Reinle v. Com., 170 SW3d 417 (Ky. App., 2005)
Trial court erred in holding real estate sales proceeds for an
incarcerated child support obligor to be held by Master
Commissioner to be applied to future child support payments.
Equitable remedies are inapplicable when there is a plain,
adequate legal remedy, which exits under KRS 387.290(1) under
which a curator of the estate of a prisoner may be appointed to
provide for the support of the family and education of the children
of the convict.
In 1993 the Cabinet filed for child support against Larry on behalf of his ex-wife, Della. In July 1993 a judgment was entered settling child setting child support at $200 per month for the parties' two children, and Larry made the payments until he was incarcerated in the penitentiary in 2000 for arson and assault.
By early 2003 child support arrearages had accrued to in excess of $10,000, and the Nelson County Attorney's Office obtained a judgment and filed a lien against real estate owned in fee simple by Larry. The lien was enforced by foreclosure, and a net sum of $37,925.03 was realized by the sale, which proceeds were held by the Nelson County Master Commissioner.
Larry originally asserted a $5,000 homestead exemption but later withdrew this. Thereafter, Della filed a motion requesting that after the payment of arrearages, the Master Commissioner hold the remaining sale proceeds to be applied to future child support payments as they accrue. Larry objected, requesting that 50% of the net proceeds be paid to him pursuant to KRS 405.470(2). The trial court overruled his objection.
Larry appealed. The Court of appeals reversed. The Court disagreed with Larry that 50% of the proceeds were exempt under KRS 405.470(2), as the proceeds of the sale are not "disposable earnings," but the Court agreed with Larry that the trial court in essence created a trust for the benefit of the children, and that equity remedies are inapplicable when there is a plain, adequate legal remedy, which exists under KRS 387.290(1) which provides the District Court of the county from which a convict is sent to the penitentiary may, upon application of anyone interested, appoint a curator of the estate of the prisoner (over age 21), and Sub. 2 provides the curator shall out of the effects held by him provide for the support of the family and the education of the minor children of the convict.
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