DALE MOORE v. WANDA (MOORE) SNIDER
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RENDERED: JULY 6, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1999-CA-003146-MR
DALE MOORE
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
CIVIL ACTION NO. 96-CI-00505
v.
WANDA (MOORE) SNIDER
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON and McANULTY, Judges.
HUDDLESTON, Judge:
Dale Moore appeals from an order denying his
motion for a reduction in child support payments.
Following the
dissolution of his marriage to Wanda (Moore) Snider, by decree
entered on October 22, 1996, Moore was ordered to pay $847.47 per
month in child support for Moore's three children, an amount
consistent with Kentucky child support guidelines.1
At the time,
Moore worked at Begley Lumber Yard where he earned a monthly income
of $3,625.00.
1
Ky. Rev. Stat. (KRS) 403.212 (6).
Moore claims that while employed at Begley Lumber Yard he
was
injured
and,
since
permanently disabled.
that
injury
in
July
1999,
has
been
Moore is no longer employed at the lumber
yard and currently receives no income, although he does have a
claim pending for Social Security disability insurance benefits.
On July 2, 1999, Moore filed a motion and affidavit
seeking a reduction in child support payments due to the lack of
income that resulted from his injury.
As evidence of his alleged
disability, Moore submitted the records of several medical experts
who had examined him and supported his claim of disability.
On December 8, 1999, the circuit court denied Moore's
motion without making any findings of fact or explaining the legal
basis for its decision.
Moore claims on appeal that the court had
no legal basis for its decision and that its failure to make
findings of fact makes it impossible for this Court to evaluate the
order.
We agree that additional findings of fact are necessary
before we can properly review the order denying Moore's motion for
a reduction in child support payments.
Because the appellee, Wanda (Moore) Snider, failed to
file a brief in this case, we have three options.
accept
the
appellant's
statement
of
the
facts
We can “(i)
and
issues
as
correct; (ii) reverse the judgment if [the] appellant's brief
reasonably appears to sustain such action; or (iii) regard the
appellee's
failure
as
a
confession
of
error
and
reverse
judgment without considering the merits of the case.”2
the
We choose
to accept Moore's statement of the facts and issues as correct.
2
Ky. R. Civ. Proc. (CR) 76.12(8)(c).
-2-
Moore makes a strong prima facie case for a reduction in
child support payments.
He claims that his disability makes it
impossible for him to work and produce income. Four well-qualified
medical experts support his assertion of disability.
Accepting
Moore's claims of disability as true, Moore's inability to earn an
income due to his disability could certainly lead to a 15% change
in circumstances that is rebuttably presumed to be a material
change necessary to modify a child support order.3
However, cases
such as this are fact-sensitive by nature, and there may be
additional facts that rebut this statuary presumption.
Without
specific findings of fact from the circuit court, this Court is
unable to review the order denying Moore's motion for a decrease in
child support payments.
Therefore, we vacate the order denying
Moore’s motion for reduction of child support payments and remand
this case to Laurel Circuit Court with directions to make specific
findings of fact and reach conclusions of law within ninety days of
the finality of this opinion.
Because of the lapse in time from
the commencement of Moore's action until now, we authorize the
circuit court to reopen the case and receive additional evidence if
necessary.
ALL CONCUR.
BRIEF FOR APPELLANT
BRIEF FOR APPELLEE:
Edmond Collett
John Hunt Morgan
Hyden, Kentucky
NO BRIEF FILED FOR APPELLEE
3
Ky. Rev. Stat. (KRS) 403.213 (1)-(2).
-3-
-4-
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