida during

June of 1996. While in Florida, Mary and Leroy married on July 19, 1996 . Using Leroy's pre-marital assets, the couple purchased residential property in Florida . After only being wed for a few months, the couple's marital bliss dissolved . Leroy allegedly committed acts of domestic violence against Mary and he was subsequently arrested on October 2, 1996. Leroy posted bond, left Florida, returned to Owensboro, and moved in with his daughter . Soon thereafter, on October 11, 1996, Leroy filed a petition to dissolve the marriage . On October 17, 1996, Mary was purportedly served a summons in Florida . However, the process server did not leave the summons with Mary, but instead left it with another individual at Mary's residence . Mary contends that this service of process was ineffective . Less than a month later, on November 11, 1996, the circuit court authorized the Master Commissioner, on Mary's behalf, to execute a deed to Leroy's pre-marital residence in Owensboro. The proceeds from the sale were to be placed in an escrow account . Then, on December 9, 1996, Mary filed a special appearance motion to dismiss for lack of jurisdiction, and the Master Commissioner entered a pendente lite order awarding the proceeds from the sale of the Owensboro property to Leroy . On December 17, 1997, Mary was personally and effectively served a summons in Florida . Mary objected and renewed her motion to dismiss for lack of jurisdiction . On April 14, 1998, Leroy filed a motion for entry of decree in the Daviess Circuit Court, and Mary once again objected and moved to dismiss . On May 12, 1998, the circuit court entered a decree, which dissolved Leroy and Mary's marriage and allocated property . Mary then appealed the circuit court's decision to the Court of Appeals . In a unanimous opinion, the Court of Appeals panel reversed the circuit court's decision as to the

property disposition, but affirmed the entry of the dissolution of marriage decree . While the Court of Appeals determined the circuit court lacked the proper jurisdiction due to Leroy's failure to meet the 180-day next residency requirement, it held that under KRS 22A.020(3), the dissolution decree could not be disturbed and must be affirmed . Mary then sought discretionary review from this Court . We granted review and now affirm . The only issue before this Court is whether the decree which dissolved the marriage of Mary and Leroy was valid . Generally, a decree of dissolution of marriage is not subject to review before an appellate court of the Commonwealth . Section 115 of the Kentucky Constitution provides that "the General Assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage ." In 1976, the General Assembly enacted KRS 22A.020(3), which provides that "there shall be no review by appeal or by writ of certiorari from that portion of a final judgment, order or decree of a Circuit Court dissolving a marriage ." In addition, for well over a century, appellate courts of the Commonwealth have consistently held that a judgment granting a dissolution of marriage is not appealable or subject to appellate jurisdiction . Whitney v. Whitney , 70 Ky . (7 Bush) 520 (1870) ; Irwin v. Irwin , 105 Ky. 632, 49 S.W . 432 (1899) ; DeSimone v. DeSimone , Ky., 388 S.W.2d 591 (1965); Drake v. Drake, Ky. App ., 809 S.W.2d 710 (1991) . However, Mary contends that, under the circumstances of the instant matter, appeal and reversal of the dissolution decree should be permitted despite the existence of KRS 22A.020(3) . For instance, Mary argues that the Court of Appeals should have reversed the dissolution decree because it determined that the trial court lacked jurisdiction. Mary directs this Court to Self v. Self, 293 Ky . 255, 168 S .W.2d 743 (1943), which held that a judgment granting a divorce may be appealed when that judgment is

void . However, it has also been held that even when jurisdictional matters are concerned, a judgment granting a divorce will be upheld even if it is erroneous. Lewis v . Lewis , 224 Ky. 18, 4 S .W.2d 1106 (1928) ; Weintraub v. Murphy, Ky., 240 S .W .2d 594 (1951) . Here, the Court of Appeals below held that the circuit court should have found that Leroy was not a resident of the Commonwealth of Kentucky. However, the Court of Appeals held that it could not review the dissolution decree. The Court of Appeals referenced Elswick v. Elswick , Ky., 322 S.W.2d 129 (1959), wherein it states: Where the question of jurisdiction in a divorce action has been raised in the lower court, and there is any evidence to show the jurisdictional residence of the parties, the lower court's judgment granting a divorce based upon a determination that it has jurisdiction is not void and cannot be questioned on appeal regardless of the fact that the determination may be against the overwhelming weight of the evidence and be clearly erroneous. Id. at 131 . Thus, though the trial court acted erroneously in finding Leroy to be a resident of Kentucky, the decree of dissolution is not void . Elswick , supra . Mary has failed to present any contrary decisions or argument to persuade this Court to declare invalid the decree dissolving her marriage with Leroy . Accordingly, we find no error in the Court of Appeals' decision to uphold the divorce judgment. We have reviewed the other issues raised and find them to be without merit. Therefore, we need not address them . The decision of the Court of Appeals affirming the Daviess Circuit Court's decree of dissolution of marriage is affirmed . Lambert, C .J . ; Cooper, Graves, and Wintersheimer, JJ ., concur. Keller, J ., dissents by separate opinion, with Johnstone, J ., joining that dissent.

COUNSEL FOR APPELLANT : Michael T. Connelly Connelly, Kaercher & Stamper 1610 Kentucky Home Life Building Louisville, KY 40202 COUNSEL FOR APPELLEE : John W. Stevenson 613 Frederica Street Owensboro, KY 42301

RENDERED : NOVEMBER 21, 2002 TO BE PUBLISHED

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2000-SC-0304-DG MARY DIANE CLEMENTS APPEAL FROM COURT OF APPEALS NO . 98-CA-001343 DAVIESS CIRCUIT COURT NO. 96-CI-01177 APPELLANT

V.

JAN HARRIS, EXECUTRIX OF THE ESTATE OF THOMAS LEROY CLEMENTS DISSENTING OPINION BY JUSTICE KELLER

APPELLEE

I respectfully dissent from the majority opinion because the record in this case permits only two possible conclusions : (1) there is absolutely no evidence showing that Thomas Leroy Clements actually resided in Kentucky for the 180 days next preceding his filing of this divorce petition, in which case an appellate court may vacate the divorce decree even under the holding of Elswick v. Elswick ,' or (2) Thomas Leroy Clements testified untruthfully as to his Kentucky residency, in which case appellate review is proper because the decree of dissolution in this case was void as fraudulently obtained . Accordingly, I would reverse the Court of Appeals and vacate the Daviess

'Ky., 322 S .W.2d 129, 131 (1959) ("Where the question of jurisdiction in a divorce action has been raised in the lower court, and there is ,any evidence to show the jurisdictional residence of the parties, the lower court's judgment granting a divorce based upon a determination that it has jurisdiction is not void and cannot be questioned on appeal . . . . " (emphasis added)) .

Circuit Court decree dissolving the marriage between Appellant and Thomas Leroy Clements. As "[t]he word `jurisdiction' is more easily used than understood," 2 I wish to begin with some operational definitions . In simple terms, jurisdiction is "[a] court's power to decide a case or issue a decree,"' but a court's jurisdiction has three separate elements: "(1) jurisdiction over the person, (2) jurisdiction over the subject matter, and (3) jurisdiction to render the particular judgment sought, or as is sometimes said, jurisdiction of the particular case."' "Personal jurisdiction" is "[a] court's power to bring a person into its adjudicative process ; jurisdiction over a defendant's personal rights, rather than merely over property interests . ,5 "Subject-matter jurisdiction" is "[j]urisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things ."' It "refers to a court's authority to determine `this kind of case' as opposed to `this case."'' Particular-case jurisdiction, although related to subject-matter jurisdiction, "means the right, authority, and power to hear and determine a specific case within that class of cases over which a court has subject matter

2Commonwealth . Department of Highways v. Berryman, Ky., 363 S .W .2d 525, 526 (1962). 3 BLACK's LAW DICTIONARY 857 (7 th ed . 1999) . 420 AM . JUR . 2D Courts

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