AUBREY WILLIAMS v. ANNETTE VIVIAN WILLIAMS
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RENDERED:
November 19, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002888-MR
AUBREY WILLIAMS
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PATRICIA WALKER FITZGERALD, JUDGE
CIVIL ACTION NO. 81-CI-07700
v.
ANNETTE VIVIAN WILLIAMS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and JOHNSON, Judges
HUDDLESTON, Judge:
Aubrey Williams appeals from Jefferson County
Family Court orders awarding Annette Vivian Williams child support
arrearages.
The
parties
married
in
December
1962
and
their
marriage was dissolved in March 1983. They have three children, all
of
whom
are
now
emancipated.
In
the
years
following
the
dissolution of the parties’ marriage, considerable litigation has
occurred over diverse matters.
The present cycle of litigation began on June 27, 1995,
when Annette filed a motion seeking a judgment for child support
arrearages. With the exception of two 1984 wage assignments, it is
uncontested that in the years following the divorce, Aubrey has not
paid his child support obligation pursuant to the traditionally
approved methods, i.e., by sending Annette a check or by executing
a wage assignment.
Aubrey, however, insists that, throughout the
years, he has paid various expenses on behalf of Annette and his
children, including certain mortgages that he was not legally
obligated to pay, and, together, these payments exceed his actual
child support obligation.
The
matter
was
referred
to
a
domestic
relations
commissioner who held hearings on June 28 and June 30, 1995. The
video record of these hearings was not included in the record on
appeal.
On March 15, 1996, the DRC issued his report finding that
Aubrey had a net accumulated child support arrearage of $37,257.00.
Both sides filed timely exceptions to the DRC’s report.
Following
a hearing on the exceptions, the circuit court substantially
accepted the Commissioner’s report and awarded Annette $34,857.001
for
child
support
arrearages.
Aubrey
filed
a
“motion
for
reconsideration,” which was denied, but subsequently the court sue
sponte entered an order to clarify its earlier order regarding the
issue of the 1984 wage assignments.
This appeal followed.
Unpaid child support awards become vested when due, and
courts are without authority to "forgive" vested rights in accrued
unpaid support awards.
(1963).
See also
Dalton v. Dalton, Ky., 367 S.W.2d 840, 842
Stevens v. Stevens, Ky. App., 729 S.W.2d 461
(1987), (court erred in finding a father was not required to pay
1
The court did not explain why it reduced the
Commissioner’s recommended award from $37,257.00 to $34,857.00.
-2-
past-due child support);
Heisley v. Heisley, Ky. App., 676 S.W.2d
477 (1984) (unpaid child support becomes vested when due and is a
fixed/liquidated debt);
Stewart v. Raikes, Ky., 627 S.W.2d 586
(1982) (court has no power to modify decree as to past-due child
support).
While the divorce occurred in 1983 and Annette, for some
unexplained reason, did not raise the issue of arrearages until
1995, nevertheless, a custodial parent’s failure to demand payments
does not excuse the non-custodial parent’s failure to make child
support payments.
Gera v. Gera, Ky. App. 796 S.W.2d 13, 14 (1990).
Once the custodial parent introduces into evidence court
orders establishing a child support obligation, the validity of
which are not at issue, the non-custodial parent has the burden of
proving the obligation has been satisfied.
Raymer v. Raymer, Ky.
App., 752 S.W.2d 313, 314 (1988); Kentucky Rule of Civil Procedure
(CR) 8.03.
Aubrey first argues that the trial court abused its
discretion when it refused to reopen the proceedings for the
purposes
of
determining
whether
Annette
had
received
certain
earnings pursuant to two wage assignment orders entered in 1984.
CR 59.07 permits a trial court to reopen the proceedings,
take additional testimony, amend findings of fact and conclusions
of law or make new findings and conclusions, and enter a new
judgment.
The trial court has broad discretion under CR 59.07
which will not be disturbed unless abuse of discretion is shown.
Walsh v. Kennedy, Ky., 463 S.W.2d 318, 321 (1971).
-3-
It is undisputed that in 1984 two orders were entered
assigning certain wages to Annette. On February 1, 1984, the trial
court entered an order captioned, “Agreed Order Assigning Wages to
[Annette] for Payment of Child Support.”
The order states, in
pertinent part, that:
[T]he court being sufficiently advised, ORDERS That all
income, salary and/or wages earned or derived by [Aubrey]
from his position as a state legislator in the Kentucky
General
Assembly
shall
be
assigned
directly
to
the
Respondent as and for payment of child support due
[Annette].
Similarly, on October 31, 1984, the trial court entered
an “Agreed Order Assigning Wages to [Annette] for Payment of Child
Support.”
That order states, in pertinent part, that:
[T]he court being sufficiently advised, ORDERS That all
income, salary and/or wages earned or derived by [Aubrey]
from his position as Director of the Special Fund for the
Department of Labor shall be assigned directly to the
Respondent as and for payment of child support due
[Annette].
Annette’s
motion
for
judgment
arrearages was filed on June 27, 1995.
for
child
support
Following hearings on June
28 and June 30, 1995, Aubrey filed a motion to hold the arrearage
proceedings in abeyance because, among other things, “[l]imiting
credit to the mortgages would not take into account the amounts of
monies paid by [Aubrey] by wage assignments of his salaries from
-4-
the Kentucky General Assembly and the Kentucky Labor Cabinet.” The
DRC’s report, filed March 15, 1996, did not mention the issue of
credit for the prior wage assignments.
On April 9, 1996, Aubrey
filed exceptions, out of time with leave of the trial court,
wherein he does not mention credit for the prior wage assignments.
However, on January 30, 1997, Aubrey filed a memorandum in support
of his exceptions to the DRC’s report wherein he argues for a wage
assignment credit.
Hearings on the parties’ exceptions were held,
at which time Aubrey indicated that the records relating to the
wage assignment were unavailable.
In its July 23, 1997, judgment against Aubrey for child
support arrearages, the trial court did not mention the issue of
credit for prior wage assignments.
In his August 2, 1997, “motion
to reconsider,” Aubrey again argued that he should be entitled to
credit for prior wage assignments.
However, again, Aubrey failed
to present proof as to the amounts actually received by Annette
pursuant to the wage assignments.
On October 8, 1997, the trial
court entered an order denying Aubrey’s motion to reconsider, but
that order did not acknowledge Aubrey’s claim to credit for past
wage assignments.
On October 30, 1997, the trial court entered an
order stating:
This matter having come before the Court previously, and
the
Court
having
entered
an
Order
October
8,
1997
overruling [Aubrey’s] Exceptions to the Order entered
July 23, 1997, the Court, having reviewed the file, does
hereby sua sponte amend its Order of October 8, 1997 to
note that although [Aubrey] has repeatedly stated that
-5-
his wages were assigned to [Annette] in order to meet his
child support obligation and has submitted copies of
orders
providing
for
such
assignment,
and
although
[Aubrey] was granted the opportunity to supplement the
record,
no
evidence
has
been
proffered
supporting
[Aubrey’s] assertion that such wages were in fact paid to
[Aubrey].
The trial court did not abuse its discretion in declining
to prolong the proceedings so that Aubrey could again allege,
without proof, that Annette actually received the wage assignments.
It’s clear that Aubrey was afforded a fair opportunity to submit
proof on this issue.
credit
for
any
While we agree that Aubrey should receive
amounts
received
as
a
result
of
these
wage
assignments, Aubrey, at the hearing on exceptions to the DRC’s
report, in effect conceded he could not prove his case because the
necessary records could not be located.
Hence, reversible error
was not committed by the court concerning the wage assignment
issue.
Aubrey’s second argument is that the trial court erred by
not allowing him to supplement the record with proof of mortgage
payments because the facts of this case warranted treating mortgage
payments as child support.
As with the prior issue, this record was held open for
a substantial period and Aubrey had a fair opportunity to submit
evidence
regarding
mortgage
payments
obligation, made on behalf of Annette.
-6-
he
had,
without
legal
The DRC recommended a credit of $36,960.00 for payments
Aubrey made on mortgages he was not under an obligation to pay.
The Commissioner further stated, “[i]n the event [Aubrey] is able
to obtain documentation showing with more accuracy the payment that
he made on the first mortgage between January 1983 through January
1993, then your Commissioner recommends that he receive additional
credit.”
On the basis that Annette did not object, the trial court
accepted the DRC’s recommended credit.
In summary, Aubrey received substantial credit for past
mortgage payments that he made on behalf of Annette.
Annette did
not object to those credits, and Aubrey had a fair opportunity
following the entry of the DRC’s report to present evidence of any
additional mortgage payments for which he may be entitled to
credit.
It was not an abuse of discretion under CR 59.07 for the
trial court to decline to reopen the proceedings.
See Walsh v.
Kennedy, supra.
For the foregoing reasons, the judgment of the Jefferson
County Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Aubrey Williams, pro se
Louisville, Kentucky
Jack W. Steiner, Jr.
Tammy C. Snyder
Louisville, Kentucky
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