RODNEY P. V. STACY B.
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2003-SC-0882-DG
APPELLANT
RODNEY P .
ON REVIEW FROM COURT OF APPEALS
2001-CA-2114
DAVIESS CIRCUIT COURT NO. 87-CI-1487
V.
APPELLEE
STACY B .
OPINION OF THE COURT BY JUSTICE COOPER
REVERSING AND REMANDING
The issue in this case is one of first impression in this jurisdiction : What effect
does the commitment of a minor child of divorced parents to the custody of a state
agency have on the child support obligation of the noncustodial parent, particularly
when the agency is mandated by statute to collect child support from the child's
parents? As is usually and unfortunately the case with respect to matters of custody
and support of older children, the child in this case reached the age of majority before
the issue could reach this Court for review, thus possibly mooting any future effect of
our decision . However, because the issue is one of first impression and is "capable of
repetition, yet evading review," we will address its merits . Lexington Herald-Leader Co.,
Inc. v. Meigs , 660 S.W.2d 658, 661 (Ky. 1983) (quoting Neb. Press Ass'n v. Stuart , 427
U .S . 539, 546, 96 S.Ct. 2791, 2797, 49 L.Ed.2d 683 (1976) ; see also Fletcher v.
Commonwealth, ex rel . Stumbo, 163 S.W.3d 852, 859 (Ky. 2005); Woods v.
Commonwealth, 142 S.W.3d 24, 31 (Ky. 2004) ; Commonwealth v. Hughes , 873 S .W.2d
828, 830 (Ky. 1994). In order to protect the confidentiality of the juvenile court
proceedings and identity of the child, we will identify the parties only by their first names
and last initials and the children only by their initials .
Rodney P. and Stacy B. were married on June 6, 1985, and are the parents of
two children, H. and A . Rodney and Stacy were divorced by a decree entered on June
6, 1988, which awarded Stacy custody of both children and ordered Rodney to pay child
support. The present action was initiated by Stacy's motion, inter alia , for an increase in
child support premised upon Rodney's substantially increased income . At the time the
motion was heard, Stacy had remarried and had been voluntarily unemployed for the
preceding ten years . Rodney asserted that the motion for an increase should be denied
because Stacy no longer had custody of H ., then age fifteen, who had been committed
to the custody of the Department of Juvenile Justice ("Department") as a public
offender.' At the hearing before the Domestic Relations Commissioner on March 20,
2001, Stacy admitted that she could not regain custody of H . any sooner than
November 2001 . In fact, KRS 635.060(3) provides that "[t]he commitment or placement
shall be until the age of eighteen (18), subject to KRS 635.070 and to the power of the
court to terminate the order and discharge the child prior thereto . . . ." In other words,
the exact duration of the commitment was unknown . Stacy admitted that H . had already
been elevated to a higher level of treatment because of H.'s misconduct during
' Stacy asserted at the Domestic Relations Commissioner's hearing that H . had been
committed because she was "out of control," a status offense . KRS 630.020(2) .
However, she also admitted that the juvenile court had adjudicated H. guilty of theft.
Status offenders may be committed to the Cabinet for Families and Children, KRS
630.120(5), KRS 600 .020(3) ; public offenders are committed to the custody of the
Department of Juvenile Justice, KRS 635 .060(3) .
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commitment. Stacy did not testify to any expenditures that she had made on H.'s behalf
during the commitment, and she did not identify any expenses related to H . that could
not be avoided during H .'s extended absence .
The Commissioner calculated Rodney's new child support obligation as if H .
were still in Stacy's custody and residing in her household . He applied the guidelines
figure, KRS 403.212(7), for the support of two children calculated on the basis of
Rodney's present gross income, id. (2)(b), and Stacy's imputed income, id. (2)(d), less
the cost of health insurance for the children, id. (2)(g)1, on the basis of which he
recommended an increase in Rodney's child support obligation for H . and A . from
$98 .00 per week to $153.68 per week. Using the same formula, Rodney would have
been required to pay $104 .40 per week for the support of only A., or $74.95 under a
"split custody" arrangement if Stacy had custody of A. and he had custody of H. KRS
403 .212(6) . The trial court overruled Rodney's exceptions to the report and increased
his child support obligation in accordance with the Commissioner's recommendation .
The Court of Appeals affirmed . We now reverse and hold that if Rodney is required to
pay child support to the Department for the support of H., his child support obligation to
Stacy for the support of A. should be calculated as if he had custody of H., i .e . , split
custody ; but if he is not required to make payments to a state agency for the support of
H ., his child support obligation to Stacy should be calculated on the basis of her custody
of only A. until and unless the Department or the juvenile court has restored H . to
Stacy's custody or Stacy proves that she is substantially contributing to the support of H.
KRS 403 .213(1) provides that a motion to modify child support should be granted
"only upon a showing of a material change in circumstances that is substantial and
continuing." Rodney does not dispute that his increased income, if considered in
isolation, would satisfy that requirement . KRS 403.213(2) . However, he contends that
the change of custody of H . from Stacy to the Department is also a material change of
circumstances offsetting the factor of his increased income, i .e . , the increased income is
offset by Stacy's decreased need for child support . He also notes that he is exposed to
a potential double jeopardy if the Department brings an action against him for H .'s
support .
KRS 403 .211(1) provides that "[a]n action to establish or enforce child support
may be initiated by the parent, custodian, or agency substantially contributing to the
support of the child." (Emphasis added.) KRS 610 .170 provides :
If it appears . . . that the parent or other person exercising custodial control
or supervision of any child, or the estate of any child . . . who has been . . .
placed in a foster home or boarding home, or in the care of a public or
private facility or agency, or the Department of Juvenile Justice or the
cabinet, is able to contribute to the support of the child, the court shall
enter an order requiring the parent or estate to pay a reasonable sum for
the support, maintenance, or education of the child. The order shall direct
that the money be paid to the circuit clerk to be disbursed as ordered by
the court or be paid to the person, facility, agency, or the Department of
Juvenile Justice or cabinet to which the child was committed or probated .
(Emphasis added.)
Thus, if a child being supported by the state has a parent who is able to
contribute to that support, i.e. , Rodney, since Stacy is unemployed, the agency
providing the support may initiate an action for support and "the court shall" order it.
The logic is obvious . Parents have a legal obligation to support their own children until
emancipation, completion of high school, or completion of the high school year during
which the child reaches the age of nineteen, whichever occurs last . KRS 403 .213(3) .
Obviously, Rodney should not be required to pay support for the same child to both
Stacy and the Department . If he were required to pay support to the Department, that
consequence would be conceptually the same as if H . were in his custody . In that
event, the trial court should calculate his child support obligation to Stacy pursuant to
KRS 403 .212(6) (split custody) .
Nor should one noncustodial parent be required to pay child support to another
noncustodial parent, absent some evidence that the other noncustodial parent is
meeting some obligation to support the child. Cf. Goff v. Goff, 323 S .W .2d 209, 210
(Ky. 1959) (holding that order changing custody terminates obligation to pay child
support) ; Adkins v. Adkins, 574 S .W.2d 898, 899-900 (Ky. App. 1978) (holding that
awarding husband custody for three months each summer was sufficient change of
condition to warrant reduction in child support) . Adkins has been properly criticized for
remanding the case for a reduction without a hearing .
The primary custodian continues to have certain fixed expenses that
cannot be avoided during the other parent's summer custody period . For
example, a primary custodian cannot be expected to move from a threebedroom home to a one-bedroom home during the summer months. If the
prior child support award shifted income to permit the custodial parent's
occupation of such a home, a flat twenty-five per cent reduction
undermines the intent of the original award . An evidentiary hearing would
have permitted the custodial parent to establish those expenses that were
fixed and could not be avoided . Adkins contains a warning for custodial
parents faced with motions for substantial custody changes . To prevent
the change in custody from affecting support rights, the custodial parent
may need to raise the support issue at the trial court level.
Louise E . Graham & James E. Keller, 16 Ky. Prac . Domestic Relations Law ยง 24.32
(2003). Here, Stacy did not testify to any expenditures on H .'s behalf or any fixed
expenses that could not be avoided during H .'s absence . Had she done so, the trial
court could have considered those facts in computing the amount of child support under
2 Rodney has not filed a motion to reduce child support, so the effect would be to deny
Stacy's motion for increased child support .
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KRS 403 .211(3)(g) ("[a]ny similar factor of an extraordinary nature specifically identified
by the court which would make application of the guidelines inappropriate") .
The Court of Appeals' reliance on Garver v. Garver, 981 P.2d 471 (Wyo . 1999),
is misplaced . The obligor father in Garver moved for termination of his child support
obligation, arguing that his juvenile son's conviction "as an adult" of a felony and
resulting incarceration "emancipated" the son and relieved the father of any further
obligation for child support . Agreeing that the transfer of the son's custody to an adult
detention facility amounted to a change in circumstances warranting modification of
child support, id. at 472, the Supreme Court of Wyoming nevertheless held that the
conviction and incarceration did not effect an emancipation. Id. at 474 . Apparently, no
claim was made that the noncustodial parent should be relieved of his child support
obligation because the former custodial parent no longer had custody of the child .
Interestingly, the trial court had ordered that the support payments be "redirected to the
applicable detention facility which has the responsibility to care for [the son] during such
incarceration." The appellate court held that the trial court was without jurisdiction to
enter that order. Id. at 473. Other than Garver, there are few cases that even come
close to addressing this issue. We examine them primarily for purpose of comparison
to the facts of this case .
In Van Winkle v. Van Winkle , 437 N .E.2d 358 (III . App. Ct. 1982), the obligor
father filed a motion to terminate his child support obligation because his minor son had
been adjudicated delinquent and his custody had been transferred to the Illinois
Department of Corrections . The Department of Corrections did not charge parents for
the support of juveniles placed in its custody . Id. at 360. The trial court denied any
relief. The Appellate Court of Illinois held that the transfer of custody was a substantial
change of circumstances warranting modification, though not necessarily termination, of
child support. Id . Unable to determine whether the trial court had considered at least a
reduction of the father's child support obligation, it remanded the case for such a
determination . Id. at 361 .
In Marriage of Bordner, 715 P .2d 436 (Mont. 1986), the child had, with the
custodial parent's (mother's) consent, lived for awhile with her father and then for
eighteen months in a half-way house and a group home until her eighteenth birthday.
Approximately seven months before her eighteenth birthday, temporary legal custody of
the child was transferred to the Department of Public Welfare . The father never made a
motion to modify his child support obligation. Instead, in response to the mother's
motion for arrearages, he raised the child's "emancipation" as a defense. The Supreme
Court of Montana held (1) that the child was not emancipated because the mother
continued to provide her with necessities, a periodic place to stay, and transportation,
id. at 438-39 ; and (2) that accrued child support obligations cannot be retroactively
modified . Id. at 439.
Because Laura's move was intended to be permanent and was done with
Lanor's consent, a motion for modification may have been proper at that
time . But once David's payments became due under the decree of
dissolution, the law puts the burden upon him to make a positive act to
modify his support obligation .
In Conley v. Conley , 651 N .Y .S .2d 802 (N .Y . App. Div. 1996), the child was
adjudicated delinquent and placed with the Division for Youth in a nonsecure residential
facility for a period of eighteen months. However:
Although petitioner has temporarily lost custody of the child, she has not
abdicated her parental role or responsibilities. Petitioner presented
evidence that the goal of the placement with the Division for Youth is to
reunite the child with his family and to integrate him back into society.
Visitation between the child and his family is encouraged and, at the time
of the hearing, the child was spending some weekends at home with
petitioner. She is responsible for his transportation to and from the facility
for visits and for all of his expenses during the visits . She also makes
additional trips to the facility to visit the child and take him out to lunch or
shopping. She provides him with spending money and various personal
items, including a winter jacket . Petitioner continues to bear costs
associated with the care of the child despite her temporary loss of custody
and respondent should contribute to those costs.
Id. at 803 . Under those circumstances, the court also held that the obligor father could
not avoid his responsibility to pay child support based on the "mere possibility" that the
Division of Youth might seek reimbursement for costs incurred as a result of the child's
placement . Id.
In the case sub iudice, Stacy presented no evidence to show that she continued
to exercise custodial-like responsibilities after H .'s custody was transferred to the
Department, or that she expended any monies or incurred any monetary obligations on
behalf of H., or that she continued to incur expenses related to H. that could not be
avoided during H .'s extended absence . Thus, she identified no "factor of an
extraordinary nature . . . which would make application of the guidelines inappropriate ."
KRS 403 .211(3)(g) .
On the basis of the evidence presented in this case, we hold that the trial court
erred in increasing Rodney's child support obligation to a sum in excess of $104 .40 (the
guidelines figure for the support of one child) . If the Department of Juvenile Justice has
since obtained child support from Rodney pursuant to KRS 610 .170, his child support
obligation to Stacy should have been recalculated in accordance with KRS 403.212(6) .
Accordingly, we reverse the Court of Appeals and remand this case to the Daviess
Circuit Court to receive any additional evidence and take any further legally authorized
action deemed appropriate and in accordance with the content of this opinion .
All concur.
COUNSEL FOR APPELLANT :
Donna M. Dant
P .O . Box 125
Calhoun, KY 42327
COUNSEL FOR APPELLEE:
Joseph R. Flaherty
Flaherty & Flaherty
1 Executive Blvd, Suite LL 12
Owensboro, KY 42301
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