CHARLES ALEX KIMBROUGH v. COMMONWEALTH OF KENTUCKY, CHILD SUPPORT DIVISION
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RENDERED:
JULY 21, 2006; 10:00 A.M.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-001532-MR
CHARLES ALEX KIMBROUGH
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 95-FC-002095
v.
COMMONWEALTH OF KENTUCKY,
CHILD SUPPORT DIVISION
ex rel. SHANTRECE LANIECE BELMAR
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON,1 SENIOR JUDGE.
SCHRODER, JUDGE:
This is an appeal from an order denying a
father’s motion to set aside a prior order granting the mother’s
motion for an increase in child support.
The father argues that
KRS 403.212(2)(g)(4) is unconstitutional as a violation of equal
protection because it favors prior-born children over later-born
children.
1
He also argues that KRS 403.212(2)(g)(4) as applied
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.
in this case denies him due process of law because his child
support obligation has been increased directly as a result of
the failure of the father of the other parent’s prior-born child
to pay child support.
We reject both constitutional challenges
and, thus, affirm.
This case began as a paternity action filed in 1995 by
the mother, Shantrece Belmar, against Charles Alex Kimbrough
regarding two children, Charles Kimbrough, born March 2, 1994,
and Charnasia Kimbrough, born March 3, 1995.
Paternity was
established and a child support order was entered requiring
Charles to pay $62.25 a week.
On March 15, 2005, Shantrece
filed a motion for an increase in child support for child care
costs and health care coverage.
On June 20, 2005, the court
entered an order increasing Charles’ child support obligation to
$141.52 a week.
On June 29, 2005, Charles filed a motion
pursuant to CR 59.05 to set aside or modify the June 20, 2005,
order.
In the memorandum of law submitted in support of the CR
59.05 motion, Charles argued, apparently for the first time in
the case, that KRS 403.212(2)(g)(4) was unconstitutional because
it violated the equal protection and due process clauses of the
United States and Kentucky Constitutions.
Charles maintains
that the statute is unconstitutional insofar as it allows the
custodial parent to deduct an imputed child support amount for
prior-born children in determining that parent’s gross income
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for purposes of calculating child support for later-born
children.
On July 12, 2005, the court entered an order denying
the motion.2
This appeal by Charles followed.
Charles’ primary argument on appeal is that KRS
403.212(2)(g)(4) is unconstitutional as a violation of both the
United States and Kentucky Constitutions’ right to equal
protection and due process of law.
The two factors used to
determine the amount of child support under the guidelines in
KRS 403.212 are “combined monthly adjusted parental gross
income” and the number of children.
KRS 403.212(2)(g) provides
in pertinent part:
“Combined adjusted parental gross income”
means the combined gross incomes of both
parents, less any of the following payments
made by the parent:
. . .
4.
A deduction for the support to the
extent payment is made, if a parent is
legally responsible for and is actually
providing support for other prior-born
children who are not the subject of a
particular proceeding. If the priorborn children reside with that parent,
an “imputed child support obligation”
shall be allowed in the amount which
would result from application of the
guidelines for the support of the priorborn children.
2
Unfortunately, the family court denied the motion summarily without any
explicit ruling on the constitutionality issue, providing this Court with no
guidance or reasoning for its ruling.
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At the time of the motion for increase in support in
this case, Shantrece had a 15-year-old child from a prior
relationship of whom she had custody, and Charles had an 8month-old child for whom he was financially responsible who
resided with him in a current relationship. According to
Charles, there was a child support order in the sum of $50 per
week to be paid by the biological father of Shantrece’s 15-yearold child.
However, the biological father of the child was
apparently incarcerated and not paying child support.
Thus, in
determining Shantrece’s monthly adjusted parental gross income
for purposes of calculating child support for the two later
children, the court allowed Shantrece to deduct $413 as imputed
child support for the prior-born child under KRS
403.212(2)(g)(4).
This effectively increased the percentage of
total child support that Charles was ordered to pay, and
resulted in an increase of $50 a week in child support.
Whereas, under that same statute, Charles was not entitled to
deduct any imputed child support for his later-born 8-month-old
child.
Charles argues that because KRS 403.212(2)(g)(4)
allows the parent of a prior-born child to deduct imputed child
support, but does not allow the same deduction for the parent of
a later-born child whom the parent is financially responsible
for, the statute denies the parent of the later-born child equal
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protection under the law.
Charles also argues that it denies
the later-born child equal protection because there are less
financial resources available for the later-born child,
effectively giving a benefit to the prior-born child at the
detriment of the later-born child.
Further, Charles argues that
he is being denied his property without due process of law
because he is essentially being forced to pay a greater amount
of child support because the father of the prior-born child is
incarcerated and is not paying child support, and Charles has no
way to challenge the father’s failure to comply with the child
support order.
A statute carries a strong presumption that it is
constitutional.
Wynn v. Ibold, Inc., 969 S.W.2d 695 (Ky. 1998).
When the constitutionality of a statute is challenged, it is the
appellate court’s responsibility to “draw all reasonable
inferences and implications from the act as a whole and thereby
if possible sustain the validity of the act.”
694 S.W.2d 698, 701 (Ky. 1985).
Graham v. Mills,
The burden of establishing
unconstitutionality of a statute rests upon the party
challenging it.
Stephens v. State Farm Mut. Auto. Ins. Co., 894
S.W.2d 624 (Ky. 1995).
In analyzing the equal protection argument, we apply
the rational basis standard of review because the claim does not
involve a suspect classification or a fundamental right.
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Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.
Ct. 2562, 49 L. Ed. 2d 520 (1976); Earthgrains v. Cranz, 999
S.W.2d 218 (Ky.App. 1999), overruled on other grounds, City of
Louisville v. Slack, 39 S.W.3d 809 (Ky. 2001).
Under the
rational basis standard, this Court must uphold a statute if the
statutory classification bears some rational relationship to a
legitimate state purpose.
Weber v. Aetna Casualty & Surety Co.,
406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972).
A law
will be upheld under the rational basis test if there is any
conceivable rational basis for the classes it creates.
Keith v.
Hopple Plastics, 178 S.W.3d 463 (Ky. 2005).
So the question before this Court is, is there a
rational basis for allowing parents to deduct imputed child
support for prior-born children in computing that parent’s gross
income under KRS 403.212?
In viewing the language of KRS
403.212(2)(g)(4), it is clear that the purpose of the
legislation was to ensure that parents had sufficient financial
resources to meet the needs of prior-born children before
setting child support for later-born children.
We note that
this is a question of first impression in Kentucky, and there is
little case law on the issue from other jurisdictions.
In Feltman v. Feltman, 434 N.W.2d 590 (S.D. 1989), the
Supreme Court of South Dakota upheld a similar provision in its
child support guidelines, adjudging that the provision was
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rationally related to the state’s interest in requiring parents
to support all of their children and in protecting the welfare
of the children, which includes their standard of living.
The
Court acknowledged that application of the provision could
result in later-born children receiving a lesser amount of
economic support than prior-born children.
Id. at 592.
However, the Court noted that “[i]f the classification has some
‘reasonable basis,’ it does not offend the Constitution simply
because the classification ‘is not made with mathematical nicety
or because in practice it results in some inequality.’”
Id. at
592-93 (quoting Dandridge v. Williams, 397 U.S. 471, 485, 90 S.
Ct. 1153, 1161, 25 L. Ed. 2d 491, 501-02, (1970)).
The Court
went on to defend the state’s justification for enacting the
provision:
The support format set forth in SDCL 25-7-7
provides a fair and logical prioritization
of claims against a noncustodial parent’s
income. Without prioritization, the
children from the first family might find
their standard of living substantially
decreased by the voluntary acts of a
noncustodial parent. A noncustodial parent
who becomes responsible for supporting the
children of a second marriage does so with
the knowledge of a continuing responsibility
to the children of the first marriage.
Id. at 593.
Similarly, in Florida, the Court found that a rational
basis existed for a statute precluding a decrease in child
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support for prior-born children because the obligor parent has
subsequent children.
(Fla.App. 1997).
Pohlmann v. Pohlmann, 703 So.2d 1121
“The statute assures that noncustodial parents
will continue to contribute to the support of their children
from their first marriage notwithstanding their obligation to
support children born during a subsequent marriage.”
Id. at
1124-25.
And more recently, the Tennessee Supreme Court upheld
as constitutional a provision in the child support guidelines
allowing the amount of an existing child support order to be
deducted in determining that parent’s net income, but not taking
into consideration children of that parent who are not included
in the decree of child support.
455 (Tenn. 2003).
Gallaher v. Elam, 104 S.W.3d
The Court noted that “the obligor’s children
who are not receiving support pursuant to a court order and who
live with the obligor inherently benefit from the obligor’s
household expenditures.
Children who do not live with the
obligor do not enjoy this benefit.”
Id. at 462.
The Court also
looked to the fact that the deviation from the guidelines is
allowed in cases of extreme economic hardship.
Id.
We agree with the above courts that the state’s
interest in seeing that prior-born children are provided for is
a rational basis for the provision at issue in KRS
403.212(2)(g)(4).
Clearly, the intention of the statute is not
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to deny financial resources to later-born children, but rather
to make sure prior-born children are being supported.
While in
some cases application of the statute may result in later-born
children having access to fewer financial resources than priorborn children, “[e]qual protection does not require there to be
a perfect fit between means and ends.”
Keith v. Hopple
Plastics, 178 S.W.3d 463, 466 (Ky. 2005) (citing Heller v. Doe,
509 U.S. 312, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993)).
And
in areas of social welfare and economic legislation, the
question is not whether the statute is ideal or could be more
just.
Id. (citing Dandridge v. Williams, 397 U.S. 471, 90 S.
Ct. 1153, 25 L. Ed. 2d 491 (1970)).
We would also note that
just because a deduction for imputed child support for priorborn children is allowed, it does not necessarily follow that in
every case there will be insufficient financial resources for
later-born children.
Indeed, in the present case, Charles does
not allege that he cannot provide for his 8-month-old child,
only that there are less financial resources available for the
later-born child.
As pointed out by the Tennessee Court,
because the 8-month-old child lives with Charles, that child
gets the benefit of household expenditures as well.
And, in the
event there are extraordinary circumstances, KRS 403.211(2) and
(3) permit deviation from the guidelines where “application of
the guidelines would be unjust or inappropriate.”
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Charles’ next argument is that KRS 403.212(2)(g)(4) as
applied in this case violated his due process rights when he was
required to pay increased child support because the father of
Shantrece’s prior-born child was incarcerated and not paying
child support.
Charles claims that Shantrece was allowed to
deduct $413 for imputed monthly child support for her prior-born
child pursuant to KRS 403.212(2)(g)(4) because the father of the
prior-born child was incarcerated and not able to pay his child
support obligation of $50 a week.
In the alternative, Charles
argues that this Court should reduce Shantrece’s imputed child
support for the prior-born child by the $50 a week she should be
receiving from the incarcerated parent.
In reviewing the record in this case, there is no
evidence regarding the child support calculations for
Shantrece’s prior-born child.
There is no evidence regarding:
the incarcerated father’s alleged failure to pay child support;
his income; how the $50 a week obligation was calculated;
whether the child support order was entered prior to or after
the father’s incarceration; or how the failure of this
incarcerated parent to pay child support actually affected the
child support obligation of Charles.
A copy of the child
support order for the prior-born child is not even in the record
before us, although both parties apparently stipulated that the
father is required to pay $50 a week.
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All that is contained in
the record before us is the worksheet for monthly child support
obligation for Charles’ and Shantrece’s two children, dated
March 15, 2005, which shows Shantrece’s monthly income to be
$2549.73 and a deduction of $413 for “other child support for
prior born child.”
Presumably because this issue was not raised
until the CR 59.05 motion, there appears to be no discussions or
pleadings before the family court which would have clarified
these facts.
It is the appellant’s obligation to see that the
record before the appellate court is sufficient for an adequate
review.
Fanelli v. Commonwealth, 423 S.W.2d 255 (Ky. 1968).
And when the record before the appellate court is not complete,
this Court must assume that the omitted portions support the
decision of the trial court.
S.W.2d 143 (Ky. 1985).
Commonwealth v. Thompson, 697
In the absence of evidence in the record
supporting Charles’ claim that he is being forced to pay
increased child support because the father of Shantrece’s priorborn child is not paying child support, we must affirm the
deduction of $413 for imputed child support for the prior-born
child as allowed by the family court under KRS 403.212(2)(g)(4).
For the reasons stated above, the order of the
Jefferson Family Court is affirmed.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Teddy B. Gordon
Louisville, Kentucky
Laura P. Russell
Louisville, Kentucky
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