Divorce Law Journal

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  

 

Mullins v. Picklesimer Opinion Modification

Mullins v. Picklesimer, The substance of the opinion remains unchanged.  The Kentucky Supreme Court modified the opinion to clarify two points:

1.   that “physical custody” of KRS 403.800 to KRS 403.880 does not require exclusive care and supervision; rather, where one renders care and supervision concurrently with another or on an equal time-sharing basis, that person would have “physical custody” of a child per KRS 403.800-403.880; and

2.   that though KRS 403.822 primarily addresses a court’s jurisdiction to make an initial custody determination, the statute also implicitly identifies those parties who may bring an action seeking initial custody of a child and so also addresses standing in initial child custody determinations. 

 Here are the inserted paragraphs:

 Page 8:

"As used in KRS 403.800 to KRS 403.880, "physical custody" means "physical care and supervision of a child ." KRS 403.800(14) . This statutory definition of "physical custody" does not require exclusive care and exclusive supervision.  Thus a person like Mullins, who for the requisite period of time performed all the traditional parental responsibilities, concurrently with another or on an equal time sharing basis, had "physical custody" under the provisions of KRS 403.800 et. seq."  

Page 9:

"Although KRS 403.822 directly addresses the issue of the court's jurisdiction to make an initial custody determination, by identifying the adult persons who must be present in the forum state for jurisdiction to arise (parent or person acting as a parent), the statute implicitly identifies those persons as parties who may bring an action seeking initial custody of the child . It would make little sense to confer jurisdiction to this state when only "a person acting as a parent" resides here, and not at the same time confer standing upon that person to assert initial custody of the child . Otherwise, the state would have jurisdiction of the matter without any resident of the state having standing to bring an action to assert initial custody in the forum. That would clearly be an unreasonable interpretation of the statute, and is one which we believe our legislature did not intend. Moreover, it would make little sense for a person acting as a parent to have standing only if there is a jurisdictional dispute about which is the proper forum state, but not to have standing when there is not a jurisdictional dispute. Again, this would produce an unreasonable result."

Kentucky Court of Appeals Issues Two Published Family Law Cases Today

Anderson v. Thompson, denial of motion to modify timesharing affirmed; findings of fact are not required  when post-decree motions are denied.

Miller v. Harris, custody of deceased mother's children to great uncle and aunt, over objection of maternal grandmother, affirmed.

Digests to follow.

Family Law From Ky Supreme Court Today

There are no new published family law opinions. However, the prior opinion in Mullins v. Picklesimer was modified and a new opinion substituted. We'll have to study the new one, compare it to the prior one, and will post a revised digest if there is anything significant. We'll let you know.

Ky Court of Appeals Releases One Published Family Law Opinion Today

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

Kelsay v. Carson, Ky COA, Modification of Custody and Parenting Schedule

Kelsay v. Carson 2009-CA-002175-ME

Published:   Affirming

County: Boyle

 

Father appealed FC’s order making Mother primary residential parent of Child. 

 

FACTS:

Mother and Father, never married, had Child in 2000.  In 2004, FC entered Order awarding joint custody and designating Father as primary residential custodian.  In 2008, Mother moved FC to change custody, based on Father’s history of alcohol abuse, including 2 DUI’s in previous 18 months.  FC order joint custody to continue, but changed primary residential parent from Father to Mother.  Father appealed.

 

ANALYSIS:

CA noted that under Pennington v. Marcum, Mother was actually seeking change in parenting time, not a change in custody, and therefore falls under the purview of KRS § 403.320. This statute states that visitation/time-sharing may only be modified upon a proper showing that “modification would serve the best interests of the child.”  FC properly relied on Mother’s evidence that demonstrated that it was “in the best interest of the child” that Mother become the primary residential parent.

 

 

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

No Ky COA Published Family Law Opinions This Week

No Published Family Law Opinions From Ky COA Last Week

Caudill v. Caudill, Ky COA, Domestic Violence

Caudill v. Caudill, 2009-CA-002002-ME

 

Issue:  Domestic Violence Order entered by Family Court reversed.

Published:  Reversed

County:  Pike

 

    Bart A. Caudill appealed from a Domestic Violence Order entered by Family Court in Pike Circuit Court at the request of Kathryn L. Caudill.

 

    The parties were involved in a divorce action in the Floyd Circuit Court.  Kathryn filed a petition for a DVO in the Pike Circuit Court (the county where she resides) alleging that Bart had ignored her directions to stay away from her workplace and that she felt threatened by his verbal abuse.  She further alleged that Bart had a concealed carry permit but she didn’t know if it remained in effect.  After hearing testimony from both parties, the Court issued a DVO requiring Bart to stay 1000 feet away for 90 days except for visitation exchange and children’s school and sports activities.

 

    Bart moved to alter, amend or vacate the DVO seeking specific findings on what constituted domestic violence and abuse.  After hearing, Bart’s motion was denied and the Court explained that domestic violence occurred when Bart pushed his way through a door. Bart appealed.

 

    The Court of Appeals first ordered briefs on the limited issue of whether the appeal was moot because the DVO expired before the appellate record was transmitted to the Court.  Bart argued that an appeal testing the sufficiency of the evidence supporting the entry of a DVO is never moot because a DVO remains on the record of the alleged perpetrator forever and shows up on background checks for employment and volunteer activities.  The Court agreed that the continuing consequences of a DVO required resolution and the appeal was not moot.

 

    Bart argued that neither domestic violence and abuse or the future likelihood of violence and abuse was established.  To enter a DVO the Court must find from a preponderance of the evidence that domestic violence and abuse occurred and may occur again.  The standard requires sufficient evidence to establish that the alleged victim was more likely than not to have been a victim of domestic violence, as defined in KRS 403.720(1).  The standard of review for factual determinations is whether the family court’s finding was clearly erroneous, which is not the case if the findings are supported by substantial evidence.  The test is whether the findings of the trial judge were clearly erroneous or that he abused his discretion.  Abuse of discretion occurs when a court’s decision is unreasonable, unfair, arbitrary or capricious.

 

    The Court of Appeals found no testimony to support a finding of abuse as defined by KRS 403.720(1) and even the trial court characterized the case as “marginal” and granted the 90-day DVO to provide a cooling off period.  The court granted the DVO based on one occasion when Bart pushed Kathryn out of the way to enter the home.

 

    Lacking substantial evidence of domestic violence and abuse under the statutory definition, the Court of Appeals reversed the DVO entered by the Pike Circuit Court and remanded with direction to eradicate all traces of the erroneously entered DVO from the court record.

 

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

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

No Published Family Law Opinions From Ky COA Last Week