Divorce Law Journal

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

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