Bennett v. Bennett, Ky COA, Child Support Modification, Arrearage, Emancipation, Exceptions to Commissioner's Report

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Bennett v. Bennett – No. 2010-CA-001016-ME

Published:  Affirming in Part, Reversing in Part, and Remanding

County:     Scott

Robert Bennett appealed an order of Scott Family Court (formerly Scott Circuit Court), denying his motion to modify child support and calculating a child support arrearage of $35,038.14 in favor of Theresa Bennett.

The first issue was whether the trial court committed reversible error when it adopted the Scott County Domestic Relations Commissioner’s report without allowing exceptions to be taken and without a hearing.  The Court of Appeals found that the Trial Court failed to comply with CR 53.06 (1) and (2), committing reversible error and remanded for a hearing and consideration of exceptions.

The second question was whether the court erred by denying Robert’s motion to modify child support beginning on the date of filing the motion, prior to which two of the three children covered by the existing order were emancipated.  The Court of Appeals found this was error and on remand the Trial Court can consider the changed circumstances and determine obligation for the period following date of filing motions.

The final question was whether the Trial Court erred in calculating the child support arrearage accruing prior to the filing of Robert’s motion by refusing to consider emancipation of fewer than all the parties’ children.  The Court of Appeals concluded the Trial Court did not err in this regard, but noted that the Trial Court calculated the total arrearage as though Robert’s support obligation did not change even after he filed his motion to modify.  If proper consideration given to Robert’s motion to modify results in change in the obligation for the period from June 16, 2005 to May 31, 2006, the total arrearage will have to be recalculated.

When the parties were divorced, they agreed Robert would pay $225 per month, per child, until each child’s death, marriage or emancipation.  When the oldest child emancipated, the parties agreed Robert would pay $870 per month for the remaining three children, instead of a “per child” amount.  Upon emancipation of the second child, Theresa did not respond to Robert’s attempt to calculate a new amount, so he unilaterally reduced the amount by one-third.  When the third child emancipated, Theresa again failed to respond to Robert’s attempt to recalculate, so he again reduced the amount by approximately one-half.

For over five years, child support was not addressed. When Robert filed a motion in Jefferson County in 2005 to amend child support and determine arrearages, venue was changed to Scoot County where Theresa and the remaining minor had moved.  There is no record of a hearing before the Domestic Relations Commissioner or the filing of a report by the Domestic Relations Commissioner.  In November, 2006 however, the Trial Court adopted the Domestic Relations Commissioner’s recommendations, denying Robert’s motion and finding arrears of over $35,038.14.

During the next three years, hearings were set, canceled, and rescheduled.  Family Court was established in Scott County in 2007.  A hearing was finally set on the County Attorney’s Motion to Enforce Child Support Order and all pending motions were heard in August, 2009.  In May, 2010, the Trial Court found that Robert had failed to appeal the denial of his motion to reduce child support and granted Theresa’s motion to enforce the November, 2006 determination of arrears in the amount of $35,038.14.  Robert then filed this appeal.

The Court of Appeals found, in answer to its first question, that the Trial Court failed to afford the parties the opportunity to file objections to the Domestic Relations Commissioner’s report and have a hearing, and remanded for additional proceedings.

With respect to Trial Court’s denial of Robert’s motion regarding child support payments accruing after the filing of his motion, the Court of Appeals concluded the Trial Court abused its discretion and ordered that Robert’s obligation for support of the youngest child should be recalculated from June 16, 2005 (the date of Robert’s Motion) until her emancipation on May 31, 2006.

The Court of Appeals found no abuse of discretion in Trial Court’s denial of Robert’s motion to modify child support which accrued prior to filing the motion, citing Price v. Price, 912 SW2d 44, 46 (Ky. 1995) which held that “child support can only be modified prospectively.”  The only exception is when the parties have an enforceable agreement, which Robert argued was the case.  On remand, the Trial Court shall consider whether evidence exists to satisfy the Price requirements.  Arguments based on estoppel and unjust enrichment are foreclosed by Price.

The Court discussed Robert’s final argument at length in which he claimed KRS 403.213(3) established automatic modification to his child support obligations.  The Court of Appeals agreed that the statute terminates child support upon a child’s emancipation, the obligation must be distinquished from any other obligation in the same order.  When a support obligation covers multiple children, the emancipation of fewer than all of them constitutes the required “material change in circumstances that is substantial and continuing,” but the obligor must return to court so the obligation can be distinguished.

Robert failed to file a motion when the two older children emancipated, and unless he can establish that he and Theresa agreed to reduce the amount, he is barred from a retroactive modification.  Since the case is remanded to the Trial Court, the Court of Appeals ordered the Trial Court to recalculate the arrearage, if necessary, consistent with the findings in this Opinion.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

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