CHFS v. Bowman, 2009-CA-001830-ME
CHFS and Mom appealed FC’s order denying motion to modify child support.
Mom and Dad divorced while Child was toddler. MSA provided that Dad would be primary residential parent and neither parent would pay child support. Ten years later, FC suspended Dad’s visitation and ordered him to pay $623 monthly child support, including contribution to health insurance premiums. Parties subsequently entered an Agreed Order that Dad would pay for Child’s health insurance premiums but would pay no child support. Thirteen months later, CHFS filed motion to intervene to modify the child support obligation. FC sustained the motion. CHFS filed a motion seeking child support from Dad. Dad testified that Mom entered current agreement that he not pay child support due to fact that she had not paid child support during the ten years when Child primarily resided with him. Mom testified that she believed she was only waiving child support arrears in that agreement and that she was currently seeking child support from him because he was not maintaining health insurance on Child, a fact that FC found to be in error. FC denied the motion, finding no change in circumstances because there had been no change in income and that Mom and Dad had both been represented by counsel when they agreed that Dad would pay no child support to Mom, and that the Agreed Order was fair to all parties based on the Mom having paid no child support to Dad when he provided Child’s primary residence.
CHFS and Mom argued that because child support at the time the motion to modify was filed was zero, there was clearly at least a fifteen percent (15%) change in the amount of child support due. However, CA found that as Mom was still not working and Dad was earning the same income and providing insurance at the time the motion to modify was filed, there had been no material change in circumstances since the time the parties had entered into the agreed order that warranted modifying child support. Thus, any presumption that there was at least a fifteen percent (15%) change from the current child support ($0) and the current amount of child support per the guidelines was overcome as a matter of law by the court’s determination that no material change in circumstances had occurred. CA held that the burden was on CHFS and Mom to prove a material change in circumstances, which they failed to do. CA further found it significant that neither CHFS nor Mom set forth any arguments or evidence demonstrating that Child’s physical needs were not being met. CA noted that CHFS and Mom were really challenging the initial order setting a $0 child support amount, arguing that FC did not consider Child’s financial needs and that it is against public policy for parents to agree by contract to not support their children. CA found that they should have appealed from the Agreed Order and not sought a motion to modify. Nonetheless, CA found no abuse of discretion in Agreed Order even if it had been properly challenged. Deviation from the guidelines is permitted under KRS 403.211(3)(g), which provides that a court may deviate for any factor of an extraordinary nature identified by the court which would make application of the guidelines inappropriate. Here, FC found that Mom had never paid any child support in the ten years Dad had primary custody of Child, an appropriate factor for deviation.