J.M., Father v. A.D., Mother, Ky COA, Child Support, Evidence of Payment

J.M.,
Father v. A.D., Mother

No.
2012-CA-000358-ME

Published:
Opinion Vacating and Remanding

County:
Jefferson

J.M.
(Father) appeals from Jefferson Family Court order granting A.D.’s (Mother)
petition to alter or amend a previous order.

The
parties were never married, but they had a child born in 2009.  Soon after the child was born, the Mother and
child relocated to Virginia.  In April,
2010, a Virginia court granted the parties joint custody, with mother receiving
primary physical custody and Father receiving regular visitation.  In June, 2010, Mother filed a petition for
child support in Virginia, which was transferred to Jefferson Family
Court.  In November, 2010, Jefferson Family
Court entered an order setting child support at $521 per month, reserving the
issue of arrearages.  Mother filed
petition to amend child support order to include child care costs and
arrearages.

In
March, 2011 Mother served interrogatories and requests for documents, to which
Father failed to respond.  Mother filed a
motion to compel production of the documents and a motion for a hearing to
determine arrearages.  At the time of the
hearing, Father had not produced any of the requested discovery.

During
the hearing in June, 2011, Father testified that he had sent Mother approximately
$6300 in child support prior to incurring any court-ordered obligation.  Mother testified that she thought Father had
sent approximately $1800 during a six-month period.  Father had no documentation at the hearing
and the court gave him 14 days to submit copies of checks written to
Mother.  Father submitted photocopies of
check carbons from his checkbook.

In
August, 2011, the court entered an order finding Father had failed to produce
sufficient evidence of support payments to Mother, but failed to make a
determination of arrearage owed.  In
response to Mother’s petition to alter or amend the order to include
arrearages, Father filed photocopies of canceled checks demonstrating that
Mother had cashed checks totaling $6491.00.

The
court entered an amended order finding that Father’s evidence was improperly
submitted and found arrearages to be $7,580.00. 
Father appealed from that order, arguing that because the trial court
erred when it did not consider his proffered evidence of payments, its calculation
of arrearages was erroneous.

Kentucky
RCP 52.01 provides that in actions without juries, the trial court’s findings
of fact should not be reversed unless clearly erroneous, which occurs only when
there is not substantial evidence in the record to support the trial court’s
findings.

The
Court of Appeals found that a carbon copy of a check does not prove Mother
received or cashed the check.  Father
argues however, that he did file correct documents with his reply to Mother’s
motion to alter and amend the judgment. 
The trial court erred by not considering the copies of the cancelled
checks, Mother having opened the door by filing the CR 59.05 motion.

Neither
party had clean hands; Father was recalcitrant in producing checks and Mother
misrepresented the amounts of payments she received.  In order to avoid manifest injustice, 1the
matter was vacated and remanded to the trial court for hearing on the relevance
of the checks and entry of an appropriate order.

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