CARL E. KNOCHELMANN, JR. v. MARY E. BJELLAND, PETITIONER; HON. BERNARD J. BLAU, ATTORNEY FOR PETITIONER; HON. JAMES W. MORGAN, JR., FORMER ATTORNEY FOR ; AND HON. J. ROBERT JENNINGS, CAMPBELL COUNTY DOMESTIC RELATIONS COMMISSIONER and MARY E. BJELLAND, AND BERNARD J. BLAU v. CARL E. KNOCHELMANN, JR.
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RENDERED:
DECEMBER 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2003-CA-002258-MR
CARL E. KNOCHELMANN, JR.
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 97-CI-00860
MARY E. BJELLAND, PETITIONER;
HON. BERNARD J. BLAU, ATTORNEY FOR
PETITIONER; HON. JAMES W. MORGAN, JR.,
FORMER ATTORNEY FOR RESPONDENT; AND
HON. J. ROBERT JENNINGS, CAMPBELL
COUNTY DOMESTIC RELATIONS
COMMISSIONER
AND
NO.
2003-CA-002308-MR
MARY E. BJELLAND, AND
BERNARD J. BLAU
v.
APPELLEES
CROSS-APPELLANTS
CROSS-APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 97-CI-00860
CARL E. KNOCHELMANN, JR.
CROSS-APPELLEE
OPINION
AFFIRMING IN PART, VACATING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Karl Knochelmann appeals from an order of the
Campbell Circuit Court determining the amount of child support,
including arrearages, he must pay to Mary Bjelland for the
support of their minor child and also refusing to require the
child to attend parochial school as his father prefers.
On
appeal, Knochelmann challenges the trial court’s subject matter
jurisdiction, the constitutionality of Kentucky’s child support
statutes, the inclusion of proceeds from the sale of real estate
in his income, the jurisdiction of the Domestic Relations
Commissioner (DRC), the procedures followed by the trial court,
and the refusal of the DRC to recuse himself due to an alleged
conflict of interest.
He also claims the existence of an
agreement between the parties for Bjelland to accept nonmonetary support and the right to present a claim for fraudulent
contraception.
meritless.
We find all of these issues thoroughly
Bjelland cross-appeals alleging that the trial court
improperly credited a tax intercept against Knochelmann’s child
support arrearage.
Due to the trial court’s failure to make a
factual finding as to which party received the proceeds of the
intercept, we vacate this portion of the trial court’s order.
The remainder of the order is affirmed.
Bjelland and Knochelmann were never married, nor did
they ever co-habitate.
Their son was born June 27, 1997, and
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Bjelland filed a petition in circuit court the following month
seeking custody and child support.
In August, Knochelmann
sought to have the case dismissed because paternity had not been
determined.
The district court entered an agreed order in March
1998 adjudging Knochelmann to be the natural father of
Bjelland’s child.
The DRC held a hearing on the temporary child
support in June 1998 and issued a report the following month
recommending a finding that personal and subject matter
jurisdiction existed.
Both parties filed objections to the
report; the trial court reviewed the record, conferred with the
DRC, and overruled all objections.
The proceedings which followed are far too numerous to
list in their entirety and culminated in the trial court’s final
order, dated August 6, 2003, which is the subject of this
appeal.
The trial court’s order adopted the DRC’s findings of
fact contained in the April 2003 report.
Bjelland was granted
the right to decide which school the child would attend.
Knochelmann’s objection, claiming that the DRC’s function was
unconstitutional, was overruled.
Pursuant to Clary v. Clary, 54
S.W.3d 568 (Ky. App. 2001), the trial court included the income
from the sale of property which Knochelmann had owned for some
twenty years prior to the birth of his son in calculating his
child support obligation.
Knochelmann was ordered to pay child
support of $281.71 per month from July 21, 1997 through June 29,
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1999; $111.40 per month from June 29, 1999 through April 25,
2001; and $867.30 per month from April 25, 2001 through December
21, 2002.
The trial court calculated Knochelmann’s arrearage at
$14,847.39, then subtracted prior payments plus the amount
intercepted from his 2002 federal income tax refund and ordered
him to pay Bjelland $9,632.29, plus 12% interest as of December
31, 2002.
This appeal and cross-appeal followed.
Knochelmann argues that the Campbell Circuit Court did
not have jurisdiction to determine custody and child support of
his and Bjelland’s child because Kentucky Revised Statute (KRS)
406.051 vests exclusive jurisdiction to determine paternity in
the district court.
The statute actually reads as follows:
406.051 Remedies; District Court's
concurrent jurisdiction for child custody
and visitation in paternity cases
(1) The District Court has jurisdiction of
an action brought under this chapter and all
remedies for the enforcement of judgments
for expenses of pregnancy and confinement
for a wife or for education, necessary
support, or funeral expenses for children
born out of wedlock. An appeal may be had to
the Circuit Court if prosecuted within sixty
(60) days from the date of judgment. The
court has continuing jurisdiction to modify
or revoke a judgment for future education.
All remedies under the uniform reciprocal
enforcement of support act are available for
enforcement of duties of support under this
chapter.
(2) The District Court may exercise
jurisdiction, concurrent with that of the
Circuit Court, to determine matters of child
custody and visitation in cases where
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paternity is established as set forth in
this chapter. The District Court, in making
these determinations, shall utilize the
provisions of KRS Chapter 403 relating to
child custody and visitation. The District
Court may decline jurisdiction if it finds
the circumstances of any case require a
level of proceedings more appropriate to the
Circuit Court.
There is no mention of exclusive jurisdiction being vested in
the district court.
Moreover, this is irrelevant because
Bjelland did not file a paternity action; rather she filed a
petition for custody, pursuant to KRS 403.
In addition, she
filed a second action asking for temporary custody and child
support.
Knochelmann contends that Cann v. Howard, 850 S.W.2d
57 (Ky. App. 1993), divests the circuit court of jurisdiction to
determine child custody and support when paternity has not been
established.
We strongly disagree with his interpretation of
our holding in Cann, a case which involved interpreting the
provisions of the Parental Kidnapping Protection Act and the
Uniform Child Custody Jurisdiction Act, and which dealt not at
all with establishing paternity between unmarried parents.
Thus, Knochelmann fails to persuade us that the circuit court
had no jurisdiction to determine custody and child support in
the present case.
Next, Knochelmann claims that the trial court erred by
including proceeds from the sale of real estate as income for
the purpose of calculating his child support obligation.
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His
income in 2000, 2001, and 2002 increased substantially due to
the sale of some real estate he owned and for which he received
a payment of $211,000.00 in each of those years.
The trial
court adopted the DRC’s finding that KRS 402.212(b) and our
previous holding in Clary required these proceeds to be included
as income for the purpose of calculating Knochelmann’s child
support obligation.
In Clary, which also involved the sale of
real estate, we addressed the argument that such income ought to
be prorated over a period of twenty-eight years.
We disagreed
and held that “when a parent receives income from a nonrecurring
event, the trial court should include that amount in the year
received. . . .”
Clary
at 574.
Knochelmann argues that our
decision in Clary misinterprets that statute and should be
reversed.
We disagree.
We find Knochelmann’s remaining claims of error
regarding the DRC, the procedures followed by the trial court,
the constitutionality of Kentucky’s child support laws, his
claim regarding an agreement between the parties to allow him to
furnish non-monetary support, and his demand to present a claim
of fraudulent contraception without merit and decline to address
them separately.
The trial court’s order is affirmed with
respect to these issues.
We will, however, address the
remaining issue which was raised in Bjelland’s cross-appeal.
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Bjelland asks us to reverse the trial court’s order
with regard to the amount of arrearage set.
Initially, the
trial court calculated Knochelmann’s total child support owed to
date as $26,253.13.
The trial court then subtracted payments
Knochelmann had already made totaling $11,405.74.
In addition,
the trial court credited Knochelmann with a payment of $5,215.00
through an income tax intercept which occurred in July 2003.
Bjelland claims that, although the money was intercepted,
Knochelmann succeeded in persuading the division of child
support to refund the money to him and, thus, she never received
this amount as child support.
Knochelmann has not contested
this issue; moreover, the trial court made no separate findings
of fact in its order beyond the findings contained in the DRC’s
report.
The DRC’s report was dated April 2003 which was three
months before the tax intercept occurred.
Thus, at no time has
there been a finding with regard to who received the proceeds of
the tax intercept.
Therefore, we vacate the portion of the
trial court’s order setting Knochelmann’s arrearage and remand
for the trial court to make a factual finding as to the ultimate
disposition of the $5,215.00 tax intercept and, if necessary,
correct the calculation of Knochelmann’s arrearage.
The order of the Campbell Circuit Court is affirmed in
part, vacated in part, and remanded for further proceedings
consistent with this opinion.
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ALL CONCUR.
BRIEF FOR APPELLANT/CROSS
APPELLEE:
BRIEF FOR APPELLEES/CROSS
APPELLANTS:
Lisa O. Bushelman
Florence, Kentucky
Scott Troy Steffen
Cold Spring, Kentucky
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