Fortwengler v. Fortwengler, 2011-CA-0018933-MR and 2011-CA-002077-MR
Ex-Husband appealed FC’s order terminating his garnishment of maintenance payments to Wife for satisfaction of debt to Ex-Husband’s father as well as FC’s order denying Ex-Husband’s parents’ motion to be joined as parties to the dissolution action in order to collect the debt.
When parties divorced, FC ordered that $20,000 owed to Husband’s father was a marital debt and that each party should be equally responsible. Ex-Wife appealed from this order. While the appeal was pending, Ex-Husband filed a non-wage garnishment against Ex-Wife to collect the debt, in the amount of $1,200, the monthly amount of maintenance he had been ordered to pay to her. Ex-Wife filed motion to quash the garnishment and an affidavit challenging the garnishment, contending that FC did not have jurisdiction of the issue as an appeal was pending, that no judgment had been issued to Ex-Husband’s parents because they were not parties to the case and did not have standing, and that Ex-Husband was attempting to evade his maintenance obligation. Ex-Husband responded that FC did have jurisdiction because Ex-Wife had not posted supersedeas bond and that FC should set a hearing on the challenge to the garnishment. After hearing, FC granted Ex-Wife’s motion to terminate the garnishment, noting that no common law judgment has been entered nor had a separate lawsuit been entered by Ex-Husband’s parents; that they could not assign the debt to Ex-Husband to be collected in the dissolution as it appeared to be an attempt to circumvent his maintenance obligation. Ex-Husband filed a timely appeal of this order. Subsequently, Ex-Husband’s parents filed a motion to intervene in the divorce proceeding for the limited purpose of setting a payment schedule in order to effectuate Ex-Wife’s payment of her portion of the debt. FC denied the motion and Ex-Husband timely filed an appeal of that order.
CA noted that Ex-Husband’s frequent iteration of the phrase “this assignment of error was preserved for appellate review” is insufficient to identify preservation of issues in the record as required by CR 76.12(4)(c)(v), but nonetheless proceeded with review on the merits.
CA disagreed with Ex-Husband’s contention that because the creditor, his father, testified regarding the debt and the debtor, Ex-Wife, had an opportunity to cross-examine the creditor and raise any defenses she may have, his father should not have to obtain a judgment in separate proceeding, and that FC could have joined his father as a party to the case for this purpose under KRS 403.150(6). CA found the additional parties to be jointed referenced in that statute would not be third-party creditors, but rather parties who may have custody rights to children of the parties. The proper method for Ex-Husband’s father to collect on the debt is through a common law judgment or through a separate lawsuit. Regarding his father’s motion to intervene, CA held that denial of the motion was proper as no attempt had been made by Ex-Husband’s father to collect the debt via common law judgment or separate lawsuit.