STEVEN G. SMITH v. TERESA FAYE SMITH
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RENDERED:
DECEMBER 7, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001069-MR
STEVEN G. SMITH
APPELLANT
APPEAL FROM GREEN CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 93-CI-00049
v.
TERESA FAYE SMITH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BARBER, JUDGE:
Appellant, Steven G. Smith (“Steve”), seeks
review of an order of the Green Circuit Court denying his motions
to reduce child support and to set aside a judgment as it applies
to an award of child support under CR 60.02.
Finding no error,
we affirm.
Steve and the Appellee, Teresa Faye Smith (“Teresa”),
were married on December 28, 1984.
November 29, 1990.
They have a son, Corey, born
Teresa filed for dissolution of the marriage
on May 7, 1993, seeking custody and child support.
It is
uncontroverted that Steve was served with a copy of the summons
and petition via certified mail on May 11, 1993.
Steve did not
seek independent counsel, nor did he file any responsive
pleadings.
On August 4, 1993, the court entered a final decree
enjoining Steve from going about Teresa at any time or place.
The court also determined that Teresa was the proper person to
have custody subject to reasonable visitation by Steve.
The
court ordered Steve to pay $69.00 per week in child support
starting August 6, 1993.
On January 29, 1999, Teresa filed a motion for a rule
to issue against Steve to show cause why he had failed to comply
with the court’s final decree on the ground that he was arrears
$19,113.00 in child support, from August 3, 1993 through December
31, 1998.
On March 3, 1999, Steve filed motions seeking: (1) a
reduction in child support and (2) to set aside the judgment
pursuant to CR 60.02 as it applies to the award of child support,
“on the grounds that it is in error and that it is not
substantiated by evidence.”
On April 5, 1998, Steve filed a
motion for a rule to issue against Teresa, claiming that she had
failed to allow him to exercise his visitation rights.
By order
entered April 17, 1999, the various motions were set for hearing.
At the May 18, 1999 hearing, Steve claimed that he had
not received a copy of the decree until February 1999 (when he
obtained a copy from the courthouse).
The address on the decree,
1079 Elkhorn Road in Campbellsville, is the same address where
Steve was admittedly served with the petition and summons.
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It is
the address of the shop where Steve was working in August 1993,
when the decree was entered.
Steve testified at the hearing that he was not
represented by counsel at the time of the divorce because “[w]e
had an agreement on everything, and there was no reason to have
counsel.”
Steve testified that Teresa was to keep everything and
that “all I got was an old truck and my clothes and no child
support.”
Steve claimed that he had worked out this agreement
with Teresa “[a]fter she filed.”
no written agreement.
Steve admitted that there was
Steve testified that he and Teresa had
lived together “a couple or three months” after the divorce;
however, his testimony at the hearing reflects that he did not
know when this occurred.
He also testified that he did not know
whether he and Teresa were divorced at the time, or not, only
that they had been separated.
for his son, Corey.
Steve never paid any child support
Steve had been married and divorced before
and had paid child support to his former spouse.
At the May 18, 1999 hearing, Steve testified that
Teresa had discussed his not having to pay child support, if he
would give up his parental rights.
According to Steve, that
conversation had taken place “maybe over a little over a year
ago.”
Steve claimed that he was not aware that he owed child
support at the time of the alleged conversation.
According to
Steve, Teresa had said she was “going to go for child support.”
Teresa had testified by deposition on July 29, 1993,
that she really did not know what Steve’s gross earnings were
from his self-employment at B & S Body Shop.
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When asked to
compare Steve’s gross earnings to her own (as a social worker in
a nursing home Teresa grossed $948 every two weeks) she testified
that, “I would say I probably make more than he does.”
Teresa
was asked if Steve would gross $500 a week, and she responded, “I
would say so.”
Teresa agreed that Steve’s earnings from his
self-employment in a body shop would be approximately equivalent
to what she makes.
At her 1993 deposition, Teresa testified that
Corey was living with her and that she wanted permanent care and
custody.
Teresa also testified that she would like for the court
to award her child support.
Teresa expressed a desire for
Steve’s visitation with Corey to be supervised at the present
time.
Teresa named Steve’s sister, Sherri Rhodes, as a person
she would trust to supervise visitation.
Teresa believed that
supervised visitation would be in Corey’s best interest.
Teresa testified at the 1999 hearing that she had
received the residence in the divorce.
$20,013.00 and sold for $26,750.00.
The house was bought for
At her 1993 deposition,
Teresa testified that the balance on the loan was $15,300.00, and
she was making the payments.
The decree reflects that the house
was being purchased under a lease/purchase agreement.
The record
contains a copy of a deed dated August 7, 1995, conveying the
property to Teresa.
Teresa claimed she did not make a profit
from the sale of the house because “I had a lot of upkeep and
things I had to do.”
Teresa testified that she makes $34,000.00
a year; she has been employed by Greenville Manor for eight
years.
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On December 10, 1999, Steve filed a memorandum in
support of his motion for relief pursuant to CR 60.02.
Steve
asserted that Teresa had obtained the 1993 decree “by fraud
and/or falsified evidence and/or that there is no basis for the
assessment of said child support . . . .”
Steve also asserted
that Teresa was estopped because of her “agreement” that Steve
would not be required to pay child support, if he did not file an
answer to the divorce petition, and if he did not take any of the
marital property.
By order entered April 3, 2000, the court found:
The Petitioner filed a Petition for
Dissolution of Marriage and the Respondent
was served with same via certified mail on
May 11, 1993.
The Respondent did not file an answer or
participate in the divorce proceedings.
The Petitioner’s deposition was taken on July
29, 1993, wherein she stated she believed the
Respondent’s income to be at least $500 per
week.
On August 4, 1993, the Green Circuit Court
entered a Final Decree of Dissolution and
Findings of Fact and Conclusions of Law,
which awarded child support to the Petitioner
in the amount of $69.00 per week.
On March 3, 1999, the Respondent filed a
motion requesting that child support payments
be reduced and the August 4, 1993 judgment be
set aside pursuant to CR 60.02. As grounds,
the Respondent stated the judgment was “in
error and that it is not substantiated by
evidence.”
That the Respondent testified that he thought
he had an oral agreement with Petitioner
that the Respondent would not be required to
pay any child support.
That the Respondent should be able to earn at
least a minimum wage of $5.15 per hour which
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would result in an annual income of
$10,712.00.
That the child support award in the Decree
entered August 4, 1993 is not inequitable
nor unconscionable.
That the Respondent has made no child support
payments since the Decree was entered herein.
That the Respondent owes $23,667.00 to
Petitioner for child support arrearage
through March 31, 2000.
The Court concluded that CR 60.02 requires a motion to
relieve a party from final judgment based upon the ground of
mistake to be made within one year; further, Steve was not
entitled to relief because he had filed his motion more than five
years after the judgment was entered.
The Court also concluded
that Steve had failed to prove the existence of any private, oral
agreement waiving support rights.
The Court denied Steve’s
motion to reduce child support determining that he is not
entitled to a reduction and continues to owe $69.00 per week.
CR 60.02 provides:
On motion a court may, upon such terms as are
just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise
or excusable neglect; (b) newly discovered
evidence which by due diligence could not
have been discovered in time to move for a
new trial under Rule 59.02; (c) perjury or
falsified evidence; (d) fraud affecting the
proceedings, other than perjury or falsified
evidence; (e) the judgment is void, or has
been satisfied, released, or discharged, or a
prior judgment upon which it is based has
been reversed or otherwise vacated, or it is
no longer equitable that the judgment should
have prospective application; or (f) any
other reason of an extraordinary nature
justifying relief. The motion shall be made
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within a reasonable time, and on grounds (a),
(b), and (c) not more than one year after the
judgment, order, or proceeding was entered or
taken. A motion under this rule does not
affect the finality of a judgment or suspend
its operation. (Emphasis added.)
On appeal, Steve argues that his CR 60.02 motion was
not filed “too late” because the one year limitation only applies
to motions brought on grounds (a),(b) or (c) of the rule.
Steve
maintains that his CR 60.02 motion was not brought under any of
those subsections.
Steve argues that his motion was “qualified
for continued consideration,” under either subsection (d), (e) or
(f).
Steve has failed to provide, at the beginning of the
argument, a statement with reference to the record showing
whether the issue was properly preserved for review and, if so,
in what manner as required by CR 76.12(4)(c)(v).
It is not
apparent that Steve raised the issue that he was entitled to
relief under subsection (e) or (f) of the rule in the trial
court; thus, we will not consider it.
Steve’s motion filed on March 3, 1999, nearly six years
after entry of the final decree states “[pursuant] to CR 60.02
. . . [the judgment] is in error and is not substantiated by
evidence.”
We agree with Teresa that the court acted within its
discretion in interpreting Steve’s motion for relief as an
untimely motion under CR 60.02(a) on the ground of mistake.
At
the hearing, the court made it clear that “the real question is
going to be whether you’re going to survive under rule 60.02.”
Steve’s counsel argued that under the rule “motions shall be made
within a reasonable time and on grounds “a”, “b” and “c”, not
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more than one year after judgment, and we’ve also alleged fraud,
judge which is “d”.
The court responded that Steve’s motion
could still be time-barred —
any allegations of fraud based upon
Teresa’s 1993 deposition testimony would be subject to the one
year limitation because perjury and falsified evidence fall under
subsection (c) of the rule.
On appeal, Steve argues that the one-year time bar does
not apply because there was fraud affecting the proceedings -- in
essence, that Teresa lulled him into inaction by virtue of an
oral agreement to waive child support.1
The trial court did not
believe that there was any fraud affecting the proceedings
because the trial court did not believe that there was any oral
agreement.
The trial court found that Steve had “failed to prove
with reasonable certainty any private, oral agreement waiving
support rights.”
In the context of a private, oral agreement to
modify child support, Kentucky law requires that such agreements
must be proven with “reasonable certainty” before they will be
enforced by the courts against the parties.
Whicker, supra.
The trial court did not err in finding that Steve
failed to prove the existence of an oral agreement.
Where, as
here, the factfinder finds against the party with the burden of
proof, the standard of review on appeal is whether or not the
evidence compelled a finding in that party’s favor.
presented did not compel a finding in Steve’s favor.
The evidence
The
evidence was not so overpowering that no reasonable person would
1
A parent=s obligation to support a child may not be absolutely waived by any contract between the parties.
W hicker v. W hicker, Ky. App., 711 SW 2d 857 (1986).
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fail to be persuaded by it.
Morrison v. Trailmobile Trailers,
Inc., Ky., 526 S.W.2d 822 (1975).
“CR 60.02 addresses itself to the sound discretion of
the trial court.
. . . .
The trial court's exercise of
discretion will not be disturbed on appeal except for abuse.”
Fortney v. Mahan, Ky., 302 S.W.2d 842, 843 (1957).
We find no
abuse of discretion in the trial court’s denial of Steve’s motion
to set aside the judgment.
Steve also contends that the trial court erred in
failing to reduce or adjust his child support obligation because
the amount was excessive based upon his income.
Child-support awards may be modified only as
to installments accruing after notice of the
motion for modification and then "only upon a
showing of a material change in circumstances
that is substantial and continuing." KRS
403.213(1). As with the original
determination of a child support award, the
decision whether to modify an award in light
of changed circumstances is within the sound
discretion of the trial court.
Snow v. Snow, Ky. App., 24 S.W.3d 668, 672 (2000).
On appeal, Steve only argues that the child support
award was inaccurate based upon his income; however, the standard
to be applied is a material change in circumstances that is
substantial and continuing.
Our review of the record does not
reveal evidence of changed circumstances.
To the contrary, Steve
makes essentially the same argument as he did in regards to the
amount of child support awarded in the 1993 decree.
We cannot
say that the trial court abused its discretion in concluding that
Steve was not entitled to the relief sought.
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In light our determinations herein, we need not reach
the remaining issues Steve raises on appeal.
We affirm the order
of the Green Circuit Court entered April 3, 2000.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Elmer J. George
Lebanon, Kentucky
Edwin H. Clark
Office of Attorney General
Frankfort, Kentucky
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