RACHEL KAY THARPE, now KROENING v. DAVID BRUCE THARPE
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RENDERED: JULY 9, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002360-MR
RACHEL KAY THARPE, now KROENING
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE T. STEVEN BLAND, JUDGE
CIVIL ACTION NO. 86-CI-01051
v.
DAVID BRUCE THARPE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, and MINTON, Judges.
MINTON, Judge:
Hardin
Circuit
Rachel Kroening appeals from an order of the
Court
which
denied
her
claim
against
her
ex-
husband, David Tharpe, for statutory interest on child support
arrearages. We affirm the circuit court’s decision because we
conclude that it did not abuse its discretion in determining
that the imposition of interest on unpaid child support would be
inequitable under the facts of this case.
The Hardin Circuit Court granted Rachel and David a
divorce in 1986.
Following
the
They had one child, born March 15, 1980.
terms
of
a
separation
agreement
that
became
incorporated into the final decree, Rachel was granted custody
of
their
child
visitation.
subject
to
David’s
right
of
reasonable
David agreed to pay Rachel $250 per month as child
support during the child’s minority.
David paid child support
regularly through April 1991 when the circuit court denied his
motion to change the custody of the child to him.
From May 1991
forward, he paid no more child support to Rachel.
According to
David, he stopped making the payments to Rachel when she stopped
allowing him unsupervised visits with their child.
made
a
motion
to
enforce
his
visitation
rights.
He never
The
child
reached the age of majority on March 15, 1998, and graduated
from
high
school
in
June
of
monthly support obligation.
that
year,
thus
ending
David’s
According to Rachel, she did not
take action on child support sooner because she thought that “it
was the best thing to do.”
On
June
28,
2002,
Rachel
filed
a
motion
in
Hardin
Circuit Court demanding a common law judgment against David for
the
child
Relations
support
arrearage,
Commissioner
(DRC)
plus
who
interest.
heard
the
The
evidence
Domestic
on
the
motion recommended to the circuit court that Rachel be granted a
judgment against David for $21,500, the stipulated sum of the
-2-
missed monthly payments for the period May 1991 through June
1998, plus interest at the statutory judgment rate of 12 percent
from the date of the judgment.
The DRC recommended against
Rachel’s claim for nearly $30,000 more from David, representing
interest at 12 percent from the date each missed payment accrued
until date of judgment.
The DRC recommended to the circuit court that an award
of what the DRC mischaracterized as “pre-judgment interest” to
Rachel on each missed payment would be inequitable.
The DRC
explained her recommendation as follows:
This recommendation is made for several
reasons. Not only does this Commissioner
believe that the cited law is not applicable
to the matter at hand, but that even if it
were, Rachel is deemed to have waived her
right to receive pre-judgment interest by
failing to take action sooner.
Rachel
received the consideration of David not
coming around and disrupting her household.
Rachel was quite happy with the situation as
it was during that period of time, and she
should not receive the benefit of her
inaction under these circumstances whether
it be under principles of equity, estoppel
or laches or even a simple contractual
unspoken agreement.
David agreed not to
come around if he did not have to pay child
support.
The circuit court overruled Rachel’s timely objections to the
DRC’s report and entered judgment accordingly on October 21,
2002.
-3-
On appeal, Rachel argues that the circuit court erred
in refusing to recognize that the law mandates interest at the
judgment rate of 12 percent from and after the due date of each
unpaid child support payment.
Rachel also suggests in her Brief
that the incorporation of the child support obligation from the
settlement
agreement
interest argument.
into
the
judgment
somehow
supports
her
The settlement agreement is silent on the
awarding of interest on unpaid child support.
In light of our
discussion regarding the general rule below, we find this point
to be a distinction with a difference.
Alternatively, Rachel
argues that even if the award of interest on the unpaid child
support is not mandatory, the circuit court improperly relieved
David of the interest obligation.
Under Kentucky law, an order for the periodic payment
of child support is a binding and final judgment of the court
until modified, and any payments which may become due previous
to modification “constitute a fixed and liquidated debt vested
in favor of the judgment creditor against the judgment debtor.”1
Such judgments are subject to the provisions of Kentucky Revised
Statutes (KRS) 360.040, which mandates that “[a] judgment shall
bear twelve (12%) percent interest compounded annually from its
date.”
As
a
general
proposition,
statutory
post-judgment
interest should be awarded for unpaid child support as of the
1
Stewart v. Raikes, Ky., 627 S.W.2d 586, 588 (1982).
-4-
date each periodic payment became due;2 however, this rule is not
mandatory if payment of interest is deemed inequitable.3
Rachel argues that the circuit court erred by finding
that equity weighed against the award of interest in this case.
The standard we must apply to our review of the circuit court’s
conclusion on this issue is abuse of discretion.
“'Abuse of
discretion in relation to the exercise of judicial power implies
arbitrary
action
or
capricious
disposition
under
the
circumstances, at least an unreasonable and unfair decision' ...
The exercise of discretion must be legally sound."4
The record on appeal contains the hearing log of the
DRC, which confirms that she conducted an evidentiary hearing on
August 13, 2002, at which the parties testified, exhibits were
received,
and
Unfortunately,
2
See,
counsel
the
for
certified
both
sides
record
does
made
not
argument.
contain
the
Hardin v. Hardin, Ky.App., 711 S.W.2d 863 (1986).
3
Guthrie v. Guthrie, Ky., 429 S.W.2d 32, 36 (1968) (applying the
rule that interest should be awarded on unpaid child support in the
absence of factors making it inequitable); See also, Young v. Young,
Ky., 479 S.W.2d 20, 22 (1972); Courtenay v. Wilhoit, Ky.App.,
655 S.W.2d 41, 42-43 (1983).
4
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994)
(citations omitted); See also, Sherfey v. Sherfey, Ky.App ., 74 S.W.3d
777, 782-783 (2002).
-5-
videotape of this evidentiary hearing.
We must presume that the
evidence supports the findings reported by the DRC.5
The DRC,
who had the opportunity to hear and to observe the testimony
first-hand, alluded to a tacit mutual acceptance of more than a
decade of inaction by Rachel and David.
The matter stood at
impasse until their child reached adulthood.
forward
to
assert
her
support
rights
but
Then, Rachel came
only
after
David’s
ability to assert his visitation rights had become a nullity.
The circuit court’s order accepted the DRC’s recommended finding
that Rachel had waited so long, and she should be estopped from
insisting on interest on unpaid child support.
We are unable to
say that it was an abuse of discretion for the court to find it
inequitable under these facts to award Rachel nearly $30,000 in
addition
to
the
arrearage.
We
cannot
say
that
the
circuit
court’s decision is unreasonable or unfair.
For
the
reasons
set
forth
above,
the
order
Hardin Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeremy Scott Aldridge
SKEETERS, BENNETT & WILSON PLC
Radcliff, Kentucky
Robert L. Martin
Louisville, Kentucky
5
Wells v. Wells, Ky., 406 S.W.2d 157 (1966).
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of
the
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