WILLIS DANIEL COOMER v. SHARYLE A. GAINES
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RENDERED:
November 2, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002516-MR
WILLIS DANIEL COOMER
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 91-CI-00010
SHARYLE A. GAINES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order requiring that
the amount of dependent social security disability benefits (SSD)
be added to the appellant custodial parent’s income for purposes
of calculating child support, even though appellant was the
disabled parent on whom the child’s benefits were based.
Appellant argues that pursuant to case law and the recent
amendment to KRS 403.211, the amount of said benefits should not
have been included as part of his income.
From our
interpretation of Miller v. Miller, Ky. App., 929 S.W.2d 202
(1996), the trial court correctly included the amount of the SSD
benefits as part of appellant’s income.
As for KRS 403.211(14),
said section was effective subsequent to the court’s order in
this case with no retroactivity language, and the issue of the
amendment was never raised in appellant’s motion to alter or in
any other manner before the trial court.
Accordingly, we affirm.
Appellant, Willis Coomer, and appellee, Sharyle Gaines,
were married in 1980 and had one child, Nicole, born in 1984.
1991, Willis filed for divorce.
In
The parties initially shared
joint custody, with Sharyle being the primary custodian of
Nicole.
On February 11, 2000, a judgment was entered awarding
custody to Willis and ordering Sharyle to pay child support.
At
that time, Willis was receiving social security disability
benefits, and through Willis’s disability, benefits were also
paid to Willis on behalf of Nicole.
When Sharyle contested the
amount of support ordered, the issue arose as to whether the
disability benefits received on behalf of Nicole should be
included in Willis’s income for purposes of computing Sharyle’s
child support obligation.
On June 26, 2000, the court entered an
order concluding that said benefits were to be included in
Willis’s gross income for purposes of computing child support.
On July 5, 2000, Willis filed a motion to alter, vacate or amend,
arguing that disability benefits paid on behalf of a child are
not income to the disabled parent, but rather are to be credited
toward the disabled parent’s child support obligation.
From the
order denying this motion, Willis now appeals.
Appellant argues that under Van Meter v. Smith, Ky.
App., 14 S.W.3d 569 (2000), although he is the custodial parent,
he is entitled to be credited the amount of the dependent social
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security benefits toward his support obligation.
As the
custodial parent, appellant has a child support obligation, but
obviously does not pay it to himself.
Hence, we fail to see how
a credit toward his child support obligation, which he would
otherwise be entitled to under Van Meter, would affect appellant.
In fact, the lower court’s order makes no mention of a credit,
but rather requires the amount of the dependent social security
disability benefit to be included in appellant’s gross income for
purposes of computing the parties’ child support obligations.
Including the amount of the benefit in appellant’s gross income
essentially reduces the amount of child support Willis receives
from Sharyle since it makes the percentage of his responsibility
higher.
See KRS 403.212(3).
Thus, we shall proceed with review
of appellant’s appeal on the assumption that he is actually
challenging the requirement that the disability benefit paid on
behalf of Nicole be included in his gross income.
In Miller v. Miller, Ky. App., 929 S.W.2d 202 (1996)
and Van Meter, this Court established that the disabled parent
whose child receives social security disability benefits on
account of that disabled parent, is entitled to credit the amount
of the child’s benefit against their child support obligation.
In Miller, at 205, however, the Court went further to hold that
the parent who receives the disability funds for the child must
include those funds in that parent’s gross income for purposes of
calculating each parent’s child support obligation.
(From our
reading of Van Meter, the Court did not have before it the issue
of whether and which parent must claim the child’s social
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security disability benefit as gross income.)
Consequently, in
2000, the Legislature amended KRS 403.211 to add the following
provision effective July 14, 2000:
(14) A payment of money received by a child
as a result of a parental disability shall be
credited against the child support obligation
of the parent. A payment shall not be
counted as income to either parent when
calculating a child support obligation. . . .
(emphasis added.)
The court’s order in the instant case was entered on
June 26, 2000, prior to the effective date of the amendment of
KRS 403.211, and said statute contains no retroactivity language.
See KRS 446.080(3).
Hence, the court’s order of June 26 was
correct as to the law in effect at that time since Willis was
receiving the disability benefits on behalf of Nicole.
Although
Willis argues in this appeal that under the amendment to KRS
403.211, the amount of Nicole’s social security disability
benefit should not be included as part of his gross income, he
never raised this issue before the trial court after the
effective date of the amendment.
(The court’s order on the
motion to alter was entered on September 29, 2000.)
Thus, the
lower court never had the opportunity to modify its order in
accordance with KRS 403.211(14).
As we cannot review any matter
not raised in the lower court, we must affirm the court’s
decision to include Nicole’s disability benefit as part of
Willis’s gross income.
Kaplon v. Chase, Ky. App., 690 S.W.2d 761
(1985).
For the reasons stated above, the judgment of the
Franklin Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ronald W. Crawford
Frankfort, Kentucky
Catherine C. Staib
Frankfort, Kentucky
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