LINDA PAWLEY v. RAYMOND E. PAWLEY
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RENDERED: March 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003340-MR
LINDA PAWLEY
APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE SAM MONARCH, JUDGE
ACTION NO. 82-CI-00206
v.
RAYMOND E. PAWLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, GARDNER, AND MILLER, JUDGES.
MILLER, JUDGE: Linda Pawley brings this appeal from a December 3,
1997, order of the Grayson Circuit Court in a post-dissolution
proceeding.
We affirm.
The parties were divorced by a February 28, 1983,
Decree of Dissolution.
Incorporated within the decree was the
parties' separation agreement, which provided that appellee would
pay $150.00 per week in child support for the parties' five minor
children: William, Mary Ann, Thomas, Pamela, and Robert.
stated in relevant part as follows:
CHILD SUPPORT
It
3. Petitioner agrees to provide the
benefits and to pay the sums to Respondent
for child support as follows:
A.
The sum of $150.00 per week; this
sum is based on a regular fortyhour work week by Petitioner at his
job at The Gates Rubber Company, or
equivalent employment, and his
income from the Kentucky Air
National Guard.
B.
In addition to the sum outlined in
3(a) hereinabove, the sum of $3.50
for each hour of overtime worked
for and paid by The Gates Rubber
Company, or equivalent employment.
Petitioner shall provide a copy of
his weekly check stub from The
Gates Rubber Company, or equivalent
employment, to Respondent to verify
his earnings for purposes of this
agreement.
C.
Petitioner shall provide medical
insurance coverage for the minor
children of the parties under his
medical insurance at The Gates
Rubber Company, or equivalent
employment.
D.
Petitioner shall pay the cost of
reasonable and necessary
extraordinary medical care for the
minor children of the parties not
covered by medical insurance.
E.
Petitioner shall claim all five (5)
minor children of the parties as
exemptions for federal and state
income tax purposes.
F.
The sum payable by Petitioner to
Respondent under this agreement for
child support shall continue for a
period of two years (unless
Petitioner loses his employment at
The Gates Rubber Company or
equivalent employment by virtue of
layoff or other reasons beyond his
control), even though the oldest of
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the parties' children is now 17
years of age. If one or more of
the children of the parties resides
with a person other than Respondent
during this period, Respondent
shall be responsible to that
person(s) for the support of such
child or children from the sums
paid to Respondent by Petitioner on
that child's behalf. At the end of
two (2) years from the date of this
agreement, the amount of child
support is to be renegotiated
between the parties, and, if they
are unable to agree, the matter is
to be submitted to the court for
determination.
When William reached his eighteenth birthday on August
6, 1983, appellee unilaterally reduced his child-support payment
by one-fifth, or $30.00, to $120.00 per week.
When Mary Ann
reached her eighteenth birthday on September 24, 1986, appellee
again reduced his child-support obligation by $30.00 to $90.00
per week.
Thereafter, each time a minor child reached his/her
eighteenth birthday, appellee unilaterally reduced his childsupport obligation per capita.
On July 12, 1994, appellant moved the court to hold
appellee in contempt for failing to pay certain delinquent childsupport payments.
Appellant contended that appellee unilaterally
and improperly reduced his child-support payment of $150.00 per
week each time a child reached majority.
The matter was referred
to a domestic relations commissioner (commissioner).
commissioner found in part as follows:
The
The commissioner finds that the
Petitioner [appellee] had a right to assume
that his child support obligation was a per
capita obligation and that he could reduce
his obligation on a per capita basis, until
the adoption of [Ky. Rev. Stat.] KRS 403.210
-3-
et seq. [Citations deleted.] From and after
the adoption of the statute, child support is
presumed to not be payable on a per capita
basis. . . .
That being the case, the commissioner
finds that the child support obligation of
the petitioner could not be unilaterally
modified by him after the adoption of the
statute and his unilateral reduction in child
support by reason of Pamela attaining her
majority on September 17, 1992, was
unwarranted.
Exceptions were filed to the commissioner's report.
On
February 20, 1996, the Grayson Circuit Court adopted the
commissioner's report but remanded the matter to the commissioner
for a determination of child-support arrearage.
Subsequently, on
December 3, 1997, the circuit court entered an order explicitly
making the February 20, 1996, order final and appealable.
This
appeal followed.1
Appellant contends that the circuit court erred by
determining that appellee could unilaterally reduce child-support
payments until the adoption of KRS 403.210 et seq.
We disagree.
We liken this case to that of Sullivan v. Sullivan, Ky.
App., 576 S.W.2d 262 (1979).
Therein, the parties' marriage was
dissolved by dissolution, and the husband agreed to pay $60.00
per week for child support of their five infant children.
The
husband, however, decreased the child-support payment by onefifth when the first of his five children reached the age of
majority.
He again reduced his child-support payments by one-
1
Appellee asserts that the instant appeal should be
dismissed as untimely pursuant to Ky. R. Civ. Proc. 73.02. We
reject same and believe appellant's Notice of Appeal was timely
filed.
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fifth when the second child reached majority.
In September 1974,
the wife sought an increase in child support for the remaining
three children.
court.
Child support was increased by order of the
Thereafter, the wife brought an action for arrearage
dating back to the time that the husband first reduced his childsupport payments.
The court concluded that based upon the
foregoing history, the trial court did not abuse its discretion
in determining that it was the parties' intent to make the childsupport payments a “per child per week payment.”
Id. at 263.
The court held that the trial court did not abuse its discretion
when it “interpreted what the parties apparently intended in
their original agreement based on the actions of both parties.”
Id.
In the case sub judice, appellee consistently reduced
his child-support obligation upon a child reaching majority, as
in Sullivan.
Moreover, appellant took the child-support payments
and never complained to the court even though the parties were
before the court in the spring of 1992 upon a motion to modify
child-support.
Upon the whole, we do not believe the circuit
court erred by concluding that the parties intended to make the
child-support payments on a “per child, per week” basis.
We
believe this consistent with the parties' actions and the
evidence amassed in this case.
As such, we perceive no error.
For the foregoing, the order of the circuit court is
affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
K. Harold Goff II
Leitchfield, KY
Charles C. Mattingly III
Hardinsburg, KY
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