Divorce Law Journal

Roberts v. Bedard, Ky COA, Modification of Foreign Support Orders, Jurisdiction

Roberts v. Bedard

2011-CA-000212-ME

Issue:  Modification of foreign child support orders

Published:  Affirming

County: Fayette

Mom appealed FC’s Order dismissing her motion to modify a child support order originally entered in Florida. FC dismissed the motion, holding that, although the court may have personal jurisdiction over Dad, it did not have subject matter jurisdiction over a proceeding to modify the order.

FACTUAL AND PROCEDURAL BACKGROUND:

Paternity judgment entered in FL in December 2006. Mom moved to KY in 2007, and in April 2008, filed a Notice and Affidavit of Foreign Judgment Registration of FL paternity judgment in Fayette FC, followed by a petition and motion to modify the child support. At hearing, Dad argued by special appearance that he was not a KY resident, had not been served in KY, and that none of the criteria in KRS 407.5201 were met and, therefore, FC did not have jurisdiction. FC ultimately dismissed that action, finding that it did not have personal jurisdiction over Dad. After Dad appealed this decision, CA affirmed FC, noting in its decision that “any increase in child support requested by the obligee must be sought in the state of residence of the obligor.” Mom filed a new motion to modify the child support order in KY in 2010. Dad, who was in KY to spend time with the child, was personally served at that time. FC dismissed the new motion to modify the child support order, observing that, while under KRS 407.5201(1) a court may exercise personal jurisdiction over a nonresident who has been personally served in this state, it must also have subject-matter jurisdiction under the requirements of KRS 407.5611 before it can  modify a child support order from another state; that, according to KRS 407.5611, a requirement for subject-matter jurisdiction to modify a foreign child support order is that the party seeking modification must not reside in this state; and as Mom resided in KY, KY does not have subject-matter jurisdiction to modify FL child support order.  Mom unsuccessfully argued that the Full Faith and Credit for Child Support Orders Act (“FFCCSOA”) preempted the subject-matter jurisdiction requirements of UIFSA and allowed FC to modify the child support order.  Mom appealed.  

ANALYSIS:

CA held that even though personal jurisdiction was acquired over Dad in July 2010, the foreign order was not effectively registered in order to confer subject-matter jurisdiction. When Dad was served, no registered order existed because the 2008 registration occurred when KY did not have personal jurisdiction over him.  According to FFCCSOA, registration of the parties’ Florida support order would only have been effective in Kentucky if Kentucky had personal jurisdiction over Dad at the time of registration.

Further, FC did not have subject-matter jurisdiction under state law.  Under Kentucky’s UIFSA statutes, the family court would only have had subject-matter jurisdiction if Roberts had been a nonresident of Kentucky when she filed her motion to modify. 

Since a court must have both personal and subject-matter jurisdiction to address modification of another state’s child support orders, and FC did not have subject-matter jurisdiction, it had to dismiss Mom’s motion.  CA noted that personal jurisdiction is something the court may exercise whereas subject-matter jurisdiction is mandatory. Lastly, as CA found no contradiction between Kentucky’s UIFSA provisions and FFCCSOA, it made no determination regarding whether FFCCSOA preempts Kentucky UIFSA statute.

FC affirmed.

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

Comm. of KY, et al v. Ivey, Ky S. Ct., Child Support, SSI

Comm. of KY, et al v. Ivy

No. 2010-SC-000527-DGE

Published: Affirming in Part, Reversing in Part, and Remanding

County: McCracken

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.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Published Family Law from Ky Supreme Court Today

Cabinet for Health and Family Services, el al v. Ivy, extent of child support and arrearages to be paid by non-custodial parent receiving only SSI benefits.

Keifer v. Keifer, oral findings are insufficient to support order modifying parenting time, written findings of fact are required.

Digests to folow.

For those who have been advocating the absence of discounts in divorce cases using the rationale of Brooks v. Brooks Furniture Mfgrs., Inc, 325 S.W. 3d 904 (Ky. App. 2010), take a look at Shawnee Telecom v. Brown, where the Ky Supreme Court today addresses the method to value dissenting shareholder's stock.

Finally, another non-family law case, University Medical Center, Inc. v. Beglin, et al, adresses the evidentiary issues of spoiliation and adverse inference.

Bennett v. Bennett, Ky COA, Child Support Modification, Arrearage, Emancipation, Exceptions to Commissioner's Report

Bennett v. Bennett – No. 2010-CA-001016-ME

Published:  Affirming in Part, Reversing in Part, and Remanding

County:     Scott

Robert Bennett appealed an order of Scott Family Court (formerly Scott Circuit Court), denying his motion to modify child support and calculating a child support arrearage of $35,038.14 in favor of Theresa Bennett.

The first issue was whether the trial court committed reversible error when it adopted the Scott County Domestic Relations Commissioner’s report without allowing exceptions to be taken and without a hearing.  The Court of Appeals found that the Trial Court failed to comply with CR 53.06 (1) and (2), committing reversible error and remanded for a hearing and consideration of exceptions.

The second question was whether the court erred by denying Robert’s motion to modify child support beginning on the date of filing the motion, prior to which two of the three children covered by the existing order were emancipated.  The Court of Appeals found this was error and on remand the Trial Court can consider the changed circumstances and determine obligation for the period following date of filing motions.

The final question was whether the Trial Court erred in calculating the child support arrearage accruing prior to the filing of Robert’s motion by refusing to consider emancipation of fewer than all the parties’ children.  The Court of Appeals concluded the Trial Court did not err in this regard, but noted that the Trial Court calculated the total arrearage as though Robert’s support obligation did not change even after he filed his motion to modify.  If proper consideration given to Robert’s motion to modify results in change in the obligation for the period from June 16, 2005 to May 31, 2006, the total arrearage will have to be recalculated.

When the parties were divorced, they agreed Robert would pay $225 per month, per child, until each child’s death, marriage or emancipation.  When the oldest child emancipated, the parties agreed Robert would pay $870 per month for the remaining three children, instead of a “per child” amount.  Upon emancipation of the second child, Theresa did not respond to Robert’s attempt to calculate a new amount, so he unilaterally reduced the amount by one-third.  When the third child emancipated, Theresa again failed to respond to Robert’s attempt to recalculate, so he again reduced the amount by approximately one-half.

For over five years, child support was not addressed. When Robert filed a motion in Jefferson County in 2005 to amend child support and determine arrearages, venue was changed to Scoot County where Theresa and the remaining minor had moved.  There is no record of a hearing before the Domestic Relations Commissioner or the filing of a report by the Domestic Relations Commissioner.  In November, 2006 however, the Trial Court adopted the Domestic Relations Commissioner’s recommendations, denying Robert’s motion and finding arrears of over $35,038.14.

During the next three years, hearings were set, canceled, and rescheduled.  Family Court was established in Scott County in 2007.  A hearing was finally set on the County Attorney’s Motion to Enforce Child Support Order and all pending motions were heard in August, 2009.  In May, 2010, the Trial Court found that Robert had failed to appeal the denial of his motion to reduce child support and granted Theresa’s motion to enforce the November, 2006 determination of arrears in the amount of $35,038.14.  Robert then filed this appeal.

The Court of Appeals found, in answer to its first question, that the Trial Court failed to afford the parties the opportunity to file objections to the Domestic Relations Commissioner’s report and have a hearing, and remanded for additional proceedings.

With respect to Trial Court’s denial of Robert’s motion regarding child support payments accruing after the filing of his motion, the Court of Appeals concluded the Trial Court abused its discretion and ordered that Robert’s obligation for support of the youngest child should be recalculated from June 16, 2005 (the date of Robert’s Motion) until her emancipation on May 31, 2006.

The Court of Appeals found no abuse of discretion in Trial Court’s denial of Robert’s motion to modify child support which accrued prior to filing the motion, citing Price v. Price, 912 SW2d 44, 46 (Ky. 1995) which held that “child support can only be modified prospectively.”  The only exception is when the parties have an enforceable agreement, which Robert argued was the case.  On remand, the Trial Court shall consider whether evidence exists to satisfy the Price requirements.  Arguments based on estoppel and unjust enrichment are foreclosed by Price.

The Court discussed Robert’s final argument at length in which he claimed KRS 403.213(3) established automatic modification to his child support obligations.  The Court of Appeals agreed that the statute terminates child support upon a child’s emancipation, the obligation must be distinquished from any other obligation in the same order.  When a support obligation covers multiple children, the emancipation of fewer than all of them constitutes the required “material change in circumstances that is substantial and continuing,” but the obligor must return to court so the obligation can be distinguished.

Robert failed to file a motion when the two older children emancipated, and unless he can establish that he and Theresa agreed to reduce the amount, he is barred from a retroactive modification.  Since the case is remanded to the Trial Court, the Court of Appeals ordered the Trial Court to recalculate the arrearage, if necessary, consistent with the findings in this Opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Howard v. Howard, Ky. S. Ct., Discharge of Marital Debt, Modification of Child Support Upon Continued Underemployment, Contempt, Attorney Fees

Howard v. Howard

No. 2009-SC-000442-DG on review of COA No. 2008-CA-001059-MR

Published:  Affirmed

County:     Laurel 

        The questions presented in this case include 1) whether a trial court could enforce through its contempt powers, an obligation to pay a creditor on a marital debt after the obligor received a post-decree bankruptcy discharge and his former wife failed to institute an adversary proceeding in bankruptcy court; 2) whether a motion for modification of child support was properly denied when child support established in divorce decree was based upon parent’s imputed income as a result of a finding of voluntary underemployment; and 3) an award of attorney fees.

 

        The parties’ divorce decree provided for joint custody of their minor child with husband required to pay child support calculated from his recent history of earnings as a federal prison guard.  Husband testified that the parties agreed he should quit his job at the prison because the wife was also employed there as a guard.  The wife denied making such an agreement.

 

        The decree also assigned to husband liability for a National City loan on a Dodge Durango which had been repossessed by the time of the decree.

 

        A little more than a year after the decree, husband filed a motion to reduce child support claiming changed circumstances, including health problems, inability to locate correctional work and filing for bankruptcy.  Wife countered with motion for attorney fees and to hold husband in contempt for failure to pay the debt on the repossessed Durango.  Wife acknowledged she received notice of the bankruptcy and that she did nothing to challenge discharge of the debts.  Husband admitted that under the decree, he was responsible for the Durango debt.

 

        The trial court found husband to be in contempt for failure to pay the debt on the Durango, denied his motion to modify child support, and ordered him to pay $500 of wife’s attorney’s fees.

 

        The Court of Appeals affirmed on all issues, as did the Supreme Court.

 

        With respect to child support modification, the court found that the standard for modification was not met because his affidavit did not definitively establish a material and continuing change of circumstances post-decree.  The court explained that KRS 403.212(2)(d) specifically states that a parent may be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.  In order to prevail, husband needed to show a material, substantial, and continuing change of circumstances existing post-decree which made him less capable of attaining his former income level than existed at the time of the decree.  The trial court did not find the requisite showing, the Court of Appeals agreed, and the Supreme Court affirmed.

 

        The trial court held husband in contempt for his failure to pay the loan on the Durango.  The bankruptcy statute was amended in 2005 to provide that a Chapter 7 discharge does not discharge a debtor from an obligation incurred in the course of a divorce or separation.  In addition, since state court has concurrent jurisdiction to determine the dischargeability of a debt, Kentucky state courts have jurisdiction to determine whether the husband’s obligation on the Durango was discharged in his bankruptcy.

 

        Following BAPCPA amendments to the bankruptcy statutes, a non-support divorce debt is excepted from discharge and there is no requirement that a spouse or child participate in the bankruptcy for the debt to be excepted from discharge.  Husband’s payments on the loan were part of the division of marital property and debts, even though in this case there was no hold harmless provision.

 

        Finally, the trial court is not required to make findings on financial resources when awarding attorney’s fees.  The statute requires only that the trial court must simply consider the parties’ finances before awarded fees.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

 

Foster v. Fortner, Ky COA, Registration of Foreign Support Order, Modification, UIFSA, Jurisdiction, Waiver

Foster v. Fortner, Kentucky Court of Appeals

Published:  Reversing

County: Johnson

 Dad appealed TC’s decision registering a foreign child support order from Georgia and holding a prior KY child support judgment void as a matter of law.

FACTS:

Mom and Dad were divorced in GA in 2002.  Decree provided that Child would live with Mom and ordered Dad to pay child support to Mom.  Mom was incarcerated in 2003 and Child went to live with Dad.  Dad filed a Motion for Child Support 3 months later in July 2003 and issued a summons to Mom.  This summons was returned unserved, but Mom was personally served in KY a few weeks later.  In August 2003, Child was removed from Dad’s home and placed in foster care.  In September 2003, a default judgment was entered requiring Mom to pay Dad child support of $180 per month.  Mom regained custody of Child in 2004 and Child has lived in GA since then.  In December 2008, GA child support office requested KY to enforce child support arrears against Dad in amount of $16,711 but no judgment accompanied the request.  In January 2009, GA CFC filed a UIFSA petition in KY to register the GA Order for child support, seeking to enforce child support orders only for the period when Child lived with Mom.  TC found that KY action should have been filed as a UIFSA action for GA to enforce, and therefore the KY judgment was void as a matter of law; that KY was required to honor the GA child support order and UIFSA petition from GA; and that if Dad wanted to modify child support or dispute arrearages, he could do so only in GA.  TC registered the GA order and ordered Dad to pay an additional $100 towards his arrearage in addition to his monthly amount of $311.       

ANALYSIS:

CA held that had GA Petition to register child support order been filed prior entry of KY order, then KY would have had no authority to modify child support in this case.  However, CA held that since UIFSA only allows a court to either register and enforce an order or register and modify an order, Kentucky was free to modify the order if it otherwise had jurisdiction to do so.  KY TC had subject matter jurisdiction over matters of child support and KY TC had personal jurisdiction over Mom.  CA held that although KY TC may not have had “particular case jurisdiction” over the case, Mom waived that argument by not challenging the order or particular case jurisdiction at the time the motion was filed in KY.  Lack of particular case jurisdiction renders a judgment voidable, not void ab initio, and a voidable judgment is subject to consent, waiver, and estoppel. 

CA also noted that KY TC should not have registered a foreign judgment for child support arrearages that had not been reduced to a judgment in GA, as this impermissibly deprived Dad of the opportunity to challenge the arrearage and thus deprives him of due process of law.  

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

McGregor v. McGregor, Ky COA, Parenting Time Schedule, Imputation of Income in Child Support and Maintenance Awards, Division of Debt, Amount and Duration of Maintenance

McGregor v. McGregor

2009-CA-000614-MR and 2009-CA-000632-MR

Published:  Affirmed

County: Jefferson

Mom appealed from FC's order in dissolution action, arguing that FC abused its discretion by setting a shared-custody schedule for the children, by imputing income to her, by awarding an inadequate amount of child support and maintenance, and by its division of the parties’ debts. Dad cross-appealed, asserting that the amount and duration of maintenance was excessive.

 

Facts

After seven and a half years of marriage, Mom, a homemaker, filed a Petition for divorce from Dad, a pilot.  Subsequently, FC entered temporary orders granting joint custody of their 2 children as well as 50/50 parenting time schedule based around Dad’s work schedule.  FC also ordered Dad to pay Children’s expenses and household bills as well as temporary maintenance of $150 per week.

 

In its final order, FC continued parameters of temporary parenting time order; imputed income to Mom of $2,000 per month in its child support and maintenance calculation; deviated from the child support guidelines based on the shared parenting schedule and determined child support to be $275 per month; awarded Mom maintenance of $2,000 per month for seven years; and ordered Mom to pay the home equity Line of Credit on the marital residence and half of the mortgage payment until the home was sold, as well as be responsible for her personal credit cards.  

 

ANALYSIS:

Parenting Schedule

Due to Dad’s occupation, FC concluded that a rigid parenting schedule would prohibit him from having regular contact with the children.   Mom argued that this schedule was unworkable due to Dad’s failure to communicate with her and because Dad’s work schedule changes constantly and with short notice.  CA held that FC’s findings that shared parenting schedule was in Children’s best interests was supported by substantial evidence and thus not clearly erroneous.

 

Imputation of Income

FC imputed income to Mom in child support and maintenance awards  based on her work history prior to Children’s births as a graphic designer, in which she earned $28,000 per year, and her current status operating two concierge businesses from her home, in which she was earning $515 per month but hoped to someday earn $4,000 to $8,000 per month. 

 

CA noted that KRS allows a court to base child support on a parent's potential income if it determines that the parent is voluntarily unemployed or underemployed, without finding that the parent intended to avoid or reduce the child support obligation.  However, the maintenance statute does not explicitly address imputation of income to a voluntarily underemployed or unemployed spouse. CA held that, as a matter of first impression, maintenance statute implicitly allows FC to impute income to a voluntarily unemployed or underemployed spouse to determine both the spouse’s entitlement to maintenance and the amount and duration of maintenance.  Thus, FC committed no error in finding Mom to be capable of earning $2,000 per month and imputing such income to her in its child support and maintenance awards. 

 

Deviation from Child Support Guidelines

CA held that FC justified its deviation from child support guidelines based on the shared-parenting schedule; that the period of time during which children reside with each parent may be considered in determining child support; and a relatively equal division of physical custody may constitute valid grounds for deviating from the guidelines.  CA held that FC committed no error. 

 

Maintenance

Amount and duration of a maintenance award are matters within the sound discretion of FC.  As noted above, FC was authorized by statute to impute income to Mom.  Although CA noted that evidence may have supported Dad’s suggested award of maintenance in declining amounts, such a result was not required.  Because of Mom’s long gap in employment history while caring for Children, parties’ comfortable lifestyle during marriage, and Dad’s current earning ability, FC found seven years was reasonable duration for full amount of maintenance, and CA found no error.

 

Assignment of Debt

FC found that Mom took out the home equity line by forging Dad’s signature on the documents, and that funds were not used for home renovations as Mom testified; FC also found that Mom’s personal credit card debts were non-marital as Mom produced no evidence regarding what items she purchased.  CA found no error in finding these debts to be nonmarital.  FC also noted Mom’s ability to pay for home equity line with proceeds from sale of marital residence and thus found allocation of this debt to not be manifestly unfair. 

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

Draper v. Commonwealth, Ky COA, Paternity, Child Support and Joint Custody

Draper v. Commonwealth of Kentucky, et al, 2010-CA-000112-ME

and

Heacock v. Commonwealth of Kentucky, et al, 2010-CA-000185-ME

Published:   Reversing & Remanding

County:  Barren

 

        Shannon Heacock was married to Jesse Heacock who was injured in a boxing match in 1999 and lapsed into a coma leaving him with significant mental and physical impairments.  Although Shannon cared for Jesse in their home, she dated other men and in 2002, John Draper moved into the home.  In 2004, Shannon gave birth to A.N.H.

 

        In a paternity action filed against Shannon by the Barren County Attorney on behalf of Draper and A.N.H., genetic tests revealed a 99.995% probability that Draper was the father of A.N.H. and on September 4, 2007, entered a judgment determining Draper is A.N.H.’s father.  On January 4, 2008 the court entered a temporary support order requiring Draper to pay child support of $401.00 per month.

 

        On January 11, 2008 the court entered an agreed order granting temporary joint custody to Draper & Shannon.  Disputes about visitation continued and after both parties sought primary custody, a custodial evaluator was appointed.   There was an evidentiary hearing on February 25, 2009 and in her post-trial memorandum Shannon argued that, based on J.N.R. v. O’Reilly,264 S.W.3d 587 (Ky. 2008), the trial court lacked subject-matter jurisdiction.  The court reopened the evidentiary hearing and in light of O’Reilly, set aside all prior custody, visitation, and support orders as void ab initio, dismissed the paternity action for lack of SMJ and ordered Shannon to reimburse Draper $11,762 for child support paid under the temporary order.  These appeals followed.

 

        The CA conducted a lengthy analysis of O’Reilly, noting its limited precedential value due to the fragmented nature of the opinion, and then discussed the more recent case of Harrison v. Leach, 323 S.W. 3d 702 (Ky. 2010) when the Kentucky Supreme Court reviewed the distinction between standing and jurisdiction as applied to de facto custodians.

 

        CA concluded that KRS 406.011 sets forth standing requirements for a third party to assert paternity of a child born during the lawful wedlock of a husband and wife, but objection to standing may be waived if not timely raised.  The CA cited Harrison to explain that “subject-matter jurisdiction involves a court’s ability to hear a type of case while standing involves a party’s ability to bring a specific case. Id. at 705.

 

        The CA found that the family court division of Barren Circuit Court has jurisdiction over paternity petitions and that Shannon’s objection to standing was waived because it was not timely raised.  Since Shannon’s objection to Draper’s standing was waived, CA concluded TC erred by setting aside the paternity judgment as void and dismissing Draper’s petition.  After reinstating the paternity judgment, the issues raised in Shannon’s appeal concerning recoupment of child support are moot.

 Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Hudson v. Hudson, Ky COA, Modification of Child Support, Standard of Review

Hudson v. Hudson, 2009-CA-002392-ME

Published:   Affirming

County:  Jefferson

 

        Mother appealed from TC Order increasing Father’s child support.

 

        Parties were divorced in 1996 and, in 2009, Mother filed a motion to increase Father’s child support obligation.  Mother had become disabled and Father’s income had increased since the divorce.  Father objected to Mother’s calculation because the child received Social Security benefits due to Mother’s disability which he contended constituted an independent source of income.

 

        Trial Court agreed the benefits should be considered an independent source of income and to require Father to pay full guideline amount would be a windfall to child. The court concluded deviation from guidelines was appropriate, deducted the benefit from the base support and apportioned the remainder according to incomes.

 

        The Court of Appeals found that Mother failed to comply with CR 76.12(4)(c)(v) requiring a reference to the record where the claimed error was preserved.  If the error had been preserved, it would have been reviewed for abuse of discretion.  If an error is not preserved sufficiently, CR 61.02, or appellant fails to comply with CR 76.12(4)(c)(v), a different standard applies, which is to avert a manifest injustice.  The Court of Appeals applied the manifest injustice standard of review and found nothing in the record to indicate the child would suffer an injustice as a result of the trial court’s order.

 

        It is important to note that subsequent to the trial court’s order in this case, the Kentucky Supreme Court reached the opposite result in Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010), holding that the parent who is not the disabled parent through whom the child receives Social Security benefits is not entitled to a credit against child support payments.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Family Law From Kentucky Supreme Court This Month

No published family law opinions were rendered. Discretionary review was granted in Cabinet for Health and Family Services v. Ivy. Our digest of the Court of Appeals opinion is here.  

Looking For A Split Custody Rep For Ky Child Support Commission

Judge Lucinda Masterton is the new chair of the state Child Support Guidelines Commission. One of her tasks is to locate a “split custody” representative.  Ideally, this would be someone who is easy to work with, does not have a personal agenda, and recognizes that this is a representative position.  They are looking for a parent, not necessarily an attorney. For more information, contact Lisa Osborne at Lisa.Osborne@ky.gov or Joy Fitzgerald at Joy.Fitzgerald@ky.gov. To apply, email Judge Masterton at LucindaMasterton@kycourts.net.

Hallis v. Hallis, Ky COA, Child Support

Hallis v. Hallis, 2009-CA-002051-ME

Published:   Affirming

County: Fayette

 

    Father appealed from three orders, all related to child support.  Father had previously appealed the first order, entered in May, 2006, but the CA affirmed FC and no discretionary review was sought.  Subsequently, father filed motions requesting FC to vacate the 2006 Order.  Father appealed FC’s denial of these motions in addition to the 2006 Order.

 

    The CA declined to revisit the 2006 Order because it had already been appealed and affirmed.  The CA no longer had jurisdiction to alter the opinion.  After eliminating the issues in the 2006 Order, little remained for review.  Father failed to advance any argument to support reversal nor were there any manifest errors.  Thus, the Fayette Family Court Orders were affirmed.

 

    The CA included a lengthy discussion of the importance of adhering to the format and briefing requirements mandated by the Kentucky Rules of Civil Procedure.  When an appellate advocate fails to follow the rules, the CA may ignore the deficiency and proceed with the review, strike the brief or offending portions, or review the issues raised in the brief for manifest injustice only.  This discussion is informative not only for pro se appellate advocates, but good review for their professional counterparts. 

 

    After review of the orders appealed from, the CA found no manifest errors and affirmed the Fayette Family Court.

 

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Jones v. Hammond, Ky COA, Modification of Child Support

Jones v. Hammond, 2009-CA-000546-MR

Published:  Affirming in Part, Reversing in Part, and Remanding

County:  Jefferson

 

    Mother appealed from trial court’s order terminating father’s child support obligation.

 

    The parties were divorced in 2006 and family court entered an order in which father agreed to pay $872.90 per month in support for their two children.  In March, 2008, father filed a motion to terminate his child support obligation citing the children’s independent financial resources, the parenting schedule and the mother’s financial resources, and also requesting the court to impute income to mother.  Mother then filed a motion for an increase in child support.

 

    At the hearing in September, 2008, father testified that his annual salary was $73,892.  Mother was a stay-at-home mom, suffering from various medical problems associated with the birth of the second child.  She was in the process of appealing the initial denial of her social security disability claim.  Although unable to work, mother had income from family gifts and trusts of approximately $43,057 in 2007.

 

    The children also received distributions from trusts and gifts, which mother testified was either used for private school tuition and books or reinvested and added to the principal of the trust.

 

    Father testified that he had the children 43% of the time, but mother’s testimony indicated he had them only 36% of the time.

 

    The Family Court terminated father’s child support obligation and overruled mother’s motion for an increase in child support.  The court found that mother had not met the burden of proof of her disability, the children had significant financial resources, that father had physical custody 43% of the time, that mother had significant financial resources and that she was voluntarily unemployed.

 

    Mother appealed, stating that termination of child support violated Kentucky common law and public policy and that the findings were inconsistent with the facts of record from the hearing.

 

    CA noted that child support decisions are left to the discretion of the trial court, but must be fair, reasonable and supported by sound legal principles.  The TC has broad discretion in assessing reliability of evidence and factual findings are not clearly erroneous if they are supported by substantial evidence.

 

    KRS 403.213(1) provides that child support may be modified only upon a showing of a material change in circumstance that is substantial and continuing and which results in equal to or greater than 15% change in monthly support.  FC did not address the change in circumstance which allowed for modification, although since the original child support order, father had not changed employment, mother was still unemployed, and the parenting schedule remained the same.

 

    CA found that even if income was imputed to mother, the result would not be a 15% change in child support and thus not rebuttably presumed to be a substantial change in circumstance.  Therefore, FC must make written findings of statutory factors allowing for a deviation from the guidelines.

 

    CA acknowledged mother’s medical difficulties, but did not believe she provided sufficient evidence that she is completely unable to work in her profession as a clinical psychologist.

 

    FC ruled that there were grounds to deviate from the guidelines because their application would have been unjust or inappropriate due to the disparity in the parties’ resources, the children’s independent financial resources, and the timesharing arrangement.

 

    The CA did not find that the FC abused its discretion in determining that the children’s independent financial resources permit a deviation from the guidelines.  It noted, however, that the child support obligation of each parent must be adjusted.  Further, normal gifts from grandparents were not intended to be part of the child support calculus and such gifts do not abrogate a parent’s duty to provide for children.

 

    The CA found that the FC failed to make sufficient findings to justify deviation from the guidelines on the basis of actual sharing of expenses and relatively equal parenting time.  The CA was unable to find any factor of an extraordinary nature which would allow for deviation from the guidelines under KRS 403.211(3)(g).

 

    CA noted that parents have a universal duty to support and maintain their minor children as well as a statutory duty to do so and therefore decision to terminate all of father’s child support obligation is difficult to reconcile with public policy.  CA concluded TC erred by eliminating father’ entire child support obligation.

 

    Affirmed with respect to FC’s imputing income to mother and finding children’s independent financial resources permitted deviation from guidelines.  Reversed with respect to FC’s elimination of father’s entire child support obligation.  Remanded to FC for calculation of child support with imputation of income to mother.  Then, FC shall use independent financial resources of children to deviate from the guidelines per each parent’s proportionate child support responsibility.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

 

CHFS v. Bowman, Ky COA, Modification of Child Support, Deviation from Guidelines

CHFS v. Bowman, 2009-CA-001830-ME  

Published:   Affirming

County: Jefferson

 

CHFS and Mom appealed FC’s order denying motion to modify child support.

 

FACTS:

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. 

 

ANALYSIS:

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.

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

 

Dudgeon v. Dudgeon, Modification of Child Support, Change in Circumstances, Guidelines Inapplicable

Dudgeon v. Dudgeon, 2009-CA-00522-ME and 2009-CA-001013-ME

Issue:  Modification of Child Support

Published:   Vacating and Remanding

County: Franklin

Dad appealed FC’s orders denying to separate motions to modify child support based on Mom’s increased income.

 

FACTS:

When Mom and Dad divorced, they agreed to approximately equal parenting time with their children.  At the time, Mom earned about $50,000 and Dad earned about $100,000 annually.  Dad agreed to pay Mom $950 per month for child support.  Subsequently, Mom’s income increased to about $100,000 and Dad’s $115,000 and Dad sought a corresponding modification of child support.  FC denied Dad’s motion, finding that the change of circumstances was not material, substantial, and continuing because Dad did not meet the rebuttable presumption of same by establishing a 15% change in the child support owed per the Child Support Guidelines.  Dad appealed this Order.  Several months later, Dad filed another motion to modify child support as Mom’s income had again increased, to about $125,000.  FC denied this motion as well, and Dad filed the second appeal. 

 

ANALYSIS:

CA concluded that the child support guidelines are inapplicable to Mom and Dad’s case for two independent reasons.  One, their combined monthly gross income exceeded the uppermost level of the child support guidelines rendering application of the guidelines inappropriate, and two, the equal timesharing arrangement was of an extraordinary nature rendering application of the child support guidelines unjust. CA found that as the child support guidelines are inapplicable, the rebuttable presumption found in KRS 403.213(2) concerning modification of child support is, likewise, inapplicable. The proper standard for modification of child support in such a case is found in KRS 403.213(1) and is simply whether there exists a material change in circumstances that is substantial and continuing.

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

 

Ky Court of Appeals Releases One Published Family Law Opinion Today

Jones v. Hammond, order terminating child support reversed and remanded. Digest to follow.

Ivy v. Cabinet for Health and Family Services, et al, Ky COA, Child Support, SSI, Contempt

Ivy v. Cabinet for Health and Family Services, et al, 2009-CA-001279-ME

Issue:  Disabled SSI recipient held in contempt and ordered to pay child support or go to jail.

Published:  Reversed

County:  McCracken

Renee Ivy appeals from Order of McCracken Family Court holding her in contempt and ordering her to pay child support or go to jail for 30 days.  Court of Appeals reversed.

Ivy gave birth to D.G. on February 20, 2008 and on February 22, 2008 Larry Barnes filed a petition to establish paternity and child custody.  Ivy and Barnes were not married or in a relationship.  Ivy was in a relationship with Jonathan Knighten when D.G. was born.

On April 14, 2008, the trial court awarded joint custody to Ivy and Barnes and designated Barnes primary residential custodian.  Ivy was not awarded primary residential custodian of the infant because of her history of mental health issues such that she could have been declared disabled by the Social Security Administration with a representative payee appointed to handle her financial affairs.

On May 15, 2008, pursuant to the April Order, Barnes filed a notice of filing of petitioner’s wage information in which he said Ivy received gross income in 2008 of $637.00 from Social Security disability benefits.  The court used that amount to calculate Ivy’s child support and entered an Order setting child support at $106.00 per month.  Ivy did not request reconsideration or file an appeal.

At a hearing on August 26, 2008, Ivy testified that she was able to drive an automobile and also that she was pregnant.  At subsequent hearings, she testified that she had given birth to another child and that her bipolar condition was being controlled with medication.

On June 16, 2009 family court held a hearing on a motion to hold Ivy in contempt for failure to pay child support as ordered.  Kenneth Anderson of the county public guardian’s office, the official agency of the Social Security Administration appointed to provide assistance to Ivy, testified that she required supervision and her benefits are paid into a fiduciary account.  Anderson reported that Ivy’s income was $647.00 per month.  After disbursements for her rent and utilities, Ivy receives the balance, usually between $25.00 and $50.00 per month.  Ivy testified that she had no other income from which to pay child support.

The family court found that Ivy was capable of performing some work and her failure to make child support payments constituted contempt of court.  Her child support was reduced to $60.00 per month and an additional $5.00 to be applied to arrearage.  Ivy appealed.

Ivy argued that her due process rights were violated when the court failed to make a finding about her ability to pay, when the evidence was overwhelming that she had only $25.00 to $50.00 per month after payment of bills.  Citing Lewis v. Lewis, 875 SW2d 862 (Ky. 1993) the Court of Appeals noted that civil contempt charges must be related to the amount the defendant is able to pay and that it is unfair to compel the doing of an impossible act.  Since Ivy has only $25.00 to $50.00 per month for personal expenses, it is impossible for her to pay $60.00 per month in child support and $5.00 in arrearages.  The trial court’s finding was arbitrary, unfair, and an abuse of discretion.

The Commonwealth argued that since Ivy could drive a car or mow the yard, she could work to support her child.  The Court of Appeals disagreed, however, because Ivy had been denied custody of the child because of her disability and needed a representative payee to manage her finances.

Finally, since holding even a minimum wage job would generate sufficient income to disqualify Ivy for SSI benefits, a court order requiring Ivy to pay child support or else be in contempt essentially forces Ivy to forgo disability benefits.  Because the evidence established her disability and entitlement to benefits, the Order was arbitrary, unfair and an abuse of discretion.

The Order of McCracken Family Court holding Ivy in contempt and requiring her to pay child support was reversed because it was an abuse of discretion and in error. 

Judge Caperton, in a separate opinion, dissented, stating that “one who has the children incurs the obligation and owes support accordingly.”

 Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Lichtenstein v. Lichtenstein, Ky. S. Ct., Income Withholding Orders For Child Support, Property Division And Marital Debt

Lichtenstein v. Lichtenstein, 2008 SC-000661-DG

Issue:  Income withholding orders for child support, property division, and reimbursement of marital debt.

Published:   Reversing

County: Jefferson

 

Husband’s appeal involved two Income Withholding Orders, each requiring garnishment of his wages.  One Order was for child support arrearage, spousal support arrearage, medical care, insurance reimbursement, and attorney’s fees.  The other was for wife’s monetary share of marital property and reimbursement for a marital debt she paid.  Husband claimed the Order for child support failed to take into account wife’s support arrearage as a result of a change in custody and further claimed that Kentucky’s Uniform Interstate Family Support Act (UIFSA) does not apply to marital debt or property and therefore the Order for property division and reimbursement of marital debt exceeds statutory limitations applicable to ordinary garnishment of non-child support debt.

 

The parties were married in 1978 and had two children.  Husband is a physician and wife is an attorney.  Husband filed for divorce in November 1990 and in June, 1996 the court issued a ruling on all financial issues, including child support.  This judgment was appealed and on August 28, 1998 the trial court was affirmed on all issues.

 

Wife served an Order of Wage Garnishment on husband’s employer (Louisville Children’s Eye Specialists, PSC, of which husband was the only shareholder) in September, 1996 and from September, 1996 through February, 2000, the PSC remitted $8817.74 to wife pursuant to the Order.

 

In October, 1996 parties signed Agreed Order giving husband physical custody of children, discontinuing his child support while the children were with him, reserving the issue of child support to be paid by wife and agreement that wife’s child support would be set off as against husband’s arrearage.

 

On January 30, 2003, wife moved family court to hold husband in contempt for failing to satisfy June, 1996 judgment and hold husband’s PSC liable for failure to respond to the 1996 Order of Wage Garnishment.  Husband responded with request that court establish wife’s child support for the period he had custody and determine how much he actually owed under the June, 1996 judgment after offsetting wife’s obligation.

 

Family Court found that the 1996 Agreed Order had modified the original child support order and that it was an enforceable order, the terms of which were at issue in the pending litigation, and that wife’s off-set applied only to the child support arrearage issues.  The court found husband’s PSC liable to wife for funds that should have been withheld plus 12% interest and specifically found that none of the $121,586.76 for “other support” was from child support arrearage.  Trial Court decided that child support and other support contempt proceedings would be heard separately as unrelated claims.  Nevertheless, the court held husband in civil contempt for failure to pay the entire June, 1996 judgment by an Order dated April 26, 2006.

 

Husband moved to Illinois in July, 2005 and in August, 2006 wife moved for, and court granted, an Income Withholding Order for $639,773.12 encompassing the entire June, 1996 judgment, with interest, and did not determine amount of child support owed by wife.  Husband moved to vacate and argued that property division and marital debt does not constitute support.

 

In March, 2007, wife requested the court to enter superseding orders because the February, 2009 orders did not comply with Illinois law, to which husband objected.  He asserted that the failure to determine the amount to be offset before entering orders constituted an abuse of discretion or a violation of due process and that UIFSA does not support issuance of orders for property division or reimbursement of marital debt.

 

Analysis

 

Supreme Court held that the family court’s failure to determine the amount wife owed was an abuse of discretion and remanded for further proceedings.  The Court reasoned that since the parties had agreed that wife’s child support would be determined and offset against husband’s arrearage and their agreement was found to be enforceable in the court’s September 2004 Order, it was error to enter an Income Withholding Order before offsetting wife’s obligation.

 

The Supreme Court disagreed with the Court of Appeals’ holding that the statutory definition of “support order” was sufficiently broad to include all items in the original 1996 trial court judgment, and held that monies owed for interest in marital property or for payment of marital debt cannot be construed as support within the context of the Family Support Act.  The court reasoned that the UIFSA does not provide for litigation of matters collateral to child or spousal support, thus reimbursement of a marital debt paid is not child support and cannot be enforced by an Income Withholding Order.

 

The decision of the Court of Appeals is reversed and matter remanded to Jefferson County Family Court for proceedings consistent with opinion.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

Ky Supreme Court Releases Two Family Law Opinions Today

Lichtenstein v. Barbanel, payment of marital debt may not be off-set against child support under UIFSA. Trial Court also erred in failing to establish child support arrearage owed by one parent before determining net amount owed by other, where custody had been changed and amount mother owed to father had not been established before Income Withholding Order had been issued.

Cabinet for Health and Family Services v. L.J.P.,  M.J.P., and D.J.P.  Grandparents lacked standing in adoption proceeding and lacked right to intervene in termination of parental rights case.

Digests to follow.

Artrip v. Noe, Ky. S. Ct, Child Support, Social Security Disability

Artrip v. Noe, 2009-SC-000260-DGE   

Issue:  Application of Social Security Disability Benefits received by Children due to Custodial Parent’s Disability in Child Support Determination

Published:   Affirming (With Concurrence in Result Only)

County: Fayette

Mom, non-custodian, appealed from CA decision vacating FC’s order reducing her child support obligation based on the children’s receipt of Social Security Disability payments received due to disability of Dad, custodial parent, claiming CA erred in its interpretation of child support statute and its failure acknowledge and reconcile provisions of that statute.

FACTS:

Mom paid Dad, primary residential parent, $564 monthly child support for parties’ 2 minor children.  Mom later filed a motion to reduce child support due to the children's receipt of approximately $800 .00 per month in Social Security benefits resulting from Dad’s disability. After hearing, FC granted Mom’s motion, holding that, pursuant to KRS 403.211(3)(d), the children's SS income was an independent financial resource, and that child support guidelines should be adjusted. Dad appealed.  CA held that only Dad, the disabled parent, was entitled to claim credit for the children's SS disability benefits and remanded to FC for recalculation.

ANALYSIS:

SC held that KRS 403.211 (15) states that a payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent but shall not be counted as income to either parent when calculating a child support obligation.  CA stated that a child support credit based upon SS disability benefits "may only be taken by the disabled parent from whom the payments stern," because "these social security benefits in essence step into the shoes of the income lost by the father as a result of his disability." Mom argued to SC that CA failed to consider the statute’s clear language referring to "the parent" and "either parent" as opposed to "the disabled parent."

SC disagreed.  “It defies both common sense and the plain wording of the statute to hold that the non-disabled parent is entitled to a credit for his or her child support obligation due to the Social Security disability payments of the disabled parent.  Such an interpretation would clearly reach an absurd result. KRS 403.211(15) indicates that disability payments received by the child are to be credited to "the child support obligation" of "the parent." Clearly, the legislature intended that "the parent" receiving the credit is to be the non-custodial disabled parent with the child support obligation.”  Furthermore, SC recognized that the SS disability benefits received on behalf of the parties' minor children are merely a substitute for the wages Dad would have received, but for his disability, and from which his support payments would otherwise have been made.

SC also disagreed with Mom’s argument that CA should have made a finding that FC’s decision was an abuse of discretion and should have given direction to FC as to how Dad's SS benefits were to be considered in the calculation of Mom's child support obligation.  “While Social Security benefits of the type at issue here are arguably a financial resource of a recipient, we do not believe that such benefits are the type of ‘independent financial resource’ that would allow a trial court to deviate from the basic child support guidelines. Indeed, allowing the trial court to consider the Social Security benefits of the disabled parent when calculating the child support obligation of the non-disabled parent would, in effect, nullify the mandate of KRS 403.211(15). As stated earlier, KRS 403.211(15) does not allow the non-disabled parent to receive a child support credit for the Social Security disability payments of the disabled parent. If the trial court instead were to consider these payments as ‘independent financial resources’ of the child, a back door would be created whereby the court essentially gives the non-disabled parent credit for such payments... It would be illogical to think that the legislature would exempt the parent's disability benefits from being calculated for income purposes under KRS 403.211(15), and yet allow those same benefits to be considered for deviation from the child support guidelines.

NOBLE, J., CONCURRING IN RESULT ONLY:

“Where I do not agree with the majority is its reasoning that children's Social Security benefits cannot be considered to be independent income as the basis for a trial court to deviate from the support guidelines. Clearly it can be, if the statute is properly applied. The rule the majority adopts avoids the plain language of the statutes, and can lead to an improper result in the next case. …  KRS 403.211(3) … does not define what an independent resource is, but for purposes of calculating child support based on the parents' income pursuant to KRS 403.212, ‘income’ includes Social Security benefits. Presumably, such benefits can thus be included in children's independent income. When a trial court determines that the independent income makes the child support guidelines amount unjust, it can deviate. … It is the total amount of support (table amount) from which the court can deviate, not the individual support obligation of one parent. …  In this manner, the court can make an equitable reduction that relieves both parents of some amount of table support which is offset by the children's independent income to some degree. … Unfortunately, what the trial judge stated on the record was that he was reducing the mother's support obligation by one-third of the children's Social Security benefits. The majority is correct that he cannot do this, and that there is no statutory basis to do so. This does not mean, however, that in an appropriate case those benefits could not be considered by the trial court to deviate from the total support amount from the table. Had the trial court made written findings on the record as to why the independent income of the children made the total monthly support obligation from the table unjust or inappropriate, he would have been well within his discretion pursuant to KRS 403.211(3).  Consequently, due to the specific facts of this case, I agree with the result reached by the majority, but cannot agree with its legal reasoning, which I believe sets bad precedent.”

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

No Ky S.Ct. To Be Published Family Law Opinions This Month; Review Granted In One

The Kentucky Supreme Court accepted discretionary review of one unpublished family law case, Noe v. Artrip. The issues are whether a thrift saving plan withdrawal is income for child support calculation and whether a non-custodial, non-disabled parent is entitled to a credit toward his/her child support based on the child's receipt of social security benefit paid on account of the other parent's disability.

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

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

Lichtenstein v. Barbanel, Child Support Enforcement

Since the Kentucky Supreme Court has accepted discretionary review, here is a digest of the Court of Appeals Opinion:

LICHTENSTEIN V. BARBANEL CHILD SUPPORT ENFORCEMENT 2007-CA-000509 NOT TO BE PUBLISHED: AFFIRMED PANEL: VANMETER PRESIDING; CLAYTON AND SPECIAL JUDGE KNOPF CONCUR COUNTY: JEFFERSON DATE RENDERED: 8/15/2008

Dad appealed TC’s entry of two income withholding orders, primarily arguing that TC had not resolved child support issue prior to entry of the Orders.

FACTS: When Mom and Dad initially separated, Mom had custody of kids and Dad was under order to pay child support. Six years later, Dad was ordered to pay Mom almost $180,000 in child support arrearages, temporary maintenance, property division payments, medical expenses and insurance arrearages, marital debt and attorney fees (these expenses were itemized by TC.) Around the same time, Dad received custody of kids. He was no longer obligated to pay child support to Mom. Mom’s obligation to pay child support to him was reserved, but the parties agreed that the amount she owed would be offset against his arrearages, though he was still required to pay the arrearages. Six and a half years after that, Mom filed a motion for contempt against Dad for his failure to pay his arrearages. Kids were no longer minors at this time. Dad only then asked TC to establish the child support Mom owed to him while kids had lived with him. TC found that the setoff of Dad’s arrearages applied only to the child support arrearage, and bifurcated the contempt issue between the child support and maintenance issues and the property division issues. TC denied Dad’s motion to establish Mom’s child support obligation, but permitted discovery to continue on the child support arrearage contempt issue with a continuance as to any show cause hearing on that issue.

TC found that Dad had gone to extreme efforts to avoid paying the money he owed to Mom, that he never intended to pay her that money, and that he was in contempt. TC issued an arrest warrant for Dad until the judgment was paid. [TC apparently also issued income withholding orders on Mom’s motion to enforce the amounts due under the judgment, but it is unclear from the opinion when they were issued and for how much.]

Analysis: Dad argued that Income Withholding Orders should not have issued until TC resolved child support issue, and that he was denied due process by TC’s refusal to hear him on child support setoff issue. Mom argued that other than the one Motion made by Dad six and a half years after the issue was reserved, a motion that was denied and bifurcated, Dad made no steps towards establishing Mom’s child support obligation. CA agreed with Mom, and found that Dad’s full effort and focus had been to avoid his obligations. CA noted that a failure to insist on a ruling from TC when an objection is made operates as waiver of that issue on appeal. Dad took no action specifically to establish Mom’s child support obligation, and this constituted a waiver of the issue. With regard to Dad’s due process argument, CA found that Dad had ample opportunity to be heard over the ten years since the child support issue was reserved but instead engaged in “fraudulent and calculated shell games” to evade collection of money owed to Mom. Finally, Dad argued that TC erred in entering an Income Withholding Order under the Uniform Interstate Family Support Act for amounts due for property or debt-related issues. CA found that definition of a support order under the Act was sufficiently broad to cover the property and debt-related issues.

TC affirmed.

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

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

Hines v. Carpenter, Ky COA, Damages From Supersedeas Bond Pending Appeal Of Child Support

UPDATE: The Kentucky Supreme Court denied discretionary review and ordered this case not to be published.

Hines v. Carpenter, _ S.W.3d _ (Ky. App. 2009), 2006-CA-002173-MR

The trial court entered a summary judgment in favor of Hines for back child support owed by Carpenter.  Carpenter appealed the judgment and posted a supersedeas bond to stay the collection of the judgment while the appeal was pending.  The Court of Appeals affirmed the summary judgment in favor of Hines.  Then a QDRO was entered by the trial court, requiring that Hines be paid 50% of Carpenter’s monthly benefit until the sum of $149,495.01 was paid in full, or the Appellants die, or Carpenter dies, whichever first occurs. Hines then filed a motion to compel Carpenter to pay a lump sum of $14,175 for damages allegedly incurred by the posting of the supersedeas bond.  The trial court denied the motion to compel.  This appeal followed.  
   The sum of $14,175 is equivalent to the 21 monthly payments that Hines would have received during the pendency of the appeal.  Hines argued the motion to compel should have been granted because interest on the uncollected judgment was accruing at more than twice the rate of the current monthly payments by the pension plan.  She also argued that the full judgment would never be recouped since Carpenter, who was sixty-two years old at the time the motion to compel was filed, would have to live another 18 years for them to receive just the principal amount of the judgment.  
KRS 26A.300(1) prohibits the collection of damages on a first appeal as a matter of right.  Carpenter’s appeal was his first on this issue.  Therefore, the relief Hines requested was statutorily forbidden.  
AFFIRMED

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

One To Be Published Ky COA Family Law Decision Released 2/6/09; None Released 1/30/09 Due To Weather

A digest of Hines v. Carpenter will be posted shortly. It affirms the denial of motion to compel lump sum payment for damages where father posted supersedeas bond on judgment for back child support.

Bell v. Cartwright, Ky COA, Child Support Modification, Income Exceeds Guidelines

BELL V. CARTWRIGHT MODIFICATION OF CHILD SUPPORT 2008-CA-001137 PUBLISHED: VACATING AND REMANDING PANEL: LAMBERT PRESIDING; TAYLOR AND GRAVES CONCUR COUNTY: CLARK DATE RENDERED: 1/16/2009

Dad appealed from TC’s order increasing his child support obligation to Mom from $1,225 per month to $4,000 per month. At time of initial child support determination, Dad was employed as professional football player at $800,000 per year. At time of request for modification, Dad was earning $1.3 million dollars per year. At TC level, Mom contended that an increase of child support to $5,000 was justified as she wished to purchase a new home and to take child on two vacations a year, that she needed daycare expense contribution, and that she wanted to send child to private school and sports camps in the future. However, Mom presented no documentary evidence of these costs. Although TC explicitly acknowledged having no evidence, it nonetheless found that Child had “right to share…in his parent’s standard of living.”

CA cited to Downing v. Downing for its holding that “any decision to set child support above the guidelines must be based primarily on the child’s needs, as set out in specific supporting findings.” CA held that TC applied “share the wealth” child support model in direct contravention of CA’s holding in Downing. As Mom’s alleged expenses were speculative and not proven, TC abused its discretion by arbitrarily increasing Dad’s child support obligation based solely on his increased income without supportive evidence of an increase in Child’s reasonable needs.

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

One To Be Published Ky COA Family Law Case Today

Bell v. Cartwright, et al. Child support increase reversed where no substantial evidence to show the increase related to child’s reasonable needs and not simply father’s increased income. Father is employed by Miami Dolphins.

Koerner v. Koerner, Ky COA, Child Support Modification Jurisdiction

KOERNER V. KOERNER
CHILD SUPPORT JURISDICTION
2008-CA-000080
PUBLISHED: VACATING
THOMPSON PRESIDING
COUNTY: OLDHAM
DATE RENDERED: 10/17/2008

Mom alleged that TC lacked subject matter jurisdiction over child support modification.

FACTS:
At the time of the dissolution, Mom and Dad and their two minor children resided in GA. Their divorce decree gave Mom and Dad joint custody of the children with Mom having primary physical custody, and Dad was ordered to pay child support to Mom. In 2003, Mom and the children moved to KY. In 2006, Dad, who remained a GA resident, registered the GA decree in KY and filed a motion in KY TC requesting primary physical custody of oldest child. TC denied immediate modification of custody but ordered that oldest child reside with Dad during that summer, subject to further modification at the end of the summer. In August of that summer, primary residential custody was transferred to Dad. Mom timely filed a CR 59 motion to alter, amend or vacate the order. One week after the order modifying the custody decree and, before Mom’s CR 59 motion was ruled upon, Dad filed a motion to modify the child support paid to Mom on the basis that the GA decree was premised on both children being in Mom’s custody, so that the transfer of residential custody of the oldest child to him was a change in circumstances that justified modification. Subsequently, TC granted Mom’s CR 59 motion and returned the oldest child to Mom’s primary residential custodianship. In memoranda to TC addressing Dad’s motion for modification of child support, Dad argued that pursuant to the KY child support guidelines his child support should be reduced. Mom opposed the modification on the basis that the family court lacked jurisdiction under KRS Chapter 407 et. seq. TC reduced Dad’s child support based on the parties’ incomes and the corresponding child support amount in the guidelines.

ANALYSIS:
Whether TC had the authority to modify the GA decree requires an interpretation of the applicable provisions of the UIFSA as incorporated into KRS Chapter 407. CA held that the state that issued the child support decree or order retains “continuing, exclusive jurisdiction” unless KRS 407.5613 applies or conditions for modification established in KRS 407.5611(1)(a) are met. Although enforcement of a child support decree and modification both require that the decree be registered in the foreign state, there are additional requirements to be met before the court has authority to modify an existing child support decree. Thus, Dad’s proper registration of the child support decree in KY did not confer jurisdiction in KY TC to modify the decree.
KRS 407.5613 provides that jurisdiction to modify a child support order of another state exists if “all of the parties who are individuals reside in this state and the child does not reside in the issuing state . . . .” Because Dad remained a GA resident, KRS 407.5613 has no application. KRS 407.5611 provides that a KY TC will have jurisdiction to modify if it finds that the child, the individual obligee, and the obligor do not reside in the issuing state, that the petitioner is a nonresident of KY, and that KY would have personal jurisdiction of respondent; or, that the child or one of the parties is subject to KY’s personal jurisdiction and that the parties have filed written consent for KY TC to assume continuing, exclusive jurisdiction over the order. If the obligor or obligee remains a resident of the issuing state and no written consent is filed, the issuing state retains continuing, exclusive jurisdiction to modify its child support decree. Although arguably not a desired result, one state may retain jurisdiction to modify child support while another obtains subject matter jurisdiction over child custody and visitation. Thus, KY TC had no jurisdiction to modify the GA child support decree, although KY has jurisdiction over custody matters in this case.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Brausch v. Brausch, Ky COA, Child Support, Abatement, Earned Income And Additional Child Tax Credits

BRAUSCH V. BRAUSCH
2007-CA-002198
PUBLISHED: AFFIRMING
PANEL: THOMPSON PRESIDING; VANMETER, HENRY CONCUR
COUNTY: KENTON
DATE RENDERED: 9/12/2008

Dad appealed from TC’s order awarding child support (“CS”) to Mom, arguing that TC miscalculated CS owed; TC erroneously refused to abate CS during his summer parenting time; and TC should have included the earned income tax credit (EIC) and additional child tax credit received by Mom in its CS calculation.

CLAIM OF MISCALCULATION OF CS:
In 2005, Mom and Dad entered agreed order modifying Dad’s CS obligation while he was attending nursing school. Pursuant to that agreement, CS was to be recalculated effective July 1, 2006 after his graduation. The hearing did not occur until July 2007, when Dad had been employed as a nurse for one year. TC considered James’ year-to-date income from June 30, 2006 through December 31, 2006 in its calculation. Dad contends that TC should have calculated his CS obligation on the income earned for the entire year of 2006, the first half of which he was still enrolled in nursing school and not earning as highly as in the later part of the year.
CA noted that CS statute creates a presumption that future income will be on a par with worker’s most recent experience Furthermore, CA held that including Dad’s income prior to the time of graduation would not correctly reflect his earning capacity for the purpose of calculating CS.

CLAIM OF CS ABATEMENT:
Because Mom must maintain the home and incur continued expenses for the benefit of the children even in the children’s brief absence from the home during Dad’s summer parenting time, CA found no abuse of discretion in TC’s refusal to abate Dad’s CS during that time.

CLAIM THAT EIC & ADDITIONAL TAX CREDIT ARE INCOME FOR CS
Although Mom received funds from Earned Income Credit and additional tax credit, these amounts were not included in her income in CS calculation. Mom claimed that these funds should not have been included, as CS statute provides that benefits received from means-tested public assistance programs are excluded from gross income for CS calculation purposes. CA found that EIC is a public assistance program, as its purpose is
to supplement the income of the neediest of families. It is also “means tested” as eligibility is directly dependent on the basis of income or resources. The additional child tax credit does not fall into the same category because the threshold income is $110,000, thus it does not provide assistance to needy families. Therefore, the additional child tax credit is not specifically excluded from gross income. CA found, however, that it was not income but a federal tax benefit included within the dependency exemption, as the benefit is contingent upon, and in addition to, the dependency exemption. CA noted that result could have inequitable consequences, but until such time as Legislature recognizes treatment of EIC in CS guidelines, such a result is mandated by statute.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Marshall v. Com, Ky COA, Flagrant Non-Support, Due Process

MARSHALL V. COM.
2007-CA-001320
PUBLISHED: VACATING AND REMANDING
PANEL: TAYLOR PRESIDING; CLAYTON, MOORE CONCUR
COUNTY: GRAVES
DATE RENDERED: 8/28/2008

Father appealed TC’s order revoking his conditional discharge upon offense of flagrant nonsupport.

FACTS:
After Father had failed to honor terms of conditional discharge, TC held hearing on Commonwealth’s motion to revoke the discharge. Father argued and testified that he lacked ability to pay the ordered child support. TC revoked his conditional discharge and ordered that he be imprisoned for the remainder of his sentence.

ANALYSIS:
On appeal, Dad first argued that TC violated his constitutional rights under the due process clause of the Fourteenth Amendment of the United States Constitution, and under Sections One, Two and Eleven of the Kentucky Constitution when it refused to examine possible alternative punishments to imprisonment and denied him his freedom even though he did not willfully refuse to pay his child support, as he was “too poor to pay his support obligation” and that TC was required to inquire as to why he was unable to pay before revoking probation or conditional discharge. CA held that no legal authority exists requiring TC to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support.
Father next argued that TC’s order revoking conditional discharge did not contain findings of fact and, thus, violated his constitutional due process rights. CA held that a probation revocation proceeding must conform to the minimum requirements of due process of law, including a written statement by the factfinder as to the evidence relied on and reasons for revoking parole. The order revoking Father’s parole did not include such findings of fact. CA thus remanded to TC to make factual findings. Vacated and remanded.

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

Downs v. Downs, Ky COA, Interpretation of Marital Settlement Agreement Re Life Insurance

Downs v. Downs
2007-CA-000979
PUBLISHED: AFFIRMING
PANEL: CLAYTON PRESIDING; VANMETER AND KNOPF CONCUR
COUNTY: NELSON

At TC, Adult Child argued that per terms of Marital Settlement Agreement between his biological parents, a constructive trust should be imposed on deceased Dad’s life insurance proceeds. Adult Child appealed from TC’s order granting Summary Judgment to Stepmother.

FACTS:
Adult Child was born in 1981 and his biological parents divorced in 1989. Per the terms of the parents’ Marital Settlement Agreement, the parents were to maintain any life insurance policies with “the infant child named as beneficiary.” Dad remarried in 1990 and died in 2002. His three life insurance policies all listed his wife (Stepmother) as beneficiary. Adult Child petitioned TC for imposition of constructive trust of the life insurance proceeds. Stepmother moved for and was granted summary judgment.

Analysis:
Stepmother first argued that Adult Child’s action was time-barred by the statute of limitations as Adult Child was seeking enforcement of a contract, which has a 15 year limitation per KRS 413.090. However, CA noted that the fifteen year period does not begin until the breach of the contract occurs, and that, furthermore, KRS 413.170 extends the time limit for minors to fifteen years from the time that the age of majority is reached. Thus, under either approach, the action was not time-barred.

Stepmother next argued that the words “infant child” were not words of identification but rather limited the referenced requirements to the child’s infancy, and thus Dad was not required to keep Adult Child as beneficiary once he reached the age of majority. TC and CA agreed. CA noted that only ambiguous contracts can be interpreted with the use of extrinsic evidence, and that if a contract can be interpreted with only one reasonable interpretation, it is not ambiguous. CA found that, due to the use of the terms “infant child” and “child” throughout the Marital Settlement Agreement, the only reasonable interpretation was that the parents were to maintain any life insurance policies with the child during his minority. Thus, Dad was not required to list Adult Child as a beneficiary on any of his life insurance policies.

TC affirmed.

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

MCKINNEY V. MCKINNEY, CHILD SUPPORT, FINDINGS OF FACT

MCKINNEY V. MCKINNEY
2006-CA-002132
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON PRESIDING; NICKELL, GRAVES CONCUR
COUNTY: JEFFERSON

Ex-Husband appealed from TC’s order imputing to him a monthly income of $8,000 for the purposes of establishing child support in accordance with the Kentucky Child Support Guidelines.

FACTS:
Ex-Husband and Ex-Wife entered into a Marital Settlement Agreement that explicitly reserved the issues of child support expenses. After hearing, TC entered an order finding that Ex-Husband earned income from part-time work as an attorney but primarily by “flipping” real estate, imputing income to Ex-Husband of $8,000 per month and ordering child support in accordance with the Kentucky Child Support Guidelines. However, TC did not parse out its calculation of Ex-Husband’s imputed $8,000 monthly income. Ex-Husband subsequently filed a CR 59 motion to alter, amend or vacate, as well as a motion pursuant to CR 52.02 requesting additional findings of fact regarding the imputation of $8,000 monthly income. TC denied the motion for additional findings and this appeal ensued.

ANALYSIS:
Ex-Husband argued that there was no evidence submitted to support TC’s imputation of $8,000 in monthly income and that, at a minimum, he was entitled to additional findings as to how TC arrived at the $8,000 figure. Ex-Wife responds that TC, in imputing income to both parties, opted to calculate child support based on the “potential income” of each party and that TC was not required to segregate Ex-Husband’s potential earnings as an attorney from those generated by the real estate. CA found that the standard of review for appellate courts in child support matters is abuse of discretion.

CR 52.01 provides that in all actions tried upon the facts without a jury, the trial court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment. Thus, the issue herein is whether the TC’s omitted finding involves a matter which was essential to TC's judgment. CA found that, other than generally stating that the imputed income was derived from Ex-Husband’s law practice, rental properties and capital gains, TC provided no explanation as to how it reached the $8,000 a month figure. Without adequate factual findings, CA held that TC's decision could not be meaningfully reviewed and that the omitted finding involved a matter which was essential to TC's judgment. Thus, TC erred by denying Ex-Husband’s motion for additional factual findings on this issue and the matter must be remanded for additional findings.

CA’S NOTE TO SC REQUESTING MODIFICATION OF RULES:
“In rendering the decision herein, we are cognizant of the fact that CR 52.01 specifically states that “[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rule 12 or 56 or any other motion except as provided in Rule 41.02.” Although the instant appeal arises from “decisions of motions,” the issue of child support was initially raised in Ex-Wife’s petition for dissolution and was only resolved after an evidentiary hearing. Thus, we conclude that the crux of this appeal stems from an action “tried upon the facts without a jury[,]” as set forth in CR 52.01. However, we are also of the opinion that CR 52.01, as currently written, is not only overbroad but illogical. The majority of orders and judgments from TC originate from a motion. Many motions require a court to try the issues upon the facts. To hold that a trial court is not obligated to make -7- findings of fact when ruling on a motion of any kind except as provided in CR 41.022 necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review. We would urge our Supreme Court and Rules Committee to review and revise CR 52.01.”
Reversed and remanded.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

One To Be Published Family Law COA Opinion June 13, 2008

McKinney v. McKinney, court imputed income to part-time attorney and real estate “flipper” but did not make finding he was voluntarily underemployed and did not set out more specific findings. Since findings are essential to this judgment, case was reversed for further findings. A digest will follow. There is no link to the case here because the links on the Court of Appeals website are broken again this week. I found the decision by going to this site, searching for "June 13, 2008" and then clincking 2007 CA 349.

Jewell v. Jewell, Funeral Expenses For Child, Doctrine Of Necessaries

Jewell v. Jewell, --S.W.3d—(Ky. App. 2008), 2007-CA-000420-MR
Mother appealed from a judgment which found that the father was not liable for any portion of their son’s funeral expenses. Parties divorced in 1990 and the mother was granted sole custody of the parties’ only child. Their son was diagnosed with cancer in 2005 and died in 2006. The total funeral costs were $8,538.93. Upon their son’s death, the father received $10,000 in proceeds from a death benefit policy. Trial court found that the father had no obligation to pay any portion of the funeral expenses since the mother had sole custody. COA reversed based on KRS 406.011 and the doctrine of necessaries. The Court likened the non-religion-specific funeral expenses to costs related to pregnancy and child birth, which the father is required to contribute to under KRS 406.011. COA also cited to KRS 403.211, because it viewed the action as a proceeding to modify or interpret the support order. COA found it unjust for the father to collect $10,000 on a death benefits policy, but not require the father to pay half of the child’s funeral expenses.
REVERSED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Hoofring v. Fite, Ky Child Support Modification, Agreements, Arrearages

Hoofring v. Fite, ___ S.W.3d ___ (Ky. App. 2008), 2007-CA-001466-ME

The parties, never married, entered into a series of child custody and support agreements. The last agreement in February 2005 provided that Fite have physical custody of the child again. Hoofring was not to pay any child support, but he was to maintain health insurance for the child until the end of 2005. The agreement also released Fite from any liability regarding the child support arrearages she owed to Hoofring.

In 2006 Hoofring insisted that Fite obtain health insurance for the child. Fite then pursued a modification of child support. The TC ordered that Hoofring pay $672.14 per month in child support, retroactive to the February 2005 agreed order, and maintain health insurance for the child. The TC also ordered Fite to pay $5,183.07 in arrearages. Hoofring filed a motion to vacate the order or, in the alternative, hold an evidentiary hearing. In May 2007, after a full evidentiary hearing on all issues, the TC ordered that Hoofring pay $646 per month in child support, retroactive to October 2006, and maintain the child’s health insurance. The TC did not address Fite’s arrearages, but noted that the February 2005 agreed order was an enforceable order. Hoofring appealed.

The COA noted that a party is entitled to modification of child support if he/she can show a material change in circumstances that is substantial and continuing. KRS 403.213. The child support obligation of $646 per month is clearly a 15% increase over the prior amount of $0. Moreover, while parties may enter agreements regarding child support, the terms are not binding on the trial court under KRS 403.180(2). In addition, KRS 403.180(6) prohibits any attempts to preclude modification of agreements concerning child support, custody, or visitation. Therefore, the TC retained jurisdiction over the child support and is not bound by the parties’ agreement. COA held that TC properly exercised its discretion to modify the child support obligation, while properly enforcing the other provisions of the 2005 agreed order, which release Fite from liability for her past arrearage. AFFIRMED.

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

Gripshover v. Gripshover (Ky) Nonmarital Property, Estate Planning, Child Support, Section 179 Expense, Imputed Income

Gripshover v. Gripshover, __ S.W.3d __ (Ky. 2008), 2005-SC-000729-DG and 2006-SC-000256-DG

Husband and his brother owned a farming operation, realty totaling over 600 acres, and a promissory note for more than a million dollars. They formed two limited partnerships: 1) a real estate partnership with their wives that would hold and manage the realty, and 2) a partnership to manage the farming operation. The brothers also assigned their partnership interests to two trusts. The wife signed documents allowing said transfers. The Supreme Court granted discretionary review to consider the validity of the partnership and trust into which the parties transferred a large portion of their estate less than a year prior to the filing of the petition for divorce, as well as to review the child support and maintenance awards.

Real estate partnership and trust: There was no evidence that either party was contemplating divorce at the time the estate plan was executed or that the husband’s intent was to impair the wife’s marital rights. Therefore, the wife had not been defrauded, as she knowingly and voluntarily consented to the estate plan. The COA erred in holding that the wife retained an interest in the realty and that it was subject to division as marital property. The wife’s argument that the estate plan should be set aside due to the husband retaining control over the realty and not truly giving it to the trust is without merit. SC noted that the wife did not join the necessary parties to challenge the validity of the partnership and trust. Moreover, SC held there was nothing wrong with the brothers retaining control of the realty for the purpose of use in the farming operation. The realty was not transferred to the trust, but instead the partner’s interest in the partnership. Thus, the realty was validly removed from the marital estate and was not subject to division.

Husband’s nonmarital interest in the promissory note: Wife argues that husband’s entire half of the note is marital, since the other siblings quit-claimed their interests to the three remaining siblings (one being the husband) in 1987 (parties married in 1988) for no consideration. Wife argued that because the siblings gave up their interests for no consideration, the property should be regarded as having no equity at that point, and that all equity in the property was acquired after the marriage. The court rejected this argument, especially since in 1989 a small portion of the land was sold for more than the outstanding indebtedness which adequately established that the property increased in value as a result of economic factors alone.

Child support and maintenance: The parties’ incomes were wrongly determined. TC erred in allowing the husband to calculate his income for child support purposes using 26 U.S.C. sec. 179 expense deductions. Section 179 provides an alternative to standard, straight line depreciation, which KRS 403.212(2)(c) mandates as the only allowable method. TC also erred in imputing the wife with $360 per week of income, a level of income well above what she achieved when she was younger and in much better health. TC did not adequately consider all of the statutory factors in KRS 403.212(2)(d). Therefore, SC held that both child support and maintenance must be reconsidered.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Johnson v. Johnson (KY) No 15% Change In Child Support Not Preserved For Appeal

Johnson v. Johnson, 232 S.W.3d 571 (Ky. App. 2007)

Dad appealed an order recalculating and increasing his child support. On appeal, Dad argued that it was error for the TC to review child support because Mom did not show a 15% change in the amount of child support due. Also, Dad argued that the TC abused its discretion in raising his child support because mom didn’t show a 15% increase. CA held the TC erred in not making any findings of fact but Dad failed to request the court make such findings and therefore failed to preserve the error for appeal.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Shaming Child Support Obligors Into Paying; Jailing The Deadbeats

By all accounts, the program of Irv Maze, Jefferson County Attorney in threatening to publicize the names of child support obligors who are six months delinquent is very successful. A long list appeared in a supplement to today's Courier Journal. 20% of the deadbeats are women, so let's lay to rest the phrase "dead beat dads." The flyer impressively listed other consequences of nonpayment including suspension of driver, professional, sporting and concealed deadly weapon licenses, impounding tax refunds and passports and imposing liens on boats, cars and houses.
By coincidence, Mary T. Wagner, assistant district attorney in Sheboygan County, WI wrote in the WashingtonPost.com a couple of weeks ago:

My standard speech is always the same. I can't make a guy be a good father. I can't make him walk the floor with a sick child, drive to soccer games, run to Walgreen's at midnight to pick up a prescription, help with homework, go to a Boy Scout potluck dinner or even smile. What I can do is squeeze him hard enough that money comes out. Or ask a judge to send him to prison.

There's never time for oratorical polish. I'm usually giving this speech rapid-fire to a dazed and confused custodial parent about five minutes before I walk into another preliminary hearing in Wisconsin state court, where I work, where I'll hold a deadbeat dad's feet to the fire for failing to support his kids. I'm always reminded of the limits of what I can do as a state prosecutor targeting those who choose to float away and let somebody else pick up the tab. I'm also reminded that when a father skips out on his family, it has lifelong repercussions for a lot of lives.

Once I've opened a felony nonsupport case, it's just a matter of time before the guy somehow trips the radar somewhere -- a speeding ticket, a bar fight, a domestic disturbance -- and makes the return trip to Wisconsin on a prison bus. One got snared when, after 20 years of otherwise perfectly respectable and law-abiding life in another state, he walked into a police station to report a missing wallet. Oops.

Under Wisconsin's system, if you've gone four months in a row without sending home any child support, your options change from cooling your heels in the local jail on a civil commitment to prison, where you can't buy your way out by finally paying what you owe. That's where I come in, with a full arsenal of police powers, criminal charges, arrest warrants, extraditions and, ultimately, a compelling speech at the sentencing hearing.

The case is never about whether the deadbeat dad failed to make any payments for 120 consecutive days, earning himself up to a year and a half of "maximum confinement" in prison and two additional years of "extended supervision" reporting to a probation agent. It's about how the parent who stayed with the children had to work two jobs, never caught a break and sometimes had to take government assistance, and how the kids in the middle of it all felt abandoned -- how their world fell apart when Dad left.

Sometimes it's about a 10-year-old child coming to court with Mom, smiling but nervous with anticipation, wondering if the father who's been gone for years will recognize her in the gallery as he sits on a bench up front, wearing an orange jumpsuit and chains, waiting for our dance to begin. Those scenes never end well.

And the costs echo through the years. It's alarming, even spine-chilling, how often I can pick up the file in a nonsupport case that I've charged, walk over to the other side of the office, look up the last name and find the children snared in juvenile court.

Statistics on the Web site of the federal Administration for Children and Families show that the federal and state partnership governing child support enforcement carried a caseload of 15.9 million families in fiscal 2005. Those numbers reflect the mandatory inclusion of parents who have custody and receive some kind of government benefits, and other custodial parents who voluntarily seek state help in getting their child-support orders enforced.

During that fiscal year, more than 11 million of those cases were listed as having some kind of child support arrears due -- and only a little more than half of those were listed as having payments coming in toward the arrears in child support. That's a lot of money not sent or spent on shoes, school supplies, haircuts or summer camp.

I hope that all of you who think about skipping out on your child-support obligations, to cut your losses or simplify your lives, keep in mind that I, or someone else working in a generic government office, will eventually haul you back to face the music. But if you think at all about what really matters, that should be the least of your worries.

The more remedies, the better. And, remember, it isn't just dads who are not paying court ordered child support.

Bailey v. Bailey

Bailey v. Bailey, ___S.W. 3d ___(Ky. App. 2007)

Wife filed an action against Husband seeking to enforce their Separation Agreement which required him to pay for their children’s health and dental insurance and for the parties to split any remaining amounts owed. Also, she sought monetary damages resulting from Husband’s failure to transfer the marital residence to her as required by the Separation Agreement. Finally, she sought reimbursement for half of the funeral expenses incurred due to the death of one of their children.
On appeal, Wife argued that TC erred when it applied principles of equity in its interpretation of enforcing the separation agreement rather than enforcing it as a contract. CA held that TC should have enforced the agreement as contract terms. CA reasoned that the separation agreement was found by the original TC not to be unconscionable. Therefore, the agreement could not be modified unless shown to be unconscionable and there was no such showing. Additionally, by statute the terms of the agreement are enforceable as contract terms.

With regard to the medical bills, CA held that TC erred in its findings that Wife did not present adequate evidence that husband failed to maintain health insurance on the children. Additionally, CA found TC erred in finding that Wife had not provided husband with sufficient notice of the amounts he owed. Wife introduced evidence that the children had received medical treatment and the bills were submitted to Husband’s insurance. However, the bills were not paid because the coverage was not active at the time the treatment was rendered. Also, Wife produced bills showing that she carried health insurance on the children. CA opined that TC’s finding that Wife did not present sufficient evidence to prove her claim that Husband failed to maintain health insurance on the children was clearly erroneous. Furthermore, TC’s holding that it would be inequitable to award Wife damages for past medical bills was in error. Again, CA stated that it was improper to apply principles of equity in interpreting the parties Separation Agreement.

Next, CA addressed the requirement, set forth in the Settlement Agreement, that Husband transfer his interest in the marital residence to Wife. The Settlement Agreement required Husband to sign a quitclaim deed within 10 days of entry of the Decree, which he failed to do. Wife’s employer offered her an opportunity to relocate. As part of the relocation plan, Wife’s employer would pay some of the expenses of selling her home. Husband signed the quitclaim deed in time for the closing on the home. However, this was four years after he was supposed to deed his interest to Wife. Wife claimed this failure cost her a substantial amount of money. TC found that Wife was not entitled to reimbursement because Husband signed the deed in time for the home to be sold and in time for Wife to qualify for reimbursement from her employer. CA held yet again, that the Settlement Agreement was a contract and it was clearly erroneous for TC to find that Husband did not breach the Agreement. CA remanded for a hearing to determine if Husband’s breach of the contract caused Wife to incur economic damages.

Finally, CA held TC’s dismissal of Wife’s claim for half of the funeral expenses was clearly erroneous. The parties signed a contract with the funeral home agreeing that they would each pay half of the funeral expenses. Wife’s family initially paid the funeral home and then wife repaid her family. She argued that Husband had never paid his portion of the expenses. TC dismissed Wife’s claim opining that Husband correctly raised the defense of res judicata. CA reasoned that because res judicata is an affirmative defense it can be waived if not properly asserted. CA found that there was nothing in the record showing Husband raised the affirmative defense of res judicata. Therefore, TC’s holding was clearly erroneous.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Calfee v. Cabinet for Health and Family Services and Tammy Aquilian, Child Support, Paternity

Calfee v. Cabinet for Health and Family Services and Tammy Aquilian

Calfee appealed an order denying his request for modification of accrued child support. Calfee’s ex-girlfriend filed an action seeking child support. In support she filed an affidavit admitting that the child could have been another man’s, that Calfee never claimed to be the child’s father, and that the child did not resemble Calfee. In response, Calfee requested a DNA test. However, Calfee could not afford the test. It was rescheduled and again Calfee could not afford the test. Therefore, a default judgment was entered and Calfee was ordered to pay child support. Finally, five years later a DNA test revealed Calfee was not the child’s father. Regardless, the Commonwealth sought to collect the arrearages that had accumulated since the default judgment was entered. The Circuit Court held Calfee was responsible for the arrearages that had accumulated before the default judgment was set aside. The CA remanded and held that the Circuit Court must re-exam the facts and determine whether the mother’s actions amounted to fraud or misrepresentation. If so, Calfee should not be held liable for the arrearages.
CA distinguished the instant case from S.R.D. v. T.L.B., 174 S.W.3d 502 (Ky.App.2005). In S.R.D., a former husband, who waited six years after learning he might not be the child’s father, was estopped from denying paternity and support obligations. In the instant case, however, the child was not born of a marriage. Calfee never held himself out to be the child’s father and there was no legal presumption he was the child’s father. For these reasons Calfee was not estopped from asserting that he was not the child’s father and therefore not obligated to pay support.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Christian v. Clemente

Because discussion is circulating that the Court of Appeals may be moved to publish this case, we are digesting it for you.
Christian v. Clemente (unpublished)

Mom appealed trial court's decision that it lacked personal jurisdiction over dad and therefore, could not order child support. Mom and dad had a relationship but were never married. Eventually, dad moved to Pennsylvania. Fifteen years later mom filed a paternity and child support action in Kentucky. Dad submitted to a paternity test, which revealed he was the child’s father. However, he asserted that the court lacked personal jurisdiction because mom failed to file within the statute of limitation set forth in KRS 454.220. Mom argued that several other statutes governed the statute of limitations for paternity actions demanding child support. CA, however, held in favor of dad.
CA opined that KRS § 454.220 applies to child support actions against nonresidents even if there is an underlying paternity action. The CA relied on basic statutory interpretation to arrive at this ruling. The court opined that KRS 454.220 was most specific statute with regards to the present issue. Accordingly, KRS 454.220 controls over all other less specific statutes on the issue. Additionally, the lack of language, in KRS 454.220 or later enacted statutes, indicating otherwise signified the legislature’s intent that KRS 454.220 be controlling, with regards to orders for child support against nonresident parents. Furthermore, the court held the instant case was not distinguishable from Parmelee, 18 S.W.3d 347.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

Plattner v. Plattner, child support in 50/50 timesharing where parents have equal income

Plattner v. Plattner, Kentucky Court of Appeals, rendered: June 29, 2007

Dad appealed a trial court’s order refusing to alter the amount of child support owed to his children’s mother. Originally, mom was designated as the primary residential custodian of the parties’ two children and dad was ordered to pay child support. Eventually, the parents entered into an agreed order and shared the children exactly fifty percent of the time. Additionally, the parties earned approximately the same amount of money.

The CA reversed and remanded the case to the trial court. The CA opined that under KRS 403.211(2) and (3) the trial court may deviate from the child support guidelines when it finds that their application would be unjust or inappropriate. The CA held that the TC ruling was in error because the parties had equal custody and made equal amounts of money.

The court distinguished the instant case from Downey v. Rogers, 847 S.W.2d 63 (Ky.App. 1993). In Downey, unlike the instant case, the father had agreed to pay a portion of his child support obligation. Additionally, he earned twice as much money as the children’s mother.

Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Interstate Modification Of Child Support

The child support "goddess", Laura Morgan, has a helpful article on her website Child Support Guidelines about interstate modification of child support which you can find here.

Michigan Order Allowing Duped Dad Reimbursement For $55,000 In Child Support Reversed

Michigan is struggling with the same paternity challenges as Kentucky. Updates In Michigan Family Law reports:

Challenges to parentage determinations are becoming more common today than ever before. One factor seems to be a focus on “duped dads,” many of whom want to get out of paying child support for a child now found to be unrelated to them, but named as their child or children in a judgment of divorce. Another factor is the ready availability of DNA evidence. Home DNA testing is common and can provide a basis for a motion to set aside a child support order. Of course, home DNA testing doesn’t provide the controls of court-ordered DNA testing by a reputable lab with its control on the production of DNA samples. A question left undecided in a recent Michigan court of appeals case is whether the court had the actual authority to order a DNA test.

The Michigan Court of Appeals, in an unpublished decision on June 5, 2007 held that a duped dad who had paid child support since 1999 was not entitled to set aside the judgment of divorce in order to obtain reimbursement for over $50,000 in child support paid between 1999 and the date he filed his motion to terminate child support on January 20, 2005. Because the mother’s fraud was intrinsic fraud, a court rule and also well-established case law precluded the trial court to grant this ex-husband relief from the 1999 judgment. He had only one year to challenge to the judgment that ordered child support. Public policy, the court rule, and case law limit the time for motions to set aside judgments in order to preserve finality of judgments. The ex-husband did not challenge the child support order/judgment until 2005—after the mother asked for parenting time provisions to be enforced and for an increase in child support.

Because the ex-husband could not be given relief from judgment, the trial court was limited by Michigan law from retroactive modification of the child support order. The modification could only be retroactive to the date that he filed his motion regarding child support. As a result, the court of appeals reversed the trial court’s order that the mother had to repay to the father almost $55,000 in child support that he had paid under the judgment.

The mother argued unsuccessfully on appeal that the equitable parent doctrine should have been applied. Citing Van v Zahorik, 460 Mich 320 (1999) and Killingbeck v Killingbeck, 269 Mich App 132 (2005), the court of appeals stated that this doctrine has never been applied outside of the context of marriage. The child in this case was born several years prior to the parties’ marriage.

Here is the opinion.

Kentucky Supreme Court Hears Child Support And Child Custody Jurisdiction Issues

The digest follows for Nordike v. Nordike, 2004-CA-002242-MR, designated not to be published. Discretionary review was granted by Supreme Court 5/10/06 and oral arguments were held 5/17/07. You can read the briefs filed in the Kentucky Supreme Court here, courtesy of SCOKY Blog, via Chase Law School.

The promised summary:
Issue and Holding:
Whether Kentucky has jurisdiction over the child support provision of the parties’ Kansas divorce decree. The Court held no, because the jurisdictional requirements of the Uniform Interstate Family Support Act have not been met.

Facts:
The parties divorced in 1997 in Kansas. The parties were awarded joint custody of their one daughter, with the father designated as the primary residential custodian. Neither party was ordered to pay child support. In 2000, the father moved to Ohio and the Kansas court modified the decree, designating the mother as the primary residential custodian and requiring the father to pay child support. The mother and child then moved to Kentucky, and the father moved to Colorado.
Pursuant to the UCCJA, in 2003 the Warren Family Court entered an agreed order, acknowledging registration of the modified Kansas decree and that Kentucky had jurisdiction over custody and visitation issues. The Kentucky court then denied the father’s motion to be designated sole custodian or the primary residential parent. However, the court did modify visitation under the decree to reflect the large distance between the parties. The mother then moved for the Kentucky court to modify its agreed order to state that Kentucky also had jurisdiction over child support issues. The court denied the motion, and mother appealed.

Analysis:
Modifications of child custody and child support issues have different jurisdictional requirements. Jurisdiction to modify custody is governed by the UCCJEA, while jurisdiction to modify support issues is governed by the UIFSA. Therefore, a Kentucky court has jurisdiction to modify the Kansas child support order only if the requirements of KRS 407.5611 are met.
The requirements of KRS 407.5611(a) are not met, since the petitioner, the mother, is a Kentucky resident and the Kentucky court does not have personal jurisdiction over the respondent, the father. The Court rejected the argument that the father is subject to personal jurisdiction based on his participation in the Kentucky custody case.
The requirements of KRS 407.5611(b) are not met, because the Kansas court’s journal entry relinquishing jurisdiction over the custody matter to Kentucky does not reference child support or contend to reflect the parties’ consent. Therefore, it does not qualify as “written consent” as required by statute.
As such, the Kentucky court lacked both personal jurisdiction over the father and subject matter jurisdiction to modify the Kansas support order. AFFIRMED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Court Orders Sperm Donor To Pay Support

In an article by Paula Reed Ward today, the Pittsburgh Post-Gazette reports Court orders sperm donor to pay support, Death of father complicates complex case.
Some quotes:

The Pennsylvania Superior Court, in a recent decision, ordered that a sperm donor who had a close relationship with the two children he fathered must pay child support.

It is an interesting decision for a number of reasons.

First of all, Pennsylvania has no laws that address reproductive issues such as this, which resulted in a first-ever court ruling that recognizes three adults as parents and having financial responsibilities for the same children.

In addition, the sperm donor was not anonymous but a friend of the biological mother, and he eventually sought partial custody of the children.

To further complicate matters, the donor died while the court case was pending.

The article goes on to report these comments from attorneys:

Cases like these -- and others involving surrogacy and similar issues -- could more easily be settled, all the lawyers said, if the state Legislature would write laws to address them.

Pennsylvania is one of only a handful of states that do not have laws to address the parental rights of sperm donors.

Harry Tindall, a family law attorney in Houston, who helped write the Uniform Parentage Act, was outraged by the Superior Court's decision in the Jacob case.

"Donors are not parents. Why should we hurt someone for trying to do good?" he asked.

But more than that, he was frustrated, like the others, at the lack of legislation.

"Pennsylvania won't pass laws on this issue, so courts don't have any guidance," he said. "Shame on a legislature that doesn't have the values to address this issue."

Mr. Kalikow, who chairs the subcommittee on assisted reproductive technologies under the Joint State Government Commission, hopes state lawmakers will soon do that.

He noted that the state does have laws related to reproductive issues in dog breeding.

Mr. Kalikow believes there are no state laws related to these questions with humans because the issues are too emotional.

"It implicates these very sensitive, social, religious and then, political, issues," he said.

Those include the idea of extraordinary conception -- like sperm donation and in vitro fertilization -- as well as encouraging single parenthood and the possibilities of same-sex couples adopting, Mr. Kalikow said.

"There is no way to isolate from religious and social conservatives concerns that this is promoting unconventional family building," he said. "You're going to get a lot of heat."

Thanks to Marcia Oddi of the Indiana Law Blog for letting me know of this article.

Goldsmith v. Bennett-Goldsmith

Goldsmith v. Bennett-Goldsmith, --S.W.3d – (Ky. App. 2007)

Issues and Holdings:
1. Whether the trial court erred in denying father’s motion to strike mother’s presentation of evidence at a modification of child support hearing. The Court held no, the trial court did not abuse its discretion since the mother complied with the evidence exchange order by fax.
2. Whether the trial court erred in denying father’s motion to reduce his child support obligation. The Court held no, the trial court did not err as the father did not put forth the evidence required to establish that there had been a material change in circumstances requiring modification of his child support obligation.

Facts:
The parties had one child together and divorced in 1999. Mother was awarded sole custody and father was awarded visitation. Father’s child support obligation was set at $676 per month. Father failed to pay child support and accumulated $2,472 in arrears by 2002. The court found that father’s failure to pay was intentional, because he had the financial ability to pay. The father was held in contempt twice for his failure to pay, but his parents came to his aid and paid his arrearages.
In 2006, father filed a motion to reduce his child support obligation. The court entered an order, setting out the parties evidentiary requirements and set the exchange compliance deadline for noon on July 28, 2006. Mother mailed her compliance to father on July 28 at 9:55 a.m. and faxed her compliance to the court at 1:32 a.m. The father delivered his compliance before the deadline. Both parties received the other parties’ compliance prior to the hearing. On the day of the hearing, father filed a motion to strike mother’s presentation of evidence, alleging she failed to comply with the exchange order, CR 12.06 and CR 5.03 by faxing her documents to the court. The court conducted the hearing and denied both father’s motions to strike and to reduce child support.
Father appealed.

Analysis:
The Court agreed that the mother complied with the exchange order. She faxed her documents to the court almost twelve hours before the deadline. She did not violate CR 12.06 or CR 5.03 as her evidence was material and sufficiently identified the father. Therefore, the trial court did not abuse its discretion.
Regarding the father’s motion to reduce child support, KRS 403.213 requires that the movant show a material change in circumstances that is substantial and continuing. If such a showing is not made, denial of the modification motion is proper. The Court agreed that father had not put forth the necessary evidence required to establish that there had been a material change in circumstances. He failed to establish his current and past gross income and failed to present evidence regarding his income, or lack of income, from rental properties. The Court also found that the father’s mental illness had no effect on the income he receives from rental properties.
Affirmed.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates