LITTLE (ARNOLD DEAN) VS. LITTLE (BETTY CAROL)
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RENDERED: MARCH 18, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001497-MR
ARNOLD DEAN LITTLE
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 93-CI-00311
BETTY CAROL LITTLE, NOW DALTON
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: LAMBERT, MOORE, and NICKELL, JUDGES.
MOORE, JUDGE: Arnold Dean Little appeals the Greenup Circuit Court’s order
denying his motion to set child support arrearage. After a review of the record, we
reverse and remand for proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
Arnold Dean Little and Betty Little (now Dalton) were divorced on
March 7, 1994. The court awarded custody of the parties’ only child Bart Little,
now deceased, to Arnold. At all times pertinent to this action, Betty’s child
support obligation was set by order of the Greenup Circuit Court at $60.00 per
month.
The parties concede that Betty was current on her child support obligation as
of April 5, 2000. The only amounts in controversy are those payments due from
May 2000 until Betty’s obligation terminated on December 25, 2002, Bart’s
nineteenth birthday. Arnold, who did not seek to enforce any payments until
March 31, 2009, testified that he sought enforcement in an attempt to offset any
payments due from Betty’s share of the distribution from Bart’s estate.
A hearing was held on Arnold’s motion wherein Betty conceded she owed
some child support, but the amount was in dispute. Arnold had kept a ledger of
payments received, and Betty introduced a number of cancelled checks for child
support, two of which were in dispute.
The Greenup Circuit Court found that, in light of the fact that Arnold’s records did
not reflect amounts for some of the cancelled checks provided by Betty, Arnold’s
testimony that he had not received payments was not conclusive. The court further
found that Betty’s inability to provide complete documentation of all payments
made was due to the fact that Arnold waited six and a half years before attempting
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to recover any arrearages. Thus, the court determined that child support arrearage
could not be established and did not award any amount to Arnold.
Arnold now appeals, contending that (1) the circuit court erred by failing to
set an amount owed to him for unpaid child support; and (2) the circuit court erred
by ruling that waiting six and a half years to recover arrearages was in error.
STANDARD OF REVIEW
We review the denial of a motion to set a child support arrearage for an
abuse of discretion. See Gibson v. Gibson, 211 S.W.3d 601, 602 (Ky. App. 2006).
Furthermore, Kentucky Civil Rule 52.01 states that “due regard shall be given to
the opportunity of the trial court to judge the credibility of the witnesses.” See also
Miller v. Harris, 320 S.W.3d 138, 141 (Ky. App. 2010).
ANALYSIS
Arnold first argues that the circuit court erred by failing to set an amount
owed to him for unpaid child support. The Kentucky Supreme Court has recently
spoken on the issue in Lichtenstein v. Barbanel, 322 S.W.3d 27 (Ky. 2010). In that
case, the Kentucky Supreme Court determined that “once ‘the validity of an order
setting child support is established, the non-custodial parent bears the burden of
proving that he satisfied the obligation and owes no arrearage.’” Lichtenstein, 322
S.W.3d at 32 (quoting Gibson v. Gibson, 211 S.W.3d 601, 611 (Ky. App. 1988)).
The Court further determined that the circuit court’s failure to determine the
amount of arrearage constituted an abuse of discretion. Id. at 31.
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As previously discussed, the circuit court held that there was no arrearage
based upon the fact that the evidence presented by Arnold was inconclusive. The
court determined that the evidence was not sufficient to prove that any arrearage
existed based upon the fact that Arnold did not submit evidence indicating a credit
for payments made for which Betty had submitted cancelled checks. Thus, despite
the fact that Betty acknowledged that an arrearage is owed, the court found that
Arnold did not present evidence sufficient to prove that an arrearage existed.
Based upon these facts, the circuit court abused its discretion in placing the burden
upon Arnold to prove that an arrearage is owed. Lichtenstein, 322 S.W.3d at 32.
Arnold also argues that the circuit court erred in ruling that waiting six
and a half years to recover arrearages was in error. Under KRS1 413.090(5), an
action to recover unpaid child support may be brought within fifteen years from the
date that the cause of action first accrued. “Child support payments become vested
when due.” See Gibson, 211 S.W.3d at 609. Thus, the cause of action accrues
when the child support obligation “’becomes due and is unpaid.’” Id. (quoting
Price v. Price, 912 S.W.2d 44, 46 (Ky. 1995)). In this case, Arnold is seeking
arrears for payments owed from May, 2000 to December, 2002. The fifteen year
statute of limitations has not passed, and Arnold is entitled to seek recovery for
unpaid child support during that time period.
We defer to the circuit court in its finding of credibility as to the evidence
presented regarding the dispute over whether two of the checks presented were
1
Kentucky Revised Statute.
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issued as child support payments. During the hearing, both parties testified as to
the possibility of cash payments being made to satisfy Betty’s child support
obligation. The trial court did not make a finding on this. On remand, likely this
will be a credibility determination for the trial court. We are not entitled to
substitute our judgment for that of the circuit court’s where the court had the best
opportunity to ascertain the credibility of the testimony and the weight of the
evidence presented. Clark v. Bd. of Regents of W. Ky. Univ., 311 S.W.3d 726, 729
(Ky. App. 2010).
Accordingly, the order of the Greenup Circuit Court is reversed and
remanded for proceedings consistent with this opinion.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Charles Douglas
Greenup, Kentucky
Robin Webb
Grayson, Kentucky
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