Divorce Law Journal

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

Wolfson Lays Out Paternity Law Chaos

Andrew Wolfson in today's Courier-Journal reports on the husband/paternity fraud/bio-dad cases working their way though the Kentucky Courts. The front page story is here. His report is well researched, well written and accurate, as usual. Even if I had not read it while enjoying my coffee this morning, I would have known something significant had been published when I checked my email because of the Typepad comments to related prior posts waiting for approval. The Courier-Journal publishes "story chat" beneath its online story. Hope they are ready for a birrage.
We have reported on Denzik here and digested it here and discussed its progeny here. Hinshaw was digested here. We previously posted about the G.J.R - J.N.R. - J.S.R. case (now rightfully exposed by Wolfson as the Rhoades/Ricketts case) winding its way through the system here.

Denzik: The Floodgates Are Opening

Denzik v. Denzik, about which we reported here and digested here, permitted a husband to recoup child support payments many years later, in a civil action for damages, when he was found not to be the biological father of the child born during the marriage. Where will it end? Who knows, but now the Court of Appeals, in a case not yet final but designated to be published, has addressed whether a father who acknowledged paternity has recourse to avoid contempt for non-payment and for recoupment. In short, it was remanded to determine whether there was fraud or misrepresentation, in which case accrued child support may be avoided. Prediction: This is the tip of the iceberg.

Wheat v. Com., Cabinet for Health and Family Services__S.W.3d__, 2007 WL 490946 Ky.App.,2007. February 16, 2007
John Wheat appeals from a Findings of Fact, Conclusions of Law and Order of the Barren Circuit Court, Family Court Division, holding him in contempt of court for failing to pay a child support arrearage. The court imposed a sentence of 180 days in jail, to be suspended on the condition that Wheat begin paying the arrearage. Wheat argues that DNA testing proved that he is not the biological father of the child in question, and that as such the family court erred in ordering him to pay any child support. Pursuant to Denzik v. Denzik, 197 S.W.3d 108 (Ky.2006), issued after the trial court made its ruling, we reverse and remand the matter to the Barren Family Court for further findings of fact on one issue, as set out herein....

If a man is not the biological father of a child and cannot be held on equitable grounds to be the legal father, we acknowledge that there is a strong argument, based on simple fairness, that he should not be required to pay child support. There is, however, another issue in this case, legal rather than equitable, which we must consider. In fact, the trial court in its order did not evaluate this matter from an equitable standpoint at all. It rather indicated a belief that it was bound by a line of cases such as Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986); Stewart v. Raikes, 627 S.W.2d 586 (Ky.1982) and Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68 (1948), overruled in part on other grounds, Knight v. Knight, 341 S.W.2d 59 (Ky.1960), which held that past child support obligations, once accrued, may not be modified. In the language of the Whitby court, quoted by the court in Stewart:
"We perceive that no distinction can be made between a judgment based upon a claim for alimony or maintenance and a judgment based upon any other legal right. After the judgment is entered, although it may be subject to modification at a subsequent date, it is binding and final until modified; and any payments which may have become due previous to such modification constitute a fixed and liquidated debt in favor of the judgment creditor against the judgment debtor." Whitby, 208 S.W.2d at 69; Stewart, 627 S.W.2d at 588.

Thus, if there is no exception to this rule, Wheat has no recourse, regardless of the equities of the matter. However, after the trial court issued its order in this case, the Kentucky Supreme Court rendered its opinion in Denzik v. Denzik, supra, holding that a father could recover back from his former wife child support payments previously made to her because the support obligation arose from her fraudulent and years-long claim that he was the child's biological father. Though the facts in Denzik differ somewhat from those at bar-the plaintiff in Denzik did not file a motion to recover past child support payments in his divorce case, but rather in a separate civil suit for fraud-we believe Denzik supports Wheat's contention that past child support payments are voidable in some circumstances.

Denzik did not overrule Clay and the line of cases relied on by the trial court. Neither did it carve out an exception to the rule set out in these cases for every situation where a subsequent paternity test proves that the man paying the child support is not the biological father. However, we believe it did recognize an exception to that rule in the event of fraud or misrepresentation. The Supreme Court in Denzik stated:

"This ruling does not in any way conflict with our precedents on erroneous amounts paid in child support, because error is not fraud.
Cases involving excess child support payments made by judicial error have determined that recoupment or restitution of the excess payments is inappropriate unless there exists an accumulation of benefits not consumed for support. See, e.g., Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986).... However, in the case of fraud and misrepresentation of expenses to the spouse, the court has ordered restitution.... In this case, it was determined that somebody other than the father of the child was paying child support thereby giving this case a different character than the others.
In short, the facts of this case can only be repeated with fraud, not with a floodgate of paternity tests." Denzik, 197 S.W .3d at 112,113.

Thus, since Denzik, if the mother was guilty of fraud or misrepresentation, even child support obligations that have already accrued may be modified. The Commonwealth appears to recognize this and asserts in its brief that, “[t]here is simply no evidence of the unmarried woman deliberately concealing material facts in this case.” This is accurate only in the limited sense that the trial court did not hear any testimony. The parties advised the court that the facts were not in dispute. However, neither the court

More On Paternity Fraud: Two TN Bills Introduced

A set of new bills in the Tennessee Legislature would allow men to stop paying child support if a paternity test shows they are not the father. Tennessee House Bill HB1523 and SB1949, would amend T.C.A. section 36-5-101. If the bills become law, men who could prove they are not the biological father would be exempt from paying child support.

This issue has come to be known as Paternity Fraud. In many states even if a man can prove that he is not the biological father, he still must pay child support. The issue is exploding in the news and on the web. Tennessee Divorce and Family Law.

What would happen under these facts: Parents married 17 years, four children ages 15, 13, 11, and 2. Husband in all respects raises the children as his own. Once he's divorced he is happy to abandon the children. DNA proves husband is not the biological father. No other man is willing to step up to the plate to nurture or support the children. Maybe mom had artificial donor insemination after failed attempts to conceive and didn't tell her husband. Maybe they both had a gazillion affairs during the marriage. As our courts and legislatures consider these issues, we must keep the interests of children paramount. Piecemeal correcting wrongs to some may do more long term damage than good if we aren't careful.

UIFSA Jurisdiction

This case is not yet final.
Gibson v. Gibson, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3751413 (Ky. App.)

Issue: If both parents and child relocate from Kentucky where the original orders of custody and child support were entered, does Kentucky retain jurisdiction to then modify the orders and/or to enforce the orders?

Imputed Child Support Obligations

Note: This case is not final; a motion for discretionary review has been filed.
Kimbrough v. Com, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2034015 (Ky. App.)
Issues and Holdings:
1) Whether the child support statute that provided a deduction from a parent’s gross income for an “imputed child support obligation” violated equal protection. The Court held no, the statute had a rational basis and therefore did not violate equal protection.
2) Whether the Court of Appeals was required to presume that the trial court’s order allowing the mother a deduction from her gross income for imputed child support for a prior-born child was proper. The Court held yes, that it was so required because the appellate record was incomplete.

Facts:

The mother filed a paternity action, regarding two children, against the father, and paternity was established. The father was required to pay child support. Approximately ten years later, the mother filed a motion for an increase in child support for child care and health care costs. The court granted the motion, and the father filed a motion to set aside the order. The father argued that KRS 403.212(2) (g) (4) was unconstitutional because it violated due process and equal protection. He claimed that the statute’s

Paternity Test: Florida 'Father' May Cite Law To Cry Fraud

Parker v. Parker, from the Supreme Court of Florida was decided February 1, 2007. The parties married in 1996, the child was born in 1998, a 2001 divorce decree incorporated an agreement for child support and the husband did not have a paternity test until 2003. The wife's misrepresentation of paternity was held to be intrinsic fraud and therefore a husband must seek relief from a judgment within one year.

We recognize that the former husband in this case may feel victimized. However, Theresa Glennon argues cogently that:
[w]hile some individuals are innocent victims of deceptive partners, adults are aware of the high incidence of infidelity and only they, not the children, are able to act to ensure that the biological ties they may deem essential are present. . . . The law should discourage adults from treating children they have parented as expendable when their adult relationships fall apart. It is the adults who can and should absorb the pain of betrayal rather than inflict additional betrayal on the involved children.
[Mary J. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. Center for Families, Child. & Cts. 3, 18 (2003)] (quoting Theresa Glennon, Expendable Children: Defining Belonging in a Broken World, 8 Duke J. Gender L. & Pol’y 269, 275 (2001)).

The Miami Herald reported the story yesterday, Paternity test: 'Father' may cite law to cry fraud.

In delving into the often-vicious world of divorce and paternity cases, the high court failed to discuss Florida's ''paternity fraud'' law that the Legislature passed last year, when male lawmakers inveighed against deceptive women, and female legislators fretted about callous men abandoning children.

The new law gives men the right to avoid child-support payments if they gain ''newly discovered evidence'' that the child isn't theirs. The law requires the man to file a court petition 90 days after getting the paternity test.

Whether it will apply to Parker's long-standing case or other old paternity cases in the courts is unclear, said his Miami lawyer, Scott A. Lazar, who is considering filing a challenge under the new law. Lazar said he's sure the law will help blunt what would be a bad result from Thursday's court ruling.

''If there was not this new law, the effect of this decision would make paternity an issue in every divorce case,'' Lazar said. ``The advice you would have to give your client is to get a paternity test now, otherwise, he couldn't do anything after a year if the child isn't his.''

Query: If the new statute wasn't argued on appeal, how does this obligor expect relief in his case?

Thanks to Howard Basham at How Appealing for posting the link to the case and to Marcia Oddi at Indiana Law Blog for letting me know it was available online. Stan Billingsly at LawReader also reports on the recent unpublished opinions that address the issue in Kentucky from an equitable estoppel argument. However, now that we have the Kentucky Supreme Court decision in Denzek (see post here and digest here) damages for fraud can be obtained very late in a child's life in Kentucky.

Is Father Responsible For Expenses Of Mother's Pregnancy In Kentucky?

Stan Billingsly at LawReader requested that we post the law on this fact situation: an unmarried pregnant woman wants to know if the father of her unborn child is responsible for the expenses of her pregnancy and how does she obtain reimbursement if he refuses to pay? KRS 406.011 obligates the father to pay the reasonable expenses of the mother’s pregnancy, whether or not the child is born alive, and for the education, necessary support, and funeral expenses of the child, to the same extent as the father of a child born in wedlock.
Paternity may be determined upon the complaint of the mother, putative father, child, or the person or agency substantially contributing to the support of the child as well as by the county attorney or the Cabinet for Health and Family Services. KRS 406.021.
The action may be commenced within 18 years after the birth, miscarriage or stillbirth of a child. Child support awards are not retroactive to birth if the complaint is taken four years or more from the date of birth. KRS 403.031.

Jurisdiction to Modify and Enforce Child Support

In an opinion rendered today which is designated to be published, but not yet final, the Kentucky Court of Appeals held KY lacked jurisdiction under the UIFSA to modify support as neither parent nor the child resided any longer in KY, but retained jurisdiciton to enforce its judgment as to arrearages. Gibson v. Gibson.

Courts May Not Enjoin Parents From Collecting on Child Support Arrearage Judgments

The Family Law Prof Blog digests Leopold v. Leopold, 2006 Ala. Civ. App. LEXIS 631 (October 20, 2006). "The Alabama Court of Appeals reversed a trial court's order in a child support modification case in which the trial court had set a repayment schedule for child support arrearages and had then ordered that mother could not pursue any other enforcement actions so long as father was making the court ordered payments. The court of appeals noted that such a restriction on the mother's private collection efforts was in error, especially given the paucity of the repayment schedule the court had ordered."

Reciprocal Enforcement Of Foreign Support

What to do when your client receives a Notice of Registration of Enforcement of Foreign Support Order? The registration can be contested on several grounds including that the court lacked jurisdiction or lack of notice. Defenses must be raised at the time of registration or are lost.
Click here for reciprocal agreements between U.S. Government and foreign governments establishing due process.
Agreements between individual states and other foreign governments (and other useful state-by-state child support info)are here:
For example, Kentucky has declared reciprocity with Australia, ten Canadian provinces, Czech Republic, France, Germany, Ireland, Jamaica, Japan, Mexico, Netherlands, Norway, Poland, Portugal, Slovak Republic, Sweden, Switzerland and United Kingdom (England, Wales, Scotland , Northern Ireland and Isle of Man).

Is Subchapter S Pass-through Income Counted For Child Support Purposes?

Many a corporation owner argues that pass-through income from a subchapter S corporation should not be included for child support purposes because it is not distributed and therefore it is not an available source from which to pay child support. The Sub-S company usually distributes an amount equal to the estimated personal income taxes that have to be paid on the corporate earnings, but makes greater distributions only periodically when the company is able.
Walker v. Grow was decided by the Maryland Court of Special Appeals last month, holding that the burden is on the shareholder seeking to exclude pass-though income to prove that the income is necessary to be retained to fund necessary business related investments. SupportGuidelines.com has a nice article posted that surveys earlier law across the county on this issue.

Void As To Public Policy: Child Support Not Dependant On Child's Placement and Waiver Of Arrearages

A Wisconsin decision in Motte v. Motte, 2006 Wisc. App. LEXIS 880 (September 27, 2006) held agreements waiving child support arrearages or estopping parents from asking for modification if children change residence are void as against public policy. The Family Law Prof Blog digests the opinion.

Kentucky's Top Child Support Enforcers

Kudos to Oldham County Attorney John Fendley was honored as Kentucky's top child support contracting official for the fourth consecutive year.
The state government press release is reprinted below in its entirety. Thanks to Mike Stevens of the Kentucky Law Blog for sending this over.
"The Kentucky Cabinet for Health and Family Services honored child support contracting officials from 27 counties last month for top performance and significant improvement during the past year.
For the fourth consecutive year, Oldham County Attorney John Fendley was honored as the state’s top child support contracting official.
Magoffin County, led by special prosecutor Steve Fox, received the award for greatest improvement statewide.
The Division of Child Support, within the cabinet’s Department for Community Based Services (DCBS), administers child support enforcement jointly with local contractors. The division rated the performance of contractors in all 120 Kentucky counties during the fiscal year that ended June 30, 2006. In most instances, the Kentucky Division of Child Support contracts with a county attorney to administer its work, but in some cases a special prosecutor can be appointed.
Awards were presented for counties that made significant improvement in paternity establishment, child support establishment, child support collections and arrearage collections and for overall performance in all categories.
“In a year with many challenges, you have kept the focus of this program on Kentucky’s children,” DCBS Commissioner Tom Emberton Jr. told the officials. “As you continue to improve services, department staff will continue to support you with every available resource we have.”
Fendley and Oldham counties lead the state once again. Other top performers, in rank order, are as follows:

• County Attorney Jennifer Hutchison-Corbin, Adair County

Alternatives To Child Support Order?

In cases where both parents care for the children half the time and both earn equal incomes, there usually isn't a need for fixed child support, only an agreement for the division of agreed upon expenses. These arrangements are rare. In other cases our clients often want to make agreements for something other than fixed child support. Lee Borden, of Birmingham, Alabama, has a post on his Divorce and Family Law Blog, setting out the reasons such alternative agreements are not wise in other cases.
"I’m seeing an epidemic in my practice now of parents designing their own arrangement to avoid the need for child support. Many of their custom-designed plans work smoothly, but many of them disintegrate later. Are you sure it’s a good idea to give up child support?" The further link discusses the reasons it's not so smart.
There are many reasons to use traditional child support between parents after divorce:
It's a simple mathematical calculation in nearly every state. Although there are always judgment calls (for example, dealing with Mom's and Dad's incomes), the calculation of child support is remarkably objective in most states and in most cases.
It's simple to administer. Most child support payors pay child support by income withholding order. The money gets taken out of their paycheck just like taxes. They get accustomed to it, the money is there each month on a reliable schedule, and life is simpler for everyone. Even for parents who choose to make payments directly, the certainty of a monthly payment helps everyone know what to expect and requires no negotiation.
It's simple to collect child support. Every state has procedures to locate delinquent child support payors and get them back on a payment schedule, and an increasing number of states impose interest on unpaid child support, giving parents an extra incentive to stay current.
Judges like it. For the same reason that people in business once said "nobody gets fired for buying IBM," we can now say "no judge gets reversed for ordering guideline child support." The child support guidelines offer a safe haven for judges who want to ease their administrative burden, and as a result, almost all judges routinely order guideline child support whenever possible.
That having been said. in the world of cooperative divorce where I live and work, it's not at all unusual for one parent (usually the one who would normally be paying guideline child support) to say to the other, "let's do this other thing instead of child support." Maybe they will share all expenses 50/50. Maybe one parent will provide a residence or make a house payment or car payment in lieu of child support. Or maybe they will just agree to share expenses on a mutually agreeable basis.
There are many noble reasons why one parent may suggest this to the other. They may be hoping that the alternative arrangement will avoid the coldness of guideline child support. They may be recoiling from the drudgery of a fixed monthly payment and requesting instead a meaningful parenting role in the lives of their children. They may be longing for additional flexibility, so both parents will be able to help when and how they can best serve and can respond to the unexpected needs of the children without needing to go through lawyers and judges to do it.
There's a more subtle (and I believe, more common) reason, however, why many parents suggest alternatives to child support:
They want to continue to control the other parent, and they want to pay less money to do it.
If I could wave a magic wand, I would encourage custodial parents to be suspicious of and resistant to any arrangement in lieu of child support. There's just too high an incidence of parents taking advantage of the arrangement. Here are the ways I've seen these arrangements fail:"

Amnesty For Delinquent Child Support Obligors in Columbus, Ohio

While at first blush granting amnesty to delinquent child support obligors is offensive, if it works for back taxes maybe it will aid collection when all else fails. Janet Jangjhar reports in the Florida Divorce Law Blog, "The state of Ohio bears the dubious distinction of child support arrearages of nearly $5 billion.
Ohio prisons confine over 600 felons convicted of nonsupport of children.
Over 200,000 Ohioans have had their driver’s licenses suspended for nonpayment of support.
What will Ohio dish out next?
In Columbus, amnesty … What’s more, it seems to be working better than punishment.
Parents who make a payment and agree to a repayment plan are regaining their driving privileges and making a much bigger dent in the statewide arrearages.
The pilot program is now being tested in other metropolitan areas throughout the state."

Enforcing Child Support In Foreign Country

If your client has a U.S. child support order, but the obligor lives in a foreign country, here are a couple of websites that provide info for enforcement. U.S. Department of Health & Human Services ACF and U.S. Department of State.

Collecting Delinquent Child Support

The second annual list of Jefferson County, Kentucky Delinquent Child Support Obligors appeared in the Courier-Journal Sunday, August 13th, as an insert which we haven't yet found online. This year’s list contains the names of 936 individuals who, as of July 17th, have not made a child support payment for 6 months or longer and who have not responded to numerous attempted contacts by the County Attorney’s Child Support office. The insert listed the obligor’s name, last known address and child support owed. Readers with information on the current location of the obligors are asked to call the Child Support Hotline at(502)574-0821. All information is confidential.
Last year’s insert appeared in the Louisville Courier-Journal Sunday, July 31, 2005, and produced:
8,567 payments of $943,966.45
629 calls to the hotline number
341 new court dates set
485 non-custodial parent employers found
444 wage assignments sent to those employers
1,145 current addresses for obligors
“The results are phenomenal,” said Irv Maze, Jefferson County Attorney, in a press release. “In most cases, this is the first monetary support these children have seen from their non-custodial parent, despite numerous past attempts to collect.”
“My office continues to receive information and contacts which are resulting in payments to the children. I am very grateful for the public response to our efforts.”
Funding for publication of the Child Support Insert was granted by the Louisville Metro Council through the sponsorship of 18th District Councilwoman Julie Raque Adams.
UPDATE: The list is online at WHAS11.

Increase in Child Support

"The Supreme Court of Canada sent a warning to divorced parents on Monday that they better come clean when their income goes up, or they could face sizable retroactive child support bills, " reports the Family Law Prof Blog. "The Supreme Court stopped short of ordering a duty to disclose salary increases automatically, but the judges signalled that paying parents should do so as a matter of course because children of divorce have a right to a share of an income hike."
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