ARCHER (FORMERLY ARMENDT) (ROBIN MICHELLE) VS. POCKER (TIMOTHY ALYN)
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RENDERED: MAY 23, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002098-MR
ROBIN MICHELLE ARCHER
v.
CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOAN L. BYER, JUDGE
ACTION NO. 05-CI-501661
TIMOTHY ALYN POCKER
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE: Robin Michelle Archer cross-appeals the August 16,
2005, and September 28, 2005, orders of the Jefferson Circuit Court regarding the
child support obligation of Timothy Alyn Pocker. We affirm.
1
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
21.580.
On September 18, 1990, Robin and Timothy executed an agreement
pertaining to their minor children. That agreement was incorporated into a
judgment of the trial court. The agreement provided that Timothy would pay
$50.00 per week to Robin as child support, a one time sum of $500.00 for
reimbursement of her attorney’s fees, and a one tine sum of $2,000.00 for child
support arrearages and extraordinary medical costs already accrued.
Beginning on August 5, 2004, Robin began to file affidavits for writs
of non-wage garnishment against Timothy for his failure to pay according to the
September 18, 1990, agreement and court order. Multiple garnishment orders were
then entered. On June 30, 2005, Timothy filed a motion for a hearing on the matter
of child support and moved that the garnishment orders be set aside. A hearing
was held on August 3, 2005, and on August 16, 2005, the trial court ordered,
amongst other things, the following:
[Robin] shall be awarded a common law judgment
against [Timothy] in the amount of $500.00, together
with interest thereon at the rate of 8% from September
18, 1990, when it was originally entered, until the date of
entry of this judgment and at the judgment rate of 12%
from the date of entry of this judgment until fully
satisfied. This amount represents the attorney fess that
[Timothy] agreed to pay [Robin]. . .
[Robin] shall be awarded a common law judgment
against [Timothy] in the amount of $2,000.00, together
with interest thereon at the rate of 8% from September
18, 1990, when it was originally entered, until the date of
entry of this judgment and at the judgment rate of 12%
from the date of entry of this judgment until fully
satisfied. This amount represents [Timothy]’s child
support arrearages that he agreed to pay [Robin]. . .
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[Robin] shall be awarded a common law judgment
against [Timothy] in the amount of $24,510.00, together
with interest thereon at the rate of 8% from the date that
each payment was due until the date of entry of this lump
sum judgment and at the judgment rate of 12% from the
date of entry of this lump sum judgment until fully
satisfied. This amount represents [Timothy]’s child
support owed to [Robin] for the period between
September 18, 1990 and October 7, 2004.
Timothy filed a motion to alter and amend the August 16, 2005, order
and Robin filed a motion to amend the August 16, 2005, order. Both motions were
denied, in separate orders entered by the trial court on August 31, 2005, and
September 28, 2005. On September 30, 2005, Timothy filed a notice of appeal.
On October 10, 2005, Robin filed a notice of cross-appeal. On January 10, 2007,
Timothy’s appeal was dismissed.2
In Robin’s cross-appeal, she makes the following arguments: 1) the
trial court abused its discretion by failing to award her interest at the rate of 12%
per annum on child support when it became past due and payable; and 2) the trial
court erred by failing to award her the legal rate of interest set out in KRS 630.040
on the two common law judgments.
KRS 630.040, which mandates the accrual of interest on judgments,
states:
A judgment shall bear twelve percent (12%) interest
compounded annually from its date. A judgment may be
for the principal and accrued interest; but if rendered for
accruing interest on a written obligation, it shall bear
interest in accordance with the instrument reporting such
2
Timothy’s appeal was 2005-CA-002033-MR.
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accruals, whether higher or lower than twelve percent
(12%). Provided, that when a claim for unliquidated
damages is reduced to judgment, such judgment may
bear less interest than twelve percent (12%) if the court
rendering such judgment, after a hearing on that question,
is satisfied that the rate of interest should be less than
twelve percent (12%). All interested parties must have
due notice of said hearing.
In support of her first argument, Robin cites to Gibson v. Gibson, 211
S.W.3d 601 (Ky.App. 2006). The Court in Gibson found that the trial court had
erred by failing to calculate interest on child support and medical arrearages. Id.
Robin argues that Gibson does not grant the trial court the discretion to refuse the
imposition of 12% interest. We disagree.
In its order, the trial court, citing Stewart v. Raikes, 627 S.W.2d 586
(Ky. 1982) and Courtenay v. Wilhoit, 655 S.W.2d 41 (Ky.App. 1983) as authority,
stated “any sum of money due at a specified time under an [o]rder or an agreement
becomes a judgment when the time has passed and the sum has not been paid.”
The trial court went on to explain that because Robin had waited almost fourteen
years before attempting to collect the arrearages from Timothy, even though he had
been continuously residing in Louisville, Kentucky, that an order of 12% interest
would be inequitable. Specifically, the trial court stated: “[t]herefore, the [c]ourt
finds that [Robin] is not entitled to 12% interest from the date of entry of each
judgment due to her failure to timely enforce her rights.”
The Court in Gibson stated:
It is clearly discretionary with the court to award interest
on a child support arrearage; if there are factors making it
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inequitable to require payment of interest it may be
denied. However, in this case, the trial court did not make
a finding of such inequity.
Id. at 611 (citation omitted). The Court is Gibson clearly gave the trial court
discretion to deny interest on judgments, just not on that court’s judgment, because
there were no findings supporting such a decision. This fact makes Gibson
distinguishable to the case sub judice, where the trial court clearly made findings
that a 12% interest requirement was inequitable. However, instead of denying the
interest altogether, the trial court chose to simply reduce it. We do not believe this
to be an abuse of discretion.
While the facts in Gibson, supra, relate to child support and medical
reimbursements, we believe that the proposition that interest can be denied, when
found to be inequitable, applies generally to judgments. Accordingly, we fail to
find error in the trial court’s decision to reduce the interest on all of the judgments
against Timothy in favor of Robin.
For the foregoing reasons, the August 16, 2005, and September 28,
2005, orders of the Jefferson Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR CROSS-APPELLANT:
NO BRIEF SUBMITTED ON
BEHALF OF CROSS-APPELLEE.
J. Russell Lloyd
Louisville, Kentucky
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