ROBERT GEORGE MULCAHEY V. LINDA MAYS BUERKLEY
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RENDERED:
August 22, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-001815-MR
ROBERT GEORGE MULCAHEY
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
CIVIL ACTION NO. 79-CI-000034
V.
LINDA MAYS BUERKLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON and MILLER, Judges.
HUDDLESTON, JUDGE.
This appeal involves a dispute between Robert
Mulcahey and his former wife, Linda Buerkley, over Linda's
support obligation to their now nineteen-year-old son, Matthew.
On April 30, 1996,1 Robert filed the following motion:
Respondent ROBERT GEORGE MULCAHEY, moves to (sic) Court
as follows:
1)
To issue an Order setting aside this Court Order
of January 17, 1995.
1
Such was entered using in-
Significantly, this was just over one month before
eighteen-year-old Matthew was expected to graduate from high
school.
correct figures and informations from the Petitioner . . . .
While the record does not contain an order entered on January 17,
1995, we assume that Robert is referring to the order entered on
February 24, 1995, wherein Kenton Circuit Court found Linda to
have "an average gross monthly income of $2,889[.00]" and ordered
her to pay "$86.94 per week plus 3% poundage2 thereon for a total
weekly payment of $89.55" to Robert as child support for Matthew.
After the February 24, 1995, order was entered, no
further action was taken in the case until March 28, 1996, when
Linda filed a motion to terminate her child support obligation on
the ground that Matthew had turned eighteen and would be graduating from high school on June 10, 1996.
Robert responded on April
1, 1996, by filing the following motion:
Respondent ROBERT GEORGE MULCAHEY, moves to (sic) Court
as follows:
1)
To require the Mother-Petitioner to pay an additional fourteen weeks child support effective 17
May 1996.
2)
To require the Mother-Petitioner to reimburse the
Father-Respondent $1,300.00.
3)
To require the Mother-Petitioner to furnish the
Father-Respondent with last pay check stub for
2
"Poundage" is the fee paid by a child support obligor to
the county attorney or other agent of the Cabinet for Families
and Children, Division for Child Support Enforcement, upon monies
ordered to be paid for child support through the agent's office.
2
1995, and one pay check stub from April 1996
. . . .
Before the court ruled on either of these motions, Robert filed
the April 30, 1996, motion previously quoted.
Addressing the pending motions in a June 14, 1996,
order, the court stated:
IT IS HEREBY ORDERED AND ADJUDGED AS FOLLOWS:
1.
Mother's motion to stop child support payment
because of over payment is moot as the child graduated
June 10, 1996.
This motion became mooted by the April
30, 1996 motion filed by [the father] which was heard
on May 13, 1996.
2.
Father's motion for additional fourteen weeks
child support is overruled (sic).
3.
Father's motion to reimburse $1,300.00 for
miscellaneous expenses for the daughter is overruled
(sic).
4.
Mother has made wages higher than testified
and agreed to on February 24, 1995.
However, a request
for modification was not filed until April 30, 1996.
Mother shall pay the sum of $111.95 per week for the
parties' minor child through June 10, 1996, the anticipated date of graduation.
5.
Mother's child support through June 10, 1996
should total $7,052.15.
3
The Court calculates she will
be in arrearage $207.09 based on the increase of child
support.
The court generously treated Robert's vague April 30, 1996,
motion as a motion to modify child support and, in fact, increased Linda's weekly child support obligation from $89.55 to
$111.95.
Nevertheless, Robert appeals from paragraph four of the
court's order.
His notice of appeal, in relevant part, states
that:
NOTICE is hereby given that ROBERT GEORGE MULCAHEY
appeals to the Court of Appeals from the final judgment
entered herein on the 14th day of June, 1996, on #4, to
issue a[n] Order setting aside the Order of 17th January, 1995, since the Order was issued on testimony from
the Appellee which was inaccurate.[3]
As best we can determine from Robert's inarticulate
brief and pleadings, Robert is claiming that the circuit court
erred by making this increase effective only from the date of his
motion (April 30, 1996) through the date of Matthew's high school
graduation (June 10, 1996) instead of making it retroactive.
disagree.
We
Ky. Rev. Stat. (KRS) 403.213 clearly states that
"[t]he provisions of any decree respecting child support may be
modified only as to installments accruing subsequent to the
filing of the motion for modification and only upon a showing of
3
He does not appeal from the court's rulings on the other issues addressed in the June 14, 1996,
order.
4
a material change in circumstances that is substantial and
continuing."
(Emphasis supplied.)
See also Giacalone v.
Giacalone, Ky.App., 876 S.W.2d 616, 620 (1994).
Even if the court had interpreted Robert's motion as a
request for Ky. R. Civ. Proc. (CR) 60.02 relief as his notice of
appeal seems to suggest it might have been, the request came too
late.
Robert argues that the court's order setting Linda's
weekly child support obligation at $89.55 was based upon
inaccurate information.
The two provisions of CR 60.02 that
Robert could have attempted to invoke -- CR 60.02(b) (newly
discovered evidence) or CR 60.02(c) (perjury) -- both require
that the motion be made "not more than one year after the
judgment, order or proceeding was entered or taken."
Since
Robert waited until April 1996 to request relief from the
February 1995 order, his request comes too late for CR 60.02
relief.4
For these reasons, the Kenton Circuit Court order is
affirmed.
EMBERTON, JUDGE, CONCURS.
MILLER, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
Robert George Mulcahey, pro se
Covington, Kentucky
FOR APPELLEE:
4
Again, while Robert has continuously referred to a
nonexistent January 17, 1995, order, we assume that he is
actually referring to the February 24, 1995, order. Whether the
order was entered in January or February of 1995, April 1996 is
too late to seek Ky. R. Civ. Proc. (CR) 60.02 relief under
subsections (a), (b) or (c).
5
No appearance.
6
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