WILLIAM P. DOUGHTY v. RACHEL LYNN DOUGHTY
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NOVEMBER 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
NO.
NO.
NO.
2003-CA-002385-MR
2003-CA-002466-MR
2004-CA-001400-MR
2004-CA-001502-MR
WILLIAM P. DOUGHTY
v.
APPELLANT
AND CROSS-APPELLEE
APPEALS AND CROSS-APPEALS FROM MERCER CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO.
99-CI-00015
RACHEL LYNN DOUGHTY
APPELLEE
AND CROSS-APPELLANT
OPINION
AFFIRMING IN PART, VACATING
IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
HENRY, TACKETT, AND VANMETER, JUDGES.
HENRY, JUDGE:
William P. Doughty and Rachel Lynn Doughty appeal
and cross-appeal, respectively, from Orders issued by the Mercer
Circuit Court pertaining to child support and custodial
designation.
On review, we affirm in part, vacate in part,
reverse in part and remand.
The parties are the natural parents of two sons:
Tanner Preston Doughty, age 11, and Brandon Reed Doughty, age 8.
On January 22, 1999, the parties entered into a Separation
Agreement and Property Rights Settlement agreeing to share joint
custody of the children and also setting forth a specific time
sharing arrangement in which the children would spend time with
each parent on a daily basis during the week while alternating
weekends with a particular parent.
The Agreement also indicated
that the children would spend every night in the family home
under the care of their father, Mr. Doughty.
It further stated
that the parties agreed to work together to alternate holidays
and school breaks with the children, and to generally maintain a
flexible schedule arrangement to meet the needs of each party
and the children.
The Agreement did not specifically designate
a primary residential custodian, but it did stipulate as
follows: “Although the children will remain in the family
residence with their father on a daily basis, the parties agree
that no child support will be paid by the wife because the
father has sufficient financial resources to provide for the
care of the minor children and because the mother will be
providing food and other basic needs while the children are with
her.”
The Agreement also provided that the parties agreed to
share equally in the expense of providing day care for the
children, and that both parties would continue to provide health
insurance for the children, with any expenses not covered by
insurance to be shared equally.
It also noted that Mr. Doughty
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would claim one child as a dependent for tax purposes, while Ms.
Doughty would claim the other child.
On January 25, 1999, Mr. Doughty filed a Petition for
Legal Separation, in which it was requested that the
aforementioned Agreement be approved and adopted as set forth.
On April 23, 1999, a Decree of Legal Separation was entered that
incorporated all of the terms and provisions of the Separation
Agreement and Property Rights Settlement.
This decree was
ultimately converted to a Decree of Dissolution of Marriage on
June 15, 2000.
The parties continued to operate under the child
sharing agreement to which they had previously agreed until May
12, 2000, when an Agreed Order was entered maintaining the joint
custody arrangement but modifying the time-sharing agreement so
that the children would begin spending Tuesday night with their
mother, and Thursday night with her until 7:00 p.m.
The Agreed
Order also set forth that Mr. Doughty would be responsible for
65% of all child care, medical, dental, school, and other
miscellaneous expenses, while Ms. Doughty would be responsible
for 35% of those expenses.
On September 10, 2002, Ms. Doughty filed a motion to
modify the time-sharing arrangement set forth in the May 12,
2000 Agreed Order—citing a change in circumstances—and to have
Mr. Doughty pay child support.
The trial court overruled the
motion for a time-sharing modification in a May 28, 2003 Opinion
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and Order, but it scheduled a hearing to evaluate the limited
issue of whether child support should be payable to either party
and, if so, what the amount of support should be.
Following
this hearing, the trial court entered an Order on September 4,
2003 finding that a “split custody arrangement” existed under
the provisions of KRS 1 403.212(2)(h) because each parent provided
residential care for the children and because they shared joint
legal responsibility.
The trial court also ordered Mr. Doughty
to pay his ex-wife the sum of $806.00 per month in child
support, effective September 1, 2002.
Mr. Doughty subsequently filed a Motion to Alter,
Amend, or Vacate the September 4, 2003 Order, specifically
arguing that the trial court was clearly erroneous in defining
the shared custody arrangement between the parties as a “split
custody arrangement” pursuant to KRS 403.212(2)(h) because that
provision does not apply to the type of “shared custody” or
“joint custody arrangement” that existed in the case at hand.
He also filed alternative motions asking the trial court to
designate him as “primary physical custodian” of the children,
asking the trial court to allow him to supplement the record
with additional evidence showing that the children spent 60.15%
of their time with him and 39.85% with their mother, and asking
the trial court to allow him to pay any owed child support into
1
Kentucky Revised Statutes.
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the office of the Mercer County Circuit Court Clerk pending
final resolution of the matter.
Following an October 14, 2003 hearing, the trial court
entered an Order on October 21, 2003 granting Mr. Doughty’s
Motion to Alter, Amend, or Vacate and finding that the child
custody arrangement was a “shared custody arrangement” and not a
“split custody arrangement.”
The trial court also modified its
previous child support determination and ordered Mr. Doughty to
pay his ex-wife $493.00 per month in child support, using the
“Colorado method of Child Support calculation in shared custody
cases, which has been adopted by local rule in the Jefferson
County Family Courts.”
In employing this methodology, the trial
court noted: “This method is only to be employed where the Court
first finds that there has been an actual shifting of expenses
between the parties during the time the child(ren) is in their
care.
Based upon the proof in the record, the Court so finds in
this case.”
A hearing was held on all remaining issues on November
25, 2003.
At that time, the trial court allowed Mr. Doughty to
supplement the record as previously requested and allowed him to
establish a blocked $20,000.00 escrow account for the payment of
child support during the appeal of this matter.
However, it
overruled his motion to be named as “primary physical custodian”
of the children.
The trial court also overruled or deferred for
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future consideration motions filed by Ms. Doughty requesting
that Mr. Doughty be held in contempt of court for failing to pay
child support, requesting attorney’s fees, requesting that Mr.
Doughty be required to pay an accrued arrearage in a lump sum,
and requesting a wage assignment order.
was entered on June 15, 2004.
An Order to this effect
These appeals and cross-appeals
followed.
On appeal, Mr. Doughty raises the following arguments:
(1) Did the trial court err in failing to name him as the
“primary physical custodian” or “residential custodian” of the
Doughty children; (2) Did the trial court erroneously disregard
Kentucky statutes and case law and apply the law of a foreign
jurisdiction in ordering him to pay child support; and (3) Did
the circuit court err in ordering him to pay child support to
his ex-wife.
On cross-appeal, Ms. Doughty raises the following
additional issues: (1) Did the trial court err in failing to
find a “split custody arrangement” in this case; (2) Did the
trial court err in failing to establish child support as being
effective as of September 1, 2002; and (3) Did the trial court
err in ordering the creation of a blocked account for child
support monies while this matter is pending on appeal.
Mr. Doughty’s first argument is that the trial court
erred in failing to grant his motion to name him as the actual
“primary physical custodian” or “residential custodian” of the
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Doughty children.
We again note that the original Separation
Agreement and Property Rights Settlement entered into between
the parties and ultimately incorporated into the Decree of Legal
Separation and Decree of Dissolution of Marriage by the circuit
court failed to designate a “primary residential custodian.”
In reviewing decisions related to child custody, we
reverse only when the circuit court’s findings of fact are
clearly erroneous, or when its decision reflects a clear abuse
of the discretion granted such courts in custody matters.
Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
See
Although
findings of fact are generally required in domestic matters,
such findings are not required when a trial court denies a
motion for modification because the reason for such denial must
necessarily be that the movant failed to meet his or her burden
of showing the required change of conditions for modification.
See Klopp v. Klopp, 763 S.W.2d 663, 665 (Ky.App. 1988)
(Citations omitted); Burnett v. Burnett, 516 S.W.2d 330, 332
(Ky. 1974); see also Powell v. Powell, 423 S.W.2d 896, 897-98
(Ky. 1968).
Accordingly, a circuit court’s ultimate decision
regarding custody will not be disturbed, absent an abuse of
discretion.
Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982);
Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2000).
Abuse of
discretion implies that the circuit court’s decision is
unreasonable or unfair.
Kuprion v. Fitzgerald, 888 S.W.2d 679,
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684 (Ky. 1994).
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 that he abused his
discretion.
Cherry, 634 S.W.2d at 425; Sherfey, 74 S.W.3d at
782-83.
Our Supreme Court has recently clarified that any
effort to modify a joint custody decree must meet the
requirements of KRS 403.340 and 403.350.
Fenwick v. Fenwick,
114 S.W.3d 767, 783-84 (Ky. 2003) (Citations omitted).
We
believe that an attempt to procure a designation as “primary
residential custodian” in a joint custody situation when no such
designation was set forth in the original divorce/custody decree
falls within the purview of this rule.
Cf. Crossfield v.
Crossfield, 155 S.W.3d 743, 746 (Ky.App. 2005) (holding that a
change in the “primary residential custodian” from one parent to
the other in a joint custody arrangement is subject to the
statutes relating to modification of custody).
Under KRS 403.340(3), a prior custody decree cannot be
modified unless the court finds “that a change has occurred in
the circumstances of the child or his custodian, and that the
modification is necessary to serve the best interests of the
child.”
In determining if a change has occurred necessitating
modification for the best interests of the child, the court is
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to consider the following: (1) Whether the custodian agrees to
the modification; (2) Whether the child has been integrated into
the family of the petitioner with consent of the custodian; (3)
The factors set forth in KRS 403.270(2) 2 to determine the best
interests of the child; (4) Whether the child’s present
environment endangers seriously his physical, mental, moral, or
emotional health; (5) Whether the harm likely to be caused by a
change of environment is outweighed by its advantages to him;
and (6) Whether the custodian has placed the child with a de
facto custodian.
The party seeking modification of custody
under KRS 403.340 must bear the burden of proof.
Wilcher v.
Wilcher, 566 S.W.2d 173, 175 (Ky.App. 1978).
2
KRS 403.270:
...
(2)
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;
(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;
(g) The extent to which the child has been cared for, nurtured, and
supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de
facto custodian; and
(i) The circumstances under which the child was placed or allowed to
remain in the custody of a de facto custodian, including whether the
parent now seeking custody was previously prevented from doing so as a
result of domestic violence as defined in KRS 403.720 and whether the
child was placed with a de facto custodian to allow the parent now
seeking custody to seek employment, work, or attend school.
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The circuit court concluded that Mr. Doughty failed to
satisfy any of the requirements for modification in his motion
to be named as “primary residential custodian.”
Upon review of
the record, we conclude that the circuit court did not abuse its
discretion in failing to award Mr. Doughty this designation
given that we could not find substantial evidence in the record
to support applicability of the standards of modification set
forth in KRS 403.340(3).
Mr. Doughty’s arguments in support of
his motion center mainly on the position that he is currently in
physical custody of the children for what the trial court
reasonably determined was a bare majority of the time, and that
he currently incurs 100% of the children’s medical, dental, and
school expenses.
However, these facts alone simply do not
satisfy the necessary standards and burden of proof for custody
modification under our statutory and case law.
Consequently, we
cannot say that the trial court abused its discretion in this
respect.
Mr. Doughty also argues that “the parties clearly
anticipated that [he] would be the primary custodian of the
children as is evidenced by the fact the children were to spend
every week night with him and by the language which states that
[he] was waiving his right to receive child support from [Ms.
Doughty].
However, if this were the case, such a designation
could have been set forth more definitively within the original
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Separation Agreement and Property Rights Settlement signed by
the parties.
Accordingly, we find that the trial court did not
abuse its discretion in failing to grant Mr. Doughty’s motion
for modification to name him as the “primary residential
custodian” of the Doughty children.
We next address Mr. Doughty’s contentions relating to
the circuit court’s ordering him to pay child support in this
case.
“As are most other aspects of domestic relations law, the
establishment, modification, and enforcement of child support
are prescribed in their general contours by statute and are
largely left, within the statutory parameters, to the sound
discretion of the trial court.
Van Meter v. Smith, 14 S.W.3d
569, 572 (Ky.App. 2000), citing KRS 403.211—KRS 403.213; Wilhoit
v. Wilhoit, 521 S.W.2d 512 (Ky. 1975).
from unlimited.”
“This discretion is far
Id., citing Price v. Price, 912 S.W.2d 44 (Ky.
1995); Keplinger v. Keplinger, 839 S.W.2d 566 (Ky.App. 1992).
“But generally, as long as the trial court gives due
consideration to the parties’ financial circumstances and the
child’s needs, and either conforms to the statutory
prescriptions or adequately justifies deviating therefrom, this
Court will not disturb its rulings.”
Bradley, 473 S.W.2d 117 (Ky. 1971).
Id., citing Bradley v.
Stated another way, we will
not disturb the trial court’s findings unless the decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal
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principles.
Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App.
2001).
In setting or modifying child support, a circuit court
has the discretion to deviate from the child support guidelines.
However, KRS 403.211(2) and (3) clearly require the court to
make “a written or specific finding on the record” justifying
any such deviation.
See Commonwealth ex rel. Marshall v.
Marshall, 15 S.W.3d 396, 401 (Ky.App. 2000), citing Bradley v.
Bradley, 473 S.W.2d 117, 118 (Ky. 1971); Van Meter, 14 S.W.3d at
574, citing KRS 403.211(2); Rainwater v. Williams, 930 S.W.2d
405 (Ky.App. 1996).
The circuit court in this case made no
findings, written or otherwise, concerning the application of
the statutory child support guidelines, or the reasons for its
deviation from said guidelines in awarding child support to Ms.
Doughty.
Consequently, since the court’s child support order
fails to comply with statutorily-mandated requirements, we are
compelled to vacate and to remand for additional findings of
fact as to why deviation was appropriate.
See Van Meter, 14
S.W.3d at 574-75, citing Rasnick v. Rasnick, 982 S.W.2d 218
(Ky.App. 1998); Board v. Board, 690 S.W.2d 380 (Ky. 1985);
Fruchtnicht v. Fruchtnicht, 122 Ohio App.3d 492, 702 N.E.2d 145
(1997).
In reaching this conclusion, however, we are in no way
commenting on the actual propriety of deviating from the child
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support guidelines in awarding child support in this case, 3 and
we again recognize that trial courts are afforded considerable
discretion in fashioning an appropriate child support order when
they conclude, and give reasons why, deviation from the
guidelines is appropriate.
See KRS 403.211(2); Rainwater, 930
S.W.2d 405 at 407, citing Redmon v. Redmon, 823 S.W.2d 463
(Ky.App. 1992); Keplinger v. Keplinger, 839 S.W.2d 566 (Ky.App.
1992).
We also note for the benefit of the trial court and the
parties that this court has previously declined to find that the
circuit court abused its discretion in awarding child support
where the parties have joint custody and share equal or almost
equal physical possession of their child, which appears to be
the case here.
See Downey v. Rogers, 847 S.W.2d 63, 64-65
(Ky.App. 1993).
We next turn to the issues raised by Ms. Doughty on
cross-appeal.
Before doing so, however, we note that Mr.
Doughty failed to file a cross-appellee response brief
addressing any of the issues raised by Ms. Doughty in her crossappellant brief.
CR 76.12(8)(c) allows us to either (1) accept
Ms. Doughty’s statement of facts and issues as correct; (2)
reverse the judgment if Ms. Doughty’s brief reasonably appears
to sustain such action; or (3) regard Mr. Doughty’s failure to
3
Indeed, “it is clear that the trial court could take into consideration the
period of time the children reside with each parent in fixing support, and
could deviate from the guidelines ... if convinced their application would be
unjust.” Downey v. Rogers, 847 S.W.2d 63, 65 (Ky.App. 1993).
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respond as a confession of error and reverse the judgment
without considering the merits of the case.
These provisions
are by no means mandatory, and it is instead left to our
discretion as to whether any of these penalty options should be
applied here.
See Kupper v. Kentucky Board of Pharmacy, 666
S.W.2d 729, 730 (Ky. 1983).
Given that the issues raised by Ms.
Doughty are those of a purely legal nature that can be addressed
by referring to the precedent to which she cited in her crossappeal brief, we are not inclined to impose the aforementioned
penalties in this case.
The first issue raised by Ms. Doughty is whether the
trial court erred in failing to find that a “split custody
arrangement” existed in this case pursuant to KRS 402.212(2)(h).
In examining this statute, the trial court concluded that it was
inapplicable in this case because it only addresses a “shared
custody” situation, as opposed to “split custody.”
“Since the
interpretation of a statute is a legal question, the trial
court’s interpretation is subject to de novo review by an
appellate court.”
2001).
Clary v. Clary, 54 S.W.3d 568, 571 (Ky.App.
Upon examining KRS 403.212(2)(h) and .212(6), we agree
with the trial court that they are inapplicable here, and that
the Doughtys have a “shared custody arrangement.”
KRS 402.212(2)(h) defines “split custody arrangement”
as “a situation where each parent is the residential custodian
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for one (1) or more children for whom the parents share a joint
legal responsibility.”
We believe that this definition does not
apply to a situation where the parents “share” custody of all
children and all children spend relatively equal time with each
parent.
Instead, we believe it is only intended to apply in
those cases in which the parents have joint legal custody of
more than one child, but some children reside primarily in each
parental household.
See Louise E. Graham and Hon. James E.
Keller, 16 Ky. Prac. Domestic Relations L. § 24.29.1 (“Child
Support-Split Custody”) (2005).
Our conclusion is bolstered by
the language set forth in KRS 403.212(6)(a), which provides:
“The child support obligation in a split custody arrangement
shall be calculated in the following manner ... (a) Two (2)
separate child support obligation worksheets shall be prepared,
one (1) for each household, using the number of children born of
the relationship in each separate household, rather than the
total number of children born of the relationship.”
We believe
that this language anticipates a situation in which some
children spend most of their time in one household, while the
others spend most of their time in the other household.
Accordingly, we find that the trial court did not err in
concluding that a “shared custody arrangement,” rather than a
“split custody arrangement,” exists here.
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Ms. Doughty’s next contention is that the trial court
erred in failing to establish that child support was owed to her
as of September 1, 2002.
The trial court originally did find
that payments to Ms. Doughty were to commence as of this date,
but after the hearing on Mr. Doughty’s Motion to Alter, Amend,
or Vacate, the court amended its original ruling to conclude
that child support was owed as of April 7, 2003.
Ms. Doughty
appeals from this amended decision, arguing that the trial
court’s first ruling was correct.
Ms. Doughty correctly argues that, when a motion for
modification seeking child support is filed, any subsequently
awarded child support payments may be made retroactive to the
date on which the motion for child support was filed.
See KRS
403.213(1); Pretot v. Pretot, 905 S.W.2d 868, 871 (Ky.App.
1995), citing Giacalone v. Giacalone, 876 S.W.2d 616, 620
(Ky.App. 1994).
She specifically argues here that, as she filed
a motion for child support on September 10, 2002, payments
should be calculated as of that date.
The problem with this
contention, as noted by the trial court, is that the record
reflects that Ms. Doughty withdrew this motion sometime after
filing it and then renewed it on April 7, 2003.
Given this
fact, we conclude that the trial court did not abuse its
discretion in ruling that any child support payments would be
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effective as of April 7, 2003.
See Giacalone, 876 S.W.2d at
620, citing Ullman v. Ullman, 302 S.W.2d 849, 851 (Ky. 1957).
Ms. Doughty’s final contention is that the trial court
erroneously allowed Mr. Doughty to supersede the court’s child
support order by permitting him to deposit $20,000.00 into a
blocked bank account while this matter is on appeal.
Ms.
Doughty argues that Mr. Doughty should have been obligated to
make child support payments while the appeal is pending.
In Franklin v. Franklin, 299 Ky. 426, 185 S.W.2d 696
(1945), the predecessor to the Kentucky Supreme Court concluded
that “judgments respecting the custody and maintenance of
infants may not be superseded.”
Franklin, 299 Ky. at 428, 185
S.W.2d at 697, citing Casebolt v. Casebolt, 170 Ky. 88, 185 S.W.
510 (1916).
This decision has led to the general understanding
that a child support award normally may not be superseded.
See
Clay v. Clay, 707 S.W.2d 352, 353 (Ky.App. 1986); Louise E.
Graham and Hon. James E. Keller, 16 Ky. Prac. Domestic Relations
L. § 13.10 (“Appeals-Stay”) (1997).
However, in Getty v. Getty, 793 S.W.2d 136 (Ky.App.
1990), a panel of this court deviated from this understanding
and concluded that a judgment for a liquidated sum of child
support may be superseded or bonded on appeal where the judgment
consists of arrearages resulting from the retroactive effect of
a circuit court’s ruling based upon that court’s increase of
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child support.
Id. at 137.
In reaching this decision, the
court noted that the appellant had complied with past pay orders
and was paying the increased support amount during the pendency
of the appeal, and that there was a large accumulated lump sum
subject to the retroactive order.
Id. at 138.
The Getty court criticized the holding in Franklin v.
Franklin, supra, that judgments respecting the custody and
maintenance of infants may not be superseded, finding that
Franklin erroneously expanded the scope of Casebolt v. Casebolt,
supra, which dealt only with a child custody situation and
concluded that “there can be no liability upon a bond
superseding a judgment awarding the custody of a child to one
parent.”
Id., citing Casebolt, 185 S.W. at 511.
The Getty
court noted that the decision in Clay v. Clay “held that a
reversal of an increase in child support gives the payor no
right of recoupment” which in effect “makes the appellant’s
right to an appeal under Section 115 of the Kentucky
Constitution an academic exercise only.”
Id. at 137.
The court
went on to note that “Franklin and Casebolt predated the
adoption of Section 115 of the Kentucky Constitution which
grants one appeal as a matter of constitutional right.”
Id. at
138.
With this said, whatever opinion the Getty panel might
have held regarding the interaction between the Clay and
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Franklin decisions and Section 115 of the Kentucky Constitution,
Franklin remains a viable precedent of the highest court of our
state, and we are bound to follow it.
SCR 4 1.030(8)(a).
At the
same time, we cannot ignore the fact that Getty has remained
undisturbed for fifteen years, and its application seems
particularly practical in a situation where, as here, the full
amount of the child support arrearage has been paid into escrow.
Accordingly, we affirm the order of the trial court insofar as
it approved the payment of the arrearage portion of the childsupport award into a blocked escrow account during the pendency
of the appeal, but we reverse the order to the extent that it
permitted the payment of current and accruing support into such
an account.
Getty v. Getty, 793 S.W.2d at 137, 138.
To summarize our holding:
On the direct appeals, we
affirm the decision of the trial court denying “primary physical
custodian” or “residential custodian” status to the appellant,
and we vacate the court’s child support order and remand for
findings of fact as set out above.
On the cross-appeals, we
affirm the trial court’s ruling that this case involves a
“shared custody arrangement” rather than a “split custody
arrangement”; we affirm the ruling that support payments became
effective April 7, 2003; and we affirm the order of the trial
court permitting the payment of past-due child support into a
4
Kentucky Rules of the Supreme Court.
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blocked escrow account during the pendency of the appeal; but we
reverse that order to the extent that it would permit the
payment of any current or accruing support into such an account.
We remand the case for further proceedings and for entry of
orders consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Edward D. Hays
Danville, Kentucky
Michael L. Judy
Frankfort, Kentucky
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