WILLIS DANIEL COOMER v. SHARYLE A. GAINES

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RENDERED: November 2, 2001; 2:00 p.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 2000-CA-002516-MR WILLIS DANIEL COOMER v. APPELLANT APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE REED RHORER, JUDGE ACTION NO. 91-CI-00010 SHARYLE A. GAINES APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: GUIDUGLI, MILLER, AND SCHRODER, JUDGES. SCHRODER, JUDGE: This is an appeal from an order requiring that the amount of dependent social security disability benefits (SSD) be added to the appellant custodial parent’s income for purposes of calculating child support, even though appellant was the disabled parent on whom the child’s benefits were based. Appellant argues that pursuant to case law and the recent amendment to KRS 403.211, the amount of said benefits should not have been included as part of his income. From our interpretation of Miller v. Miller, Ky. App., 929 S.W.2d 202 (1996), the trial court correctly included the amount of the SSD benefits as part of appellant’s income. As for KRS 403.211(14), said section was effective subsequent to the court’s order in this case with no retroactivity language, and the issue of the amendment was never raised in appellant’s motion to alter or in any other manner before the trial court. Accordingly, we affirm. Appellant, Willis Coomer, and appellee, Sharyle Gaines, were married in 1980 and had one child, Nicole, born in 1984. 1991, Willis filed for divorce. In The parties initially shared joint custody, with Sharyle being the primary custodian of Nicole. On February 11, 2000, a judgment was entered awarding custody to Willis and ordering Sharyle to pay child support. At that time, Willis was receiving social security disability benefits, and through Willis’s disability, benefits were also paid to Willis on behalf of Nicole. When Sharyle contested the amount of support ordered, the issue arose as to whether the disability benefits received on behalf of Nicole should be included in Willis’s income for purposes of computing Sharyle’s child support obligation. On June 26, 2000, the court entered an order concluding that said benefits were to be included in Willis’s gross income for purposes of computing child support. On July 5, 2000, Willis filed a motion to alter, vacate or amend, arguing that disability benefits paid on behalf of a child are not income to the disabled parent, but rather are to be credited toward the disabled parent’s child support obligation. From the order denying this motion, Willis now appeals. Appellant argues that under Van Meter v. Smith, Ky. App., 14 S.W.3d 569 (2000), although he is the custodial parent, he is entitled to be credited the amount of the dependent social -2- security benefits toward his support obligation. As the custodial parent, appellant has a child support obligation, but obviously does not pay it to himself. Hence, we fail to see how a credit toward his child support obligation, which he would otherwise be entitled to under Van Meter, would affect appellant. In fact, the lower court’s order makes no mention of a credit, but rather requires the amount of the dependent social security disability benefit to be included in appellant’s gross income for purposes of computing the parties’ child support obligations. Including the amount of the benefit in appellant’s gross income essentially reduces the amount of child support Willis receives from Sharyle since it makes the percentage of his responsibility higher. See KRS 403.212(3). Thus, we shall proceed with review of appellant’s appeal on the assumption that he is actually challenging the requirement that the disability benefit paid on behalf of Nicole be included in his gross income. In Miller v. Miller, Ky. App., 929 S.W.2d 202 (1996) and Van Meter, this Court established that the disabled parent whose child receives social security disability benefits on account of that disabled parent, is entitled to credit the amount of the child’s benefit against their child support obligation. In Miller, at 205, however, the Court went further to hold that the parent who receives the disability funds for the child must include those funds in that parent’s gross income for purposes of calculating each parent’s child support obligation. (From our reading of Van Meter, the Court did not have before it the issue of whether and which parent must claim the child’s social -3- security disability benefit as gross income.) Consequently, in 2000, the Legislature amended KRS 403.211 to add the following provision effective July 14, 2000: (14) A payment of money received by a child as a result of a parental disability shall be credited against the child support obligation of the parent. A payment shall not be counted as income to either parent when calculating a child support obligation. . . . (emphasis added.) The court’s order in the instant case was entered on June 26, 2000, prior to the effective date of the amendment of KRS 403.211, and said statute contains no retroactivity language. See KRS 446.080(3). Hence, the court’s order of June 26 was correct as to the law in effect at that time since Willis was receiving the disability benefits on behalf of Nicole. Although Willis argues in this appeal that under the amendment to KRS 403.211, the amount of Nicole’s social security disability benefit should not be included as part of his gross income, he never raised this issue before the trial court after the effective date of the amendment. (The court’s order on the motion to alter was entered on September 29, 2000.) Thus, the lower court never had the opportunity to modify its order in accordance with KRS 403.211(14). As we cannot review any matter not raised in the lower court, we must affirm the court’s decision to include Nicole’s disability benefit as part of Willis’s gross income. Kaplon v. Chase, Ky. App., 690 S.W.2d 761 (1985). For the reasons stated above, the judgment of the Franklin Circuit Court is affirmed. -4- ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Ronald W. Crawford Frankfort, Kentucky Catherine C. Staib Frankfort, Kentucky -5-

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