DAVID C. PECORARO v. MARGARET PECORARO
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RENDERED:
October 22, 2004; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2003-CA-001975-MR
DAVID C. PECORARO
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOSEPH O'REILLY, JUDGE
ACTION NO. 98-FC-007915
v.
MARGARET PECORARO
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
SCHRODER AND TACKETT, JUDGES; AND EMBERTON, SENIOR
TACKETT, JUDGE:
David Pecoraro appeals from an order of the
Jefferson Family Court denying his motion to set aside a wage
garnishment and recalculate child support retroactively.
The
dispositive issue in this case is whether there was evidence
that his former spouse, Margaret Pecoraro, agreed to accept half
of his court ordered child support after one of their two
children became emancipated.
1
If so, the question becomes would
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.
such an agreement override Kentucky Revised Statute (KRS)
403.213(1) which governs modifications of child support?
We
agree with the family court that David failed to file a motion
to reduce his child support and that there was insufficient
evidence to support the conclusion that Margaret agreed to a
reduction.
Therefore, the family court correctly concluded that
KRS 403.213(1) did not permit retroactive modification to his
child support and its order is affirmed.
When David and Margaret were divorced in 1994,
Margaret was the primary residential custodian for their two
minor children.
Originally, David’s court ordered child support
obligation was $1,564.00 per month.
increase this amount in 1998.
Margaret filed a motion to
The family court's final order,
entered May 28, 1999, found that David’s monthly income was
$17,652.18 while Margaret’s was $1,094.08 and ordered David to
pay $2,162.33 per month to support the two children.
The
parties’ oldest child turned eighteen in April 2001 and
graduated from high school the following month.
At that time,
David began paying Margaret only half of the court ordered child
support amount; however, he did purchase his daughter a car and
pay some of her college tuition and expenses.
Two years later,
the parties’ seventeen-year-old son moved in with his father,
and David filed a motion requesting a change to the primary
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residential custodian.
Margaret responded by obtaining an order
garnishing David’s wages for payment of a $27,025.00 child
support arrearage.
David filed a motion requesting that the
garnishment be set aside and that his child support obligation
be reduced retroactively to reflect the date the parties’
daughter became emancipated.
The family court denied David’s
motion in an order dated July 24, 2003.
David filed a motion to
amend, alter or vacate the family court’s order which was also
denied, and this appeal followed.
David first argues that the family court erred by
applying KRS 403.213(1).
The statute reads as follows:
The Kentucky child support guidelines
may be used by the parent, custodian, or
agency substantially contributing to the
support of the child as the basis for
periodic updates of child support
obligations and for modification of child
support orders for health care. The
provisions of any decree respecting child
support may be modified only as to
installments accruing subsequent to the
filing of the motion for modification and
only upon a showing of a material change in
circumstances that is substantial and
continuing.
He contends that Margaret agreed to the modification in child
support payments after their daughter became emancipated;
therefore, there was no motion filed to modify his child support
obligation and the statute is inapplicable.
The family court
found that there was no agreement between the parties to reduce
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David’s child support payments and that KRS 403.213(1) barred
any retroactive reduction in child support which was what David
requested in his motion.
David’s brief characterizes this
motion as a request to set aside a wage garnishment rather than
a motion to modify child support, but this does not get around
the fact that it also asks the family court to retroactively
reduce his child support which is forbidden by the statute.
Next, David claims that the family court
misinterpreted the Kentucky Supreme Court’s holding in Price v.
Price, Ky., 912 S.W.2d 44 (1995).
In Price, a mother who had
originally been awarded custody of her minor son and child
support in a divorce decree agreed to transfer custody to the
father.
After sixteen months, the mother filed a motion to
compel her former spouse to pay his child support arrearages
accumulated since the child had been in his father’s custody.
Although the father subsequently obtained a legal change to his
status as custodian, the Kentucky Supreme Court held that KRS
403.213(1) prevented the father from being relieved of his
obligation to pay child support between the time he had the
child in his custody and the time he filed a motion to modify
his child support obligation.
The Court reasoned that, absent
an out-of-court agreement between the parties to modify child
support, the statute still applied even though the mother no
longer had custody.
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In contrast, David argues that his daughter’s
emancipation relieved him of the obligation to pay child
support, that he never filed a motion to modify child support,
and that he and Margaret had an out-of-court agreement to modify
his child support.
These facts, he claims, distinguished his
situation from the facts in Price and made the family court’s
reliance on it erroneous.
First, we would point out that only
one of David’s children became emancipated.
David correctly
asserts that he was under no continuing obligation to pay child
support for his daughter, but the family court’s 1999 order does
not set a per-child amount to his support obligation.
In fact,
the Domestic Relations Commissioner’s proposed order did set
David’s child support at $2,177.57 per month or $1,088.78 per
child, but this order was unsigned.
The family court’s 1999
order sets David’s child support at $2,162.33 per month, making
no mention of a per child amount.
In addition, in the order
denying David’s motion to set aside the wage garnishment, the
family court states that Kentucky’s “Child Support guidelines
are not set so as the obligation of child support is in direct
proportion to the number of children to support.
In other words
child support does not decrease by one half when one of two
children in the home are emancipated . . . .”
Second, with
regard to David’s argument that he never filed a motion to
modify his child support, but rather a motion to recalculate his
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child support retroactively, we find that to be a distinction
without a difference as far as KRS 403.213(1) is concerned.
Also, the family court found that, as in Price, the parties in
the case at hand did not agree to modify David’s child support
and that Margaret’s acceptance of two years’ worth of diminished
child support payments cannot be taken to indicate the presence
of an out-of-court agreement.
David has failed to show that the
family court erred in interpreting the Kentucky Supreme Court’s
holding in Price to support its finding that KRS 403.213(1)
applied to bar a retroactive recalculation of David’s child
support.
David’s final contention is that the family court
abused its discretion in failing to hold an evidentiary hearing
before denying his motion.
He argues that, had such a hearing
been held, he would have been able to introduce evidence
supporting his claim that Margaret agreed to reduce his child
support obligation by half after their daughter became
emancipated.
We first turn to a brief examination of the facts
which the family court had before it in determining that there
was no such agreement.
David filed an affidavit in support of
his motion requesting a change in residential custodian for the
parties’ seventeen-year-old son.
This document made no mention
of any out-of-court agreement regarding his child support
obligation.
After Margaret obtained an order garnishing his
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wages for past-due child support, David filed a second
affidavit.
In this document, he states that, after their
daughter graduated from high school, David reduced the amount of
child support he was paying by one-half.
Additionally, he
alleges that Margaret “knew of said reduction and acquiesced and
accepted the reduction” until David filed his motion requesting
a change in their son’s residential custodian.
Nowhere within
this affidavit does David claim that there was an agreement
between himself and Margaret which allowed him to reduce his
child support payments.
The family court scheduled David's
motion to retroactively recalculate his child support for a
hearing on August 15, 2003, but David’s counsel sent a letter to
the judge, dated July 18, 2003, informing the judge that the
matter was ready for submission.
The family court’s 2003 order, from which the present
appeal is taken, made a finding that David had unilaterally
reduced his child support payments after his daughter became
emancipated and that there was no out-of-court agreement between
the parties pertaining to his child support obligation.
The
order further states that Margaret denies the existence of an
agreement to modify David’s child support obligation and that
David relies on her acceptance of reduced payments for two years
and the per child language in the unsigned Commissioner’s
proposed order as evidence of an agreement.
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David filed a
motion to amend, alter or vacate the family court’s 2003 order
arguing that the court should have heard testimony regarding the
existence of an out-of-court agreement between the parties.
Margaret’s response objected to this motion on the basis that
the family court had originally scheduled the motion for a
hearing, but David, through counsel, informed the judge that the
matter was ready for submission.
Thus, he should not be allowed
to complain after receiving an unfavorable ruling that the trial
court failed to hold a hearing.
We agree with Margaret’s
response to David’s motion to amend, alter or vacate the family
court’s 2003 order.
Having passed up the opportunity for a
hearing before the family court made its decision on David’s
motion to retroactively recalculate his child support, David
cannot now expect this court to find that the family court
committed an error in failing to hold a hearing to determine
whether an agreement modifying his child support existed.
For the foregoing reasons, the order of the Jefferson
Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven J. Kriegshaber
Louisville, Kentucky
Joseph V. Mobley
Oliver B. Rutherford
Louisville, Kentucky
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