CHALFANT (MARTIN J.) VS. CHALFANT (NOW ROSS) (KAREN)
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RENDERED: FEBRUARY 11, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2010-CA-000830-ME
MARTIN J. CHALFANT
v.
APPELLANT
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE CHARLES R. HICKMAN, JUDGE
ACTION NO. 02-CI-00449
KAREN CHALFANT (NOW ROSS)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; DIXON, JUDGE; ISAAC,1 SENIOR
JUDGE.
ISAAC, SENIOR JUDGE: Martin J. Chalfant appeals from a Shelby Circuit Court
order entered on April 1, 2010, which denied his motion to recoup overpaid child
support.
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Senior Judge Sheila R. Isaac sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
The marriage of Martin and Karen Chalfant (now Ross) was dissolved on
December 27, 2005. Karen was awarded $1,289 per month in support for their two
children, a son born in 1990 and a daughter born in 1992. The younger child has
been diagnosed with mild mental retardation, apraxia, central nervous system
dysfunction, hypotonia and scoliosis. Karen filed an appeal from the dissolution
judgment. While that appeal was pending, Martin filed a motion to reduce his
child support obligation due to a reduction in his income. This motion was filed on
March 21, 2007. After holding a hearing on various issues pertaining to custody,
the circuit court entered findings of fact, conclusions of law and judgment on
February 11, 2008. According to Martin, the judgment stated that he would
receive an adjustment in the calculation of his child support payment pursuant to
the Kentucky Child Support Guidelines, but reserved the amount of the adjustment
for a later ruling. Although the judgment does not contain express words to that
effect, it did state that “[t]he child support calculation in the current action will not
include Martin’s inheritance from his mother’s estate[,]” and also ordered an
adjustment in the calculation of Martin’s child support to reflect his payment of
medical insurance for his daughter. A few weeks later, Martin filed a motion
requesting the court to set a new child support amount in accordance with its
ruling. A hearing was set for May 23, 2008. Meanwhile, on March 21, 2008, this
Court rendered its opinion in the underlying appeal. See Chalfant v. Chalfant,
2008 WL 744932 (Ky.App. 2008)(2006-CA-000229-MR). Martin filed a motion
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for discretionary review. The circuit court postponed the May 23, 2008, hearing
until after the motion for discretionary review was ruled upon. The motion for
discretionary review was denied on February 17, 2009.
Meanwhile, on January 30, 2009, Martin filed another motion to modify
child support citing as grounds that he had lost his job, and that his support
obligation for his eldest child would end in June when that child graduated from
high school. A hearing on the motion was set for March 18, 2009, and was then
rescheduled by agreement of the parties, for April 8, 2009. The hearing was
rescheduled yet again, at Karen’s request and over Martin’s objections, for May
22, 2009. Karen’s attorney then filed a motion to withdraw, and the hearing was
rescheduled for June 12, 2009.
When the parties appeared in court on that date, the hearing could not be
held because Karen had failed to respond to discovery requests and to Martin’s
motion to compel discovery responses. Martin again asked the court to reduce his
child support obligation because the eldest child had graduated from high school
the week before. The court issued an order temporarily reducing Martin’s child
support to $526 per month based on one child. The trial court calculated that
amount based on a worksheet submitted by Martin which showed his monthly
income to be $6219. The parties were ordered to mediation in August but they
were unable to settle the child support modification issue. A hearing on various
unresolved issues was held on October 23, 2009, and the circuit court entered an
opinion and order finding that Martin had overpaid child support in the amount of
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$20,267.22 since March 21, 2007 (the date he filed his initial motion to modify
child support).
A hearing on the issue of recoupment of the overpaid child support was held
on March 17, 2010. As evidence that the excess funds had not been expended for
the reasonable support of their daughter, Martin argued that Karen had deposited
the child support checks into a joint business account held by her and her second
husband. Karen and her husband testified that it was the only bank account they
have and that all the child support checks were used to pay monthly living
expenses. The trial court concluded that there were no unexpended child support
funds from which recoupment could be made and on April 1, 2010, it entered an
opinion and order denying Martin’s motion for retroactive recoupment of his
overpaid child support. This appeal followed.
Martin argues that under the facts of this case, the trial court erred in
applying the test formulated in Clay v. Clay, 707 S.W.2d 352 (Ky.App. 1986) for
determining when overpaid child support may be recouped. In Clay, a panel of
this Court held that when a child support award is reversed or vacated on appeal,
the payor parent is not entitled to restitution unless there are unexpended child
support funds from which the recoupment can be made. After observing that child
support is not a contractual obligation but rather derives from the obligation of the
parent to the child, not from one parent to another, the Clay court explored the
public policy ramifications of permitting automatic recoupment of overpaid child
support:
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the power of a court to order or permit recoupment
should not be denied. But to the extent that such
overpayments have been properly expended for the
child’s support in reliance on the court order, and neither
they nor their equivalent are available for repayment, the
entitlement to recoupment would, of necessity, entail a
reduction in the amount of future support below even that
which the appellate court itself, or the trial court in the
implementation of the appellate court's mandate, has
found necessary. In other words, in such a situation, the
onus of the remedy would fall upon the child, not the
receiving parent. The existence of a right of recoupment,
in that instance, would be entirely inconsistent with the
obligation imposed upon the parent by law, because it
would require that, during the recoupment period-the
interval of time during which the paying parent reduces
the periodic payment below the amount last ordered-the
child would be receiving less than that found necessary
for his or her support; and thus, the recouping parent
would not be fulfilling his or her statutory obligation.
Id. at 354 quoting Rand v. Rand, 40 Md.App. 550, 392 A.2d 1149, 1151-1153
(1978).
Martin argues that the test in Clay, which requires a court to determine
whether overpayments have been properly expended on the child’s support and are
therefore not available for repayment, applies only when a child support award is
reversed or modified on appeal, not when, as in this case, the award of child
support is modified on a party’s motion. He contends that, as an equitable matter,
he is entitled to recoupment because Karen had been on notice since February 11,
2008, that a reduction in the amount of child support was a certainty.
As are most other aspects of domestic relations law, the
establishment, modification, and enforcement of child
support are prescribed in their general contours by statute
and are largely left, within the statutory parameters, to
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the sound discretion of the trial court. This discretion is
far from unlimited. But generally, as long as the trial
court gives due consideration to the parties’ financial
circumstances and the child’s needs, and either conforms
to the statutory prescriptions or adequately justifies
deviating therefrom, this Court will not disturb its
rulings.
Van Meter v. Smith,14 S.W.3d 569, 572 (Ky.App. 2000)(internal citations
omitted).
We agree with Martin that the Clay holding applies expressly in cases
involving the reversal or vacation of a child support award on appeal. The
question is whether the trial court abused its discretion in applying the same
reasoning in a scenario involving the modification of child support in response to a
motion. Although Martin stresses that Karen was on notice that the child support
amount would definitely be modified, the payee in Clay was similarly on notice
that the amount of child support could be altered as a result of the pending appeal.
Furthermore, the public policy concerns which shaped the outcome in Clay are
equally present in this case, particularly when we consider the disabilities of the
younger child.
We find no abuse of discretion in the trial court’s ruling in this case, and
therefore affirm its order.
ALL CONCUR.
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BRIEF FOR APPELLANT:
NO BRIEF FILED FOR APPELLEE
Kenneth A. Bohnert
Corinne V. Lawrence
Louisville, Kentucky
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