PATRICIA FIELDS KINSEY v. BOOSTER LAVERNE KINSEY and COMMONWEALTH OF KENTUCKY v. BOOSTER LAVERNE KINSEY; AND PATRICIA FIELDS KINSEY
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RENDERED: JUNE 3, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2002-CA-002114-ME
PATRICIA FIELDS KINSEY
APPELLANT
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 96-CI-00142
v.
BOOSTER LAVERNE KINSEY
AND
APPELLEE
NO. 2003-CA-001490-ME
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM BUTLER CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 96-CI-00142
v.
BOOSTER LAVERNE KINSEY;
AND PATRICIA FIELDS KINSEY
OPINION
AFFIRMING CASE NO. 2002-CA-002114-ME
AND
REVERSING AND REMANDING CASE NO. 2003-CA-001490-ME
(1)
(2)
APPELLEES
** ** ** ** ** ** ** **
BEFORE: JOHNSON AND McANULTY, JUDGES; HUDDLESTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Patricia Fields Kinsey has appealed from an
order of the Butler Circuit Court adopting the recommendations
of the Domestic Relations Commissioner and ordering a change of
custody of the parties’ minor children from Patricia to her exhusband, appellee Booster Laverne Kinsey (Case No. 2002-CA002114-ME).
In a related matter, the Commonwealth of Kentucky,
an intervener in the circuit court case seeking to collect
child-support arrearages it claims is owed by Booster, appeals
from an order of the Butler Circuit Court adopting the
Commissioner’s conclusion that Booster owes no such arrearages,
and accordingly, denying the motion of the Commonwealth for
recoupment.2
(Case No. 2003-CA-001490-ME).
Having concluded the
circuit court’s findings of fact are supported by substantial
evidence, it applied the correct law, and it did not abuse its
discretion by awarding custody to Booster, we affirm in Case No.
2002-CA-002114-ME.
Having concluded the circuit court erred in
determining that Booster did not have child-support arrearages
subject to the Commonwealth’s claim for recoupment, we reverse
and remand in Case No. 2003-CA-001490-ME.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
2
The Commonwealth contends it is entitled to recoupment on the basis that it
paid Patricia Aid for Families with Dependent Children (AFDC) benefits during
the period it alleges Booster accrued child-support arrearages.
2
Booster and Patricia Fields Kinsey began dating
sometime in 1990.
Their first child, Carl Fields Kinsey, was
born on March 6, 1993, and they married in Kentucky on December
25, 1993.
Their second son, Casey Fields Kinsey, was born on
September 25, 1995.
The couple maintained a home in Georgia
both prior to their marriage and after the marriage.
On June 17, 1996, Patricia left Georgia with the
children and moved to Kentucky, where she had family. After
failed attempts at reconciliation, Booster and Patricia
separated on July 1, 1996.
On October 4, 1996, Booster filed a
complaint for divorce in the Superior Court of Camden County,
Georgia.
The Georgia Superior Court entered a temporary order
on October 31, 1996, and an amended temporary order on November
14, 1996, granting temporary custody of the children to Booster.
Patricia filed her own petition for custody on
November 14, 1996, in Kentucky in the Butler Circuit Court (96CI-00142). On November 19, 1996, Booster filed a separate
complaint in the Butler Circuit Court (96-CI-00144), seeking to
register the Georgia amended temporary order that had awarded
him custody.
A jurisdictional dispute was resolved in favor of
Butler Circuit Court being the proper venue to litigate custody.
On March 26, 1998, the Butler Circuit Court entered an order
approving and adopting as its own the recommendations from the
3
Commissioner’s Report as to the issue of custody.
The order
granted the parties joint custody, with Patricia as primary
residential custodian.
Following various post-judgment
litigation, Booster appealed the matter to this Court.
On
November 9, 2000, this Court entered an order affirming the
judgment of the circuit court.3
The litigation leading to the present appeal began on
January 2, 2002, when Booster filed a motion for sole custody of
the children.
A hearing on the motion was held on January 10
and January 11, 2002.
On January 17, 2002, the DRC entered a
“continuing trial order” continuing the hearing until April 30
and May 1, 2002.
On April 30 and May 1, 2002, the hearing on
Booster’s motion for modification of child support was
concluded.
On June 26, 2002, the Commissioner issued his report
containing his recommendations to the circuit court.
The report
recommended that Booster be awarded custody of the children;
that Patricia’s visitation be restricted to one hour of
telephone visitation per week; and that Patricia be required to
pay child support of $183.00 per month.
Patricia and Booster each filed exceptions to the
Commissioner’s report.
Patricia’s exceptions challenged the
Commissioner’s analysis in recommending that Booster be awarded
3
Case No. 1998-CA-003183-MR, rendered November 9, 2000, not-to-be published.
4
primary residential custody of the children and substantially
mirror the arguments raised in this appeal.
After the June 26, 2002, Commissioner’s report was
issued, events occurred which led to the Commonwealth’s appeal
In summary,4 the Commonwealth was granted leave to
in this case.
intervene in the case for the purpose of seeking recoupment of
AFDC payments made to Patricia from child-support arrearages the
Commonwealth alleged had accrued during the period of AFDC
payments.
On September 22, 2002, the circuit court entered an
order accepting and adopting all recommendations contained in
the Commissioner’s June 26, 2002, report concerning custody
issues.
The order, however, remanded to the Commissioner the
issue concerning whether the Commonwealth was entitled to
recoupment of AFDC benefits. Patricia’s appeal of custody issues
relates to the circuit court’s September 22, 2002, order.
On March 6, 2003, the Commissioner issued his
recommendations concerning the AFDC recoupment issue.
The
Commissioner determined that Booster owed no child-support
arrearages related to the period of AFDC payments, and
accordingly, concluded that the Commonwealth was entitled to no
recoupment.
On June 17, 2003, the circuit court entered an
order confirming and adopting the Commissioner’s March 6, 2003,
4
See the discussion under the section of this Opinion addressing Case No.
2003-CA-001490-ME for a more detailed discussion of these events.
5
recommendations relating to AFDC recoupment.
The Commonwealth
has appealed from the circuit court’s June 17, 2003, order.
CASE NO. 2002-CA-002114-ME
Patricia raises numerous arguments in her appeal.
While most of her arguments concern the circuit court’s childcustody decision, she also raises arguments concerning child
support and visitation.
To facilitate continuity, we have
reordered and combined certain portions of her arguments.
CHILD-CUSTODY ISSUES
First, Patricia contends that the circuit court abused
its discretion by awarding primary residential custody to
Booster.
In reviewing a child-custody determination, we review
the factual findings of the circuit court pursuant to the
clearly erroneous standard.5
Findings of fact are clearly
erroneous only if they are manifestly against the weight of the
evidence.6
Since the circuit court is in the best position to
evaluate the testimony and to weigh the evidence, an appellate
court should not substitute its own opinion for that of the
circuit court.7
Ultimately, a circuit court’s decision regarding
custody will not be disturbed absent an abuse of discretion.8
5
Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d
442, 444 (Ky. 1986).
6
Wells v. Wells, 412 S.W.2d 568, 570 (Ky. 1967).
7
Reichle, 719 S.W.2d at 442.
8
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
6
Abuse of discretion implies that the circuit court’s decision is
unreasonable or unfair.9
In reviewing the decision of the
circuit court, therefore, the test is not whether the appellate
court would have decided it differently, but whether the
findings of the circuit judge were clearly erroneous or he
abused his discretion.10
In Scheer v. Zeigler,11 this Court held that the same
criteria apply for a modification of joint custody as apply to a
modification of sole custody.
Thus, in order for there to be a
modification of joint custody, as in all custody cases, the
party seeking modification must first meet the threshold
requirements for modification contained in KRS 403.340.
For a proposed modification occurring more than two
years after the initial custody award, KRS 403.340(3) sets forth
the threshold circumstances which must be met in order for the
circuit court to reconsider an initial custody award:
If a court of this state has jurisdiction
pursuant to the Uniform Child Custody
Jurisdiction Act, the court shall not modify
a prior custody decree unless after hearing
it finds, upon the basis of facts that have
arisen since the prior decree or that were
unknown to the court at the time of entry of
the prior decree, that a change has occurred
in the circumstances of the child or his
9
Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994).
10
Cherry, 634 S.W.2d at 423.
11
21 S.W.3d 807 (Ky.App. 2000).
7
custodian, and that the modification is
necessary to serve the best interests of the
child. When determining if a change has
occurred and whether a modification of
custody is in the best interests of the
child, the court shall consider the
following:
(a)
Whether the custodian agrees to the
modification;
(b)
Whether the child has been integrated
into the family of the petitioner with
consent of the custodian;
(c)
The factors set forth in KRS 403.270(2)
to determine the best interests of the
child;
(d)
Whether the child’s present environment
endangers seriously his physical,
mental, moral, or emotional health;
(e)
Whether the harm likely to be caused by
a change of environment is outweighed
by its advantages to him; and
(f)
Whether the custodian has placed the
child with a de facto custodian.
The factors circuit courts must use to determine the
best interests of the child is codified in KRS 403.270(2).
statute states, in pertinent part:
The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be given
to each parent and to any de facto
custodian. The court shall consider all
relevant factors including:
(a)
The wishes of the child’s parent or
parents, and any de facto custodian, as
to his custody;
8
This
(b)
The wishes of the child as to his
custodian;
(c)
The interaction and interrelationship
of the child with his parent or
parents, his siblings, and any other
person who may significantly affect the
child’s best interests;
(d)
The child’s adjustment to his home,
school, and community;
(e)
The mental and physical health of all
individuals involved;
(f)
Information, records, and evidence of
domestic violence as defined in KRS
403.720[.]
The Commissioner’s report included extensive findings
of fact, including findings concerning testimony that Patricia
had a history of making unsubstantiated allegations of abuse
upon the children by Booster; that Kevin Wiloughby of Life
Skills, a licensed social worker, had concerns that Patricia
made statements derogatory of Booster to the children and
subjected the children to emotional abuse; that Patricia sent
the children to a visitation with Booster with inadequate
clothing; and that Patricia suffered from depression and was
unable to cope.
In addition, the Commissioner’s report
concluded that “Petitioner, Patricia Kinsey, is suffering from
severe acute depression and that her past record of absconding
with the children at times of court ordered visitation creates a
situation in which further visitations will expose the children
9
to physical dangers including further anal examinations,
kidnapping or possible severe or fatal physical damage to the
children.
The father should be awarded custody of the boys
. . . .”
The record amply demonstrates that Patricia suffers
from a history of depression which has interfered with her
judgment and her ability to provide proper care for the
children.
Patricia further has a history of failing to
cooperate in facilitating the children’s relationship with their
father and, in addition, testimony supports Booster’s allegation
that Patricia has actively attempted to demean Booster by means
of false charges of abuse.
We are of the opinion that the
circuit court's factual findings are supported by substantial
evidence and that its custody ruling based on those factual
findings was not an abuse of discretion.
Next, Patricia contends that the circuit court erred
in awarding custody to Booster because Booster did not have a
full psychological evaluation prior to the custody award and
because he was not administered a psychological test by Dr.
Walter Bratcher.
Patricia does not cite us to her preservation
of this issue as required by CR 76.12(4)(c)(iv), and we will not
search the record on appeal to make that determination.12
addition, the underlying basis for this argument is that a
12
Robbins v. Robbins, 849 S.W.2d 571 (Ky.App. 1993).
10
In
psychological evaluation would demonstrate that Booster has
previously engaged in domestic violence against her and such
would be confirmed by the evaluation.
However, this
presupposition is based totally upon speculation.
Further, the
Commissioner addressed the issue of Patricia’s repeated
allegations of abuse and found the accusations not to be
credible, stating, “the Commissioner has heard abuse claims
claimed by Patricia since 1996 and none of them have been
substantiated.”
This argument does not merit reversal of the
circuit court’s custody decision.
Next, Patricia contends that the circuit court’s
custody award was erroneous because it amounts to rewarding
Booster for his verbal, physical, and mental abuse of Patricia.
As just noted, the Commissioner determined Patricia’s repeated
allegations of abuse by Booster to be generally not credible.
In addition, the custody decision was primarily based upon the
parental shortcomings of Patricia, and the appellant’s
contention that the decision was intended to “reward abuse” is a
mischaracterization of the circuit court’s reasoning in awarding
custody to Booster.
Next, Patricia contends that she did not receive equal
time to present her case at the custody hearings.
Again,
Patricia does not cite us to her preservation of this issue by
citing us to any request for additional time to present her
11
case, nor does she identify any witnesses or evidence which she
was precluded from presenting as a result of the time
allocations.13
Further, it is within the sole discretion of the
trial judge to decide how much time should be allotted for
arguments.14
In determining the proper amount of court time to
be devoted to a matter, “the importance of the case, the legal
questions involved . . . [and] the extent and character of the
testimony, are all elements that must be considered” [citations
omitted].15
In this case, four days of hearings were held.
Booster presented his case first, and admittedly he received
most of three days to present his case while Patricia received
only one day.
However, this computation of time ignores that
the witnesses called by Booster overlapped with the witnesses on
Patricia’s witness list, and there is no allegation that
Patricia was hindered in her ability to cross-examine any
witness called during Booster’s case-in-chief.
In this respect,
the time calculations presented by Patricia are misleading.
Particularly, since Patricia did not specifically request more
13
CR 76.12(4)(c)(iv).
14
Asher v. Golden, 244 Ky. 56, 50 S.W.2d 3 (Ky. 1932).
Craig, 244 S.W.2d 733 (Ky. 1951).
15
Asher, 50 S.W.2d at 4.
12
See also Reed v.
time to present her case, the Commissioner did not abuse his
discretion in limiting the hearing to four days.
Next, Patricia contends that her depression was not
serious enough, and, further, did not result in physical damage
to the children, so as to justify removal of the children from
her custody.
While Patricia presented evidence supporting this
position, on the other hand, conflicting evidence was presented
to the effect that she suffered from acute depression which
interfered with her ability to cope and led to problems with her
ability to care for the children.
In instances of such
conflicting evidence, it is for the trier of fact to resolve the
conflict, and we will disturb the resulting decision only if
clearly erroneous.
There is substantial evidence in the record
to support the circuit court’s decision regarding the extent and
the consequences of Patricia’s depression, and we will not
disturb the circuit court’s findings concerning this issue.
Next, Patricia contends that the circuit court erred
in its conclusion that she had violated 38 court orders whereas
Booster refuses even to permit her to have telephone visitation
with the children.
The Commissioner’s report refers to Patricia
as having “violated thirty-eight (38) Court orders.”
In her
brief, Patricia does not deny this finding, rather, she
criticizes Booster for having violated court orders at least 40
times by denying her telephone visitation with the children.
13
Even if the Commissioner miscounted the number of
occasions Patricia has violated court orders, we are of the
opinion that this is a rather insignificant element of the
custody decision and does not amount to reversible error.
As
for the alleged violations of telephone visitation by Booster,
her remedy is not a reversal of the custody decision in this
case, but, rather, is by appropriate motion to enforce the
circuit court’s visitation orders.
Next, Patricia contends that the circuit court’s
custody decision was erroneous because the children were
“suddenly removed” from her home.
The events referred to in
this argument relate to a December 2001 motion by Booster for
Christmas visitation with the children.
Following a hearing,
Patricia was ordered to immediately prepare and send the
children for visitation in Georgia.
While the manner in which
events unfolded on this occasions were less than ideal –
especially for the children – we note that by this time Patricia
had a history of uncooperativeness in complying with visitation
orders, and the circuit court did not abuse its discretion by
ordering the immediate preparation of the children for
visitation.
In any event, the December 2001 visitation incident
has little relevance to the disposition of the custody decision
at hand.
The events related to the December 2001 Christmas
14
visitation do not require the reversal of the circuit court’s
ultimate custody decision.
Next, Patricia contends that it was inappropriate for
custody to have been changed by an ex parte order and for her
not to be allowed time to obtain counsel.
The circuit court’s
December 27, 2001, order captioned as “Ex Parte Amended Order”
in substance merely changed the date the children’s holiday
visitation was to end from January 2, 2002, until January 9,
2002, an extension of one week.
Again, even if we were to agree
with Patricia that there were procedural and due process
problems surrounding this holiday visitation, since that time
she has been afforded a full opportunity to present her case
opposing Booster’s motion for a change in custody.
The events
surrounding the holiday visitation, even if unfair, do not
vitiate the circuit court’s subsequent custody decision.
CHILD SUPPORT
The circuit court ordered Patricia to pay Booster
child support of $183.00 per month retroactive to January 10,
2002.
Patricia contends that the circuit court erred by
including in her income for purposes of calculating child
support $354.00 per month she receives in Supplemental Security
Income (SSI) payments and in ordering the child support to be
effective retroactively.
15
KRS 403.212(2)(b) specifically provides that SSI
benefits must be included in a party’s gross income for purposes
of calculating child support.
In Commonwealth ex rel. Morris v.
Morris,16 the Supreme Court held that this provision was not
superseded by Federal Law limiting legal proceedings against SSI
benefits because child support was exempted from such Federal
protections.
Other than to generally complain that her SSI benefits
should not be included in the child-support calculation,
Patricia provides no legal basis for the exclusion of the
income.
While she cites us to Youngblood v. James,17 the version
of KRS 403.212(b) in effect at the time Youngblood was rendered
specifically excluded SSI benefits from income for purposes of
child-support calculations.18
As the statute has since been
amended to specifically include benefits in calculations under
the guidelines, Youngblood is no longer pertinent authority.
Patricia also complains that the child support was
ordered retroactive to January 10, 2002.
However, it is well
settled that child support may be ordered retroactive to the
date a motion for modification was made.19
Booster filed his
16
984 S.W.2d 840 (Ky. 1998).
17
883 S.W.2d 512 (Ky.App. 1994).
18
Id. at 513.
19
Weldon v. Weldon, 957 S.W.2d 283, 286 (Ky.App. 1997).
16
custody motion on January 7, 2002.
At that time, and since, he
has had custody of the children; hence, implicit in the motion
was a request for modification of child support.
The circuit
court did not abuse its discretion by ordering child support
retroactive to January 2002.
VISITATION
Patricia contends that the circuit court erred by
restricting her visitation with the children to one hour of
telephone visitation per week rather than permitting her regular
in-person visitation.
The controlling statute is KRS 403.320,
which states:
(1) A parent not granted custody of the
child is entitled to reasonable visitation
rights unless the court finds, after a
hearing, that visitation would endanger
seriously the child's physical, mental,
moral, or emotional health. Upon request of
either party, the court shall issue orders
which are specific as to the frequency,
timing, duration, conditions, and method of
scheduling visitation and which reflect the
development age of the child.
(2) If domestic violence and abuse, as
defined in KRS 403.720, has been alleged,
the court shall, after a hearing, determine
the visitation arrangement, if any, which
would not endanger seriously the child's or
the custodial parent's physical, mental, or
emotional health.
(3) The court may modify an order granting
or denying visitation rights whenever
modification would serve the best interests
of the child; but the court shall not
restrict a parent's visitation rights unless
17
it finds that the visitation would endanger
seriously the child's physical, mental,
moral, or emotional health [emphasis added].
As used in the statute, the term "restrict" means to
provide the non-custodial parent with something less than
"reasonable visitation."20
In restricting Patricia’s visitation
to telephone visitation, the circuit court stated as follows:
The Court finds that the Petitioner,
Patricia Kinsey, is suffering from severe
acute depression and that her past record of
absconding with the children at times of
court ordered visitation creates a situation
in which further visitations will expose the
children to physical dangers including
further anal examinations, kidnapping or
possible severe or fatal physical damage to
the children.
The circuit court’s findings regarding potential
endangerment to the children absent the restrictions imposed on
visitation are supported by substantial evidence.
In light of
the portentous nature of these findings, the circuit court did
not abuse its discretion in restricting visitation.
CASE NO. 2003-CA-001490-ME
The Commonwealth appeals from an order of the Butler
Circuit Court which affirmed the conclusion of the Commissioner
that Booster be adjudged as owing no child-support arrearage
and, correspondingly, that it was not entitled to recoupment for
20
Kulas v. Kulas, 898 S.W.2d 529, 530 (Ky.App. 1995).
18
payment of AFDC benefits to Patricia associated with the period
during which the arrearages allegedly arose.
Beginning in September 1996, Patricia applied for and
received AFDC benefits for the children.21
The AFDC benefits
were in the amount of $262.00 per month, and continued until
March 1999.
The total amount of AFDC benefits paid by the
Commonwealth to Patricia was $7,964.00.
It is uncontested that
to the extent that Booster accrued child-support arrearages
during the period that AFDC benefits were being paid out to
Patricia, the Commonwealth is entitled to recoupment up to the
amount of arrearages accrued.
We now turn to the issue of
whether there is a child-support arrearage associated with this
period.
On April 23, 1998, the circuit court entered an order
setting Booster’s child-support obligation at $159.00 per week,
retroactive to September 23, 1997.
On May 8, 1998, Booster
filed a motion requesting modification of the child-support
order.
By its own admission, the circuit court never ruled upon
Booster’s motion to modify, and, it follows, the child-support
level established in the April 23, 1998, order remained in
effect.
21
The AFDC benefits commenced based on a perjured domestic violence petition
filed by Patricia in the Butler Circuit Court. Patricia has since pled
guilty to perjury in the second degree.
19
On August 13, 1998, a hearing was held in association
with a motion filed by Booster to hold Patricia in contempt of
court for failing to comply with the court-ordered visitation
schedule.
At the August 13, 1998, hearing the circuit court
made the following comments:
[Q]uite frankly, I do not know why there was
no court order for child support, or why
that was never brought back up and
rectified.
Quite frankly, I’m embarrassed about that,
because there’s one thing that I expect, is
that every father will pay child support and
that every mother will allow visitation.
And I’ve failed in both of those instances
in this particular case.
. . .
As part of the contempt ruling you will
provide transportation to and from Georgia
for visitation.
Insofar as any child support arrearage that
may be outstanding, because of that court
order, that’s set aside.
There is a ruling, there is no child support
arrearage, because of the added expense that
he has had in coming back and forth for
these hearings. And having to go to
Louisville to pick up the children, whenever
that occurred.
There will be other sanctions that will be
coming down. I will not visit those
sanctions today.
. . . .
Draw the order, Mr. Thornton.
20
We note that the circuit court’s August 13, 1998,
comments from the bench are self-contradictory and conflict with
the record.
On the one hand the circuit court states that
“there was no court order for child support,” when, in fact, a
child-support order had been entered on April 23, 1998.
It is
possible the circuit court was confused by its failure to rule
on Booster’s May 8, 1998, motion.
Further, the circuit court,
in contradiction of its previous statement, then states
“[i]nsofar as any child-support arrearage that may be
outstanding, because of that court order, that’s set aside.”
Having previously stated that there was no child-support order,
it is unclear what order the circuit court was referring to.
In his exceptions to the Commissioner’s June 26, 2002,
report, among other things, Booster requested that a specific
finding be made that he owed no child-support arrearage.
In
furtherance of this argument, on July 28, 2002, Booster filed a
motion requesting a ruling that he had no child-support
arrearage and requested that the August 13, 1998, bench ruling
by the circuit court to the effect that there was no arrearage
as of that time be reduced to writing.
In an affidavit accompanying his July 28, 2002,
motion, Booster stated that after filing his tax return for the
years 1998 through 2002, he was due an income tax refund of
$7,360.00, but that the refund was being held by the Cabinet for
21
Families and Children “due to a misconception” that he had a
child-support arrearage.
Booster requested that an order be
entered requiring the Cabinet to forward the income tax refund
to the Butler Circuit Court Clerk.
On July 26, 2002, the
Commissioner entered an order that the Cabinet distribute the
funds to the circuit clerk, who would retain the funds until
further orders of the court.
On December 9, 2002, the Commonwealth, on behalf of
Patricia, filed a motion to intervene in this case, stating that
because Patricia received AFDC benefits from the Cabinet to
support the children, Booster had a duty to reimburse the
Cabinet for those benefits to the extent that he had accrued
child support arrearages during the period AFDC payments were
being made.
On December 10, 2002, the circuit court entered an
order permitting the Commonwealth to intervene.
On March 6, 2003, the Commissioner issued his
recommendations concerning Booster’s alleged child-support
arrearage and the aforementioned income tax refund.
The
Commissioner recommended that the circuit court’s August 13,
1998, bench ruling to the effect that Buster owed no childsupport arrearage as of that time should be entered as a written
order nunc pro tunc.
Because there was no rebuttal evidence to
Booster’s proof that he paid child support from January 1999
through December 2001 (when he was awarded custody of the
22
children) the Commissioner determined that Booster owed no
child-support arrearage at all, and that the income tax refund
being held by the Butler Circuit Court Clerk was to be returned
to Booster.
The Commonwealth filed exceptions to the
Commissioner’s report claiming that any order releasing Booster
from any alleged child-support arrearage was effective only as
to the support allegedly owed to Patricia, and did not apply to
any obligation of Booster to reimburse the Commonwealth for AFDC
benefits paid to Patricia.
On June 17, 2003, the circuit court
issued an order confirming and adopting the Commissioner’s March
6, 2003, and ordering that all monies being held by the Butler
Circuit Court Clerk be forwarded to Booster.
In its appeal, the Commonwealth claims that because
Patricia received AFDC benefits from the Cabinet the
Commonwealth is entitled to recover those benefits in the form
of any child-support arrearage owed by Booster.
Further, the
Commonwealth argues that the circuit court abused its discretion
by setting aside any alleged child-support arrearage Booster
owed in its nunc pro tunc order.
The principle issue for us to
resolve is whether the circuit court was correct in determining
that Booster did not owe a child-support arrearage.
It is uncontested that on April 23, 1998, the circuit
court entered an order requiring Booster to pay child support of
23
$159.95 per week retroactive to September 23, 1997.
It also
appears to be uncontested that Booster made no payments under
this order through December 1998.
Booster presumably did not
comply with the order because on May 8, 1998, he had filed a
motion to modify child support.
We first consider the effect of the circuit court’s
ruling at the August 13, 1998, hearing, which it later
memorialized in writing nunc pro tunc, to the effect that any
arrearage Booster owed as a result of his failure to make
payments in compliance with the April 23, 1998, child-support
order was, in effect, forgiven on the basis that Patricia had
caused him to incur additional expenses as a result of her
having failed to comply with the circuit court’s visitation
orders.
It has long been understood “that unpaid periodical
payments for maintenance of children, . . . become vested when
due.”22
As a result and "[a]s a matter of fact, each installment
of child support becomes a lump sum judgment, unchangeable by
the trial court when it becomes due and is unpaid” [emphasis
added].23
Accordingly, the “courts are without authority to
22
Dalton v. Dalton, 367 S.W.2d 840, 842 (Ky. 1963).
23
Stewart v. Raikes, 627 S.W.2d 586, 589 (Ky. 1982).
24
‘forgive’ vested rights in accrued unpaid maintenance”
[citations omitted].24
The circuit court’s attempted forgiveness of the
accrued child-support arrearage at the August 13, 1998, hearing
is diametrically contrary to the foregoing authorities.
The
circuit court was without the authority to forgive or excuse any
unpaid child support which had accrued as of August 1998.
As
such, the subsequent nunc pro tunc order seeking to memorialize
the ruling in writing is void.
As a result, we reverse the circuit court’s
determination that Booster did not owe any child-support
arrearages during the period that the Commonwealth was paying
AFCD benefits to Patricia.
We accordingly remand for
disposition in favor of the Commonwealth based upon the
arrearages accrued during this period.
However, upon remand a final housekeeping matter will
need to be first addressed, namely, Booster’s May 8, 1998,
motion to modify child support.
ruling.
This motion remains without a
Since the motion was filed only 15 days following the
April 23, 1998, order establishing child support, we are
doubtful that the motion will comply with the provision of KRS
403.213 which provides that “child support may be modified only
. . . upon a showing of a material change in circumstances that
24
Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky.App. 1994); Price v. Price, 912
S.W.2d 44, 46 (Ky. 1995).
25
is substantial and continuing.”
However, in the event that the
circuit court’s ruling on the motion to modify child support is
favorable to Booster, this may affect the applicable arrearage.
If so, this should be considered in the circuit court’s
calculations of any amounts owing to the Commonwealth.
For the foregoing reasons, we affirm in Case 2002-CA002114-ME, and reverse and remand in Case No. 2002-CA-001490-MR
for additional proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT/APPELLEE
PATRICIA FIELDS KINSEY:
BRIEFS FOR APPELLEE BOOSTER
LAVERNE KINSEY:
Nancy Oliver Roberts
Bowling Green, Kentucky
Pamela C. Bratcher
Bowling Green, Kentucky
BRIEFS FOR APPELLANT
COMMONWEALTH OF KENTUCKY:
Richard J. Deye
Butler County Attorney
Morgantown, Kentucky
26
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