RONNIE I. JOSEPH v. DONNA JOSEPH
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RENDERED: May 26, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002545-MR
RONNIE I. JOSEPH
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE RICHARD FITZGERALD, JUDGE
ACTION NO. 95-FC-001606
v.
DONNA JOSEPH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS AND MCANULTY, JUDGES.
BARBER, JUDGE: Ronnie I. Joseph (Ronnie) appeals from an order of
the Jefferson Family Court entered on September 10, 1998,
ordering him to pay child support arrearage based on the total
unpaid amount from the date of the original judgment.
After
reviewing the record and the arguments of counsel, we affirm.
The parties married in 1988 and separated in 1995.
They had one child, Jonathan Joseph, born in September 1993.
In
May 1995, the trial court entered an agreed order placing the
child in the physical possession of Donna Joseph (Donna) pending
resolution on custody and requiring Ronnie to pay $89 per week in
child support effective March 16, 1995.
In July 1995, Ronnie
filed a motion for modification seeking a lowering of his child
support obligation because he had been laid-off from his job.
The court orally granted a temporary reduction of child support
to $46.76 per week.
employment.
In September 1995, Ronnie found new
On August 8, 1996, the trial court entered a decree
of dissolution that, inter alia, granted the parties joint
custody of their son with Donna having primary physical
possession.
The decree also ordered Ronnie to pay $72 per week
child support effective September 11, 1995, subject to revision
based on his receiving additional income derived by working
overtime.
In December 1996, Donna filed a motion seeking an order
holding Ronnie in contempt for failing to pay child support as
required by the August 8, 1995 decree.
At that time, Donna
alleged that Ronnie was approximately $1,770 in arrears.
On
August 5, 1997, the trial court entered an ordered granting Donna
a common-law judgment in the amount of $1,786.49 for child
support arrearage and extraordinary medical expenses through
January 7, 1997.
On August 12, 1997, Donna filed another motion seeking
an order holding Ronnie in contempt for failing to pay child
support, which she alleged amounted to $3,200 since December,
1996.
On October 31, 1997, the Domestic Relations Commissioner
(DRC) filed a report recommending that Donna be granted a commonlaw judgment for $1,815.04 for child support arrearage through
August 12, 1997.
The DRC calculated this amount based on
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evidence presented by Donna at a September 1997 hearing at which
she testified that Ronnie was approximately $3,200 in arrears,
including the $1,786.49 amount previously awarded to her in the
August 5, 1997, order.
Donna further indicated that Ronnie had
paid her a total of $1,384.96.
The DRC noted that there was no
wage assignment order in effect at that time.
On November 5,
1997, Ronnie filed exceptions to the DRC’s report claiming that
he had made additional child support payments not credited to him
by the DRC.
On November 20, 1997 the trial court entered an order
consistent with the DRC’s recommendation awarding Donna a commonlaw judgment of $1,815.04 for child support arrearage through
August 12, 1997.
entered.
It also ordered that a wage assignment order be
In February 1998, Donna obtained an order of
garnishment attaching Ronnie’s wages in the amount of $2,627.22
payable in weekly amounts of $108.82.
Also in February 1998, the
trial court entered an agreed wage assignment order requiring
Ronnie’s employer to withhold $86.56 per week from his wages.
In February 1998, Donna filed another motion seeking to
have Ronnie held in contempt for failing to pay past and current
child support.
In her affidavit, she alleged that Ronnie was in
arrears in the amount of $2,518.40 as of February 3, 1998.
The
court referred the matter to DRC.
On July 7, 1998, the DRC issued a report recommending
that Donna be awarded a common-law judgment for $1,647.74 for
past due child support covering the period from March 5, 1995
through and including June 24, 1998, based on Ronnie’s failure to
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comply with the circuit court’s previous child support orders of
August 5, 1997 and November 20, 1997. At the hearing before the
DRC, Donna testified that Ronnie had not satisfied the judgments
of August 1997 and November 1997, which had awarded Donna child
support arrearage, that he was behind in payments for 1998 in the
amount of approximately $420.07, and that the total past due
amount was approximately $2,518.40.
Ronnie admitted that he was
not current in his child support payments because he had suffered
an injury at his job that required him to miss approximately six
to eight months of work.
In determining the total child support
arrearage, the DRC calculated the total amount owed based on the
various orders setting and modifying Ronnie’s child support
obligation between March 1995 and June 1998, and then subtracting
the total amount Ronnie had paid according to Donna’s records and
the testimony, and giving Ronnie a $550 credit for personal
property Donna had failed to return to Ronnie under the original
divorce decree.
The DRC estimated that Ronnie owed $13,0221.59,
and she subtracted a total credit of $11,373.85 ($10,823.85 paid
plus $550) to arrive at a total child support arrearage of
$1,647.74.
On July 17, 1998, Ronnie filed objections/exceptions to
the DRC’s report in which he challenged the method utilized by
the DRC in calculating the child support arrearage and the
factual finding of the amount he had already paid.
On September
10, 1998, the trial court entered an order confirming the DRC’s
report by awarding Donna a judgment for $1,647.74 plus interest
for child support arrearage between March 16, 1995 and June 24,
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1998.
At the same time, the court entered a second order
rejecting Ronnie’s objections to the report stating that the DRC
“was not precluded from setting arrearage based on a
determination of the totality of the obligations and payments
based on prior reduction of arrearage amounts to some certain
period.”
This appeal followed.
On appeal, Ronnie challenges the method used by the DRC
in calculating his child support arrearage.
He contends that the
trial court erred in approving the calculation of child support
arrearage in this case based on an analysis of payments due and
not paid over the entire period from the initial court order
setting the child support obligation.
More specifically, he
argues that the court is prohibited by the principle of res
judicata from recalculating an award of child support arrearage
for the periods prior to the earlier court common-law judgments
awarding an explicit arrearage amount.
Ronnie maintains that
because Donna did not appeal the earlier judgments of August 1997
and November 1997, the court is precluded from taking into
consideration any non-payments during the periods covered by
those judgments in arriving at a new figure for child support
arrearage.
While Ronnie’s argument has facial appeal, we
disagree with his argument.
The legal approach to handling child support
obligations is somewhat different from the typical common law
damages award.
Res judicata is a doctrine that bars litigation
of matters decided by a court of competent jurisdiction in the
same or any other judicial tribunal of concurrent jurisdiction.
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See Yeoman v. Commonwealth, Health Policy Bd., Ky., 983 S.W.2d
459, 464 (1998).
Res judicata encompasses two separate but
related aspects; 1) claim preclusion, and 2) issue preclusion
(sometimes referred to as collateral estoppel).
Claim preclusion bars a party from
relitigating a previously adjudicated cause
of action and entirely bars a new lawsuit on
the same cause of action. Issue preclusion
bars the parties from relitigating any issue
actually litigated and finally decided in an
earlier action. The issues in the former and
latter actions must be identical.
Id at 465 (citations omitted).
See also City of
Louisville v. Louisville Professional Firefighters Ass’n, Ky.,
813 S.W.2d 804, 806 (1991).
While issue preclusion requires that
the issue be actually decided, claim preclusion bars entire
claims or causes of action that were or should have been brought
in a prior action.
City of Covington v. Board of Trustees, Ky.,
903 S.W.2d 517, 521 (1995); Yeoman, 983 S.W.2d at 465.
However, child support payments become vested when due,
so “each installment of child support becomes a lump sum
judgment, unchangeable by the trial court when it becomes due and
is unpaid.” Price v. Price, Ky., 912 S.W.2d 44, 46 (1995)(quoting
Stewart v. Raikes, Ky., 627 S.W.2d 586, 589 (1982)(emphasis in
original).
A trial court has no authority to forgive or
retroactively eliminate past due child support arrearage.
Mauk v. Mauk, Ky. App., 873 S.W.2d 213, 216 (1994).
Id.;
Child
support is a statutory duty intended to benefit the children
rather than the parents.
(1986).
parents.
Clay v. Clay, Ky. App., 707 S.W.2d 352
The right to child support belongs to the child not the
Gaines v. Gaines, Ky. App., 566 S.W.2d 814 (1978).
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Generally, child support cannot be waived or diminished solely by
agreement or action of the two parents.
See Whicker v. Whicker,
Ky. App., 711 S.W.2d 857 (1986).
Consequently, Ronnie’s position is erroneous in
suggesting res judicata bars collection of any unpaid child
support payment inadvertently not included in the prior
collective common-law judgments.
Each past due payment became a
separate enforceable judgment that was not eliminated by any
subsequent collective judgment. Furthermore, the DRC’s method of
calculating the arrearage simply attempted to consolidate all of
the prior judgments and Ronnie’s total child support obligation
into a single judgment.
The DRC attempted to give Ronnie credit
for all of the payments he had made during the entire period.
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.
Raymer v. Raymer, Ky. App., 752 S.W.2d 313 (1988).
See
Ronnie has
presented no case law or factual evidence on appeal demonstrating
that the DRC’s calculation was erroneous or not supported by the
evidence presented at the hearing.
Ronnie’s reliance on the
garnishment order is misplaced because that document did not
purport to be a binding expression of the entire arrearage due or
a waiver of a further recalculation of the arrearage.
We cannot
say that the trial court erred in approving the method utilized
by the DRC in calculating Ronnie’s child support arrearage.
For the foregoing reasons, we affirm the order of the
Jefferson Family Court.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Douglas Williamson
Louisville, Kentucky
Harold L. Storment
Louisville, Kentucky
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