Goldsmith v. Bennett-Goldsmith, --S.W.3d – (Ky. App. 2007)
Issues and Holdings:
1. Whether the trial court erred in denying father’s motion to strike mother’s presentation of evidence at a modification of child support hearing. The Court held no, the trial court did not abuse its discretion since the mother complied with the evidence exchange order by fax.
2. Whether the trial court erred in denying father’s motion to reduce his child support obligation. The Court held no, the trial court did not err as the father did not put forth the evidence required to establish that there had been a material change in circumstances requiring modification of his child support obligation.
The parties had one child together and divorced in 1999. Mother was awarded sole custody and father was awarded visitation. Father’s child support obligation was set at $676 per month. Father failed to pay child support and accumulated $2,472 in arrears by 2002. The court found that father’s failure to pay was intentional, because he had the financial ability to pay. The father was held in contempt twice for his failure to pay, but his parents came to his aid and paid his arrearages.
In 2006, father filed a motion to reduce his child support obligation. The court entered an order, setting out the parties evidentiary requirements and set the exchange compliance deadline for noon on July 28, 2006. Mother mailed her compliance to father on July 28 at 9:55 a.m. and faxed her compliance to the court at 1:32 a.m. The father delivered his compliance before the deadline. Both parties received the other parties’ compliance prior to the hearing. On the day of the hearing, father filed a motion to strike mother’s presentation of evidence, alleging she failed to comply with the exchange order, CR 12.06 and CR 5.03 by faxing her documents to the court. The court conducted the hearing and denied both father’s motions to strike and to reduce child support.
The Court agreed that the mother complied with the exchange order. She faxed her documents to the court almost twelve hours before the deadline. She did not violate CR 12.06 or CR 5.03 as her evidence was material and sufficiently identified the father. Therefore, the trial court did not abuse its discretion.
Regarding the father’s motion to reduce child support, KRS 403.213 requires that the movant show a material change in circumstances that is substantial and continuing. If such a showing is not made, denial of the modification motion is proper. The Court agreed that father had not put forth the necessary evidence required to establish that there had been a material change in circumstances. He failed to establish his current and past gross income and failed to present evidence regarding his income, or lack of income, from rental properties. The Court also found that the father’s mental illness had no effect on the income he receives from rental properties.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates