Mathews v. Mathews, 731 S.W.2d 832 (Ky. Ct. App. 1987). · Go Syfert
Mathews v. Mathews, 731 S.W.2d 832 (Ky. Ct. App. 1987). Cases Citing This Book View Copy Cite
11 citation events (10 in the last 25 years) across 2 distinct courts.
Strongest positive: Nathaniel L. Herrell v. Kelsey R. Miller (kyctapp, 2023-06-22)
Top citers, strongest first. 10 distinct citers. How cited ↗
discussed Cited as authority (rule) Nathaniel L. Herrell v. Kelsey R. Miller
Ky. Ct. App. · 2023 · confidence medium
A void judgment “unlike one which is merely erroneous or voidable, is not entitled to any respect or deference -6- by the courts of the Commonwealth but instead is open to attack anytime and any place.” Mathews v. Mathews, 731 S.W.2d 832, 833 (Ky. App. 1987) (citation and quotation marks omitted).
discussed Cited as authority (rule) Michael Sweikata v. Joshua Judd
Ky. Ct. App. · 2020 · confidence medium
Such a judgment, unlike one which is merely erroneous or voidable, is not entitled to any respect or deference by the courts of the Commonwealth but instead is “open to attack anytime and any place.” Grubb v. Wurtland Water District, Ky., 384 S.W.2d 321 (1964). 731 S.W.2d 832, 833 (Ky. App. 1987). 6 This Court could find no explanation in the record for shifting the case to the Fourth Division. -8- “Once lost, jurisdiction must be invoked anew, independently of the previous action that has achieved finality.” Pavkovich v. Shenouda, 280 S.W.3d 584, 588 (Ky. App. 2009).
cited Cited as authority (rule) Grundy v. Commonwealth
Ky. Ct. App. · 2013 · confidence medium
Mathews v. Mathews, Ky.App., 731 S.W.2d 832, 833 (1987).
cited Cited as authority (rule) Pavkovich v. Shenouda
Ky. Ct. App. · 2009 · confidence medium
Mathews at 833 (Ky.App.1987).
cited Cited as authority (rule) S.J.L.S. v. T.L.S.
Ky. Ct. App. · 2008 · confidence medium
Mathews v. Mathews, 731 S.W.2d 832, 833 (Ky.App.1987).
cited Cited as authority (rule) Sjls v. Tls
Ky. Ct. App. · 2008 · confidence medium
Mathews v. Mathews, 731 S.W.2d 832, 833 (Ky.App.1987).
discussed Cited as authority (rule) Faris v. Stone
Ky. · 2003 · confidence medium
Mathews v. Mathews, Ky.App., 731 S.W.2d 832, 834 (1987)("Cr 60.02 is not intended as a vehicle to commence an action or to avoid the jurisdiction and/or procedural prerequisites established by our legislature”). 12 .
cited Cited as authority (rule) Foremost Insurance Co. v. Whitaker
Ky. Ct. App. · 1995 · confidence medium
Mathews v. Mathews, Ky.App., 731 S.W.2d 832, 833 (1987).
discussed Cited "see" Commonwealth of Kentucky, Cabinet for Health and Family Services v. Latanya Batie
Ky. Ct. App. · 2022 · signal: see · confidence high
See Mathews v. Mathews, 731 S.W.2d 832, 833 (Ky. App. 1987) (distinguishing voidable judgment from void judgment, noting the latter “is not entitled to any respect or deference by the courts of the Commonwealth”); Foremost Ins.
discussed Cited "see, e.g." Marshall v. Marshall
Ky. Ct. App. · 2018 · signal: see also · confidence low
Ferguson v. Ferguson , 610 S.W.2d 925 , 927 (Ky. App. 1980) (denying son standing to challenge deceased father's *385 bigamous second marriage six days prior to divorce decree entered dissolving father's first marriage); see also Mathews v. Mathews , 731 S.W.2d 832 (Ky. App. 1987) (granting stepchildren standing to attack father's divorce decree entered without the court's jurisdiction, but declining to decide the issue of standing to attack father's second marriage).
Retrieving the full opinion text from the archive…
Paul MATHEWS Rick Mathews Susan Buckner Tina Dietemann and Cathie Miller
v.
Margarette Hoskins MATHEWS and Floyd E. Hoskins
Court of Appeals of Kentucky.
Jun 12, 1987.
731 S.W.2d 832
Michael Avedisian, Andrew H. Avedisian, Avedisian & Avedisian, Paducah, for appellants., Gorman Bradley, Jr., Jones and Bradley, Paducah, for appellees.
Clayton, Cooper, McDonald.
Cited by 10 opinions  |  Published

Lead Opinion

MCDONALD, Judge:

The appellees, Margarette Mathews and Floyd Hoskins, were married on October 24, 1951. After several years of marriage they separated and in 1979 Margarette filed a petition for dissolution of marriage. Although the parties never resumed their marital relationship they entered an agreed order in the McCracken Circuit Court on October 12,1984, dismissing the dissolution action. Sometime in 1981 Margarette began cohabiting with Payne W. Mathews. They lived together until his death which occurred on September 8,1985. Payne was the father of the appellants, Paul Mathews, Rick Mathews, Susan Buckner, Tina Diete-mann and Cathie Miller.

Four months before Payne’s death, Mar-garette and Floyd jointly moved the court to reinstate the previously dismissed dissolution action. Although the motion does not refer to CR 60.02, the grounds for relief therein are as follows: “[D]ue to inadvertence, mistake, and misunderstanding, they did not understand that they could request the Court to hold the case in abeyance as opposed to dismissal.” The motion, filed June 11, 1985, was sustained that day. The next afternoon the court entered a decree dissolving Margarette’s marriage to Floyd and then performed-the ceremony uniting Margarette and Payne Mathews in marriage.

After Payne’s death Margarette petitioned to be appointed the administratrix of his estate. The appellants made a motion in the dissolution action requesting the court to vacate or set aside the decree of dissolution, arguing therein that the court lacked the requisite jurisdiction to dissolve the Hoskins’ marriage, the matter having been previously dismissed.

The trial court denied the motion to vacate, ruling that the appellants had no standing to collaterally attack the divorce of the putative widow of their father. The court reasoned that the appellants “did not have a property right affected by the divorce which existed when the divorce decree was entered, nor are they in privity with anyone having such a right.”

The sole issue for our consideration in this appeal is whether the appellants have standing to attack the appellees’ divorce. We disagree with the conclusions of the trial court and hold that the appellants do have standing in the matter. While it is true that no one has “more than an expectancy or prospect of inheritance during the lifetime of the person from whom inheritance is claimed,” Arciero v. Hager, Ky., 397 S.W.2d 50, 53 (1965), and heirs have no vested rights until an intestate’s death, we do not believe that one necessarily needs to have a legally protected right at the time of the entry of a void decree in order to attack it collaterally at a later time. It is sufficient if at the time of the collateral attack the petitioner has a right which is affected by the judgment and the fact which renders the judgment void, “namely, the lack of jurisdiction in the court to render [it], appears on the face of the record.” Commonwealth v. Jefferson County, 300 Ky. 514, 189 S.W.2d 604, 606 (1945). Such a judgment, unlike one which is merely erroneous or voidable, is not entitled to any respect or deference by the courts of the Commonwealth but instead is “open to attack anytime and any place.” Grubb v. Wurtland Water District, Ky., 384 S.W.2d 321 (1964).

It is clear that the appellants, their father having died intestate, had an[*834] interest affected by the judgment at the time of their motion to set aside the dissolution decree. Furthermore, it is apparent, from the face of the record, that the court was without jurisdiction to enter the decree. Jurisdiction to entertain such matters are conferred upon the court by the filing of a verified petition for dissolution. See KRS 403.130 and KRS 403.150. There was no such petition, verified or otherwise, filed by the appellees, but a motion to revive the case the parties previously caused to be dismissed. CR 60.02 is not intended as a vehicle to commence an action or to avoid the jurisdictional and/or procedural prerequisites established by our legislature.[1]

Upon remand the appellants will face the issue of whether they have standing to attack the marriage of Margarette to their father. This issue has already been decided by this Court against the appellants’ favor in Ferguson v. Ferguson, Ky.App., 610 S.W.2d 925 (1980), which interprets KRS 403.120 as to precluding strangers from attacking the validity of a void marriage as well as a prohibited marriage. Whether the appellants can overcome the effect of that case is not, however, before us in this appeal.

The judgment of the McCracken Circuit Court is reversed and remanded.

COOPER, J., concurs.

CLAYTON, J., dissents and files separate opinion.

1

It is apparent from the record that Margarette and Floyd, parents of a minor child, were not attempting to avoid the filing fee but the 60-day cooling off period required by KRS 403.044.

Dissent

CLAYTON, Judge,

dissenting.

I respectfully dissent because I think the circuit judge was correct when he reasoned that the appellants “did not have a property right affected by the divorce which existed when the divorce decree was entered, nor are they in privity with anyone having such a right.”