BILLY BELCHER v. ANGELA POTTER AND CABINET FOR FAMILIES AND CHILDREN
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RENDERED: July 13, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002723-MR
BILLY BELCHER
APPELLANT
APPEAL FROM PIKE FAMILY COURT
HONORABLE KATHRYN BURKE, JUDGE
ACTION NO. 82-CI-01337
v.
ANGELA POTTER AND
CABINET FOR FAMILIES AND CHILDREN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON AND TACKETT, JUDGES.
JOHNSON, JUDGE:
Billy Jo Belcher appeals from a judgment of the
Pike Family Court which ordered him to pay child-support
arrearage in the amount of $58,500.00 to his former wife, Angela
Potter.
Belcher claims (1) that the Cabinet for Families and
Children lacked standing to intervene in this action; (2) that he
and Potter, by implication, had agreed to revert to a previous
agreement whereby his child-support obligation was waived; and
(3) that the doctrine of laches should bar this claim.
Having
found no error, we affirm.
On November 30, 1982, a final decree was entered in
Belcher and Potter’s dissolution action which set Belcher’s
visitation rights with his child and the amount of child support
that he was to pay Potter.
On March 1, 1983,1 the parties
entered into a supplemental agreement, which stated in relevant
part:
2. The Petitioner agrees that she will make
no claim against the Respondent for child
support, medical or dental bills, or other
money or consideration to be paid by the
Respondent to the Petitioner for and in
behalf of the parties’ child, Kelly Ann[e]
Belcher.
3. The Respondent agrees that he
relinquishes all parental contact, control,
visitation rights, custody rights, or other
rights in and to Kelly Anne Belcher. He
agrees to consent to any adoption by her
which may be begun in a Court of competent
jurisdiction, or name change, provided his
consent is necessary.
4. The parties hereto agree that, should the
Respondent change his mind about the
provisions hereof and demand parental
privileges, that he shall owe the Petitioner
child support at the rate of $300.00 per
month from March 1, 1983 to the date that the
said parental privileges shall be reinstated.
This supplemental agreement was approved and adopted by the
circuit court in a supplemental decree entered on March 18, 1983.
On October 4, 1984, Belcher moved the circuit court to
have the March 1, 1983, supplemental agreement set aside because
1
The supplemental agreement was filed on March 2, 1983.
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he decided he wanted to visit his child.
On November 7, 1984,
the circuit court entered an order setting aside the supplemental
agreement and reinstating the final decree entered on November
30, 1982.
The circuit court also determined that Belcher owed
Potter $6,000.00 in child-support arrearage and that he would
have to make an initial payment of $2,000.00 to Potter before he
could visit his daughter.
Both parties agree that this payment
was never made.2
No court action was taken in this case from November 6,
1984, until September 17, 1998, when the Pike County Attorney
filed a motion to intervene.3
On March 2, 1999, the Pike Family
Court entered a judgment and order requiring Belcher to pay
Potter $58,500.00 in child-support arrearage that had accrued
through June 1997.
On March 9, 1999, Belcher filed a “motion to
set aside judgment and order” on the grounds “that neither he nor
his attorney received notice of the Hearing on March 1, 1999.”
On March 25, 1999,4 the family court judge signed an order
2
Belcher claims that he attempted to make this payment but
Potter refused to accept it and denied him visitation. Potter,
however, claims that Belcher never made any attempt to pay the
arrearage and instead took a trip to Hawaii. There is no support
for either allegation in the record.
3
The motion to intervene states, “[c]omes the Commonwealth,
by and through the County Attorney, on behalf of the Cabinet for
Families and Children and/or Petitioner[,] and respectfully
requests that the court allow the Commonwealth to intervene in
this matter to aid the Petitioner in pursuing his/her right to
collect child support.” While the Cabinet was not listed as a
party below, the parties are in agreement that the case has been
practiced with the understanding that the Cabinet is a party.
4
The order was not entered until April 9, 1999.
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setting aside the March 2, 1999, judgment and order because “it
appear[ed] to the Court that neither the Respondent nor his
attorney were notified of the hearing.”
On March 29, 1999,
Belcher filed a “motion to relieve respondent from order of
November 7, 1984,” wherein he asked the family court to
“reinstate the parties to the Supplemental Decree of March 18,
1983.”
A hearing on all pending motions was finally held on
September 27, 1999.
On October 1, 1999, the family court entered
an order which “overruled” Belcher’s motion to be relieved from
the November 7, 1984, order.
The family court also “overruled”
Belcher’s motion to set aside the judgment and order entered on
March 2, 1999.5
On October 11, 1999, Belcher filed a motion to
vacate the October 1, 1999, order.
October 15, 1999.
This motion was denied on
This appeal followed.
We will first address Belcher’s claim that the Cabinet
lacked standing to intervene in this action.
In Thurman v.
Commonwealth, Cabinet for Human Resources, ex rel. Thurman,6 this
same argument failed.
In Thurman, James and Susan were married
in 1971 and were divorced in 1979, with one child who was then 8
years old.
In 1989, after the child had reached her eighteenth
5
This was a peculiar choice of wording since the family
court had already “set aside and held for naught” the same March
2, 1999, order and judgment due to lack of notice. We assume the
family court intended to reinstate the judgment and order of
March 2, 1999, and the parties have conducted themselves
accordingly.
6
Ky.App., 828 S.W.2d 368(1992).
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birthday, the Cabinet for Human Resources7 filed an action on
behalf of Susan to collect child-support arrearage totaling
$31,300.00.
James argued that since Susan had never applied for nor
received public assistance on behalf of the child, the Cabinet
lacked standing to enforce the child-support obligation.
This
Court concluded that the Cabinet had standing to intervene and
stated:
KRS 205.010 et seq. contain significant
and comprehensive child support recovery
provisions. KRS 205.712 provides, in
pertinent part:
(1) The division of child support
enforcement is established in the
cabinet for human resources.
(2) The duties of the division of
child support, or its designee,
shall include:
. . .
(c) Serve as collector of all
court-ordered or administratively
ordered child support payments
pursuant to Part D of Title IV of
the Social Security Act; and
(d) Enforce Kentucky child
support laws, including collection
of court-ordered child support
arrearages and prosecution of
persons who fail to pay child
support.
In addition, KRS 205.721 provides, in part:
(1) All services available to
7
The Cabinet for Human Resources was a predecessor to the
Cabinet for Families and Children.
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individuals receiving aid to
families with dependent children
(AFDC) benefits shall also be
available to individuals not
receiving AFDC benefits, upon
application by the individual with
the cabinet.
. . .
(3) Except as provided in
subsection (2) of this section, the
cabinet may charge an application
fee for the services based on a fee
schedule, which shall take into
account the applicant’s net income.
No application fee shall be
required from individuals receiving
public assistance.8
From our review of the statutes, we agree with the Court in
Thurman that “[i]t is clear from these statutes that child
support collection services are available to a parent, even
though that parent does not receive[ ] AFDC benefits. . . [and]
that the Cabinet is required to collect court-ordered child
support arrearages.”9
Belcher argues that pursuant to Cabinet for Human
Resources v. Houck,10 the Cabinet’s authority to collect childsupport arrearage is limited to “appear[ing] in any judicial
proceeding on behalf of the dependent child in order to secure
support for the child from his parent or parents.”
He attempts
to distinguish his case from Houck based on the fact that his
child had reached the age of majority by the time the Cabinet
8
Id. at 369.
9
Id.
10
Ky.App., 908 S.W.2d 673, 674 (1995).
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intervened.
Belcher refers us to KRS 205.710(4), which defines
“[d]ependent child” or “needy dependent child” as:
[A]ny person under the age of eighteen (18),
or under the age of nineteen (19) if in high
school, who is not otherwise emancipated,
self-supporting, married, or a member of the
Armed Forces of the United States and is a
recipient of or applicant for services under
Part D of Title IV of the Social Security
Act[.]
We believe Belcher has read the statutes and the cases
too narrowly.
In Thurman, the father challenged the Cabinet’s
standing on the grounds that the child had reached the age of
majority and did not reside with the mother at the time the
collection effort was made.
This Court determined that the
child’s age and residence were of no consequence, and stated:
He argues that the ‘spousal support’ referred
to in the statute means support solely for
the benefit of minor children. We do not
agree with this strained construction. The
statute is clear. It covers both child
support and spousal support obligations as
distinct and separate matters. Under 42
U.S.C. § 654, spousal support can be
collected if a child is living with its
parent. Child support can be collected at
any time [emphasis original].11
Thus, pursuant to Thurman, Belcher’s child-support arrearage “can
be collected at anytime.”
Furthermore, this Court’s ruling in Houck supports the
Cabinet’s standing.
In Houck, this Court clearly held that under
Part D of Title IV of the Social Security Act and the statutes at
KRS 205.710 through KRS 205.800, which were enacted in response
11
Id. at 370.
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to the federal funding directives, “the local county attorney
shall be considered the designee of the cabinet for purposes of
administering the program of child support recovery within a
county.”
This Court noted that “[u]nder KRS 205.765, the cabinet
or its designee may appear in any judicial proceeding on behalf
of the dependent child in order to secure support for the child
from his parent or parents.”12
This Court cited with approval
cases from other states which had recognized that a parent who
had not received AFDC benefits was entitled to the same agency
representation as a parent who had received AFDC benefits.
Belcher next argues that the parties, by implication,
reverted to their supplemental agreement of March 1, 1983; and
consequently, that their supplemental agreement modified the
circuit court order of November 7, 1984, which had set aside the
supplemental agreement.
In the supplement agreement, the parties
agreed that no child support would be paid and that Belcher would
relinquish all rights to his child.
This supplemental agreement
was approved by a supplemental decree entered by the circuit
court on March 18, 1983.
On October 4, 1984, Belcher moved the
circuit court to set aside the agreement and asked that his
visitation be reinstated.13
Belcher claims that Potter refused
to accept his arrearage payment of $2,000 that would have allowed
him to begin his visitation pursuant to the November 7, 1984,
12
Id. at 673-74.
13
In his motion to have the supplemental agreement set
aside, Belcher claimed the supplemental agreement was
“unconscionable and void.”
-8-
order; and thus, that the parties, by implication, reverted to
the March 1983, supplemental decree, pursuant to which he was not
required to pay any child support.
Belcher argues that since no
court action was taken to collect child-support arrearage from
1984 until the Cabinet intervened in 1998, the parties were
conducting themselves pursuant to their supplemental agreement
and the March 1983 supplemental decree.
In Whicker v. Whicker,14 this Court summarized the law
concerning private modifications as follows:
There is conflicting law on the issue of
whether the parties to a divorce and support
agreement may privately modify such an
agreement without judicial approval. One
line of cases holds that private agreements,
even oral agreements, are permissible. Such
agreements may be enforced by the courts
against the parties so long as (1) they are
proved with “reasonable certainty,” and (2)
the court finds that the agreement is
equitable and fair to the affected children
under the circumstances [citations omitted].
A second line of cases supports the
traditional view that there is an absolute
duty to support one’s child and that such
obligation may not be diminished by contract
between the parties [citations omitted].
The issue is further complicated by KRS
403.250(1), which states in pertinent part:
Except as otherwise provided .
. . the provisions of any decree
respecting maintenance or support
may be modified only upon a showing
of changed circumstances so
substantial and continuing as to
make the terms unconscionable.
KRS 403.250(1) provides the exclusive
14
Ky.App., 711 S.W.2d 857 (1986).
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method for effecting a modification of an
award of child support where a parent paying
support has not agreed to automatic increases
based upon a percentage of earnings [citation
omitted].
Several policy considerations regarding
private modification of child support seem
fundamentally clear. First, any agreement
between the parties to a divorce which avoids
the adversarial judicial process is to be
encouraged. Second, such agreements, to be
enforceable, must be approved by a court of
law, which must make its determination
according to the existing equities under the
circumstances. In enforcing any
modification, furthermore, the interests of
the children involved must be a major
consideration. Finally, a parent’s
obligation to support a child may not be
absolutely waived by any contract between the
parties [emphasis added].
With the foregoing discussion in mind,
we hold that oral agreements to modify child
support obligations are enforceable, so long
as (1) such agreements may be proved with
reasonable certainty, and (2) the court finds
that the agreement is fair and equitable
under the circumstances. In order to enforce
such agreements, a court must find that
modification might reasonably have been
granted, had a proper motion to modify been
brought before the court pursuant to KRS
403.250 at the time such oral modification
was originally agreed to by the parties.
Furthermore, in keeping with prior decisions,
such private agreements are enforceable only
prospectively, and will not apply to support
payments which had already become vested at
the time the agreement was made [citation
omitted].
Parties who decline to use the
procedures set out in KRS 403.250 run the
risk of having their private agreements
declared invalid by a court when the parties
attempt to have the agreements judicially
enforced. Those agreements which attempt to
accomplish privately what a court could not
order legally will be declared invalid and
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will not be enforced [emphasis added].15
In Whicker, the trial court had found that the parties
had orally agreed to modify child-support payments, whereby the
father would forego repaying an arrearage of $7,280.00, and his
current child-support payment would increase from $75.00 per
month to $80.00 per month; and it ruled that the mother was not
entitled to any child-support arrearage.
In reversing the
circuit court, this Court held that the agreement was
unenforceable and the wife was entitled to the arrearage:
The trial court abused its discretion,
however, in enforcing the agreement. First,
the terms are manifestly unfair to the
affected child. The agreement, as enforced,
allowed the custodial parent to forego
$7,280.00 in return for a promise to pay a
total of $270.00 over approximately 54 months
until the child’s majority. Such an
agreement is inequitable on its face and
should not have been enforced.16
While some of the language in Whicker is confusing, and
perhaps inconsistent, it has been followed twice by our Supreme
In Brown v. Brown,17 the Court referred to Whicker as
Court.
follows:
Although our Court has decided no
similar cases since the effective date in
1972 of the new divorce code, our so-called
no fault divorce law, the Kentucky Court of
Appeals has considered the matter in
Whicker[, supra], and reached the same
decision under the new law that we reached
under the pre-1972 law. Whicker considers an
15
Id. at 859.
16
Id. at 860.
17
Ky., 796 S.W.2d 5 (1990).
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oral modification of an agreement for child
support, and states:
[W]e hold that oral agreements to
modify child support obligations
are enforceable, so long as (1)
such agreements may be proved with
reasonable certainty, and (2) the
court finds [when subsequently
challenged] that the agreement is
fair and equitable under the
circumstances.18
Furthermore, in Bustin v. Bustin,19 the Court stated “[t]his
proposition fails, in our view, as it is settled that a parent’s
obligation to support his/her minor child cannot be waived.”
In the case sub judice, the trial court ruled in
Potter’s favor and ordered Belcher to pay her child-support
arrearage of $58,500.00.
While the family court did not
specifically address Belcher’s argument that the parties had an
oral agreement that reinstated the supplemental decree by
implication, there can only be one of two possible conclusions
drawn from the family court’s ruling: it did not believe the
parties reached an oral agreement, or the oral agreement was
unconscionable and unenforceable.
Under the circumstances of
this case, we hold that even if such an agreement existed, it
would be unconscionable and unenforceable.
As stated in Whicker,
“a parent’s obligation to support a child may not be absolutely
waived by any contract between any parties” and “[t]hose
agreements which attempt to accomplish privately what a court
18
Id. at 8.
19
Ky., 969 S.W.2d 697, 699 (1998).
-12-
could not order legally will be declared invalid and will not be
enforced.”
If Belcher’s argument is viewed as a contention that
since he has been denied visitation, he is not obligated to pay
support, it also fails.
We are not aware of any case law that
supports such a result.
“A father, on his own initiative, may
not cease to make monthly support payments for his offspring even
though visitation rights are made impossible by a mother[’]s
taking the children out of the state” [citations omitted].20
Belcher’s final argument is that the arrearage claim
should be barred by the doctrine of laches.
The former Court of
Appeals in Holmes, supra, rejected the defense of laches in a
similar case.
When Charlotte Holmes and Charles Burke were
divorced in 1961, Charles was ordered to pay Charlotte child
support for their three children.
Over the following seven
years, Charles had very little contact with the children and he
became delinquent in his child-support obligation.
Charlotte
sought to recover $9,732.96 in child-support arrearage, but she
was denied recovery by the circuit court on a legal basis the
Court of Appeals referred to as “vague.”
The Court noted that
Charles “concedes that the defense of laches is not effective as
against the children in an action for their benefit, but he
insists that it is effective where the mother is the real party
in interest and is seeking reimbursement.”
The Court further
noted that the claim was not for reimbursement because “the claim
20
Holmes v. Burke, Ky., 462 S.W.2d 915, 918, (1971).
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is for judgment for definitely fixed, past-due periodic payments”
and not “an actual out-of-pocket expended sum of money.”
Similarly, in the case sub judice, “the claim is fixed by
judgment;” and Belcher has failed to demonstrate any
justification for applying the equitable doctrine of laches.
Having found no error, the judgment of the Pike Family
Court is affirmed.
TACKETT, JUDGE, CONCURS.
BUCKINGHAM, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
BUCKINGHAM, JUDGE, DISSENTING:
I respectfully dissent
from the majority opinion based on my views on the laches issue.
The trial court did not address the laches issue, and the
majority notes that the child support claim was fixed by judgment
and states that Belcher failed to demonstrate any justification
for applying the laches doctrine.
Further, the majority relies
on the Holmes v. Burke case.
In Holmes, the court implied that the laches doctrine
would not apply because the support was for the benefit of the
children, who were under the age of eighteen.
Id. at 918.
Further, in Glanton v. Renner, 285 Ky. 808, 149 S.W.2d 748
(1941), the children were held to be the real party in interest.
However, where the action to enforce the child support order was
instituted after the children reached the age of majority, the
party seeking enforcement is the real party in interest.
v. McGuire, Ky.App., 635 S.W.2d 8, 9 (1982).
Harvey
Because the party
seeking enforcement of the child support order (Potter) is the
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real party in interest in the case sub judice, laches may be
invoked against her to prevent enforcement.
See 47 Am Jur 2d,
Judgments § 978, pages 427-28.
It is troublesome to me that Potter waited
approximately fourteen years before attempting to collect past
due child support.
During this interim, Belcher apparently had
no visitation with the child.
It was only after the child
reached the age of majority that Potter sought to collect the
past due support.
While I realize that Potter’s action was not
barred by the statute of limitations, I believe the matter of
laches should be addressed by the trial court before Belcher is
made to pay in excess of $58,000, not including any interest that
may be owed.
I would vacate and remand for further findings by
the trial court.
BRIEF FOR APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Joseph W. Justice
Pikeville, KY
Howard Keith Hall
Pikeville, KY
ORAL ARGUMENT FOR APPELLANT:
Della M. Justice
Pikeville, KY
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