JUDD (DANA) VS. YOUNG (TROY D.)
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RENDERED: AUGUST 27, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000430-ME
DANA JUDD
v.
APPELLANT
APPEAL FROM GREEN CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 99-CI-00099
TROY D. YOUNG
APPELLEE
OPINION
REVERSING AND VACATING
** ** ** ** **
BEFORE: THOMPSON, VANMETER, AND WINE, JUDGES.
VANMETER, JUDGE: Dana Judd appeals from the March 9, 2010, order of the
Green Circuit Court denying her motion to vacate part of its February 12, 2010,
order which suspended Troy D. Young’s obligation to pay child support. For the
following reasons, we reverse and vacate the March 9, 2010, order with directions
for the trial court to enter an order reinstating Young’s child support obligations
and requiring Young to pay all past due and owing child support.
Throughout late winter and spring of 2009, this matter came before
the trial court upon motion by Young requesting that the court hold Judd in
contempt of court for failure to abide by previous orders of the court regarding his
right to visitation with their teenage daughter. In May 2009, after hearing the
matter, the court entered an order which reaffirmed Young’s visitation rights with
the daughter pursuant to a previous order of the court. The court did not find Judd
to be in contempt of court.
This matter was reviewed further by the court in June and August
2009, at which time the court noted that Young continued to desire visitation with
his daughter, but did not wish to pursue enforcement of his visitation rights by
placing his daughter in juvenile detention. Rather, Young requested financial
consequences should his visitation rights not be honored. At this time, the court
appointed a guardian ad litem to represent the interests of the daughter.
In September 2009, the guardian ad litem filed a report suggesting that
good cause existed for the daughter’s refusal to visit with Young and further
recommended a modification of the visitation agreement to allow the daughter the
choice of whether or not to visit with Young. In October 2009, this matter again
was heard by the court and the court noted that Young still did not wish to pursue
contempt punishment against his daughter, but rather requested payment of
attorney fees.
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By order entered February 12, 2010, the trial court ruled as follows:
(Young) having sought his visitation rights with the
parties’ child, multiple hearings having been conducted
before this Court regarding this issue, (Judd) being
adamant that she is unable to make the parties’ teenage
daughter visit with (Young) and the Court being
sufficiently advised,
It is hereby ordered that (Young’s) visitation rights are
not to be enforced but if the parties’ teenage daughter
chooses to visit with (Young), the parties themselves can
make said arrangements. During the interim, however,
(Young’s) requirement to pay (Judd) child support be and
is hereby suspended and will not be reinstated except
upon motion to the Court.
Judd moved the court to vacate its order to the extent it suspended
Young’s child support obligation and requested that child support be reinstated.
The court denied her motion to vacate. This appeal followed.
Judd argues the trial court abused its discretion by suspending
Young’s child support obligation for failure to comply with the court’s orders
regarding visitation. We agree.
Under CR1 52.01, “[f]indings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the opportunity of the trial court
to judge the credibility of the witnesses.” A factual finding is not clearly erroneous
if supported by substantial evidence. Owens-Corning Fiberglas Corp. v.
Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). Substantial
evidence is evidence “of substance and relevant consequence having the fitness to
1
Kentucky Rules of Civil Procedure.
-3-
induce conviction in the minds of reasonable men.” Id. (citations omitted). An
appellate court reviews legal issues de novo. Carroll v. Meredith, 59 S.W.3d 484,
489 (Ky.App. 2001).
KRS2 403.240(1) provides as follows:
If a party fails to comply with a provision of a decree or
temporary order or injunction, the obligation of the other
party to make payments for support or maintenance or to
permit visitation is not suspended; but he may move the
court to grant an appropriate order.
This court has long held that visitation and child support constitute
separate rights and obligations and that an obligation to pay child support cannot
be suspended as a result of a failure of either the custodial parent or the child itself
to comply with the trial court’s visitation orders. Stevens v. Stevens, 729 S.W.2d
461, 462 (Ky.App. 1987). The public policy behind KRS 403.240 is to ensure that
the child is sufficiently supported. Id. at 463. In other words, “the best interest of
the child is not to be sacrificed as a result of contemptuous action on the part of the
custodial parent.” Id. Thus, the trial court may remedy the problem under its
contempt powers, but may not suspend Young’s obligation to pay child support as
a sanction for any contemptuous action on the part of Judd or the daughter.3
2
Kentucky Revised Statutes.
3
In Stevens, this court noted that the trial court may modify the future support obligation of the
noncustodial parent by considering the factors set forth in KRS 403.210, which does not list the
right of visitation of the noncustodial parent as a factor to be considered, as well as the factors set
forth in KRS 403.250. The latter statute provides that modification of the support provision may
occur only upon a showing of “changed circumstances so substantial and continuing as to make
the terms unconscionable.” As in Stevens, we question whether the child’s refusal to visit with
her father could be construed as a “changed circumstance so substantial and continuing” as to
make the terms of the child support order unconscionable. The obligation of the trial court is to
look to the needs of the child, notwithstanding the child’s refusal to visit with her father.
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The March 9, 2010, order of the Green Circuit Court is reversed and
vacated with directions for the trial court to enter an order reinstating Young’s
child support obligations and requiring Young to pay all past due and owing child
support.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey Eastham
Greensburg, Kentucky
Joseph R. Stewart
Lebanon, Kentucky
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