STEVEN PAUL SAMUELS v. MARGARET ANN SAMUELS
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RENDERED:
August 16, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001399-MR
STEVEN PAUL SAMUELS
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
ACTION NO. 97-CI-00734
v.
MARGARET ANN SAMUELS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUDGEL, AND KNOPF, JUDGES.
KNOPF, JUDGE:
Steven Paul Samuels appeals from an order of the
Bullitt Circuit Court which, among other things, awarded Margaret
Ann Samuels (Peggy) child support arrearages associated with
bonus income earned by Steven in accordance with the parties’
original settlement agreement.
Finding no error in the circuit
court’s award of child support arrearages, we affirm.
The parties were married on November 8, 1980, and had
two children during the marriage, Paul David Samuels and Brittany
Nicole Samuels.
On October 21, 1997, Peggy filed a petition to
dissolve the marriage.
At the time the petition was filed, Paul
was 16 and Brittany was 12.
On April 23, 1998, the parties
entered into a settlement agreement.
Under the agreement, Peggy
was named as the primary residential custodian of the two minor
children.
As child support, Steven was to pay Peggy $158.00 per
week in base child support; however, in addition, Steven was to
pay Peggy additional child support based upon any bonus income he
received from his employer.
The child support provisions of the
separation agreement stated as follows:
The Respondent [Steven] shall pay to the
Petitioner [Peggy] the sum of $158 per week
as child support based upon the respondent’s
current weekly pay without reference to any
bonuses. As bonuses are paid to the
Respondent, the parties shall annualize said
bonuses to determine what additional child
support would have been paid and the
Respondent shall become responsible to pay
said additional child support within 30 days
thereafter. (As an example and for
illustration purposes only, if the respondent
were to receive an annual bonus of $1200 then
child support would be re-figured by adding
$100 per month to the Respondent’s monthly
income figure on a child support worksheet
and a new child support obligation amount
determined accordingly.)
The final decree, which incorporated the settlement agreement,
was entered on April 27, 1998.
In late August or early September 1999, for reasons
related to Paul’s desire to attend North Bullitt County High
School, Steven rented a residence within the school district’s
boundaries and Paul moved in with Steven.
After Paul moved in
with Steven, Steven reduced his child support payments to Peggy
to $79.00 per week, one-half of the base child support as set
forth in the settlement agreement.
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On February 9, 2000, Peggy filed a motion to hold
Steven in contempt for, among other things, his failure to pay
child support pursuant to the settlement agreement.
The motion
alleged that Steven had failed to pay portions of the $158.00
base weekly child support obligation, and, further, had failed to
pay any support related to bonus income.
On February 28, 2000,
Steven responded by filing a motion to modify child support,
alleging that the parties had orally modified the parties’ child
support agreement when Paul came to live with him.
The matter was referred to the domestic relations
commissioner, and on May 3, 2000, an evidentiary hearing was held
on the outstanding motions.
However, because detailed
information regarding Steven’s bonus income for the years 1998,
1999, and 2000 was unavailable on the date of the hearing, child
support issues related to bonus income were specifically reserved
by the commissioner for consideration at a later time.
At the
hearing, Peggy contended that there had been no oral agreement to
modify child support after Paul moved in with Steven, whereas
Steven argued that Peggy had agreed to a modification based upon
a recalculation under the child support guidelines.
On May 23, 2000, the commissioner submitted his report.
The report included a finding that while the parties did not
reach a specific agreement regarding modification of child
support, there had been an agreement in principal to amend child
support to reflect Paul’s moving in with Steven, and that the
modification should be in conformity with the child support
guidelines.
Based upon the relevant income levels, the
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commissioner set Steven’s child support at $57.00 per week from
September 7, 1999, when Paul came to live with Steven, through
May 26, 2000, the date of Paul’s graduation from high school, and
$140.00 per week thereafter.
Peggy filed exceptions to the
report and, eventually, on February 14, 2001, the circuit court
entered an order adopting the commissioner’s report and
recommendation concerning this phase of the case.
Neither the
commissioner’s report nor the circuit court’s order adopting the
report specifically addressed the issue of the settlement
agreement’s provision regarding child support associated with
Steven’s bonus income.
In May 2000 Paul, after having turned eighteen,
graduated from high school, thereby terminating ongoing
provisions for support concerning the older child.1
In late
August 2000, Brittany went to live with Steven, prompting Steven
to file a motion to abate his child support obligation and to set
child support payable to him by Peggy for the parties’ daughter.
On November 20, 2000, at the commissioner’s recommendation, the
trial court entered an order setting Peggy’s weekly child support
obligation at $93.45 beginning the week of October 2, 2000.
However, the order also provided that “[t]he parties further
agree that no payment shall be forthcoming until such time as the
back support issues are resolved in the Circuit Court,” thereby
implicitly recognizing that there were unresolved arrearage
issues concerning amounts owed by Steven to Peggy.
1
Kentucky Revised Statutes (KRS) 403.213(3).
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On March 22, 2001, Steven filed a motion seeking, among
other things, a judgment against Peggy for $2,429.70 in child
support arrearages (26 weeks X $93.45) based upon the child
support obligation set in the November 20, 2000, child support
order.
In response, Peggy filed a motion seeking a judgment of
$8,130.72 relating to child support associated with bonus income
earned by Steven in the years 1998, 1999, and 2000, plus
interest.
Peggy acknowledged that her judgment should be offset
by any amounts she owed to Steven.
The matter was referred back
to the commissioner.
On May 10, 2001, the commissioner entered his report
which stated, in relevant part, as follows:
The Commissioner finds that the Court’s
finding of an oral agreement to amend child
support which was adopted by this Court in
the Order entered February 14, 2001,
supercedes the original Property Settlement
Agreement. Therefore, the Commissioner
recommends that [Peggy’s] motion for child
support arrearage be OVERRULED. [Steven]
should be awarded a judgment for child
support arrearage in the amount of $3,707.70.
Peggy filed timely exceptions to the commissioner’s report.
On June 13, 2001, the trial court entered an order
rejecting the commissioner’s recommendation to the extent that it
denied Peggy’s motion stating, in relevant part, as follows:
. . . the Court further finds that [Peggy] is
entitled to a common law judgment in the
amount of $8,130.72 representing child
support arrearage owed to [Peggy] by [Steven]
in accordance with the Property Settlement
Agreement made a part of the Court’s final
Decree Of Dissolution Of Marriage.
This amount reflects [Steven’s] child support
arrearage accrued from bonuses earned by
[Steven] from 1998 to 2000, plus 12% interest
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pursuant to KRS 360.040. Also, Stuart v.
Raikes, Ky., 627 S.W.2d 586 (1982) holding
that unpaid child support becomes a judgment
upon the date at which it is due and payable.
Steven filed a motion to alter, amend or vacate, which was denied
by order dated June 21, 2000.
This appeal followed.
First, Steven contends that the trial court abused its
discretion in entering a later judgment inconsistent with its
prior findings of fact.
Specifically, Steven contends that the
commissioner’s report of May 23, 2000, and the circuit court’s
order of February 14, 2001, adopting the report, had the effect
of determining that the parties had orally modified their
original child support agreement, including the provision of the
agreement providing for additional child support to be made based
upon Steven’s periodic bonus income, and that the June 13, 2001,
order is in conflict with the earlier order.
We disagree.
The underpinning of the commissioner’s May 23, 2000,
report and the circuit court’s February 14, 2001, order adopting
the report was the May 3, 2000, evidentiary hearing.
Prior to
the witnesses being called at the hearing, Peggy’s counsel raised
the issue of child support relating to the bonus, stating, “I
don’t think that there’s a dispute that portions of the bonus are
owed as set forth in the Property Settlement Agreement.”
However, counsel further stated that she had first been provided
tax returns for prior years immediately prior to the hearing, and
that she was unprepared to address the issue of bonus income and
the related child support without further opportunity to examine
the returns.
At this point the commissioner stated as follows:
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If what you’ve got is tax returns, I’m not
sure tax returns show how much of his wages - how much of his W2 is wages and how much is
bonuses. I’m not sure you’re going to know
anything more after you look at that. We’ll
just reserve on that and let you take a look
at that. We’ll address the issue of the
[base child support] arrearage at this time.
It’s your motion so call your first witness.
(Emphasis added.)
Further, contrary to the suggestion by Steven, neither
the commissioner’s May 23, 2000, report nor the circuit court’s
February 14, 2001, order makes reference to bonus income child
support, much less makes a specific finding that the parties had
agreed to modify that portion of the settlement agreement.
In light of the commissioner’s explicit reservation of
bonus income child support at the evidentiary hearing, the
absence of litigation of the issue at the hearing, the absence of
a reference to the issue in the commissioner’s report, and the
absence of any specific finding in the circuit court’s February
14, 2001, order, we are persuaded that the February 14, 2001,
order was intended to hold only that there had been an oral
modification of the base support of $158.00 per month, and was
not intended to decide that there had been an agreement either
retroactively or prospectively to modify Steven’s obligation to
pay child support under the bonus income provision of the
settlement agreement.
Next, Steven contends that the February 14, 2001, order
was res judicata as to the issue of whether there had been an
oral modification to the child support provisions of the property
settlement.
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The rule of res judicata is an affirmative defense
which operates to bar repetitious suits involving the same cause
of action.
subparts:
The doctrine of res judicata is formed by two
1) claim preclusion and 2) issue preclusion.2
For claim preclusion to bar further litigation, certain
elements must be present.
First, there must be identity of the
parties.3
Second, there must be identity of the causes of
action.4
Third, the action must have been resolved on the
merits.5
Here, the February 14, 2001, order is not res judicata
as to the issue of child support associated with bonus income
under claim preclusion because, as noted above, the issue was not
resolved on the merits by that order.
The February 14, 2001,
order only determined that there had been an agreement to adjust
base child support to reflect that Paul had moved in with Steven,
not to change past due, or future, child support associated with
bonus income.
For issue preclusion to operate as a bar to further
litigation, certain elements must be found to be present.
First,
the issue in the second case must be the same as the issue in the
first case.6
Second, the issue must have been actually
2
Yeoman v. Commonwealth, Health Policy Bd., Ky., 983 S.W.2d 459, 464- 465 (1998).
3
Newman v. Newman, Ky., 451 S.W.2d 417, 419 (1970).
4
Id.
5
Id.
6
Yeoman at 465 (citing Restatement (Second) of Judgments § 27 (1982)).
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litigated.7
Third, even if an issue was actually litigated in a
prior action, issue preclusion will not bar subsequent litigation
unless the issue was actually decided in that action.8
Fourth,
for issue preclusion to operate as a bar, the decision on the
issue in the prior action must have been necessary to the court's
judgment.9
Issue preclusion does not apply because, again, the
issue was not actually litigated at the May 3, 2000, evidentiary
hearing, nor was it addressed in the subsequent commissioner’s
report, nor was it addressed in the circuit court’s February 14,
2001 order.
Finally, Steven contends that the court’s judgment of
June 13, 2001, “was superceded by prior orders of the court.”
Steven asserts that the circuit court’s February 14, 2001, order
had previously determined that the child support provisions of
the separation agreement were unconscionable, and that the June
13, 2001, order directs money to be paid to Peggy to compensate
her for child support for a period where she did not have the
children.
This argument substantially overlaps Steven’s previous
two arguments, so we will dispose of this argument, primarily, by
again noting that we construe the February 14, 2001, order as not
having resolved the issue of child support arrearages related to
bonus income.
7
Id.
8
Id.
9
Id.
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We also note that Steven’s argument is, for several
reasons, somewhat disingenuous.
The February 14, 2001, order, in
fact, did not make any findings regarding the bonus income
provisions of the separation agreement, much less determine that
the provision was unconscionable.
Further, pursuant to Peggy’s
arrearage calculation sheet,10 the circuit court’s June 13, 2001,
order awarded Peggy child support related to bonus income for the
period beginning January 1, 1998, and ending August 2000.
Paul
changed residence to live with Steven in late August or early
September 1999.
2000.
Brittany went to live with Steven in August
Hence, contrary to Steven’s representations, for much of
the period at issue, both children were residing with Peggy, and
for all of the period at issue, at least one of the children was
residing with Peggy.
In addition, a significant portion of the
bonus income arrearage applies to pre-September 1999, prior to
any change of circumstances; Steven’s argument that any
subsequent oral modification should apply to these amounts is
particularly untenable.
Peggy’s calculations supporting the circuit court’s
arrearage determination are set forth in the record.
Other than
to claim that Peggy is not entitled to bonus-income child
support, Steven does not challenge her calculations or provide
alternative calculations of the arrearage.
The circuit court
offset Peggy’s claimed arrearage by Steven’s claims.
Based upon
the calculations in the record, we cannot say that the circuit
court’s determination of the net arrearages owed by Steven to
10
Circuit Court record, page 238.
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Peggy was clearly erroneous.
Under settled principles of
appellate review, this Court may not set aside findings of the
trial court unless those findings are clearly erroneous.11
For the foregoing reasons the judgment of the Bullitt
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Joseph J. Wantland
Shepherdsville, Kentucky
Sandra F. Keene
Tilford Dobbins Alexander
Buckaway & Black, LLP
Louisville, Kentucky
11
Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, Ky., 719 S.W.2d
442, 444 (1986).
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