CYNTHIA MARIE COOK v. JOHN ANDREW COOK
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RENDERED: December 17, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001242-MR
CYNTHIA MARIE COOK
APPELLANT
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JAMES KNIGHT, JUDGE
ACTION NO. 89-CI-00290
v.
JOHN ANDREW COOK
APPELLEE
OPINION AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, KNOX AND HUDDLESTON, JUDGES.
KNOX, JUDGE:
Cynthia Marie Cook (appellant) appeals from an
order of the Johnson Circuit Court entered on April 22, 1998,
which found that she owed child support arrearages to John Andrew
Cook (appellee) in the amount of $65,779.00.
After reviewing the
record, we affirm in part, reverse in part, and remand.
The following is a summation of the extensive record
found in the case sub judice.
On July 25, 1989, appellant filed
a petition for dissolution of marriage requesting that the
circuit court dissolve her twenty year marriage, divide the
parties’ property, and grant her custody of their two minor
children.
Appellee answered the petition and filed a motion for
temporary custody, motion for child support, motion for home
visitation, motion for temporary debt allocation, and a motion to
discontinue appellant’s child visitation rights.
On February 8,
1990, the Domestic Relations Commissioner (DRC) granted
appellee’s motion for temporary custody of the children and
awarded appellee $350.00 per month in child support.
After
discovery was undertaken, the case was submitted to the DRC on
appellant’s motion.
In the DRC’s recommended findings of fact, conclusions
of law and decree, appellee was awarded custody of the two
children and continued child support at $350.00 per month.
The
DRC also found that appellant was in arrears under the temporary
child support order in the amount of $525.00, as of May 7, 1990.
Appellant filed exceptions to the DRC’s recommendations,
specifically objecting to the custody award, amount of child
support and arrearages, and disposition of some of the marital
property.
On November 29, 1990, an addendum supplementing the
DRC’s recommended findings of fact, conclusions of law and decree
was filed.
The DRC increased appellant’s monthly child support
obligation to $425.00 and made it retroactive to the original
order of child support on February 8, 1990.
The DRC also found
that appellant was in default on her prior child support payments
in the sum of $2,647.50.
On February 27, 1991, the circuit court entered a
judgment dissolving the parties marriage and, in pertinent part,
adopting the recommendations of the DRC in terms of custody,
child support, and the amount of child support arrearages.
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Appellant appealed the circuit court’s order to this court;
however, the appeal was later dismissed on appellant’s own
motion.1
On August 12, 1991, appellant filed a motion to suspend
child support, compel visitation, establish time to transfer
personal belongings, and to forgive arrearages.
Appellee
responded by filing a motion for contempt for failure to abide by
the order of February 27, 1991.
On September 11, 1991, the DRC
found that appellant owed child support arrearages in the amount
of $6,812.50 and recommended reducing the arrearages to a lump
sum judgment with interest accruing at twelve percent (12%).
The
circuit court adopted the DRC’s recommendations on September 20,
1991.
In July 1991, appellee filed a petition to register a
foreign judgment in Champaign County, Illinois to enforce the
arrearages owed by appellant.
On February 19, 1992, the
Champaign County Circuit Court ordered appellant to pay $100.00
per month, beginning March 1992, in satisfaction of the previous
Kentucky judgments.
A few months later in Kentucky, appellant
plead guilty to non-support, a class A misdemeanor, pursuant to a
plea agreement entered on October 20, 1992.
The circuit court
accepted appellant’s guilty plea and sentenced her to 12 months
probation with an order to pay $200.00 per month for arrearages
and remain current on support payments.
On December 17, 1997, appellant moved the circuit court
to recalculate child support on grounds that one of the children
1
Order dismissing appeal No. 91-CA-679-MR entered
October 3, 1991.
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had attained the age of eighteen.
In response, appellee filed
proof of delinquent child support owed by appellant in the form
of a computer print-out.
After a hearing, the DRC found that
appellant was in arrears in the amount of $65,779.00 and
recommended that she satisfy this arrearage by paying $200.00 per
month in addition to an increase in monthly child support to
$490.00.
On April 22, 1998, the circuit court set appellant’s
monthly child support at $280.00 and ordered her to pay $300.00
per month on arrearages totaling $65,779.00.
This appeal
followed.
On appeal, appellant argues (1) that the circuit court
erred in relying on the proof submitted by appellee, (2) the
court failed to calculate interest on its judgment as required by
Kentucky Revised Statute (KRS) 360.040, (3) the court failed to
consider whether the applicability of the maximum interest rate
was unjust, and (4) the court erred when it set the arrearage
payments at $300.00 per month.
It is immediately apparent to this Court that the
calculation of child support arrearages is in error.
The DRC,
and subsequently the circuit court, relied on a computer printout generated by appellee to calculate the total arrearages owed
by the appellant.
Review of the print-out reveals that the
appellee incorrectly calculated the arrearages by adding the
payments that were specifically set by the Champaign County
Circuit Court and the Johnson Circuit Court to pay for the
arrearages of $6,812.50, which existed as of August 15, 1991, and
was reduced to judgment on September 20, 1991.
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The monthly
payments established to satisfy the prior judgment cannot be
added to child support payments that were due after August 15,
1991.
In calculating appellant’s arrearages from August 15,
1991, to the present, the court should only add the child support
not paid during that time.
Appellant’s non-payment of the amount
due for prior arrearages merely serves to prolong the existence
of the principal amount of the prior judgment, which also
increases with interest annually.
Appellant also argues that the circuit court erred by
failing to consider whether the application of the maximum rate
of statutory interest was unjust.
In light of appellant’s
history of flagrant non-support, we do not believe the court
abused its discretion in awarding interest under KRS 360.040.
However, while the circuit court stated in its order that the
total arrearage included interest, this Court cannot determine
the amount of interest used to calculate the total arrearage.
It
is true that the trial court does have the discretion to order
that interest accrue from the date that each child support
payment was due.
Young v. Young, Ky., 479 S.W.2d 20 (1972).
However, on remand, we remind the trial court that the maximum
amount of interest that can be applied is twelve percent (12%),
compounded annually.
KRS 360.040.
Appellant also contends that the court failed to give
appropriate weight to the fact that appellant’s parents set up a
trust fund for the children and that appellant has had virtually
no visitation with them.
These contentions are without merit and
are simply self-serving.
According to terms of the trust, it
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does not take effect until after the children reached majority.
Any resources available to the children once they reach majority
are not relevant to a parent’s obligation to support them during
their minority.
Finally, non-compliance of visitation orders
does not relieve the parent of her obligation to pay child
support.
Stevens v. Stevens, Ky. App., 729 S.W.2d 461 (1987);
KRS 403.240.
Next, appellant argues that the circuit court abused
its discretion in ordering appellant to pay $300.00 per month on
arrearages without first establishing a factual basis.
After
reviewing the record, we find that appellant failed to bring the
matter to the circuit court’s attention through a written request
or a motion under CR 52.02.
Therefore, the issue is not
preserved for appellate review.
CR 52.04; Cherry v. Cherry, Ky.,
634 S.W.2d 423, 425 (1982).
For the reasons stated above, the order of the Johnson
Circuit Court, entered April 22, 1998, is affirmed in part,
reversed in part, and remanded for proceedings consistent with
this opinion.
ALL CONCUR.
BRIEF AND REPLY BRIEF FOR
APPELLANT:
BRIEF FOR APPELLEE:
Karen L. Stewart
1167 East Broadway, Suite 300
Louisville, Kentucky
William W. Tinker, III
Paintsville, Kentucky
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