Hudson v. Hudson, Ky COA, Modification of Child Support, Standard of Review

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Hudson v. Hudson, 2009-CA-002392-ME

Published:   Affirming

County:  Jefferson

 

        Mother appealed from TC Order increasing Father’s child support.

 

        Parties were divorced in 1996 and, in 2009, Mother filed a motion to increase Father’s child support obligation.  Mother had become disabled and Father’s income had increased since the divorce.  Father objected to Mother’s calculation because the child received Social Security benefits due to Mother’s disability which he contended constituted an independent source of income.

 

        Trial Court agreed the benefits should be considered an independent source of income and to require Father to pay full guideline amount would be a windfall to child. The court concluded deviation from guidelines was appropriate, deducted the benefit from the base support and apportioned the remainder according to incomes.

 

        The Court of Appeals found that Mother failed to comply with CR 76.12(4)(c)(v) requiring a reference to the record where the claimed error was preserved.  If the error had been preserved, it would have been reviewed for abuse of discretion.  If an error is not preserved sufficiently, CR 61.02, or appellant fails to comply with CR 76.12(4)(c)(v), a different standard applies, which is to avert a manifest injustice.  The Court of Appeals applied the manifest injustice standard of review and found nothing in the record to indicate the child would suffer an injustice as a result of the trial court’s order.

 

        It is important to note that subsequent to the trial court’s order in this case, the Kentucky Supreme Court reached the opposite result in Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010), holding that the parent who is not the disabled parent through whom the child receives Social Security benefits is not entitled to a credit against child support payments.

 

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

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