ELMER J. SEBASTIAN v. LINDA S. SEBASTIAN
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RENDERED:
October 19, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001462-MR
ELMER J. SEBASTIAN
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD L. KOPOWSKI, JUDGE
CIVIL ACTION NO. 84-CI-00730
v.
LINDA S. SEBASTIAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge:
Elmer J. Sebastian appeals from a Campbell
Circuit Court order determining that he was obligated to pay
$16,740.00 to Linda S. Sebastian (now Cornett) for unpaid child
support applicable to the period March 14, 1986, to May 5, 1993.
The parties were married on March 31, 1973, and had one
child during the marriage, Kimberly Dawn Sebastian, born May 5,
1975.
On August 30, 1984, Linda filed a petition to dissolve the
marriage.
Following
contentious divorce proceedings, on July 29,
1985, the trial court entered a decree dissolving the marriage.
Among other things, the decree provided that Elmer was to pay Linda
$45.00 per week in child support.
Following the entry of the decree, Linda filed several
motions requesting that Elmer be held in contempt for failure to
pay child support.
The contempt proceedings were resolved when on
April 2, 1986, the parties entered into an agreed order which
provided, in relevant part, as follows:
In open Court, both [Linda] and [Elmer], individually and
though counsel, addressed the Court and informed the
Court that they reached on [sic] agreement to the within
Motion by [Linda], and to all other matters still in
controversy and that the terms of the agreement are as
follows:
1) [Elmer] shall pay to [Linda] the sum of One
Thousand ($1,000.00) Dollars in full satisfaction
for any and all arrearage due on child support
todate [sic] of this Order . . . .
2) [Elmer] shall terminate all natural parental
rights to the minor child of the parties by filing
with the Campbell Circuit Court a Petition for
Voluntary Termination of Parental Rights by April
14, 1986.
3) [Linda] agrees to relieve [Elmer] of any and all
obligations to pay child support for the minor
child of the parties in any form and for any reason
from date of this Order . . . .
-2-
Pursuant to paragraph two of the agreement, on April 18,
1986, Elmer filed a petition to voluntarily terminate his parental
rights to Kimberly in Campbell Circuit Court pursuant to Kentucky
Revised Statutes (KRS) 199.601.1
Service of the petition and
summons was made on the Cabinet for Human Resources by certified
mail on April 23, 1986; however, Linda was never served.
No
further steps were taken in the case, and on January 15, 1987, the
Campbell Circuit Court entered an order dismissing the termination
of parental rights case without prejudice based upon improper
service to Linda. Following this, Elmer did not take further legal
steps to revive the case.
On July 10, 1986, Linda filed a motion to hold Elmer in
contempt for failure to terminate his parental rights to Kimberly.
Elmer was served with the motion on July 19, 1986; however, for
reasons not disclosed in the record, the motion was never ruled on.
The record discloses that similar motions were filed on May 22,
1987, and July 2, 1987. It appears, however, that on both of these
occasions Elmer could not be located, notice of the motion was
never served, and Elmer’s copy of the motion was returned to the
circuit court clerk.
In the current proceedings, according to the
report of the Domestic Relation Commissioner (DRC), Linda testified
that she did not pursue the matter any further because of threats
made by Elmer to kill her, and Elmer testified that he took no
further action in the case because he did not know where Linda and
Kimberly were living.
1
Ky. Rev. Stat. (KRS) 199.601 was repealed by Acts 1986, ch.
423, § 198. For present law see KRS 625.040 to 625.120.
-3-
On November 17, 1999, the Cabinet for Families and
Children, on behalf of Linda, filed a motion to hold Elmer in
contempt for failure to pay child support and seeking $17,040.00 in
child support arrearages.
On February 22, 2000, Elmer responded
with a motion to dismiss on the basis that he was absolved from any
obligation to pay child support by his compliance with the April 2,
1986, agreed order and, further, that the claim for child support
arrearages was barred by the Statute of Limitations, KRS 413.120,
and by the doctrine of laches.
The matter was subsequently
referred to the court’s DRC.
Following a hearing, on April 18, 2000, the DRC issued
his report.
The DRC determined that Elmer had failed to comply
with the April 2, 1986, agreed order by failing to terminate his
parental rights to Kimberly.
The DRC further determined that
termination of these rights as provided under paragraph two of the
order was a condition precedent to the relief from child support as
contained in paragraph three.
As a result, the DRC recommended
that Elmer be assessed child support arrearages at the rate of
$45.00 per week for the period of March 14, 1986, to May 5, 1993,
the date Kimberly reached the age of 18; that Linda be awarded a
lump sum judgment of $16,740.00; and that Elmer be required to make
arrearage payments to Linda at the rate of $50.00 per week.
On April 25, 2000, Elmer filed exceptions to the DRC’s
report.
overruling
On May 10, 2000, the trial court entered an order
the
exceptions
and
contained in the DRC’s report.
adopting
the
recommendations
This appeal followed.
-4-
The tape of the DRC’s hearing is not included in the
appellate record.
Elmer claims that the tape was lost by the DRC;
however, the burden was upon Elmer to ensure that the transcript of
the hearing was included in the appellate record.2
In the absence
of the tapes, Elmer could have filed a narrative statement pursuant
to Kentucky Rule of Civil procedure (CR) 75.13.
When evidence
presented to the trial court is excluded from the appellate record,
we must presume that the judgment of the trial court was supported
by the missing evidence.3
Elmer contends that Linda’s action to collect the child
support arrearage was barred by the Statute of Limitations, KRS
413.120.
He
claims
that
“KRS
413.120
clearly
provides
that
[Linda’s] cause of action, if one so existed, should have been
filed within five (5) years.”
The weakness of Elmer’s argument is
illustrated by his failure to cite us to which of the fourteen
subsections of KRS 413.120 makes this “clear.”
In fact, KRS
413.120 does not explicitly establish a five year statute of
limitations to bring an action to recover child support arrearages.
KRS 413.090(1) provides that an action upon a judgment or
decree of any court of this state shall be commenced within fifteen
years after the cause of action first accrued.
Linda is seeking to
enforce the $45.00 child support obligation established in the July
29, 1985, dissolution decree, and KRS 413.090 is the applicable
2
Burberry v. Bridges, Ky., 427 S.W.2d 583, 585 (1968).
3
Miller v. Com., Dept. of Highways, Ky., 487 S.W.2d 931,
933 (1972).
-5-
Statute
of
Limitations
in
this
case.4
Moreover,
Schmidt
v.
Forehan,5 a case which also involved delinquent child support, held
that limitations "would not begin to run until such time as the
delinquency was reduced to a lump sum payment or until emancipation
of the child, whichever was the former.”
The Statue of Limitations did not begin to run until
Kimberly Dawn turned eighteen on May 5, 1993.
Less than fifteen
years elapsed between the date on which the statute of limitations
began to run and the date on which the Linda’s action was filed.
The
action
was
accordingly
not
barred
by
the
Statute
of
Limitations.
Next, Elmer contends that Linda’s cause of action is
barred by the equitable doctrine of laches.
However, Elmer fails
to identify how he was prejudiced by Linda’s failure to bring the
action sooner.
In fact, we note that the trial court did not
require interest to be paid on the child support arrearage, and, if
anything, Elmer benefitted by the delay by having the opportunity
to earn interest on the money he otherwise would have had to have
paid to Linda.
In any event, absent some prejudice, disadvantage,
or change of position resulting from the bringing of a lawsuit,
delay alone does not justify the application of the equitable
doctrine of laches to bar the lawsuit.
Further, Holmes v. Burke6 resolves this issue.
In Holmes the parties were divorced in May 1961 and the husband
4
Harvey v. McGuire, Ky. App., 635 S.W.2d 8, 9 (1982).
5
Ky. App., 549 S.W.2d 320, 323 (1977),
6
Ky., 462 S.W.2d 915 (1971).
-6-
agreed to pay the wife $117.68 per month in child support.
The
husband ceased paying child support sometime in 1961 or 1962, and
the wife made no demand for child support until September 1968.
The husband sought to avoid the arrearage based upon laches.
Kentucky’s highest court rejected the argument, stating:
Appellant made little or no demand on appellee for
payment of the child support money for nearly six years
and made little or no attempt to enforce collection of
the judgment in any court.
This inactivity and alleged
laches on the part of the appellant cannot be attributed
to
the
children
for
whose
maintenance award was made.
benefit
the
original
Glanton v. Renner, 285 Ky.
808, 149 S.W. 2d 748.
Appellee concedes that the defense of laches is not
effective as against the children in an action for their
benefit, but he insists that it is effective where the
mother is the real party in interest and is seeking
reimbursement.
We
do
not
agree
that
the
instant
case
presents
situation of “reimbursement” in the true sense.
a
Here,
the claim is for judgment for definitely fixed, past-due
periodic payments. In “reimbursement” the claim consists
of an actual out-of-pocket expended sum of money. In the
case before us, the claim is fixed by judgment.
In
claims for reimbursement, on the other hand, there is no
fixed determined sum to begin with, and the evidence must
establish the amount expended and its purpose.
-7-
In the
instant case, the only issue is whether an excusable
reason existed not to pay the sum which had already been
fixed.
We do not find that appellee is or should be
excused from paying the monthly payments already fixed
and past due[.]7
In this case, as in Holmes, the amount of child support
was fixed at $45.00 per week by the July 29, 1985, decree.
While
a longer period of time applies in this case, nevertheless, we are
persuaded that Holmes prevents Elmer from asserting a defense of
laches.
Next, Elmer contends that it would be inequitable to
require him to pay the child support arrearage on the basis that he
filed the petition to terminate his parental rights to Kimberly;
that he honestly thought all he had to do was file the petition; he
knew nothing about the dismissal of the case and thought his
parental rights to his daughter had been terminated until Linda
filed her motion to recover arrearages; and that it would be
unconscionable for a court to make a determination that arrearages
were owed after such a long time when he truly thought that he had
done all he had to do to comply with the agreement.
We disagree that the trial court’s order produces an
inequitable result.
During Kimberly Dawn’s eighteen years of
minority, Elmer paid little more for her support than the $1,000.00
in arrearages paid in conjunction with the April 2, 1986, agreed
order.
7
The present judgment requires him to pay an additional
Id. at 918.
-8-
$16,740.00 in child support.
Counting the present judgment,
Elmer’s total contribution toward the support of his daughter
during her minority would be in the range of $18,000.00, or
approximately $1,000.00 per year. While Elmer alleges that various
ailments make the payments particularly burdensome on him, we are
not persuaded that the judgment against him was inequitable.
Finally, Elmer contends that the DRC should have recused
himself on the basis that he had previously represented a client in
a lawsuit against Elmer.
According to Elmer, “[a]s soon as [he]
saw the [DRC] he recognized him as an attorney who had contacted
him for the collection of a debt incurred by [Linda]. [He] had
talked to [the DRC] on the phone on several occasions and had been
in his office at least twice making payments on the bill.”
Elmer does not allege that he requested the DRC to recuse
himself, and we are unable to find a recusal motion in the record.
While it may be argued that it is not necessary to preserve this
error in order for us to review the claim on appeal,8 given the
procedural posture of this case, we conclude that Elmer’s failure
to raise the recusal during the trial proceedings waives the issue
for appellate review. On appeal, no factual issues are in dispute;
all issues on appeal concern issues of law, which we review de
novo.
Because we have reviewed all appellate issues de novo,
giving no deference to the conclusion of the DRC as to these
issues, it is irrelevant whether the DRC was biased.
8
Nichols
v.
Commonwealth,
(1992).
-9-
Ky.,
839
Under these
S.W.2d 263, 266
circumstances, we conclude that Elmer’s failure to move for the
recusal of the DRC waives the issue.
In any event, the DRC’s prior representation of a client
in a bill collection dispute involving Elmer does not suggest the
slightest trace of bias by the DRC toward Elmer.
In summary, the
DRC was not required to recuse himself from the case.
For the foregoing reasons, the order from which this
appeal is prosecuted is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sally J. Herald
Cold Spring, Kentucky
Mott V. Plummer
Sally A. Schatteman
CAMPBELL COUNTY CHILD SUPPORT
Newport, Kentucky
-10-
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