JAMES THOMAS PERKINS v. COMMONWEALTH OF KENTUCKY, EX REL, LINDA MOORE PERKINS
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RENDERED:
October 9, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1996-CA-002889-MR
JAMES THOMAS PERKINS
APPELLANT
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE JERRY D. WINCHESTER, JUDGE
ACTION NO. 78-CI-000146
v.
COMMONWEALTH OF KENTUCKY,
EX REL, LINDA MOORE PERKINS
(NOW TAYLOR)
APPELLEE
OPINION
AFFIRMING
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BEFORE:
COMBS, KNOPF, AND KNOX, JUDGES.
KNOX, JUDGE:
This appeal arises from an order of the Whitley
Circuit Court denying appellant’s motion to terminate his child
support obligation.
We affirm the trial court’s decision.
Linda Moore Perkins (Linda) and James Thomas Perkins
(James) were married on March 15, 1975.
One child, James Thomas
Perkins, Jr. (child), was born of this marriage on October 19,
1976.
Linda and James divorced on August 6, 1980, and custody of
their child was awarded to Linda.
James was ordered to pay the
sum of $150.00 per month in child support.
James fell behind in his child support payments.
By
way of an agreed order entered May 31, 1990, James acknowledged
arrearages of $1,606.48 in child support owed to the Commonwealth
of Kentucky and $8,393.52 in child support owed to Linda for the
period from August 1980 through May 31, 1990.
James agreed to
continue to pay child support of $150.00 per month and to pay
$50.00 per month toward the arrearage beginning June 1, 1990.
In June 1995, James stopped paying his child support
obligation of $150.00 per month, although he continued to pay
$50.00 each month toward the arrearage.
James claimed that the
child was emancipated because he had reached the age of eighteen
(18) in October of 1994, and would have graduated in June 1995
following his fourth year at Laurel County High School.
James
believed he was no longer responsible for child support.
The
child, however, had been unable to accumulate the requisite
credits to graduate from Laurel County High and subsequently
attended, and graduated from, South Laurel Academy, a private
school, for a fifth year of high school in 1995-96.
During this
fifth year of high school James’ son turned nineteen (19).
In March l996, the Commonwealth, acting on behalf of
Linda, moved for a show-cause order.
James responded by moving
for termination of his child support obligation, effective in
June 1995, the month during which his son should have graduated
from Laurel county High.
June 5, 1996.
A hearing in the matter was held on
The trial court denied James’ motion and found
that he was indebted for the total amount of child support due
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through May 31, 1996, the date the child graduated from South
Laurel Academy.
James has appealed the trial court’s decision.
Essentially, James argues that his child support
obligation ended in June 1995 by operation of law.
He argues
that the child did not live at home with his mother, Linda,
during the time he attended the private school; he lived with his
former stepfather.
Thus, James argues, he is not obligated to
pay child support for the period during which the child did not
share his mother’s residence. Further, James contends that due to
this living arrangement, Linda does not have standing to sue for
child support owed during a period when she did not have actual
physical custody of the child. Finally, James argues that because
South Laurel Academy is not a “qualified” high school, and
because the child was not a full-time student as contemplated by
the applicable statute, James does not owe child support for the
1995-96 school year.
We first address the issue of standing.
James cites
KRS 403.211 which provides that an action to establish or enforce
child support may be initiated by “the parent, custodian, or
agency substantially contributing to the support of the child.”
James argues that Linda did not substantially contribute to the
support of the child during his enrollment at South Laurel
Academy, and thus had no standing to bring an action to enforce
child support.
We find this argument to be without merit.
Under the
terms of any child support order, both parents have an obligation
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to support their child.
The fact that the child in the instant
case was living with his former stepfather did not nullify or
revoke either Linda’s or James’ obligation to support their
child.
Thus, as long as, by operation of law, James had a legal
obligation to pay child support, he had the obligation to
continue paying the support to Linda, the legal custodian,
regardless of where the child was living.
Linda, in turn, had
the responsibility of applying that payment to the support of her
child.
Because we believe that James’ obligation to pay child
support continued through May 1996, we find Linda to have had
standing, in March 1996, to bring this enforcement action.
In order for the parent of a 19-year-old to continue to
receive child support, the 19-year-old must still be attending
high school.
KRS 403.213(3) became effective on July 14, 1992,
and represents a change in Kentucky’s public policy regarding the
duration of child support such that the law now mandates the
continuation of child support beyond the child’s eighteenth
birthday if the child is still in high school, but not beyond the
end of the school year during which the child turns nineteen.
KRS 403.213(3) provides in pertinent part:
Unless otherwise agreed in writing or
expressly provided in the decree, provisions
for the support of a child shall be
terminated by emancipation of the child
unless the child is a high school student
when he reaches the age of eighteen (18). In
cases where the child becomes emancipated
because of age, but not due to marriage,
while still a high school student, the courtordered support shall continue while the
child is a high school student, but not
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beyond completion of the school year during
which the child reaches the age of nineteen
(19) years.
The legislature determined that in the public interest
and in the best interest of children, a child should be supported
to the age of nineteen (19) if he or she is still in high school.
Understandably, the legislature has recognized the essential
nature of a high school degree in today's competitive society.
James argues that KRS 403.213(3) mandates full-time
attendance at an accredited high school.
He maintains that not
only did the child not attend school full-time during his fifth
year of high school, but also that South Laurel Academy was not
“accredited” by the state.
We note that the trial court made no
findings on the issue of school certification.
James asks this Court to determine the qualifications
of private schools and what constitutes a “full-time” student.
However, school certification is a function of the legislature,
not the courts.
Kentucky State Bd. for Elementary and Secondary
Educ. v. Rudasill, Ky., 589 S.W.2d 877, 878 (1979), required the
Kentucky Supreme Court to establish “the perimeter within which
the Commonwealth may regulate the curriculum and instruction in
private and parochial schools.”
The Court stated that if the
legislature wishes to monitor the work of private schools in
accomplishing the constitutional purpose of compulsory education,
it may do so by appropriate standardized achievement testing.
Id. at 884.
We believe this principle could be applied to the
case at hand. School certification is a function of the
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legislature, not a function of the courts.
For the purposes of
the instant case and, until this Court is informed otherwise by
the state legislature or the State Board of Education, South
Laurel Academy is the “high school,” for purposes of the statute,
which the child attended during the 1995-96 school year and from
which he eventually graduated.
James asserts that KRS 403.213(3) requires the child to
be a “full-time” student when read in combination with KRS
405.020(1), which states in pertinent part:
The father shall be primarily liable for the
nurture and education of his children who are
under the age of eighteen (18) and for any
unmarried child over the age of eighteen (18)
when the child is a full-time high school
student, but not beyond completion of the
school year during which the child reaches
the age of nineteen (19) years.
James argues his son was not a full-time student
because he worked four (4) hours per day at a fast food
restaurant.
The record before us, however, indicates that Wayne
Cornett, Principal of South Laurel Academy, testified under oath
that the child was, in fact, a full-time student during the 199596 school year, and introduced records establishing this fact.
The child worked four (4) hours per day during school at a fast
food restaurant for which he received “business retail” credits.
Thus, we find James’ argument that the child was not a “fulltime” student to be without merit.
Although James and Linda’s child turned nineteen (19)
on October 19, 1995, he was still a high school student, as that
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term is used in KRS 403.213(3). Thus, the trial court properly
ordered James to continue to pay child support through May 31,
1996, the date of the child’s graduation.
The decision of the
Whitley Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marcia A. Smith
Corbin, Kentucky
Ray Baldwin
Williamsburg, Kentucky
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