Published: Affirming in Part, Reversing in Part, and Remanding
Issue: Extent of child support and arrearage to be paid by non-custodial parent whose only income is SSI.
The Cabinet for Health and Family Services moved the trial court to hold Ivy in contempt after she fell behind in child support payments. At the hearing, Ivy presented evidence that her sole source of income is SSI, which is inadequate to meet her own needs. The trial court reduced her child support, held her in contempt for failure to pay the past due amount, and ordered that future failure to pay would result in her incarceration. Ivy appealed and the Court of Appeals reversed, holding neither the contempt finding nor the order to pay could stand because Ivy does not have the ability to pay.
The Supreme Court granted the Cabinet’s motion for discretionary review to consider in what manner and to what extent SS recipients may be held accountable for child support.
In 2008, Ivy had been ordered to pay $106.00 for the support of her child, D.G. By virtue of assistance provided to D.G., the Cabinet became assignee for support due him and in February, 2009 brought its motion for contempt. At the show cause hearing, Kenneth Anderson, an attorney who serves as guardian and/or payee for SSI beneficiaries testified that Ivy is one of his clients and that after payment of Ivy’s rent and utilities, she receives less than $50.00 monthly.
The trial court reduced her child support to $60.00 per month and held her in contempt because she was an able-bodied person capable of providing financial support for her child.
The Court of Appeals held that the record did not support a finding of contempt or the imposition of a support obligation. Accordingly, the trial court had abused its discretion in finding her failure to pay contemptuous and ordering her to pay support and arrears she did not have the ability to pay.
The Supreme Court reversed the Court of Appeals’ decision to the extent that it suggests that a SSI recipient-parent’s present inability to pay precludes even the assessment of child support, but vacated the existing order and remanded for the family court to determine if the guidelines-based amount would be unjust or inappropriate pursuant to KRS 403.211(2).
The Supreme Court affirmed the Court of Appeals holding that a contempt finding was inappropriate where there was insufficient evidence that Ivy’s failure to provide child support stemmed from any reason but her inability to do so.