Divorce Law Journal

One To Be Published COA Opinion Rendered Today

Stipp v. St. Charles, re venue, division of marital property, maintenance. Digest to follow.

Holland v. Holland, Motion Required Before Child Support May Be Modified

Holland v. Holland, __ S.W.3d __ (Ky. App. 2009), 2008-CA-002115-ME

       At the time the parties divorced in 2007, the father was living in Hardin County, Kentucky and the mother was living in Jefferson County, Kentucky.  The trial court entered an order outlining various contingencies regarding parenting time and child support.  If the father moved to Louisville within ninety days of entry of the court’s order, the parties would share equal parenting time and determine an appropriate child support obligation.  If the parties could not agree on child support within 30 days of his relocation, the father could file a motion for modification of child support.  When the father actually relocated to Louisville, the parties could not agree on child support.  A hearing was scheduled on the matter on December 4, 2007, but the father never filed a written motion for modification.  Following the hearing, the trial court entered an order requiring that the new parenting schedule begin on December 8, 2007.  Then the court entered an order in May 2008 reducing his child support obligation.  The father asked the trial court to make the reduction retroactive to December 8, 2007, the date the new parenting schedule began.  The trial court denied his request since no written motion for modification of child support had been filed.     

The COA affirmed.  No oral or written motion for modification of child support had been filed.  The mother cannot be divested of child support payments that have already been accrued.  Since a court speaks through its written orders, no child support modification occurred until May 2008.  Pursuant to KRS 403.213(1), a written motion for modification is required before a trial court may change a child support award. 

Digested by Sarah Jost  Nielsen, Diana L. Skaggs + Associates

Ky COA Decides Child Support Modification Case Today

Holland v. Holland, digest to follow.

Howard v. Howard, Ky COA, Child Support Modification, Discharge Of Debt In Bankruptcy

HOWARD V. HOWARD

CHILD SUPPORT MODIFICATION; DISCHARGE OF MARITAL DEBT IN BANKRUPTCY
TO BE PUBLISHED:  AFFIRMED

PANEL:  SENIOR JUDGE LAMBERT PRESIDING; CLAYTON AND THOMPSON CONCUR

COUNTY: LAUREL
DATE RENDERED: 6/12/2009

Dad appealed TC’s finding that he was voluntarily underemployed and corollary order denying his motion for modification of child support, as well as TC’s finding that Dad was in contempt for his failure to pay a deficiency judgment related to a marital debt. 

Motion for Modification of Child Support:  While parties’ divorce was pending, Dad quit federal job, claiming medical grounds, but TC found after trial that Dad was voluntarily underemployed and imputed income to him based on his prior earnings.  The following year, Dad filed his Motion for Modification of Child Support, claiming that his income had dropped to less than half that of his former employment.  TC reiterated its previous finding that Dad was voluntarily underemployed and held that he had presented no new evidence since the prior determination.

CA held that Dad failed to make a showing of a substantial and continuing material change in circumstance, as required by statute for child support modification, as the circumstance he presented to the court at the modification hearing was not materially different than that presented to the court at the trial. 

Finding of Contempt regarding failure to pay Debt:  The parties’ divorce decree provided that Dad was to pay a deficiency judgment arising from repossession of an automobile.  Dad subsequently sought bankruptcy protection, listing the automobile debt as an obligation.  At the modification hearing, Dad was held in contempt for failure to pay this debt.  Dad appealed the finding of contempt, claiming discharge in bankruptcy, in part because Mom did not object in bankruptcy court.  Mom argued that Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 precludes bankruptcy discharge of all marital and domestic relations obligations. 

After noting that state courts have concurrent jurisdiction with federal courts over whether a debt has been discharged, CA held that because the automobile debt was agreed to by the parties and imposed on Dad by decree, it was “in connection with a divorce decree” and was therefore non-dischargeable in bankruptcy.  Thus, TC used its power of contempt to enforce its orders, and did so without error. 

TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

One To Be Published Family Law Opinion Issued By Ky COA June 12, 2009

Howard v. Howard The issues presented here are whether the trial court was clearly erroneous in its determination that Appellant was voluntarily underemployed, thereby justifying the trial court’s refusal to modify its prior child support order; and whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 U.S.C. Sections 523(a)(5) and (15), precludes discharge in bankruptcy of Appellant’s obligation to pay for the Dodge Durango automobile as required by the court’s final decree. Digest to follow.

Kessler v. Switzer, Ky COA, No Hearing Required For Extension of DVO

Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME

Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer’s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard for granting such extensions. The trial court granted the extension and this appeal followed.

The COA affirmed. The statute does not require that a hearing be held or that evidence of additional acts of domestic violence be presented in order for the court to grant an extension of a DVO. The trial court properly considered the facts and circumstances of the case. COA also found that Kessler waived his constitutional claims since he failed to follow the proper procedure pursuant to KRS 418.075.

Judge Caperton’s dissent: The trial court should not have accepted the allegations made in Switzer’s affidavit without the test of cross-examination.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Gaskill v. Robbins Now Final

Here is the final opinion, which was not modified.

Discretionary Review Granted In Lichtenstein v. Barbanel

The Kentucky Supreme Court granted discretionary review in Lichenstein v. Barbanel, a child support enforcement case. The Court of Appeals opinion was designated not to be published. We will digest that opinion soon.

Nelson v. Nelson, Ky COA, Support For Adult Dependant Child

Nelson v. Nelson, _ S.W.3d _ (Ky. App. 2009); 2008-CA-001861-ME

The parties divorced in 2004. Their property settlement agreement provided that the mother would not request financial assistance from the father for their adult dependent daughter for a period of two years. After two years, the father would provide financial assistance, not to exceed $150 per month, if necessary. In 2008, the mother requested that the father contribute to their daughter’s support. The daughter was only able to work six to nine hours per week at Ponderosa due to multiple disabilities, but did not qualify for disability benefits. Her reasonable expenses were found to exceed $740 per month. The family court ordered the father to contribute $729 per month towards the daughter’s support pursuant to KRS 405.020(2). Father appealed.
The COA affirmed. Although the agreement stated that the father’s contribution would not exceed $150 per month, the daughter’s need for support changed when she was denied disability benefits. Pursuant to KRS 405.020(2), both parents share a joint obligation to support children who are wholly dependent because of a permanent physical or mental disability. Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ky COA Publishes One Family Law Decision Yesterday

Nelson v. Nelson, support of adult child. Digest to follow