MARY FRANCES TAYLOR HARVEY v. JOSEPH SMITH
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RENDERED:
AUGUST 24, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001496-MR
MARY FRANCES TAYLOR HARVEY
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE BENJAMIN L. DICKINSON, JUDGE
ACTION NO. 92-CI-00324
v.
JOSEPH SMITH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Mary Harvey has appealed as a matter of right
from an order of the Barren Circuit Court entered on May 25,
1999.
The trial court ordered that Harvey pay appellee Joseph
Smith, her former husband and her child’s father, $8,188.11 in
child support and $796.05 in medical bills, for the time period
during which Smith had custody of the couple’s then minor child.
Having concluded that the trial court did not err in ordering
Harvey to pay Smith the child support and medical expenses
retroactively, we affirm.
This case has a somewhat complex procedural history.
On April 21, 1978, Harvey and Smith were married in Hart County.
The couple’s only child, Christy Nicole Smith, was born on
November 25, 1978.
Approximately eight years later, on July 15,
1986, the couple obtained a divorce in Hart Circuit Court.
As
part of their divorce agreement, Harvey, the mother, was awarded
custody of Christy, and Smith, the father, was ordered to pay
child support while retaining visitation rights.
Mother and
daughter later moved to Barren County, and the father moved to
Warren County.
Subsequently, in December of 1994, Christy became
pregnant.
Mother and daughter had a “falling out” because of the
pregnancy. As a result, in early 1995, Christy began living with
her father in Warren County.
On February 28, 1995, the father
filed a petition to modify custody in Warren Circuit Court.
A
hearing on this motion was held before the Domestic Relations
Commissioner on March 13, 1995.
The mother had not been served
and was not present at the hearing.
Nonetheless, on March 22,
1995, the trial court awarded the father permanent custody of
Christy.
On April 19, 1995, the father filed a motion for
modification of child support in Warren Circuit Court, seeking
financial support from the mother for the expenses of caring for
Christy.
On May 8, 1995, a hearing was held before the
Commissioner on the father’s motion to modify child support.
his report filed on May 18, 1995, the Commissioner recommended
In
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that a finding be entered that Christy had been integrated into
the father’s household, and that the mother be ordered to pay
child support of $389.91 per month through a wage assignment.
On
May 18, 1995, the same day the Commissioner’s report was filed
and before the ten-day period for objections had expired,1 the
Warren Circuit Court entered a wage assignment order against the
mother for payment of child support.
On May 24, 1995, the mother filed an entry of
appearance and a motion dismiss/motion to transfer proceedings to
Barren Circuit Court.
On May 25, 1995, she filed objections to
the Commissioner’s findings.
On May 31, 1995, the Warren Circuit
Court, with the agreement of the parties, ordered the mother’s
wage assignment set aside because she had not been served before
the March 13, 1995 hearing.
Once the mother was served and
entered her appearance, she argued throughout the proceedings in
Warren Circuit Court that it was not the proper venue for the
father’s claims.
On November 25, 1996, Christy turned eighteen and began
living with her mother again.
On January 28, 1997, the father
filed a motion in the Warren Circuit Court to reduce the child
support to a judgment.
Approximately one year later, on January
26, 1998, the trial court ordered the case remanded to the
Commissioner to make findings regarding (1) whether the mother
had received notice of the May 8, 1995 hearing; (2) the amount of
money, if any, the mother should pay the father for the time that
1
Kentucky Rules of Civil Procedure 53.06(2).
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Christy had lived with him; and (3) whether Warren County was the
proper venue.
The Warren Circuit Court took no further action
following this remand to the Commissioner.
On September 8, 1998, the father filed a motion for a
judgment on past due child support in the Barren Circuit Court.
On March 8, 1999, the Commissioner for the Barren Circuit Court
recommended that the mother pay the father past due child support
and medical expenses for the period of time Christy had lived
with him.
The trial court entered a judgment in favor of the
father on May 25, 1999, making the child support obligation
retroactive to February 28, 1995, the date the father filed his
motion to modify custody in Warren Circuit Court.
This appeal
followed.
The crux of the mother’s argument on appeal is that the
Barren Circuit Court erred by awarding retroactive child support
following the proceedings in the Warren Circuit Court.
Specifically, she argues:
[The father’s motions] in the Barren
Circuit Court requested [] that he be allowed
to collect child support from a Warren
Circuit Court [order] which had been vacated
by the January 26, 1998 [order remanding to
the Domestic Relations Commissioner] of the
Warren Circuit Court . . . .
The Barren Circuit Court’s May 25, 1999
[findings of fact, conclusions of law, and
order] effectively sets [the mother’s] child
support obligation retroactively and without
the entry of any [order] in any court
changing custody from Mary Frances Harvey to
Timothy Joseph Smith.
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While it is true that the father’s claims were not
finally adjudicated by the Warren Circuit Court due to improper
venue, this appeal only concerns an order of the Barren Circuit
Court.
The father’s action for child support in the Warren
Circuit Court was discontinued and then recommenced in the Barren
Circuit Court.
Under the circumstances of the challenge to venue
in the Warren Circuit Court, we do not believe it was error for
the Barren Circuit Court to set the child support obligation
retroactive, beginning with the date the father filed his motion
for modification in the Warren Circuit Court.
In Pretot v. Pretot,2 this Court stated:
[U]pon the enactment of KRS3 403.213(1) on
July 13, 1990, the Legislature mandated that
"[t]he provisions of any decree respecting
child support may be modified only as to the
installments accruing subsequent to the
filing of the motion for modification. See
Giacalone v. Giacalone, Ky.App., 876 S.W.2d
616, 620 (1994) [emphases original].
Therefore, in setting the child support obligation and making it
retroactive, the Barren Circuit Court simply recognized that
February 28, 1995, was the date the father had filed his motion
to modify custody in the Warren Circuit Court.
In Adkins v. Adkins,4 this Court noted that trial
courts have broad discretion when modifying support payment
agreements:
2
Ky.App., 905 S.W.2d 868, 871 (1995).
3
Kentucky Revised Statutes.
4
Ky.App., 574 S.W.2d 898, 899-900 (1978).
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KRS 403.250 states that there must be "a
showing of changed circumstances" in order to
modify a decree respecting support. No
certain procedure for making this showing is
set forth. Show has been defined as "(t)o
demonstrate, to make apparent or clear,
either to the eyes or to the understanding or
to both, by display, by evidence, by
illustration, or by other means." [citation
omitted].
. . .
It was said in Wilhoit v. Wilhoit, Ky., 521
S.W.2d 512, 513 (1975) that "(t)he trial
court is vested with broad discretion in
matters of this kind, and this court will not
interfere unless that discretion is abused."
This court is of the opinion that the
modification of the original divorce
judgment, so as to allow the father to have
custody of the children for three months out
of each year, is a changed condition so
substantial and continuing as to make the
terms of the original separation agreement
unconscionable. We, therefore, cannot say
that the trial court abused its discretion in
so finding. A twenty-five percent change in
time of custody of children is most
substantial. This substantial change in time
of custody renders the support payment
unconscionable.
In the case sub judice, the Barren Circuit Court found,
inter alia:
That in December of 1994 the parties’
daughter, Christy Nicole Smith, began
residing with her father, [ ] and
continuously resided with him until her
majority on November 25th, 1996 with the
consent of [the mother]. The court finds
that during such period [the father] was the
custodian in fact and that as the child had
been integrated into the home of [the
father], [the father] was for all purposes
herein the custodian of the child during that
period.
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While there was no express modification of the mother’s and
father’s separation agreement, there was nonetheless a
substantial change of circumstances warranting a modification in
the support agreement.
It would have been unconscionable to
expect the father to continue paying child support according to
the divorce agreement, while at the same time being Christy’s
primary care-giver.
Accordingly, based upon these facts and the
applicable law, we cannot say that the trial court abused its
discretion in granting the father past due child support.
The mother’s reliance on Sidebottom v. Mitchell5 is
misplaced.
In Sidebottom, the former Court of Appeals stated:
[W]hen a couple with minor children are
separated, either without a divorce or under
a divorce judgment which has made no
provision concerning child support, if the
wife desires to compel the husband to carry
his primary burden (as between them) of
supporting the children, she must obtain a
court order (ordinarily in the divorce court)
directing what payments he shall make, and if
she does not obtain such an order she cannot
recover from him for expenditures made by her
for the support of the children, except
expenditures for such period of time during
which an order could not have been obtained
because the husband was beyond reach of
process [emphasis added].
In the instant case, the mother’s and father’s divorce
agreement expressly provided that the father would be obligated
to pay child support to the mother.
Therefore, Sidebottom, which
dealt with cases where the parties had not reached a support
agreement, is clearly distinguishable.
5
Ky., 421 S.W.2d 830, 831 (1967).
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In summary, the Barren Circuit Court did not abuse its
discretion in granting the father past due child support
beginning on February 28, 1995.
Trial courts are authorized to
award child support retroactively beginning with the date the
motion for modification is filed.
Trial courts are also entitled
to broad discretion in modifying the support payments as they
deem necessary.
In the case sub judice, we cannot say that the
Barren Circuit Court abused its discretion.
For the foregoing reasons, the order of the Barren
Circuit Court is affirmed.
HUDDLESTON, JUDGE, CONCURS.
GUIDUGLI, JUDGE, DISSENTS.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William Thomas Klapheke, II
Glasgow, KY
Frank Hampton Moore, Jr.
Stefan Richard Hughes
Bowling Green, KY
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