MICHAEL NICEWONDER V. DARLENE NICEWONDER DAY
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RENDERED: October 23, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000160-MR
MICHAEL NICEWONDER
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE DOUGLAS M. STEPHENS, JUDGE
ACTION NO. 90-CI-1129
V.
DARLENE NICEWONDER DAY
APPELLEE
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BEFORE:
OPINION
AFFIRMING
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GUDGEL, Chief Judge; ABRAMSON and COMBS, Judges.
COMBS, JUDGE: The appellant, Michael Nicewonder, appeals from the
judgment of the Kenton Circuit Court which held that he owed the
appellee, Darlene Nicewonder (now Day), $1,866.94 in child
support arrearage.
Having carefully examined the record, we
affirm the court’s judgment.
The marriage of Michael and Darlene Nicewonder was
dissolved by decree of the Kenton Circuit Court on October 26,
1990.
Darlene was awarded custody of the parties’ two minor
children, and Michael was ordered to pay $110.00 per week in
child support.
In June 1995, Michael’s weekly child support
obligation was increased to $192.99 due to the extra expenses of
after-school and summer day-care for the two children.
Approximately a year later in May 1996, Michael filed a motion to
reduce his child support obligation and to receive a
reimbursement for overpayment.
He alleged that his income had
decreased and that the day-care costs presented to the court the
previous year were invalid.
On September 6, 1996, the court
conducted a hearing on the matter.
At the conclusion of the
hearing, the court entered oral findings of fact into the record,
which were to be reduced to a written order.
The court
determined that Michael owed an arrearage of $1,866.94 in child
support.
However, the court reduced Michael’s child support
obligation from $192.99 per week to $160.00 per week and held
that Michael should be permitted to provide care for the children
after school in an effort to minimize the day-care expenses.
On September 16, 1996, Michael filed a motion to amend
the court’s judgment.
He challenged the court’s findings as to
the child support arrearage, asserting that he owed only $497.00.
He also requested that the court address the issue of whether he
was entitled to a reimbursement for overpayment of child support.
He argued that his child support obligation had been increased in
June 1995 on the basis of fraudulent misrepresentations by
Darlene concerning day-care expenses and, therefore, that he was
entitled to receive a reimbursement for that improperly increased
amount.
On December 18, 1996, the court entered an order denying
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Michael’s motion to amend the judgment, adopting by reference its
oral findings (from the hearing of September 6, 1996) regarding
the issue of child support arrearage.
The court also held that
although Darlene may not have utilized the day-care providers
upon whose rates the June 1995 increase was based, she had
nevertheless incurred equivalent day care expenses from other
providers.
This appeal followed.
Michael argues on appeal that the court erred in
calculating his child support arrearage.
He relies on the fact
that the records of the Cabinet for Families and Children
indicate that he is in arrears only in the amount $497.00.
Michael also argues that he is entitled to receive a
reimbursement for the additional child support beginning in June
1995 because he contends that Darlene did not use this increased
support to pay for day-care expenses.
We disagree with both of
these contentions.
Pursuant to CR 52.01, the trial court’s findings of
fact shall not be set aside unless clearly erroneous.
The test
on appellate review of a trial court’s decision “is not whether
we would have decided it differently, but whether the findings of
the trial judge were clearly erroneous or that he abused his
discretion.”
Cherry v. Cherry, Ky., 634 S.W.2d 423, 425 (1982).
Moreover, “due regard shall be given to the opportunity of the
trial court to judge the credibility of witnesses.”
Brick Company v. Burchett, Ky., 288 S.W.2d 47 (1956).
Ironton Fire
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The record in the case before us amply supports the
court’s findings that Michael was in arrears on his child support
obligation in the amount of $1,866.97.
At the hearing, Linda
Lawler, a child support investigator with the Cabinet for
Families and Children, testified that Michael owed a child
support arrearage of $1,866.97.
This figure was based upon the
total obligation owed by Michael -- reduced by the amount of
child support that Darlene had actually received from him.
The
record shows that Lawler also testified that Michael’s child
support was only $497.00, based upon another method of
calculation by which a judgment obtained against Michael for
$2,000 was credited to Darlene as payment of support.
However,
it appears that this judgment was not only for child support
arrearage but also for restitution of assistance benefits paid to
Darlene and the children during the period that Michael had
failed to pay support.
Presented with the two different
calculations, the court looked to the actual amount of child
support that Darlene had received in determining Michael’s
arrearage -- discounting amounts recouped by the Cabinet as
restitution.
The court did not act improperly nor were its
findings clearly erroneous.
As to the issue of reimbursement of child support, it
is well settled in Kentucky that “support payments, once accrued,
are fixed and may not be modified by the trial court . . . and
any change in the amount of support operates prospectively.”
Clay v. Clay, Ky. App., 707 S.W.2d 352, 353 (1986).
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Furthermore, “restitution or recoupment of excess child support
is inappropriate unless there exists an accumulation of benefits
not consumed for support.”
Id. at 354.
Here, the court
specifically found that Darlene had incurred day-care expenses.
Finding no abuse of discretion, we cannot disturb the findings of
the circuit court.
For the foregoing reasons, we affirm the decision of
the Kenton Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
Ellen M. Longshore
Alexandria, KY
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