Divorce Law Journal

Deviation From Child Support Guidelines - High Income, Ky Supreme Court Published Opinion May 5, 2016

MCCARTY V. FARIED

“Questions Presented: Family Law. Child Support. Income Exceeding Guidelines. Whether the trial court properly included projected expenses in the child’s reasonable needs when establishing an initial child support order for a high income parent.”

Father is an NBA basketball player earning a salary of $1,434,665 and an additional $197,240 in endorsements. Mother, who has primary physical custody of daughter, earns $1,050 and lives with her parents and other family members. After finding the child had reasonable needs of $4,250 per month, the trial court ordered Father to pay $4,250 a month in child support. The order was retroactive to the month following the month in which Mother filed her original motion for child support.

Father appealed and the Court of Appeals vacated and remanded the trial court’s order holding the retro-activity of the order was untenable and the trial court abused its discretion by not basing child support on the child’s responsible needs, stating the trial court relied on speculative evidence.

Mother sought and was granted discretionary review. The Supreme Court reversed the Court of Appeals and upholds the trial court’s order of $4,250 per month in child support. The Supreme Court first states that this case is clearly not bound by the child support guidelines, as the combined income of Father and Mother surpasses the limits of the guidelines. Thus, child support is within the trial court’s discretion when considering the reasonable needs of the child.

The Court of Appeals vacated the trial court holding that the reasonable needs of the child were based on speculative evidence citing prior Appellate Court cases Bell v. Catwright, 277 S.W. 3d 631 (Ky. App. 2009) and Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001). The Supreme Court holds that the Court of Appeals imposed an overly burdensome standard and inappropriately substituted its understanding of the child’s reasonable needs. The Supreme Court holds that on review “An order setting child support above the guidelines will be affirmed so long as the trial court sets out specific supportive findings and the award, as a whole , is reasonable in lights of those findings and the record.” In this case, the trial court properly held an evidentiary hearing and set forth specific facts supporting its child support award. The proof was not speculative just because some of the expenses had not yet been incurred by Mother.

Note that the Supreme Court differentiates this case from Bell and Downing because it is an initial request for child support and not a request for a modification bound by KRS 403,213(1) which requires a showing of material change in circumstances that is “substantial and continuing.”

The Supreme Court also upholds the  retroactivity of the trial court’s child support award holding that the effective date of child support is undisputedly “within the sound discretion of the trial court” and the child’s reasonable needs did not begin with the entry of the court’s support order supporting the retroactivity of any child support order.

Digested by Elizabeth M. Howell

Deviation from Child Support Guidelines - Low Income, Ky Supreme Court Published Opinion May 5, 2016

CARVER V. CARVER

Mother and Father, each collecting disability, had a child with Down Syndrome and significant health issues. The parties agreed to pay child support per the Kentucky guidelines, but Father never made any payments to Mother for support of the child.

Via Domestic Relations Commissioner, the trial court held a hearing on child support and found Father’s income totaled $1,391 per month, while Mother’s income totaled $938 per month, thus under the guidelines Father’s obligation was $232 and Mother’s was $157. Considering Father’s ability to pay, the court reduced Father’s child support obligation to the statutory minimum of $60 per month. No evidence was heard regarding the expenses of Mother nor the needs of the child.

Mother appealed and the Court of Appeals affirmed the trial court’s order. The Supreme Court granted discretionary review. First, the Supreme Court unequivocally states that the KRS 403.212 child support guidelines are presumptive guides and not black letter law. “Trial courts have broad discretion to deviate from the presumptive guidelines, limited only by reasonableness and actually making a record of the reasons for the deviation.”

The Supreme Court recognizes that in the case at hand, the needs of the child exceed the abilities of either Father or Mother to pay. While the child’s needs would allow the court to deviate from the guidelines and increase support, the disabilities of both parents are a reason for a downward deviation. The Supreme Court holds that while deviation was appropriate, the trial court acted incorrectly in failing to consider Mother’s income and expenses, or the reasonable needs of the child. By decreasing Father’s support the trial court allocated 25% of the child support obligation to Father and 75% to Mother without giving any rationale. Thus, the Supreme remands the case to the trial court for consideration of the child’s reasonable need for support and the allocation of the support between each parent.

Digested by Elizabeth M. Howell

Ky Court of Appeals Published Opinion Today: Grandparent Custody and Child Support

LAMBERT V. LAMBERT

Maternal grandfather who resided in Kentucky took possession of grandchildren whose mother resided in Pennsylvania, after mother took the children for a visit and never returned to retrieve the children. Grandfather filed a dependency, neglect, and abuse proceeding and was granted temporary custody of the children.

Grandfather subsequently filed a petition for child custody. After a hearing, the court granted custody to grandfather. Mother appealed arguing the court did not have jurisdiction, erred by granting custody without permitting her to present her case, considered inadmissible hearsay, and erred by ordering her to pay child support without evidence of income.

The Court of Appeals looks to KRS 403.822 and holds that the court had jurisdiction to grant grandfather custody. The KRS 403.800(7) definition home state is met as 1) the children had been living in Kentucky for over six consecutive months prior to the filing of the petition, and 2) grandfather was a person acting as a parent as he was awarded temporary custody in the dependency action.  Grandfather did not need to have de facto custodian status to bring an action for child custody.

Next the Court of Appeals looks to mother’s argument that the court erred by granting custody without permitting her to present her case. Mother was present, although under the influence of cocaine, at the custody hearing. As she made no attempt to offer any proof or evidence and did not objection to the guardian ad litem’s motion to grant grandfather custody or the entry of the decree, the alleged error is not considered by the Court of Appeals as it was not preserved for review. Notwithstanding, the court notes a directed verdict was appropriate given the evidence of mother’s conduct.

The court then considers mother’s hearsay argument. Mother argued that it was hearsay for the Kentucky social worker to testify as to information provided by the Pennsylvania social worker. The court finds it was likely inadmissible hearsay, but finds it was a harmless error. Mother also argued it was hearsay for the court to take judicial notice of the dependency action. Judicial notice was proper under KRE 201(b). The Court of Appeals holds this argument has no merit as judicial records are not subject to reasonable dispute and also admissible as public records.

Finally, mother argues that the court erred by ordering her to pay child support without evidence of income. The court imputed mother with minimum wage without hearing any evidence, despite the fact that mother has two other children under the age of three. The Court of Appeals finds the trial court abused its discretion by imputing minimum wage to mother in light of her caring for children under the age of three and order the court to input mother’s income at zero and order the minimum $60 child support award on remand.

Digested by Elizabeth M. Howell

Published Child Support Opinion from Ky Court of Appeals August 28, 2015

BOOTES V. BOOTES

Wife argued that the Trial Court erred by failing to include Husband’s income from a second business in its child support calculation. Husband ran a second business and gifted all his proceeds to his father. The Appellate Court held that the Trial Court erred by excluding the income from its child support calculation. Income from a small business, even if given away, is still income pursuant to KRS 403.212(2)(c). The Trial Court should have calculated the gross receipts of the business and subtracted the necessary expenses to determine the gross income to include in its child support calculation.

Wife also argued that the Trial Court erred when calculating the amount of income she was capable of earning. The Appellate Court affirmed the Trial Court, finding the Trial Court took appropriate factors into consideration when imputing income, including work history, prior income, and Wife’s new job. Next  Wife argued that the Trial Court erred by denying her maintenance and attorney fees. The Appellate Court again affirmed the Trial Court finding there was no abuse of discretion.

Digested by Elizabeth M. Howell

Another Family Law Published Opinion from Ky Supreme Court Today: Modifying Duration of a Child Support Order Issued by Another State and Award of Income Tax Dependency Exemption

Smyrichinsky v. Smyrichinsky

When Ky is exercising UIFSA jurisdiction, it lacks authority to alter the duration of child support directed by another state.

As to modification of the dependent income tax exemption, Ky has authority to modify who is entitled to the exemption  if it is part of a support order and not a property right. The court must articulate a sound reason why awarding the exemption to a noncustodial parent benefits the child, otherwise it should not be done.The court can only order a custodial party to sign a waiver releasing the exemption if there is a sound reason reliably related to the support of the child.

Ky Supreme Court Published Opinion Today: Social Security Retirement Dependent Benefits

C.D.G. v. N.J.S.

Where child receives social security retirement dependent  benefits, and child support obligation of retired child support obligor is not modified, child support payor is entitled to a credit against child support. And, where such benefits are paid retroactively so there is a fund available for recoupement, trial court did not abuse its discretion in ordering mother to reimburse father for the 22 months of dependent benefits paid in a lump sum.

Published Family Law Opinion from Ky Court of Appeals:Burden of proof that child support has been paid rests on obligors

SALLEE V. SALLEE

The Appellate Court vacated and remanded the Family Court’s denial of a Motion for Contempt for Father’s failure to pay child support. The Family Court incorrectly placed the burden of proof on the Mother/obligee to prove an arrearage was owed. Once the child support obligation is established, the child support obligor, in this case Father, carries the burden of proof. The Family Court also failed to make the findings of fact required by CR 52.01.

Digested by Elizabeth M. Howell

Ky Published Opinion - Agreement to Pay for Parochial School

CAGATA V. CAGATA

Husband and wife entered into an agreement at the time of dissolution, as part of a Marital Settlement Agreement, providing Husband would pay the costs of the children’s tuition, books, fees and uniforms for parochial high school, unless extraordinary financial circumstances prevented him from paying for it. The Trial Court found the agreement was unambiguous, there were no extraordinary financial circumstances, and ordered Husband to pay the cost of parochial high school. The Appellate Court affirmed the Trial Court, holding the agreement was an enforceable contract and Husband failed to show an extraordinary financial circumstances.

Digested by Elizabeth Howell

 

Published Child Support Opinion From Ky Court of Appeals Today: Testimony from Litigant Outside the Country and Application of Child Support Guidelines

MOSKOVITZ V. MOSKOVITZ

Appellant’s motion to modify child support was denied by the Circuit Court because Appellant could not attend a hearing in person. Appellant was a resident of Venezuela and unable to legally enter the United States. The Appellate Court reversed and remanded the Circuit Court’s decision, holding the Circuit Court abused its discretion, as the child support modification statute does not require a party’s physical presence at a hearing. The Circuit Court has an affirmative duty to apply the child support guidelines in any action to modify a child support order.

Published Child Support Termination Opinion from Ky Court of Appeals Today - Home-schooled high school senior

MIX V. PETTY

Appellant appeals the decision of the family court to terminate child support on May 30, 2014 for a home-schooled child remaining in high school after his 18^th birthday. Appellant argued child support should either terminate on June 30, 2014, or extend until the child completed his senior year in November 2014. The Appellate Court affirmed in part, upholding the family court’s decision not to extend child support through November 2014, given the trial court’s discretion and the circumstances of the case. The Appellate Court reversed in part, holding the plain language of KRS 158.050 sets June 30 as the end of the school year and the court erred as a matter of law in setting May 30 as the end of the school year.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals Today, Equitable Estoppel Precludes Vacating Paternity Judgment

K.W. V. J.S.

In Family Court, father made a CR 60.02 motion more than three years after entry of a paternity judgment, arguing the biological mother made material misrepresentations to him to induce him to agree to a paternity judgment. The Family Court denied the CR 60.02 motion and discontinued child support.

The Appellate Court affirmed the Family Court’s denial of father’s CR 60.02 motion. Father was equitably estopped from setting aside the paternity judgment, as the he allowed the children (twins) to call him “daddy,” maintained a relationship with the children, waited over three years to make a CR 60.02 motion, and evidence at trial demonstrated he knew he was not the biological father at the time he agreed to paternity, but did so for tax benefits. The Appellate Court reversed the Family Court discontinuation of child support, holding as the legal father he is required by statute to pay support. The fact that he is not the biological father of the children is not cause for deviation from the child support guidelines.  

Digested by Elizabeth M. Howell

Ky Published Family Law Opinion from Court of Appeals Today

Lambe v. Weber

The Appellate Court first addresses maintenance, holding that income should not be imputed to a spouse when her underemployment is not voluntary. In this case, the child’s medical needs prevented the mother from working.

The Appellate Court did find error with the Family Court’s conflation of child support and maintenance. The Appellate Court held maintenance is for the reasonable needs of a spouse. Expenses for children do not come within a spouse’s reasonable needs, as the children’s expenses are already included in the court’s child support calculation. Including children’s expenses in maintenance is inappropriate as it would ultimately require the obligor to pay all of the children’s expenses.

The Appellate Court also held that the nine year duration of maintenance was not adequately supported by the lower court’s findings when the marriage was 20 years long, the wife was only 48 years old, the wife had a bachelor’s degree, and expert witnesses found the wife to be employable. The Appellate Court remanded the maintenance decision for recalculating the amount and for additional findings supporting the  duration.

The Appellate Court then dealt with a slew of other issues, upholding all lower court decisions. They found no error with the  court’s consideration of gross vs. net income in setting maintenance, the consideration of gross income in setting child support, and the court’s use of a stock valuation from an expert witness. They held that the lower court had broad authority in assigning attorney fees and did not make an error assigning a portion of wife’s attorney’s fees to husband where the husband was high earning, the wife was unable to seek full time employment, and the court awarded only half the total amount of wife’s attorney’s fees.

The Appellate Court also upheld the lower court’s consideration of future and past earnings in calculating income; and upheld the decision to assign all the residential expenses to the wife, when the obligations were considered in calculating her expenses to determine maintenance. Finally, the Appellate Court affirmed the lower court’s refusal to modify maintenance, as the husband showed no change of circumstances to justify a modification.

 

 

 

 

Second Family Law Published Opinion from Ky Court of Appeals Today

Shelton v. Shelton

Trial court denied father's motion to reduce child support. Father had burden of proof to show substantial and continuing change of circumstances. Even though at time of agreement youngest child was age two and no income was imputed to mother and at time of hearing child was age four and mother was still not working, trial court was unable to find father's income from self-emloyment due to lack of documentation. The court's conclusion that there was insufficient evidence to find a change in circumstances that would justify modification was affirmed.

Published family law published opinion from Ky Court of Appeals today. Tax dependency exemption agreement is modifiable.

Smith v. Lurding

The appellant argued that the tax exemption for a child was non-modifiable because it was a bargained-for property right. The court looked to the language of the Agreement and held that the tax exemption was indeed modifiable because of the 4 corners doctrine. The agreement about the tax exemption was within the Agreement’s paragraph on child support. The Agreement itself expressly allowed modification for the child support provision. Additionally, the court indicated that allocation of a tax exemption for a child may be modifiable in any circumstance under KRS 403.180(6) which prevents parties from limiting or precluding the modification of issues concerning child support, visitation, and custody.

Published Ky Child Support Business Income Opinion from Court of Appeals June 20, 2014

Hawkins v. Hawkins

The appellate court affirmed the family court’s decision to exclude income from W’s limited partnership in child support calculations. The court held that income generated from an ownership interest in a limited partnership may be considered income in calculating child support. In this case, W had no control over the distribution and there was no evidence in the record showing  a cash distribution (K1 line 19), so the court found the family court properly determined the income from the partnership, while taxable income, was not disposable income.

The appellate court’s dissenting opinion found the case should be reversed and remanded to make finding as to the income W received as a distribution. The dissent indicates the family court’s decision could have been an abuse of discretion if it did not include the partnership income because it found that partnership distributions should not be considered income.

Published Family Law Opinion from Ky Court of Appeals May 30: Divorce Settlement Incorporated in Decree Which Reserved Child Support Does Not Extinguish Pendente Lite Arrearage

 Wolfe v. Wolfe

Parties entered into a mediation agreement and  advised the trial court that all issues had been settled with the exception of child support. The parties agreed they would supply income information for the child support worksheet. The mediation agreement was silent as to the child support arrearage. The parties dissolution of marriage was entered incorporating the mediation terms. The decree was also silent as to the child support arrearage. After the final degree was entered, the arrearage was brought to the court’s attention in a Motion for Reconsideration. The trial court denied the Motion holding the mediation settled all matters. The Appellate Court reversed and remanded because the mediation did not settle on the child support issue, and any support is for the benefit of the child, and it is fixed once it accrues.

 

One Published Familly Law Opinion from Ky Court of Appeals May 16, 2014:Hempel v. Hempel. When child support is reversed on appeal, overpaid child support cannot be recouped unless there is an accumulation of benefits not consumed for support. If the ove

Hempel v. Hempel.  When child support is reversed on appeal, overpaid child support cannot be recouped unless there is an accumulation of benefits not consumed for support. If the overpayments have already been expended to benefit the child, no recoupment is allowed, even when a fund equivalent to child support is available. A college fund would not be equivalent to child support even if equivalency were allowed.

No Child Support Credit for Child's Social Security Retirement Dependent Benefit. One Published Family Law Opinion from Ky Court of Appeals Today

N.J.S. v. C.D.G.  Because the Ky child support statute does not authorize a credit against child support for child’s social security retirement dependent benefit, it was error allow such a credit and to order that payor be reimbursed for child support overpayment from the child’s retroactive lump-sum benefit. Concurring opinion underscores the need for legislative fix as is currently provided for with respect to disability dependent benefits.

Three Published Family Law Opinions from Ky Supreme Court Yesterday

Bell v. Bell  Unreimbursed business expenses may not be deducted from the gross income of an employed parent in calculating child support. However if trial court finds the amount of unreimbursed expenses an extraordinary factor, it may deviate from the guideline award to reach an equitable result.

 

Cabinet for Health and Family Services v. K.H., Sr.   Family court made particularized finding of abuse by each parent which was supported by substantial evidence and properly considered each of the six statutory factors in determining that termination of parental rights was in the child’s best interest. Court of Appeals opinion was therefore reversed and the family court’s order terminating parental rights was affirmed.

 

Coffey, et al v. Wethington  A person acting as a parent has standing to bring a custody action. If the person acting as a parent has physical custody of the child at the time the action is commenced, standing exists and it need not have been for six consecutive months. The six month requirement applies only to persons who had physical custody in the past but who do not have physical custody at the commencement of the action.

Three Published Family Law Opinions from Ky Court of Appeals Today

Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs.

 

D.L.B. v. Cabinet for Health and Family Services, et al  Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion.

 

Murry v. Murry  Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and presents more problems than it resolves falls short of the requirement that necessary facts be found specifically so case was remanded to trial court to make further factual findings.

One Published Family Law Opinion from Ky Court of Appeals Today

Smyrichinsky v. Smyrichinsky  http://opinions.kycourts.net/coa/2013-CA-000181.pdf Where both parties and the child have moved from the state issuing original child support order, trial court properly applied Kentucky law. The Court noted that the mother did not object to the application of Ky law until the third time the Ky court modified support. Trial court allocation of income tax dependency exemptions to father for three specific years affirmed.  

CR 60.02 motion for relief from child support for non-biological child, case digest, Hughes v. Hughes, Ky Court of Appeals

Hughes v. Hughes, 2012-CA-000077-ME

Published:   Affirming  

County:  Jefferson

Ex-Husband appealed FC’s order denying his CR 60.02 to terminate child support for child not biologically related to him.

FACTS:

While Husband was serving in the Navy, Wife filed for divorce.  Paternity of the four minor children was not placed an issue in the petition.  Subsequent to the filing of the petition, but prior to entry of the decree, the parties submitted privately to paternity testing of the youngest child.  The Decree of Dissolution was entered prior to the parties’ receipt of the result of the paternity test.  The Decree ordered child support for all four children.  Subsequently, the parties received the results of paternity testing indicating that the youngest child was not the biological child of Ex-Husband.  Ex-Husband continued to pay full amount of child support.  Some years later all four children learned that Ex-Husband was not youngest child’s biological father. 

All of Ex-Husband’s biological children were emancipated by 2010.  Ex-Husband nonetheless continued to pay the full amount of child support for his unemancipated, not biologically related child.  Ex-Husband’s income had increased substantially at this time, while Ex-Wife was receiving state assistance due to her status as a full-time student with a part-time job.  Thus, in 2011, the Cabinet filed a motion to intervene and to modify child support on Ex-Wife’s behalf.  In response, Ex-Husband filed a CR 60.02 motion to terminate child support based on emancipation of his three biological children and the fourth child being not biologically related.  FC denied 60.02 motion, finding that it was not filed within a reasonable time, and Ex-Husband was therefore estopped from seeking relief from his child support obligation.  FC also increased child support from $863.64 to $1,009.00 per month for the nonbiologically related child. 

ANALYSIS:

“Reasonable time” requirement of CR 60.02 is within FC’s discretion.  Given that Ex-Husband had known since 2001 that he was not the biological father of the youngest child but continued to act as her legal father, FC did not abuse its discretion in denying his motion.  Further, it was not necessary for FC to consider whether doctrine of paternity by estoppel was implicated, as requested in Ex-Husband’s CR 52.04 motion.  CA held that FC correctly ascertained that the legality of Ex-Husband’s fatherhood is sufficient in this case to allow for the payment of child support.  It is in youngest child’s best interest for her legal father, Ex-Husband, to contribute adequate child support and supportive parenting.

Affirmed.

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

Digest of Shafizadeh, multiple issues, Ky Court of Appeals

Shafizadeh v. Shafizadeh, 2010-CA-000758-MR

Issue:  jurisdiction, findings of fact, imputation of income, attorney fees, modification of child custody and timesharing, garnishments, CR 60.02

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

County:  Jefferson

In three separate appeals, Ex-Husband appealed numerous orders of FC.

FACTS:

Parties were married for twenty-six years, and at time that Wife filed for dissolution, they had two minor children and two adult children.  Wife worked as a bank manager during the marriage but left that employment in 2005 to provide full-time care for the parties’ children.  Husband is a businessman and a licensed attorney. During the marriage, Husband incorporated three different businesses, including his law firm.  In 2007, his income from the businesses was $40,000.  The parties entered a Marital Settlement Agreement dividing these assets, and Husband was required to make a cash equalization payment to Wife as a result.  They also entered a custody agreement in which they shared joint custody and a parenting schedule.  A trial was held on child support, maintenance, and division of the remaining marital property.  FC divided the value of the remaining marital assets equally between the parties, restored two nonmarital assets to Wife, and allocated debt.  FC also awarded Wife $750 “open-ended” monthly maintenance and attorney’s fees of $6,412.  Lastly, FC concluded Husband was voluntarily under-employed, imputed earnings to him of $60,000 per year, and set child support at $859 per month. 

ISSUES AND ANALYSIS:

Jurisdiction: 

Before FC issued its opinion, Husband filed petition to disqualify judge.  FC subsequently entered its opinion, and SC later denied Husband’s petition.  Husband claimed because petition for disqualification was pending when FC issued its opinion, FC had no jurisdiction at that time.  CA held that while petition was pending, FC lacked jurisdiction over the particular case (but not subject matter jurisdiction), rendering FC’s opinion premature, and voidable, depending on the outcome of SC’s opinion.  As SC denied the petition, the opinion and order was given full force and effect. 

Dissipation and Request for Findings of Fact:

Husband claimed FC failed to consider and issue findings regarding funds Wife spent on Christmas gifts, in loans to relatives, and for household expenses and maintenance.  Wife contended FC adequately addressed all issues in its order, and even if not, Husband failed to address this complaint in his Motion to Alter, Amend or Vacate.  CA agreed with Wife that because Husband failed to raise the issue in his CR 59 motion, he could not raise it on appeal. 

Maintenance:

Husband claimed that because Wife received $529,301 in marital assets plus her nonmarital assets, she did not lack sufficient property to provide for her reasonable needs; furthermore, he claimed that she is able to support herself through reasonable employment; therefore, she should not be awarded maintenance.  CA found FC’s findings were supported by substantial evidence regarding the entitlement to and the amount of maintenance, but agreed with Husband that FC erred in awarding  “open-ended” maintenance, holding that such an award thwarts the goal of severing all ties between the parties.  This issue was remanded to FC.

Child Support and Imputation of Income:

FC found that Husband operated businesses that do not appear to make a profit and that he earned more than was reflected on his tax returns, and also took note of his earning capacity as an attorney.  Husband claimed that FC erred by basing its opinion on the business’ profitability in the past.  Wife countered that Husband chose not to use his skills and education and concentrated his efforts on non-profitable businesses and chose not to accept legal clients.  CA held that although Husband’s businesses may not be currently profitable due to the economy, he was not fully using his entrepreneurial and business skills and could earn more in the legal industry. 

Attorney Fees:

Husband claimed no imbalance of financial resources existed to support attorney fee award.  CA disagreed, noting difference in incomes and distribution of debt. 

Modification of Child Custody and Timesharing:

1. Wife sought to relocate to Louisiana with minor children and filed Motion to modify parenting time schedule.  FC granted Wife’s motion.  Husband filed writ petition with SC claiming Wife’s motion was actually motion for change of custody that lacked requisite affidavits, relying on Brockman v. Craig, though SC overruled Brockman to the extent it was inconsistent with Pennington.  SC rejected Husband’s writ and CA did as well. 

2.  Husband filed motion to modify joint custody or, alternatively, modify time-sharing, while Wife’s motion regarding relocation was pending.  Attached to Husband’s motion were 4 affidavits and 2 declarations.  FC denied his motion, finding that it was filed in less than 2 years from the original order and was missing the requisite 2 affidavits.  CA held that declarations could not meet the affidavit requirement because they were not sworn testimony.  CA held that FC erred in dismissing the motion for lack of jurisdiction, however, as at least 2 affidavits were submitted.  CA directed FC, on remand, to determine whether affidavits state sufficient facts to justify a hearing on the motion. 

Garnishments:

Wife sought garnishments for attorney fee award.  Husband claimed his bank account could not be garnished because it held only his wages.  CA disagreed, holding there is no statutory protection for wages placed in the debtor’s control/possession.  Husband also requested and was denied sanctions and attorney fees because his social security number was included on the garnishment orders.  CA held this decision was within FC’s wide discretion, and FC did not abuse such discretion.  Lastly, as Husband filed his motion pro se, there were no attorney fees to recoup. 

CR 60.02:

Husband filed CR 60.02 motion to correct attorney fee award, claiming $945 of the award was incurred by Wife’s attorney in responding to Husband’s EPO appeal, in which CA did not grant Wife’s request for sanctions; therefore, Husband claimed, FC could not award attorney fees to Wife related to that appeal.  CA noted that a chief factor guiding the grant of CR 60.02 relief is the moving party’s inability to present his claim prior to the entry of the order sought to be set aside.  CA held that Husband could have and should have raised this issue in his direct appeal of the order awarding attorney fees. 

Affirmed in Part, Reversed in Part, and Remanded.

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

Hempel v. Hempel, Ky COA, Parenting Time, Imputed Income, Property Division

Hempel v. Hempel, 2011-CA-000763-MR

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

County:  Oldham

Ex-Husband appealed FC’s order, contending that FC erred by imputing income to him for child support purposes, by arbitrarily reducing his parenting time, and by making an unequal division of the marital estate. 

Parenting Time:

CA agreed with Ex-Husband that there was no substantial evidence to support FC’s finding that he had not regularly exercised the parenting time allotted to him before trial, and that evidence clearly showed that he saw children on an almost daily basis.  CA held that FC clearly erred on this issue and remanded for further consideration of the issue.

Child Support:

CA agreed with Ex-Husband that as there was no evidence introduced to show the strength or nature of prevailing job opportunities or the expected earnings levels in the community, and as FC gave no explanation as to how it determined that Ex-Husband could be expected to earn at the same level as Ex-Wife, there were inadequate findings for CA to conduct meaningful review of the decision and the issue was remanded to FC for further findings. 

Division of Marital Estate:

CA did not agree with Ex-Husband that FC erred by not giving him equal share of marital estate.  CA found no evidence that FC considered any factors other than statutory criteria and that FC did not abuse its discretion in the division. 

UGMA accounts:

CA did not agree with Ex-Husband that FC erred by failing to permit him to oversee the Uniform Gifts to Minors Act accounts of the children.  CA noted that under statutory provisions, Ex-Wife as monitor of the accounts must keep records available for inspection and that Ex-Husband was permitted to inspect the account. 

Affirmed in Part, Vacated in Part, and Remanded.

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

J.M., Father v. A.D., Mother, Ky COA, Child Support, Evidence of Payment

J.M., Father v. A.D., Mother

No. 2012-CA-000358-ME

Published: Opinion Vacating and Remanding

County: Jefferson

J.M. (Father) appeals from Jefferson Family Court order granting A.D.’s (Mother) petition to alter or amend a previous order.

The parties were never married, but they had a child born in 2009.  Soon after the child was born, the Mother and child relocated to Virginia.  In April, 2010, a Virginia court granted the parties joint custody, with mother receiving primary physical custody and Father receiving regular visitation.  In June, 2010, Mother filed a petition for child support in Virginia, which was transferred to Jefferson Family Court.  In November, 2010, Jefferson Family Court entered an order setting child support at $521 per month, reserving the issue of arrearages.  Mother filed petition to amend child support order to include child care costs and arrearages.

In March, 2011 Mother served interrogatories and requests for documents, to which Father failed to respond.  Mother filed a motion to compel production of the documents and a motion for a hearing to determine arrearages.  At the time of the hearing, Father had not produced any of the requested discovery.

During the hearing in June, 2011, Father testified that he had sent Mother approximately $6300 in child support prior to incurring any court-ordered obligation.  Mother testified that she thought Father had sent approximately $1800 during a six-month period.  Father had no documentation at the hearing and the court gave him 14 days to submit copies of checks written to Mother.  Father submitted photocopies of check carbons from his checkbook.

In August, 2011, the court entered an order finding Father had failed to produce sufficient evidence of support payments to Mother, but failed to make a determination of arrearage owed.  In response to Mother’s petition to alter or amend the order to include arrearages, Father filed photocopies of canceled checks demonstrating that Mother had cashed checks totaling $6491.00.

The court entered an amended order finding that Father’s evidence was improperly submitted and found arrearages to be $7,580.00.  Father appealed from that order, arguing that because the trial court erred when it did not consider his proffered evidence of payments, its calculation of arrearages was erroneous.

Kentucky RCP 52.01 provides that in actions without juries, the trial court’s findings of fact should not be reversed unless clearly erroneous, which occurs only when there is not substantial evidence in the record to support the trial court’s findings.

The Court of Appeals found that a carbon copy of a check does not prove Mother received or cashed the check.  Father argues however, that he did file correct documents with his reply to Mother’s motion to alter and amend the judgment.  The trial court erred by not considering the copies of the cancelled checks, Mother having opened the door by filing the CR 59.05 motion.

Neither party had clean hands; Father was recalcitrant in producing checks and Mother misrepresented the amounts of payments she received.  In order to avoid manifest injustice, 1the matter was vacated and remanded to the trial court for hearing on the relevance of the checks and entry of an appropriate order.

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

McIntosh v. Landrum, Ky COA, Child Support, Child Care Costs, Attorney Fees

McIntosh v. Landrum

NO. 2012-CA-000161-ME

Published:  Opinion Affirming

County:     Kenton

Father appeals order of Kenton Circuit Court requiring him to pay, as part of his child support, amounts for respite care and work-related childcare, as well as part of Mother’s attorney fees and court costs.

The parties were married in 1994 and divorced in 2007.  They have two children, one of whom requires extra care because of autism.  At the time of the divorce, Father lived in Cincinnati and Mother lived in Ft. Mitchell, Kentucky.  In January, 2011, Father took a job in Abu Dhabi, United Arab Emirates earning approximately $32,000 a month.  Mother also went to work earning $46,000 a year.

Mother filed a motion in March, 2011 because Father was unable to exercise parenting time after his move to Abu Dhabi.  She asked that Father be required to pay for a sitter to give her time off from caring for the children.  She also requested that he share work-related childcare costs and her attorney fees.  Even after Father’s subsequent move to Texas, he was unable to exercise parenting time on a regular basis.

The trial court ordered Father to pay 100% of any childcare costs incurred when he did not exercise his parenting time, which was designated as respite care.  Father was also ordered to pay work-related childcare expenses and to pay $3500.00 of Mother’s attorney fees.  After Father’s motion to alter, amend, or vacate was denied, this appeal followed.

Father first argued that respite care is not authorized under Kentucky law.  The Court of Appeals disagreed, finding that the award of respite care was similar to work-related childcare, and was not an increase in Father’s general child support obligation.  This expense was specifically and adequately justified by the trial court.

Father further argued that the trial court erred when it awarded Mother work-related childcare expenses.  He claimed that even if she incurred the expenses, they were only temporary.  Again, the Court of Appeals disagreed, holding that Mother had only to prove that there had been a change of circumstances requiring the payment of work-related childcare expenses.  Father had to pay his share of those expenses, whether or not they were temporary.

The Court of Appeals found no abuse of discretion in the award of $3500 in attorney fees.  Father earned $450,000 in Abu Dhabi and about $250,000 after his move to Texas.  Mother only earned $46,000 per year. Because of the disparity in the parties’ incomes, the award of attorney fees was not an abuse of discretion.

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

 

 

 

Ky Supreme Court Grants Discretionary Review of Two Unpublished Court of Appeals Opinions

McFelia v. McFelia. Child support where parents share time with the children almost equally. 

Bell v. Bell. Exclusion of unreimbursed business expenses from income of employed obligor for child support purposes. 

Nosarzewski v. Nosarewski, Ky COA, Child Support Reimbursement for Child Care Expense Not Incurred

Nosarzewski v. Nosarzewski

No. 2011-CA-002148-ME

Published: Opinion Affirming

County: Fayette

Mother appeals from a judgment awarding $10,828.61 to Father for overpayment of child care expenses.

In 1999, a child support order established father’s obligation at $453.00 per month, which included $270.56 in child care expenses.  In 2003, father sought a reduction in child support but was advised by the County Attorney he did not meet the requirements for modification.

In June, 2011 father filed a motion for reimbursement of child care expenses and modification of child support.  He sought reimbursement of $18,366.59 for child care expenses which were never incurred.  Mother appealed father’s motion, arguing that he had unreasonably delayed requesting a reduction of child care expenses.

Following a hearing, the court concluded father was entitled to reimbursement of $10,828.61 for the overpayment of child care expenses.  Mother filed a motion to set aside the order, asserting that the doctrine of laches barred father’s claim.  Mother’s motion was denied and the parties executed an agreed order providing father a credit of $200.00 against his monthly child support obligation to satisfy the judgment.  This appeal followed.

Mother contends the trial court erred by concluding that the doctrine of laches did not bar father’s claim.  After a hearing, Mother’s counsel conceded laches had not been established because neither party was aware that a decrease in child care expenses warranted modification of support.

Father testified that he was advised by the County Attorney in 2003 that he was not eligible for reduction, and both parties testified they did not understand how child care expenses factored into the calculation of child support.  The Court concluded the trial court did not abuse its discretion by rejecting mother’s laches defense.

Mother argued that according to Clay v. Clay, 707 S.W.2d 352 (Ky. App. 1986), an overpayment of child support cannot be recouped unless there exists an accumulation of benefits not consumed for support. The Court of Appeals held, however, that Olson v. Olson, 108 S.W.3d 650 (Ky. App. 2003) controls the outcome of this case.  Olson held that the modification of child care expenses is appropriate when warranted by the facts, regardless of whether there is a 15% material change in circumstances.

The trial court considered all the facts including mother’s evidence to mitigate the amount father sought to recoup and the parties’ agreement which minimized the detrimental effect on the child by providing credit against father’s child support obligation.  The trial court’s judgment was supported by sound legal principles and there was no abuse of discretion, thus the judgment was affirmed.

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

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

Roberts v. Bedard

2011-CA-000212-ME

Issue:  Modification of foreign child support orders

Published:  Affirming

County: Fayette

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

FACTUAL AND PROCEDURAL BACKGROUND:

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

ANALYSIS:

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

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

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

FC affirmed.

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

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

Comm. of KY, et al v. Ivy

No. 2010-SC-000527-DGE

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

County: McCracken

Issue: Extent of child support and arrearage to be paid by non-custodial parent whose only income is SSI.

 

 

The Cabinet for Health and Family Services moved the trial court to hold Ivy in contempt after she fell behind in child support payments.  At the hearing, Ivy presented evidence that her sole source of income is SSI, which is inadequate to meet her own needs.  The trial court reduced her child support, held her in contempt for failure to pay the past due amount, and ordered that future failure to pay would result in her incarceration.  Ivy appealed and the Court of Appeals reversed, holding neither the contempt finding nor the order to pay could stand because Ivy does not have the ability to pay.

The Supreme Court granted the Cabinet’s motion for discretionary review to consider in what manner and to what extent SS recipients may be held accountable for child support.

In 2008, Ivy had been ordered to pay $106.00 for the support of her child, D.G.  By virtue of assistance provided to D.G., the Cabinet became assignee for support due him and in February, 2009 brought its motion for contempt.  At the show cause hearing, Kenneth Anderson, an attorney who serves as guardian and/or payee for SSI beneficiaries testified that Ivy is one of his clients and that after payment of Ivy’s rent and utilities, she receives less than $50.00 monthly.

The trial court reduced her child support to $60.00 per month and held her in contempt because she was an able-bodied person capable of providing financial support for her child.

The Court of Appeals held that the record did not support a finding of contempt or the imposition of a support obligation.  Accordingly, the trial court had abused its discretion in finding her failure to pay contemptuous and ordering her to pay support and arrears she did not have the ability to pay.

The Supreme  Court reversed the Court of Appeals’ decision to the extent that it suggests that a SSI recipient-parent’s present inability to pay precludes even the assessment of child support, but vacated the existing order and remanded for the family court to determine if the guidelines-based amount would be unjust or inappropriate pursuant to KRS 403.211(2).

The Supreme Court affirmed the Court of Appeals holding that a contempt finding was inappropriate where there was insufficient evidence that Ivy’s failure to provide child support stemmed from any reason but her inability to do so.

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

 

Published Family Law from Ky Supreme Court Today

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

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

Digests to folow.

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

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

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

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

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

County:     Scott

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Howard v. Howard

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

Published:  Affirmed

County:     Laurel 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

Foster v. Fortner, Kentucky Court of Appeals

Published:  Reversing

County: Johnson

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

FACTS:

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

ANALYSIS:

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

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

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

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

McGregor v. McGregor

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

Published:  Affirmed

County: Jefferson

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

 

Facts

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

 

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

 

ANALYSIS:

Parenting Schedule

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

 

Imputation of Income

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

 

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

 

Deviation from Child Support Guidelines

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

 

Maintenance

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

 

Assignment of Debt

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

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

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

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

and

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

Published:   Reversing & Remanding

County:  Barren

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

Published:   Affirming

County:  Jefferson

 

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

 

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

 

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

 

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

 

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

 

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

Family Law From Kentucky Supreme Court This Month

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

Looking For A Split Custody Rep For Ky Child Support Commission

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

Hallis v. Hallis, Ky COA, Child Support

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

Published:   Affirming

County: Fayette

 

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

 

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

 

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

 

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

 

 

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

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

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

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

County:  Jefferson

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

CHFS v. Bowman, 2009-CA-001830-ME  

Published:   Affirming

County: Jefferson

 

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

 

FACTS:

Mom and Dad divorced while Child was toddler.  MSA provided that Dad would be primary residential parent and  neither parent would pay child support.  Ten years later, FC suspended Dad’s visitation and ordered him to pay $623 monthly child support, including contribution to health insurance premiums.  Parties subsequently entered an Agreed Order that Dad would pay for Child’s health insurance premiums but would pay no child support.  Thirteen months later, CHFS filed motion to intervene to modify the child support obligation.  FC sustained the motion. CHFS filed a motion seeking child support from Dad. Dad testified that Mom entered current agreement that he not pay child support due to fact that she had not paid child support during the ten years when Child primarily resided with him.  Mom testified that she believed she was only waiving child support arrears in that agreement and that she was currently seeking child support from him because he was not maintaining health insurance on Child, a fact that FC found to be in error.  FC denied the motion, finding no change in circumstances because there had been no change in income and that Mom and Dad had both been represented by counsel when they agreed that Dad would pay no child support to Mom, and that the Agreed Order was fair to all parties based on the Mom having paid no child support to Dad when he provided Child’s primary residence. 

 

ANALYSIS:

CHFS and Mom argued that because child support at the time the motion to modify was filed was zero, there was clearly at least a fifteen percent (15%) change in the amount of child support due. However, CA found that as Mom was still not working and Dad was earning the same income and providing insurance at the time the motion to modify was filed, there had been no material change in circumstances since the time the parties had entered into the agreed order that warranted modifying child support. Thus, any presumption that there was at least a fifteen percent (15%) change from the current child support ($0) and the current amount of child support per the guidelines was overcome as a matter of law by the court’s determination that no material change in circumstances had occurred. CA held that the burden was on CHFS and Mom to prove a material change in circumstances, which they failed to do. CA further found it significant that neither CHFS nor Mom set forth any arguments or evidence demonstrating that Child’s physical needs were not being met. CA noted that CHFS and Mom were really challenging the initial order setting a $0 child support amount, arguing that FC did not consider Child’s financial needs and that it is against public policy for parents to agree by contract to not support their children. CA found that they should have appealed from the Agreed Order and not sought a motion to modify.  Nonetheless, CA found no abuse of discretion in Agreed Order even if it had been properly challenged.  Deviation from the guidelines is permitted under KRS 403.211(3)(g), which provides that a court may deviate for any factor of an extraordinary nature identified by the court which would make application of the guidelines inappropriate. Here, FC found that Mom had never paid any child support in the ten years Dad had primary custody of Child, an appropriate factor for deviation.

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

 

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

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

Issue:  Modification of Child Support

Published:   Vacating and Remanding

County: Franklin

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

 

FACTS:

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

 

ANALYSIS:

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

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

 

Ky Court of Appeals Releases One Published Family Law Opinion Today

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

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

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

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

Published:  Reversed

County:  McCracken

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lichtenstein v. Lichtenstein, 2008 SC-000661-DG

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

Published:   Reversing

County: Jefferson

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Analysis

 

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

 

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

 

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

 

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

Ky Supreme Court Releases Two Family Law Opinions Today

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

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

Digests to follow.

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

Artrip v. Noe, 2009-SC-000260-DGE   

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

Published:   Affirming (With Concurrence in Result Only)

County: Fayette

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

FACTS:

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

ANALYSIS:

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

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

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

NOBLE, J., CONCURRING IN RESULT ONLY:

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

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

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

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

Holland v. Holland, Motion Required Before Child Support May Be Modified

Holland v. Holland, __ S.W.3d __ (Ky. App. 2009), 2008-CA-002115-ME

       At the time the parties divorced in 2007, the father was living in Hardin County, Kentucky and the mother was living in Jefferson County, Kentucky.  The trial court entered an order outlining various contingencies regarding parenting time and child support.  If the father moved to Louisville within ninety days of entry of the court’s order, the parties would share equal parenting time and determine an appropriate child support obligation.  If the parties could not agree on child support within 30 days of his relocation, the father could file a motion for modification of child support.  When the father actually relocated to Louisville, the parties could not agree on child support.  A hearing was scheduled on the matter on December 4, 2007, but the father never filed a written motion for modification.  Following the hearing, the trial court entered an order requiring that the new parenting schedule begin on December 8, 2007.  Then the court entered an order in May 2008 reducing his child support obligation.  The father asked the trial court to make the reduction retroactive to December 8, 2007, the date the new parenting schedule began.  The trial court denied his request since no written motion for modification of child support had been filed.     

The COA affirmed.  No oral or written motion for modification of child support had been filed.  The mother cannot be divested of child support payments that have already been accrued.  Since a court speaks through its written orders, no child support modification occurred until May 2008.  Pursuant to KRS 403.213(1), a written motion for modification is required before a trial court may change a child support award. 

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