BRADLEY BOTKINS v. TAMMY E. BOTKINS TRACY
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RENDERED: MAY 28, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001031-MR
BRADLEY BOTKINS
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 91-CI-01857
v.
TAMMY E. BOTKINS TRACY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, TACKETT, and VANMETER, Judges.
COMBS, JUDGE.
The appellant, Bradley Botkins, challenges two
orders of the Franklin Circuit Court that modified his child
support obligations.
In its first order, he argues that the
circuit court erred in denying him credit for child support
overpayments.
As to its second order, he contends that the
court lacked jurisdiction.
We affirm as to both orders.
Bradley and Tammy E. Botkins Tracy were married in
1990 and divorced in 1992.
They have joint custody of their
thirteen-year-old daughter, who resides primarily with Tammy.
Bradley pays child support to Tammy through the Franklin County
Friend of the Court.
In a 1996 order, the Franklin Circuit Court set the
Bradley’s child support obligation at $57.35 per week.
The 1996
order also continued an arrangement (established in an earlier
order) providing that Bradley’s child support payments were to
be reduced by half during the summer visitation periods when his
daughter resides primarily with him.
In June 2002, Bradley ceased making child support
payments upon receiving a letter from the Friend of the Court
that notified him of Tammy’s intention to request an increase in
child support.
In August 2002, Tammy filed motions for a mutual
exchange of income information in order to review Bradley’s
child support obligations, to modify visitation in light of
their daughter’s extracurricular activities, and to find Bradley
in contempt of court for his failure to pay child support since
June 14, 2002.
Bradley responded with a motion for increased timesharing.
He countered the contempt motion by alleging that he
had paid excess child support into his account with the Friend
of the Court that had reached a total sum of $1200 when he
ceased making payments on June 14, 2002.
When the court-ordered mediation failed to resolve the
dispute, a trial was held on February 20, 2003.
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On April 18,
2003, the circuit court entered an order denying Bradley’s
motion for increased time-sharing while increasing his weekly
support payments from $57.35 to $80.94.
In its findings of
fact, the court stated that Bradley’s excess payments of child
support amounted to $743.96 and that his arrearages amounted to
$458.83.
However, it neither granted Tammy’s motion to find
Bradley in arrears in his support payments nor did it give
Bradley credit for his overpayments.
On April 23, 2003, Bradley filed a motion pursuant to
CR1 59 requesting that the trial court clarify its order.
Specifically, he sought a provision consistent with the 1996
order to reduce his child support obligation by half during the
annual summer visitation periods.
Although the motion did not
recite that it was being made pursuant to CR 59.05, Bradley has
characterized it on appeal as a motion to alter, amend, or
vacate -– as it had been treated by the circuit court.
At a hearing on April 29, 2003, Bradley argued that he
was entitled to credit for his child support overpayments.
The
judge explained that he had decided that the overpayments and
the arrearages constituted a “wash.”
In requesting a
clarification of the order as to the effective date of the
ordered increase in child support, Tammy argued that it should
1
Kentucky Rules of Civil Procedure.
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be made retroactive to August 7, 2002 -- the date of her filing
of a motion for an increase.
On May 16, 2003, the court entered an order directing
that Bradley’s child support would not be reduced during the
summer visitation periods, that the increased child support
would be made retroactive to August 7, 2002, and that Bradley
was to pay an extra $23.58 per week for the following thirtyseven weeks in satisfaction of the arrearage resulting from the
date of the retroactive application of the order.
Bradley’s first argues
that the trial court erred in
failing to grant him credit for the amounts that he overpaid on
his child support obligation, reasoning that “when one overpays
on an account, one should be entitled to credit.”
There is no
dispute that Bradley made excess child support payments, a fact
that was acknowledged by the trial court in its findings of
fact.
However, public policy considerations dictate that child
support obligations are viewed differently from other financial
obligations.
In Clay v. Clay, Ky. App., 707 S.W.2d 352 (1986),
this Court cited extensive portions of an opinion of the
Maryland Court of Special Appeals analyzing the effect of any
recoupment of child support overpayments.
Clay provided in
relevant part as follows:
[t]he obligation of a parent to support his
(or her) minor child is required by public
policy and is expressly imposed by statute.
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. . . The determination of the amount of
support to be paid by a parent, and the
fixing of such amount as part of an order of
a court having proper jurisdiction, . . . is
an implementation of that public policy, and
therefore rests upon a different footing
than ordinary judgments representing
adjudication of private claims. . . . The
fixing of child support derives from the
obligation of the parent to the child, not
from one parent to another. . . . [I]n such
a situation [reducing current payments to
reflect earlier overpayment] the onus of the
remedy would fall upon the child, not the
receiving parent. . . . it would require
that, during the recoupment period . . . the
child would be receiving less than that
found necessary for his or her support; and
thus, the recouping parent would not be
fulfilling his or her statutory obligation.
Clay, 707 S.W.2d at 353-54 quoting Rand v. Rand, 40 Md.App. 550,
392 A.2d 1149, 1151-53.
(Emphasis added.)
Bradley does not allege that Tammy expended the
overpayments on anything other than support of their daughter.
However, public policy concerns underlie his requested remedy of
recoupment:
[I]n cases in which the custodial parent has
expended the overpayment to support the
child, the only avenue for reimbursement
would permit the noncustodial parent to pay
an amount less than that necessary for the
child’s support. Providing reimbursement by
shortchanging the child seems unfair.
L. Graham and J. Keller, 16 Kentucky Practice, Domestic
Relations Law § 24.35, p. 257.
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At trial, employees of the Franklin County Friend of
the Court testified that they were never informed that Bradley
requested that the excess payments be credited to his account.
They explained that it was their policy that all payments would
be sent in full to the intended beneficiary unless they were
specifically advised by the payor to credit any excess to his or
her account.
Unaware of this policy, Bradley had been making
the excess payments for more than five years.
He had never
inquired as to whether they were being credited to his account,
nor had he so directed.
Tammy has cited several cases in which payors were not
given credit for excess child support expenditures.
In Tucker
v. Tucker, Ky. 398 S.W.2d 238 (1965), a father gave his child
support to his former wife directly in cash; he also paid off a
portion of the mortgage on her house.
The court refused to
grant him credit for these expenditures, reasoning as follows:
[i]f a party wishes to contribute to the
support of his children in some manner other
than that in which a court has directed, the
court is always open to a timely application
for modification. If he does it without
such permission it is not incumbent on the
court to give him any credit for it.
Tucker, 398 S.W.2d at 239.
In Guthrie v. Guthrie, Ky., 429 S.W.2d 32 (1968), a
father voluntarily paid $3,900 in laundry bills for his former
wife and children over a ten-year period.
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The court denied his
claim that he should be given credit for these payments, holding
that:
he made them voluntarily and there was no
agreement or understanding that the payments
would operate as credit on the child support
obligation. Under those circumstances he is
not entitled to credit.
Guthrie, 429 S.W.2d at 37 (citations omitted).
Bradley has
correctly pointed out that these cases involved either nonmonetary contributions or payments made through unofficial
channels.
Nonetheless, the reasoning is relevant in that the
court placed the burden of insuring proper crediting upon the
party making the excess contributions -- of whatever nature.
Therefore, we conclude that the court did not abuse its
discretion in refusing to credit Bradley for the child support
overpayments.
Bradley next argues that the circuit court lacked
jurisdiction to alter or amend its order of April 18, 2003,
based on oral motions made by Tammy on April 29, 2003, at the
hearing on his CR 59 motion.
Bradley argues that under CR
59.052, such motions had to be filed within the ten-day period
following the Court’s initial order of April 18, 2003.
He also
argues that Tammy’s motions failed to comply with CR 7.02(1),
requiring that prior notice be given to him.
2
In his brief, Bradley refers to CR 59.02, presumably a clerical error since
CR 59.02 sets the limitations period for filing motions for a new trial. CR
59.05 governs motions to amend, alter, or vacate, which must be filed within
ten days after entry of the final judgment.
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Upon the timely filing and granting of a motion filed
pursuant to CR 59, the entire judgment is suspended.
When
Bradley filed his motion, he effectively retained the
jurisdiction of the circuit court over the judgment.
“A motion
pursuant to CR 59 converts a final judgment to an interlocutory
judgment.”
See CR 73.02 (1)(e); State Personnel Board v. Heck,
Ky. App., 725 S.W.2d 13, 18 (1986).
Noting that the primary purpose of a CR 59.05 motion
is to toll the time for filing a notice of appeal, this Court
has cautioned that such a motion “does not authorize a general
attack upon, or revision of, the judgment at issue.”
Kentucky
Farm Bureau Insurance Co. v. Gearhart, Ky. App., 853 S.W.2d 907,
910 (1993)(citations omitted).
However, Tammy’s oral motion
(that the child support increase be made retroactive to August
7, 2002) was permitted by KRS3 403.213(1)).
Therefore, it does
not constitute “a general attack” upon the judgment at issue as
contemplated by Gearheart, supra.
Additionally, CR 7.02(1)
permits that such oral motions may be made during the course of
a hearing in open court:
“An application to the court for an
order shall be by motion which, unless made during a hearing or
trial, shall be made in writing….”
(Emphasis added.)
We also note the federal counterpart of CR 59.
Under
Federal Rule of Civil Procedure 59(e), the court is given “the
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Kentucky Revised Statutes.
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power and jurisdiction to amend the judgment for any reason, if
it [chooses] to do so, and it [is] not limited to the ground set
forth in the motion itself.”
See Charles v. Daley, 799 F.2d
343, 347 (7th Cir. 1986); E.E.O.C. v. United Ass'n of Journeymen
and Apprentices of the Plumbing & Pipefitting Industry of the
U.S. and Canada, Local No. 120
235 F.3d 244, 250 (6th Cir.
2000).
Bradley argues that the circuit court had already set
an effective date for the child support increase in its initial
order -- April 17, 2003, the date on the worksheet attached to
the judgment.
The worksheet shows the calculations utilized by
the court in arriving at the revised amount of child support.
The worksheet bore a date at the bottom of the page.
However,
there is no indication that the circuit court intended the
increase in Bradley’s payments to become effective on that date.
Even if the circuit court had intended the increase to become
effective on April 17, 2003, the date of its calculations, it
nonetheless retained jurisdiction to issue a precise order of
retroactivity to August 7, 2002.
Bradley also challenges the jurisdiction of the court
to order that he pay full child support during the summer
visitation periods, implying that this issue was first raised by
Tammy in an oral motion at the CR 59 hearing.
However, the
record clearly shows that Bradley himself raised this issue in
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his CR 59 motion to clarify.
Tammy responded to the motion at
the hearing, arguing that Bradley no longer paid for child care
during the summer visitation.
Therefore, she contended that his
justification for the reduced summer payments had ceased to
exist.
In filing the motion, Bradley exposed himself to the
legitimate risk that the court might not only deny his motion as
stated but that it might also address other ramifications
flowing from that motion.
We find no error in the court’s
disposition of this matter in response to Tammy’s responses at
the hearing.
The orders of the Franklin Circuit Court are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen C. Sanders
Frankfort, Kentucky
Michael L. Hawkins
Frankfort, Kentucky
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