COMMONWEALTH OF KENTUCKY, EX REL PAMELA F. BRUMMETT v. JOHN L. OLIVER
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RENDERED:
SEPTEMBER 26, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002706-MR
COMMONWEALTH OF KENTUCKY, EX REL
PAMELA F. BRUMMETT
APPELLANTS
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 89-CI-00065
v.
JOHN L. OLIVER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND TACKETT, JUDGES.
TACKETT, JUDGE:
The Commonwealth of Kentucky, Ex Rel, Pamela
Brummett, appeals from an order of the Caldwell Circuit Court
wherein the Division of Child Support is ordered to pay Brummett
money it received from her former spouse, John Oliver, for the
support of their minor child.
Because the Commonwealth has no
entitlement to the money in question, we affirm.
Brummett and Oliver were divorced on January 4, 1990,
by a dissolution decree entered in the Caldwell Circuit Court.
Oliver entered into an agreement to pay $100.00 per month to
Brummett to support their minor child.
Oliver did not
consistently make his child support payments; therefore,
Brummett at times was forced to rely on AFDC benefits to provide
for their child.
On December 20, 1995, the Caldwell County
Attorney filed a show cause motion against Oliver for failure to
pay his child support.
The County Attorney’s motion listed the
arrearages as being $4,608.00 owed to AFDC and $1,680.64 owed to
Brummett herself.
The motion was scheduled for a hearing at
which Oliver, who was incarcerated at the time, was present but
not represented by counsel.
By order dated February 13, 1996,
the trial court found Oliver in contempt and established
arrearages in the amount of $6,388.64.
However, the order
failed to state that a portion of the arrearage was owed to
Brummett, individually.
A number of motions regarding child support
enforcement and visitation issues followed; for purposes of this
appeal, we begin our consideration of the trial court’s record
with the Commonwealth’s motion, filed on March 12, 2001, on
behalf of Brummett, to establish arrearages.
Oliver, now
represented by counsel, filed a response contesting the amount
that the Caldwell County Attorney said he presently owed.
On
May 8, 2001, the trial court issued findings of fact, including
a finding that Oliver had paid the $6,388.64 he owed the
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Commonwealth as reimbursement for AFDC benefits pursuant to the
1996 order establishing arrearages.
Oliver subsequently filed a
motion for findings of fact stating the following:
As grounds for this motion, the Respondent
states that the stated amount of arrearage
$6,388.64 identified as being owed to the
State by virtue of AFDC payments is in
direct conflict with the motion of record,
dated 12-10-1995 which clearly set forth the
arrearage owed to the State as $4,608.00 and
specified that $1,680.64 was owed to the
Petitioner, individually. Added together
those amounts are $6288.64 and the amount
owed to the State, individually, as an
arrearage was set forth in the
Commonwealth’s own motion as no more than
$4,608.00
This was followed by a motion to alter, amend or vacate,
pursuant to Kentucky Rule of Civil Procedure (CR) 59.05 wherein
Oliver alleged numerous errors in the calculation of his
arrearages.
These motions were both served on the Caldwell
County Attorney as counsel for Brummett.
On May 21, 2001, the trial court issued orders
granting Oliver’s motion for findings of fact and taking his
motion to alter, amend or vacate under submission.
Both sides
were given twenty days to submit proposed findings and Brummett
was given twenty days to respond to Oliver’s CR 59.05 motion.
Oliver’s proposed findings, submitted on June 12, 2001,
contained the following:
On December 10, 1995, motion was made
by the County Attorney requesting orders for
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payment of $4,608.00 as an arrearage for
AFDC payments. Request was made
simultaneously for [$]1,680.64 to [Brummett]
individually. This motion was made while
[Oliver] was incarcerated. Mistakenly, an
order was issued for arrearage to be paid to
the Commonwealth in the amount of $6,388.00.
The order did not specify that only $4608.00
was an arrearage owed to the Commonwealth
and $1,680.64 was an arrearage to be paid to
[Brummett]. This inadvertent error [having]
been brought to the attention of the Court,
it is now clear that the correct amount of
$6,288.64 should have been distributed with
only $4,608.00 being reimbursed to the
Commonwealth and $1,680.64 being paid to
[Brummett] individually. . . .
The proposed findings included an order for the Commonwealth to
pay Brummett $1,680.64, together with post judgment interest,
and for the erroneous addition of $100.00 to the amount
requested in the Commonwealth’s 1995 motion to be credited
against Oliver’s arrearages.
On June 26, 2001, the trial court issued an order
granting Oliver’s motion to alter, amend or vacate and adopting
his proposed findings.
In this order, the trial court noted
that it had allotted twenty days for each side to submit
proposed findings and that only Oliver had done so.
The trial
court subsequently entered an amended order on July 11, 2001,
correcting clerical errors in the amount of arrearages and
ordering the Commonwealth to reimburse Brummett the money
collected on her behalf and mistakenly retained.
At this point,
the County Attorney filed a motion, pursuant to CR 60.02, asking
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the trial court to set aside its order of July 11 arguing that
it been more than five years since the entry of the February
1996 order ordering the $4,388.64 to be paid to the
Commonwealth.
The trial court denied the motion, and this
appeal follows.
The Commonwealth, which still purports to be acting on
Brummett’s behalf, argues that the trial court had no authority
to order it to pay Brummett the child support money collected
from her ex-husband and mistakenly retained by the Commonwealth.
The Commonwealth claims that the only procedure available for
Oliver to obtain relief from the February 1996 judgment is
authorized by CR 60 and that none of the subsections of the rule
in question apply here. We disagree.
CR 60.01 states as
follows:
Clerical mistakes in judgments, orders
or other parts of the record and errors
therein arising from oversight or omission
may be corrected by the court at any time on
its own initiative or on the motion of any
party and after such notice, if any, as the
court orders. . . .
The record in this case unequivocally establishes that, in
December 1995, the Caldwell County Attorney requested an order
holding Oliver in contempt for accumulating child support
arrearages in the amount of $6,288.64 of which $4,608.00 was
owed to the Commonwealth as reimbursement for AFDC and $1,680.64
was owed to the child’s mother herself.
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At that time Oliver’s
child support obligation was $100.00 per month.
After a
hearing, the trial court entered its February 1996 order setting
arrearages at $6,388.64, or $100.00 more than the sum of the
amounts requested by the Commonwealth.
The trial court’s order
made no mention of the fact that $1,680.64 of the established
arrearage was owed directly to Brummett.
The parents, Brummett
and Oliver, were both indigent with the mother’s interests being
represented only by the County Attorney and the father, who was
incarcerated at the time, representing himself.
Needless to
say, no one filed a motion to correct this obvious error in the
trial court’s February 1996 order.
In 2001, the Commonwealth filed another motion, on
Brummett’s behalf, to establish Oliver’s arrearages.
After the
trial court issued a new order, it became apparent to Oliver
that Brummett had never received any portion of the $6,388.64
that he had paid to the Commonwealth pursuant to the trial
court’s February 1996 order.
Oliver, by this time represented
by counsel, filed a motion requesting that the trial court make
new findings regarding his arrearage in light of the fact that
the Commonwealth had collected child support arrearages from him
but failed to disburse the money to Brummett.
The County
Attorney, as Brummett’s counsel, was served with Oliver’s
motions for findings of fact and to alter, amend or vacate the
judgment establishing his arrearage.
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The trial court adopted
Oliver’s proposed finding that the sum of $6,388.64 in its
previous order was erroneously ordered to be paid to the
Commonwealth alone.
The Commonwealth had an opportunity to object to
Oliver’s motions or to submit its own proposed findings to
contradict the evidence that the February 1996 order simply
erred by failing to provide that Brummett receive a portion of
the arrearage. Now, having failed to do so, the Commonwealth
comes to us and, on behalf of the mother, argues that the trial
court cannot order it to pay her money which was collected for
the support of her child. Because the Commonwealth has failed to
demonstrate that the February 1996 order did not contain a
clerical error, it cannot prevail on its argument that Oliver
was not entitled to relief pursuant to CR 60.01.
For the following reasons, the judgment of the
Caldwell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
H. B. Quinn
Caldwell County Child Support
Trigg County Attorney
Cadiz, Kentucky
Thresa N. Taylor
Hinton & Taylor
Eddyville, Kentucky
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