Issue:Jurisdiction to Extend Previously-Issued DVO
Published:Vacated and Remanded with Instructions to Dismiss
Wooldridge appealed from FC order extending DVO for an additional three years, contending FC did not have jurisdiction to do so as original term of DVO had expired at time of court’s order.
On August 17, 2006, Zimmerer filed a DV petition against Wooldridge and, after hearing, FC entered a DVO, which was effective until August 28, 2009.On August 27, 2009, Zimmerer filed another DV petition against Wooldridge. An EPO was entered, which was effective until September 8, 2009, the date of hearing. After both parties testified, FC concluded that Zimmerer’s new allegations were insufficient for the entry of a 2nd DVO.FC ordered original DVO to be extended for another 3 years from the date the original order expired, holding that, since Zimmerer had filed a new petition for another DVO prior to the expiration of the original DVO, FC still had jurisdiction.FC held that the “petition” could be viewed as a motion to extend the current DVO.
CA held that although a DVO can be reissued even where no additional violence or abuse had occurred during the pendency of the DVO, that is an evidentiary issue, not a jurisdictional issue as was presented in this case.Even though proof is presented to a court that a DVO could be reissued, the court must still have jurisdiction to extend an order.Because she filed a petition for another DVO, Zimmerer’s original DVO still expired on August 28, 2009. On that date, she no longer was protected by the DVO but was under the protection of the newly issued EPO. Unfortunately for Zimmerer, at EPO/DVO hearing FC held that the allegations in the EPO were not sufficient for the granting of another DVO.
CA rejected Zimmerer’s argument that the filed petition was intended as a motion to extend the 2006 order, holding that the DVO statutes establish the jurisdictional prerequisites for extending a DVO and these jurisdictional parameters must be maintained to maintain the efficacy of these statutes. FC does not have the authority to re-characterize a “petition” for a DVO as a motion for an extension of a DVO.
Issue:Application of Social Security Disability Benefits received by Children due to Custodial Parent’s Disability in Child Support Determination
Published:Affirming (With Concurrence in Result Only)
Mom, non-custodian, appealed from CA decision vacating FC’s order reducing her child support obligation based on the children’s receipt of Social Security Disability payments received due to disability of Dad, custodial parent, claiming CA erred in its interpretation of child support statute and its failure acknowledge and reconcile provisions of that statute.
Mom paid Dad, primary residential parent, $564 monthly child support for parties’ 2 minor children.Mom later filed a motion to reduce child support due to the children's receipt of approximately $800 .00 per month in Social Security benefits resulting from Dad’s disability. After hearing, FC granted Mom’s motion, holding that, pursuant to KRS 403.211(3)(d), the children's SS income was an independent financial resource, and that child support guidelines should be adjusted. Dad appealed.CA held that only Dad, the disabled parent, was entitled to claim credit for the children's SS disability benefits and remanded to FC for recalculation.
SC held that KRS 403.211 (15) states that a payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent but shall not be counted as income to either parent when calculating a child support obligation.CA stated that a child support credit based upon SS disability benefits "may only be taken by the disabled parent from whom the payments stern," because "these social security benefits in essence step into the shoes of the income lost by the father as a result of his disability." Mom argued to SC that CA failed to consider the statute’s clear language referring to "the parent" and "either parent" as opposed to "the disabled parent."
SC disagreed.“It defies both common sense and the plain wording of the statute to hold that the non-disabled parent is entitled to a credit for his or her child support obligation due to the Social Security disability payments of the disabled parent.Such an interpretation would clearly reach an absurd result. KRS 403.211(15) indicates that disability payments received by the child are to be credited to "the child support obligation" of "the parent." Clearly, the legislature intended that "the parent" receiving the credit is to be the non-custodial disabled parent with the child support obligation.”Furthermore, SC recognized that the SS disability benefits received on behalf of the parties' minor children are merely a substitute for the wages Dad would have received, but for his disability, and from which his support payments would otherwise have been made.
SC also disagreed with Mom’s argument that CA should have made a finding that FC’s decision was an abuse of discretion and should have given direction to FC as to how Dad's SS benefits were to be considered in the calculation of Mom's child support obligation.“While Social Security benefits of the type at issue here are arguably a financial resource of a recipient, we do not believe that such benefits are the type of ‘independent financial resource’ that would allow a trial court to deviate from the basic child support guidelines. Indeed, allowing the trial court to consider the Social Security benefits of the disabled parent when calculating the child support obligation of the non-disabled parent would, in effect, nullify the mandate of KRS 403.211(15). As stated earlier, KRS 403.211(15) does not allow the non-disabled parent to receive a child support credit for the Social Security disability payments of the disabled parent. If the trial court instead were to consider these payments as ‘independent financial resources’ of the child, a back door would be created whereby the court essentially gives the non-disabled parent credit for such payments... It would be illogical to think that the legislature would exempt the parent's disability benefits from being calculated for income purposes under KRS 403.211(15), and yet allow those same benefits to be considered for deviation from the child support guidelines.
NOBLE, J., CONCURRING IN RESULT ONLY:
“Where I do not agree with the majority is its reasoning that children's Social Security benefits cannot be considered to be independent income as the basis for a trial court to deviate from the support guidelines. Clearly it can be, if the statute is properly applied. The rule the majority adopts avoids the plain language of the statutes, and can lead to an improper result in the next case. …KRS 403.211(3) … does not define what an independent resource is, but for purposes of calculating child support based on the parents' income pursuant to KRS 403.212, ‘income’ includes Social Security benefits. Presumably, such benefits can thus be included in children's independent income. When a trial court determines that the independent income makes the child support guidelines amount unjust, it can deviate. … It is the total amount of support (table amount) from which the court can deviate, not the individual support obligation of one parent. …In this manner, the court can make an equitable reduction that relieves both parents of some amount of table support which is offset by the children's independent income to some degree. … Unfortunately, what the trial judge stated on the record was that he was reducing the mother's support obligation by one-third of the children's Social Security benefits. The majority is correct that he cannot do this, and that there is no statutory basis to do so. This does not mean, however, that in an appropriate case those benefits could not be considered by the trial court to deviate from the total support amount from the table. Had the trial court made written findings on the record as to why the independent income of the children made the total monthly support obligation from the table unjust or inappropriate, he would have been well within his discretion pursuant to KRS 403.211(3).Consequently, due to the specific facts of this case, I agree with the result reached by the majority, but cannot agree with its legal reasoning, which I believe sets bad precedent.”
Today the Ky Court of Appeals decided Wooldridge v. Zimmerer where an extension of DVO for 3 years was reversed and remanded.
Yesterday the Ky Supreme Court released Artrip v. Noe, holding that the parent who is not disabled gets no credit agaisnt his/her child support obligation on account of social security benefits the child receives as a result of the other parent's disability.
Issues:Whether Trial Court is required to interview child in chambers
to ascertain child’s preference as to his custodian and visitation.
Parties were married in 1994 and had three children.They separated in January, 2007 and trial court entered temporary joint custody order designating Mother as primary residential custodian.Decree was entered in October, 2007 and hearings were conducted in September, October and November, 2008.In January, 2009, court issued findings of fact, conclusions of law and judgment awarding parties joint custody with Mother primary residential custodian.
Father appealed, contending TC abused its discretion and deprived him of a fair hearing before reaching determination of custody.CA held that KRS 403.290(1) provides that the court “may interview” a child in chambers regarding custody and visitation, the language of the statute is permissive, not mandatory.Thus, the court’s decision is discretionary.
Father further contended that the TC erred by failing to designate him as primary residential custodian.Trial Court found that father’s witnesses exaggerated their criticisms of Mother’s parenting skills and home environment and failed to present any reliable evidence to support his claim that children were endangered when in care of Mother.
After finding that Mother had been primarily responsible for child-rearing, children were doing well in private, parochial school, and both parents maintained suitable homes, the TC concluded it was in the best interest of children for Mother to be designated as primary residential custodian and CA found no abuse of Trial Court’s considerable discretion.
Finally, father contended the Trial Court erred in its distribution of marital property because it relied on an appraisal that father believed inflated the value of the marital residence.The Court of Appeals reviewed the appraisal and found no error that had a material impact on the fair market value because it utilized a comparison approach, not a cost approach.
There are no published family law opinions released by the Kentucky Court of Appeals today. However, there is a published decision that will interest family law practitioners. Lattanzio v. Joyce discusses permissible sanctions that may be imposed upon pro se litigants. We will not be digesting this one, but you may click on the link to read the opinion.
Issues:Family Court must determine truth or falsity of all allegations in a complaint and consider only the evidence in the record to reach its conclusions.
Published:Vacating and Remanding
S.R. (Mother) and J.N. (Father) were married in 2005 and their child, D.N. (minor child) was born later that year.In 2006, divorce proceedings were initiated and after two contentious years, divorce was granted and mother was awarded custody of D.N.Mother remarried and had another child in 2008.When Mother’s new marriage deteriorated, her husband (Rambo) contacted Father and alleged Mother’s conduct was putting D.N. at risk.Based on these allegations and Rambo’s affidavit, Father filed an Emergency Custody Petition and was awarded emergency custody on April 24, 2009.An adjudication hearing was held on July 21.
Father’s complaint alleged that after an all-night drinking episode, Mother was too intoxicated to take D.N. to school and that she did not take the medications prescribed for her bipolar disorder.Attached to the petition was Rambo’s affidavit alleging mother’s misconduct, Father and Rambo both testified at the adjudication hearing.
Mother and two witnesses also testified at the hearing and disputed the allegations of Father and Rambo.Nevertheless, the Family Court ruled D.N. was an abused or neglected child and placed him in Father’s care.
Mother appealed asserting the Family Court failed to determine the truth or falsity of the allegations in the complaint, made erroneous findings of fact regarding Rambo’s testimony, and erroneously concluding D.N. was neglected, especially in light of testimony that he was routinely cared for by competent caregivers.
When a court conducts an adjudicatory hearing following temporary removal of a child from a custodian, KRS 620.100 requires the adjudication shall determine the truth or falsity of the allegations in the complaint with the burden of proof on complainant.Findings of fact must be supported by substantial evidence in the record.
The Family Court determined the truth or falsity of only 2 of the 17 allegations in the petition.The conclusion that D.N. was abused or neglected was not supported by substantial evidence.The Family Court also went beyond allegations in the complaint and the testimony at the hearing and referred to evidence from prior proceedings and the court’s own knowledge acquired in the course of those prior actions; none of which was introduced into evidence at the adjudicatory hearing.While a court may take judicial notice of its findings of fact in a prior case, it is improper to consider the evidence from the prior action.
CA held that Family Court’s finding that D.N. was abused or neglected was erroneous as a matter of law because the court did not determine the truth or falsity of the allegations in the complaint and relied on information outside the record and as a result the conclusion that D.N. is abused or neglected is not based on substantial evidence.
CA vacated the Order finding D.N. an abused or neglected child and remanded to Family Court for entry of an order which determines the truth or falsity of all the allegations in the complaint and based only on the record in this case.