Published: Opinion Vacating and Remanding
J.M. (Father) appeals from Jefferson Family Court order granting A.D.’s (Mother) petition to alter or amend a previous order.
The parties were never married, but they had a child born in 2009. Soon after the child was born, the Mother and child relocated to Virginia. In April, 2010, a Virginia court granted the parties joint custody, with mother receiving primary physical custody and Father receiving regular visitation. In June, 2010, Mother filed a petition for child support in Virginia, which was transferred to Jefferson Family Court. In November, 2010, Jefferson Family Court entered an order setting child support at $521 per month, reserving the issue of arrearages. Mother filed petition to amend child support order to include child care costs and arrearages.
In March, 2011 Mother served interrogatories and requests for documents, to which Father failed to respond. Mother filed a motion to compel production of the documents and a motion for a hearing to determine arrearages. At the time of the hearing, Father had not produced any of the requested discovery.
During the hearing in June, 2011, Father testified that he had sent Mother approximately $6300 in child support prior to incurring any court-ordered obligation. Mother testified that she thought Father had sent approximately $1800 during a six-month period. Father had no documentation at the hearing and the court gave him 14 days to submit copies of checks written to Mother. Father submitted photocopies of check carbons from his checkbook.
In August, 2011, the court entered an order finding Father had failed to produce sufficient evidence of support payments to Mother, but failed to make a determination of arrearage owed. In response to Mother’s petition to alter or amend the order to include arrearages, Father filed photocopies of canceled checks demonstrating that Mother had cashed checks totaling $6491.00.
The court entered an amended order finding that Father’s evidence was improperly submitted and found arrearages to be $7,580.00. Father appealed from that order, arguing that because the trial court erred when it did not consider his proffered evidence of payments, its calculation of arrearages was erroneous.
Kentucky RCP 52.01 provides that in actions without juries, the trial court’s findings of fact should not be reversed unless clearly erroneous, which occurs only when there is not substantial evidence in the record to support the trial court’s findings.
The Court of Appeals found that a carbon copy of a check does not prove Mother received or cashed the check. Father argues however, that he did file correct documents with his reply to Mother’s motion to alter and amend the judgment. The trial court erred by not considering the copies of the cancelled checks, Mother having opened the door by filing the CR 59.05 motion.
Neither party had clean hands; Father was recalcitrant in producing checks and Mother misrepresented the amounts of payments she received. In order to avoid manifest injustice, 1the matter was vacated and remanded to the trial court for hearing on the relevance of the checks and entry of an appropriate order.