Lichtenstein v. Barbanel, Child Support Enforcement

Since the Kentucky Supreme Court has accepted discretionary review, here is a digest of the Court of Appeals Opinion:

DATE RENDERED: 8/15/2008

Dad appealed TC’s entry of two income withholding orders, primarily arguing that TC had not resolved child support issue prior to entry of the Orders.

When Mom and Dad initially separated, Mom had custody of kids and Dad was under order to pay child support. Six years later, Dad was ordered to pay Mom almost $180,000 in child support arrearages, temporary maintenance, property division payments, medical expenses and insurance arrearages, marital debt and attorney fees (these expenses were itemized by TC.) Around the same time, Dad received custody of kids. He was no longer obligated to pay child support to Mom. Mom’s obligation to pay child support to him was reserved, but the parties agreed that the amount she owed would be offset against his arrearages, though he was still required to pay the arrearages. Six and a half years after that, Mom filed a motion for contempt against Dad for his failure to pay his arrearages. Kids were no longer minors at this time. Dad only then asked TC to establish the child support Mom owed to him while kids had lived with him. TC found that the setoff of Dad’s arrearages applied only to the child support arrearage, and bifurcated the contempt issue between the child support and maintenance issues and the property division issues. TC denied Dad’s motion to establish Mom’s child support obligation, but permitted discovery to continue on the child support arrearage contempt issue with a continuance as to any show cause hearing on that issue.

TC found that Dad had gone to extreme efforts to avoid paying the money he owed to Mom, that he never intended to pay her that money, and that he was in contempt. TC issued an arrest warrant for Dad until the judgment was paid. [TC apparently also issued income withholding orders on Mom’s motion to enforce the amounts due under the judgment, but it is unclear from the opinion when they were issued and for how much.]

Dad argued that Income Withholding Orders should not have issued until TC resolved child support issue, and that he was denied due process by TC’s refusal to hear him on child support setoff issue. Mom argued that other than the one Motion made by Dad six and a half years after the issue was reserved, a motion that was denied and bifurcated, Dad made no steps towards establishing Mom’s child support obligation. CA agreed with Mom, and found that Dad’s full effort and focus had been to avoid his obligations. CA noted that a failure to insist on a ruling from TC when an objection is made operates as waiver of that issue on appeal. Dad took no action specifically to establish Mom’s child support obligation, and this constituted a waiver of the issue. With regard to Dad’s due process argument, CA found that Dad had ample opportunity to be heard over the ten years since the child support issue was reserved but instead engaged in “fraudulent and calculated shell games” to evade collection of money owed to Mom. Finally, Dad argued that TC erred in entering an Income Withholding Order under the Uniform Interstate Family Support Act for amounts due for property or debt-related issues. CA found that definition of a support order under the Act was sufficiently broad to cover the property and debt-related issues.

TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates