HORACE EDWARD THRONEBERRY, JR. v. DEBORAH K. THRONEBERRY
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RENDERED:
March 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1415-MR
HORACE EDWARD THRONEBERRY, JR.
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MASON L. TRENAMAN, JUDGE
CIVIL ACTION NO. 78-CI-009570
DEBORAH K. THRONEBERRY
APPELLEE
OPINION
AFFIRMING
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BEFORE:
COMBS, GUIDUGLI and JOHNSON, Judges.
GUIDUGLI, JUDGE.
Appellant, Horace Edward Throneberry, Jr.,
(Horace) appeals a Jefferson Circuit Court order which required
him to pay a child support arrearage of $712.56 and unpaid
medical bills and insurance premiums of $1,009 despite his having
a voluntary overpayment in child support of over $2,200.
Having
thoroughly reviewed this matter, we affirm.
The parties to this action, Horace and Deborah K.
Throneberry (Deborah), were divorced by decree entered on May 9,
1979.
There was one child born of the marriage.
That child,
Carla Renae Throneberry, (Carla Renae), was born on August 31,
1978, and graduated from high school in June, 1996, and became
eighteen on August 31, 1996.
At the time of the dissolution of
marriage, the parties had entered into a property settlement
agreement which was incorporated into the decree.
Issues
addressed in the settlement agreement, which are the basis for
this appeal, are child support, medical expenses, and
hospitalization (insurance) coverage.
Specifically in the
settlement agreement the parties agreed that Horace would pay $40
per week for the support and maintenance of Carla Renae until she
reached the age of majority and that Horace agreed to maintain
and keep in force at all times a hospitalization plan for the
benefit of Carla Renae and to be fully responsible for any
medical and dental expenses not covered by the hospitalization
plan.
Sometime in 1987, criminal prosecution for non-support
was undertaken by Deborah based upon child support arrearage of
over $5,000.1
According to the parties, Horace, based upon a
court order emanating from the criminal prosecution, was ordered
to pay regular child support of $40 per week plus an additional
$20 per week towards the arrearage until said arrearage was paid
in full.
Horace did make the court ordered payments and on
December 17, 1993, had fully paid the arrearage.
Horace
thereafter continued to pay the extra $20 per week.
Horace
claims that the payments were made so that, in the future, if he
was unable to work he would not again be prosecuted for
non-support.
Deborah states that there was no agreement or court
1
There is nothing in the record concerning the child
support arrearage or the criminal prosecution or any court orders
relating to the criminal prosecution.
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order that the additional payments were to be an advancement of
child support to be credited towards future obligations and that
the extra money was used for the benefit of Carla Renae's
necessities, such as food, clothing and shelter.
On November 28, 1995, Deborah filed motions in the
dissolution action seeking an increase in child support to comply
with the Kentucky Child Support Guideline (KRS 403.212), payment
of past due medical and dental expenses, proof that Horace
maintained a college fund for Carla Renae and that he kept the
daughter listed as beneficiary of his life insurance policy.
The
matter was referred to the Domestic Relations Commissioner (DRC)
who, after a hearing, entered his report on February 15, 1996.
Each party filed exceptions to the report and the trial judge,
after reviewing the exceptions and conducting a hearing, entered
his order on April 5, 1996.
From this order Horace appeals.
There is no dispute that Horace, by continuing to pay
$20 per week from December 17, 1993, until April 5, 1996, had
voluntarily overpaid his child support obligation by $2,200.
However, the trial court's order declined to give Horace credit
for the overpayment in child support.
Relying on Clay v. Clay,
Ky. App., 707 S.W.2d 352 (1986), the court found that Horace was
not entitled to a set-off in any fashion against future child
support.
The court also found that the extra $20 per week had
been used for the care, nurture and support of the minor child
and allowing a set-off would in effect "take food out of the
mouths of children" and be contrary to public policy.
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Additionally, the court order increased the child support from
$40 per week to $89.69 retroactive to the date of the filing of
the motion for an increase.
As to the unpaid medical and dental
expenses, the trial court awarded a common law judgment against
Horace in the amount of $1,009.
This figure was determined by
adding $809 for 1992 health insurance reimbursement, $114 for
medical expense reimbursement for the calendar year 1995, and $86
for dental health insurance reimbursement for the year 1995.
The
other provisions of the trial court order relative to Deborah's
original motions are not before this Court and, as such, need not
be addressed.
On appeal, Horace contends that the trial court erred
when it refused to allow him a credit or set-off for the advance
child support payments he made.
Horace argues that the
overpayment of $2,200 should be credited to the child support
increase and/or medical/dental expenses and thus he would owe
nothing additional and in fact would have an ending overpayment
when Carla Renae turned eighteen ($2,200 minus $712.56 and
$1,009).
Horace also claims that the trial court misconstrued
Clay, supra, and that to allow the trial court's order would
unjustly enrich Deborah and be unfair to Horace.
KRS 403.213 sets forth the criteria for modification of
orders of child support.
KRS 403.213(1) states that "[t]he
provisions of any decree respecting child support may be modified
only as to installments accruing subsequent to the filing of the
motion for modification and only upon a showing of a material
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change of circumstances that is substantial and continuing."
Since neither party contests the increase nor the amount that
issue is not before us.
However, it is clear from the statute
that the child support increase became effective on the date the
motion was filed.
Pretot v. Pretot, Ky., 905 S.W.2d 868 (1995);
Price v. Price, Ky., 912 S.W.2d 44 (1995).
As to appellant's
argument that the lower court's order was unfair and that
appellee is unjustly enriched, that simply is not true.
The
parties never entered into any additional agreements after the
original settlement agreement of 1979 and Horace never brought
the issue back to court for modification or credit.
As stated in
Price, supra, at 46:
In the case before us, it is undisputed that
there was no agreement between the parents as
to modification of child support. We will
not reach into this dispute and find an
implicit agreement.
Appellee urges that equitable principles require the courts to
relieve him of the court ordered child support because he, in
fact, supported his child while Child lived in Father's home. We
understand that "equity provides relief where the law does not
furnish a remedy." Heisley v. Heisley, Ky. App., 676 S.W.2d 477,
478 (1984). Here, appellee's recourse was at law, by the filing
of a motion for modification of the child support decree or at
least coming to an agreement with the custodial parent when
circumstances warranted. Moreover, appellee took his child into
his home in an attempt to correct some problems Child was having.
The support given, while admirable, is the support of a parent.
Price, Id. at 46.
Later in Price, the majority concludes that:
*
*
*
*
If a party wishes to contribute to the support of his children in
some manner other than that in which a court has directed, the
court is always open to a timely application for modification.
If he does it without such permission it is not incumbent on the
court to give him any credit for it. (citations omitted).
-5-
Price, supra at 47.
And finally, Justice Wintersheimer, in his
dissent, admits that:
This case teaches a very harsh lesson to
those who are litigants in a domestic
relations matter. The sad conclusion that
must be drawn from such a situation is that
it is always necessary to obtain such
modification in writing and with the specific
approval of the circuit court. It is a
primary but hard lesson that voluntary
payments and even beneficial conduct are
simply that, only voluntary, and clearly have
no legal support.
Price, Id. at 46 and 47.
Finally, Horace alleges that the trial court misapplied
Clay, supra, in that the overpayment should have been applied to
the increased child support or, at the very least, credited
against his outstanding medical, dental and hospitalization
arrearage.
claim.
We can not agree nor does the record support such a
First, as to the increase in child support, Horace was
credited with the additional $20 per week payment made from the
date the child support was increased.
When the trial court
found, based upon the guidelines, that the support should
increase from $40 to $89.69 retroactive to the date of filing,
Horace was credited with paying $60 per week.
Thus, the child
support arrearage was determined to be the difference in the
ordered support ($89.69 per week) less the actual payments ($60
per week) multiplied by the number of weeks (24) owed for the
total arrearage of $712.56.
Based upon statutes and case law,
the trial court properly calculated the arrearage and there was
no error.
Clay, supra; Price, supra; KRS 403.213.
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As to applying the overpayment of the medical expenses
incurred by the custodial parent, again, Horace misinterprets
Clay.
In Clay, the Court relying on the Maryland case of Rand v.
Rand, 40 Md. App. 550, 392 A.2d 1149 (1978), states that
"restitution or recoupment of excess child support is
inappropriate unless there exists an accumulation of benefits not
consumed for support."
Clay, supra, at 354.
In the case sub
judice, the trial court made a specific finding at pages 5 and 6
of its order that "[t]he court hereby finds that Mrs. Throneberry
utilized the additional $20.00 per week that was paid by Mr.
Throneberry since December of 1993 for the care, nurture, and
support of the minor child of the parties.
Therefore, those
amounts are not recoverable under Clay v. Clay, 707 S.W.2d 352
(Ky. Ct. App. 1986) [sic] and its related lines of cases."
Appellant has not presented or pointed this Court to
anything in the record which would contradict this finding nor
would lead us to believe that the court's finding was clearly
erroneous or an abuse of discretion.
In fact, the trial court
substantially reduced the amount of arrearage sought by Deborah
and actually owed by Horace because she did not present the bills
in a more timely fashion.
For the foregoing reasons, the Jefferson Circuit
Court's order is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Fox DeMoisey
Louisville, KY
Robert G. Lohman, Jr.
Louisville, KY
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