WAYNE DAVIS MICHAEL v. LINDA EILEEN MICHAEL
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RENDERED: JUNE 18, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000763-MR
WAYNE DAVIS MICHAEL1
v.
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 96-CI-00225
LINDA EILEEN MICHAEL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND KNOPF, JUDGES; AND EMBERTON, SENIOR JUDGE.2
GUIDUGLI, JUDGE.
In this action concerning the propriety of an
order awarding back-due child support, Wayne Davis Michael
(hereinafter “Wayne”) has appealed from the Grant Circuit
Court’s March 27, 2003, order overruling his objections to the
1
Although the notice of appeal lists the parties’ last name as “Michaels”, we
note that throughout the record the last name is “Michael”. Therefore, we
shall use the correct surname of “Michael” in this opinion.
2
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Domestic Relations Commissioner’s report entered January 3,
2003.
We affirm.
Wayne and Linda Eileen Michael (hereinafter “Linda”)
were married in Scott County, Kentucky, on March 10, 1979.
One
child, Daniel Wayne Michael, was born of the marriage on June
23, 1991.
Wayne and Linda separated in February 1996, and she
filed a Petition for Dissolution of Marriage on September 3,
1996.
The case languished for some time, with the circuit court
going so far as to dismiss the case for lack of prosecution,
which order was later set aside.
On January 20 and 27, 2000,
Wayne filed motions to reduce his child support obligation,
citing to a drastic reduction in his income.
Although the
record does not contain any type of order regarding child
support prior to that date, the record reflects that Wayne was
prosecuted on at least one occasion in the Grant District Court
for non-support.3
On October 11, 2000, the district court
entered an Agreed Order and Judgment finding Wayne guilty of
non-support and conditionally discharging his one-year jail
sentence for two years on the condition that he pay $85.22 per
week in child support, representing $65.22 per week in child
support and $20 per week toward arrearages in support and
medical payments.
The support payments were to be payable to
the Division of Child Support.
3
Commonwealth of Kentucky, Cabinet for Families and Children OBO Linda
Michael v. Wayne Michael, Grant District Court case No. 96-M-00661.
-2-
On May 25, 2001, the circuit court entered a decree of
dissolution, reserving the issues as to the separation of
property and child support.
The same day, the Domestic
Relations Commissioner entered a report containing his
recommendations as to the reserved issues, which report was
adopted by the circuit court on June 19, 2001.
Wayne and Linda
were granted joint custody of their minor child, with Linda
being assigned as the residential guardian and Wayne being given
visitation rights.
Wayne’s motion to reduce his child support
obligation was denied.
On November 2, 2001, the circuit court
entered a subsequent order regarding the marital real estate.
Pursuant to that order, each was entitled to 50% of the marital
real estate.
Wayne was given sixty days to pay Linda her share,
or the property was to be listed for sale.
On Linda’s motion
concerning Wayne’s non-compliance, the circuit court ordered the
property to be sold.
When Wayne failed to do so, the circuit
court ordered the property to be sold by the Master
Commissioner.
However, the property again failed to sell, and
the circuit court ordered the Master Commissioner to transfer
the property to Linda so that she could attempt to sell it.
The
property apparently was sold, and Linda’s attorney retained a
portion of Wayne’s proceeds.
On November 12, 2002, Linda filed a motion for
contempt and for a judgment representing the arrearage of child
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support.
She indicated in the motion that Wayne had not paid
any of the ordered child support since August 17, 2001, creating
an arrearage of $4174.08 from that date until November 8, 2002.
The Domestic Relations Commissioner entered the following
recommended order on January 3, 2003, after a December 11, 2002,
hearing:4
1. The Respondent, WAYNE DAVIS MICHAEL, is
hereby found to be in contempt; the
Motion of the Petitioner is hereby
SUSTAINED and [Respondent] is responsible
for costs of this action.
2. The Respondent shall be required to pay
$500 to Petitioner representing
attorney’s fees Petitioner has incurred
relative to the issue of child support.
3. The sum of $5,093, part of proceeds of
sale of the parties’ real property held
by Petitioner’s attorney, shall be
applied to the existing child support
arrearage of $4,174.08 as of November 7,
2002 and any amount accrued since that
date; and to satisfy a lien held by Grant
County Child Support Office in the amount
of $1,446.79.
4. That Respondent shall pay current support
in the amount of $65.22 per week and an
additional $10.00 per week toward any
arrearage for a total weekly obligation
of $75.22.
5. Said support shall be payable to the
Division of Child Support, P.O. Box
14059, Lexington, Kentucky 40512 with IVD No. 1656004 clearly written on each
payment.
4
The certified record does not contain any recording or transcript of the
December 11, 2002, hearing before the Domestic Relations Commissioner.
-4-
6. That Respondent may purge himself of
contempt by performance of all acts
recommended herein on or before January
29, 2003. Otherwise, he shall appear
before the Grant Circuit Court on that
date to show cause why he should not
serve ten days in the Grant County jail
for contempt.
On January 15, 2003, Wayne filed objections to the
Domestic Relations Commissioner’s report and notice of hearing.
He cited to the testimony of Karen Coulson of the Grant County
Child Support Collection office, who, he alleged, testified that
Linda had voluntarily relinquished her right to receive child
support.
Wayne also relied upon a notarized, handwritten note
from Linda dated August 14, 2001, in which she stated:
Wayne Michael is going to pay the child
support he owes me today. I do not want the
State to collect my child support anymore
for me. I do not want him to go to jail[.]
I could not get in touch with Child Support
office to let them know that I do not want
the State to collect child support for me.
Lastly, he relied upon Section 26.000 of the Kentucky
Prosecutors’ Child Support Enforcement Handbook, which allows
for arrearages to be reduced or set aside when there is “a
verbal and/or written agreement between the parties that the
absent parent does not owe support.”
Linda filed a response to
Wayne’s objections, in which she indicated that Karen Coulson
actually testified that Linda asked the child support office to
stop its efforts to collect child support on her behalf.
-5-
At no
time did Linda ever file a motion to suspend Wayne’s child
support obligation and there was no agreement between them to
this effect.
Linda never relinquished her right to receive
child support or relieved Wayne of his obligation to pay child
support.
On March 27, 2003, the circuit court entered an order
overruling Wayne’s objections, and confirming and adopting the
Domestic Relations Commissioner’s January 3, 2003, report.
This
appeal followed.
On appeal, Wayne limits his argument to the assertion
that the circuit court erred in awarding the money at issue to
Linda as she had voluntarily declined to have Division of Child
Support collect the child support owed to her, thereby freeing
Wayne from having to pay any child support.
He does not appear
to argue that he should not be required to pay any current child
support.
On the other hand, Linda argues that Wayne’s child
support obligation continued to accrue, as there was nothing in
the record to establish that she ever relinquished her right to
receive child support.
Our standard of review in this appeal is whether the
circuit court abused its discretion by awarding the sum of
$5093, retained from Wayne’s portion of the real property sale,
to Linda to apply to his past due child support.
The record on
appeal clearly supports the circuit court’s decision, even
without a transcript or recording of the testimony at the
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December 11, 2002, hearing.
In her August 14, 2001, note, Linda
did not relinquish her right to receive child support; she
merely stated that she did not want the Division of Child
Support to collect payments on her behalf.
This does not mean
that Wayne would not have to continue to pay the court-ordered
child support.
He still retained his obligation, but no longer
had to make his payments through the Division of Child Support.
Furthermore, the record does not reflect that any party moved
the circuit court to relieve Wayne of his obligation to pay
child support, nor is there an agreed order to this effect.
The
circuit court did not abuse its discretion by holding Wayne in
contempt, ordering the amount representing a portion of his
proceeds from the sale applied to his past-due child support,
and ordering him to continue to pay child support.
For the foregoing reasons, the Grant Circuit Court’s
March 27, 2003, order is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael D. Triplett
Williamstown, KY
William R. Adkins
Williamstown, KY
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