Lichtenstein v. Lichtenstein, Ky. S. Ct., Income Withholding Orders For Child Support, Property Division And Marital Debt

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Lichtenstein v. Lichtenstein, 2008 SC-000661-DG

Issue:  Income withholding orders for child support, property division, and reimbursement of marital debt.

Published:   Reversing

County: Jefferson


Husband’s appeal involved two Income Withholding Orders, each requiring garnishment of his wages.  One Order was for child support arrearage, spousal support arrearage, medical care, insurance reimbursement, and attorney’s fees.  The other was for wife’s monetary share of marital property and reimbursement for a marital debt she paid.  Husband claimed the Order for child support failed to take into account wife’s support arrearage as a result of a change in custody and further claimed that Kentucky’s Uniform Interstate Family Support Act (UIFSA) does not apply to marital debt or property and therefore the Order for property division and reimbursement of marital debt exceeds statutory limitations applicable to ordinary garnishment of non-child support debt.


The parties were married in 1978 and had two children.  Husband is a physician and wife is an attorney.  Husband filed for divorce in November 1990 and in June, 1996 the court issued a ruling on all financial issues, including child support.  This judgment was appealed and on August 28, 1998 the trial court was affirmed on all issues.


Wife served an Order of Wage Garnishment on husband’s employer (Louisville Children’s Eye Specialists, PSC, of which husband was the only shareholder) in September, 1996 and from September, 1996 through February, 2000, the PSC remitted $8817.74 to wife pursuant to the Order.


In October, 1996 parties signed Agreed Order giving husband physical custody of children, discontinuing his child support while the children were with him, reserving the issue of child support to be paid by wife and agreement that wife’s child support would be set off as against husband’s arrearage.


On January 30, 2003, wife moved family court to hold husband in contempt for failing to satisfy June, 1996 judgment and hold husband’s PSC liable for failure to respond to the 1996 Order of Wage Garnishment.  Husband responded with request that court establish wife’s child support for the period he had custody and determine how much he actually owed under the June, 1996 judgment after offsetting wife’s obligation.


Family Court found that the 1996 Agreed Order had modified the original child support order and that it was an enforceable order, the terms of which were at issue in the pending litigation, and that wife’s off-set applied only to the child support arrearage issues.  The court found husband’s PSC liable to wife for funds that should have been withheld plus 12% interest and specifically found that none of the $121,586.76 for “other support” was from child support arrearage.  Trial Court decided that child support and other support contempt proceedings would be heard separately as unrelated claims.  Nevertheless, the court held husband in civil contempt for failure to pay the entire June, 1996 judgment by an Order dated April 26, 2006.


Husband moved to Illinois in July, 2005 and in August, 2006 wife moved for, and court granted, an Income Withholding Order for $639,773.12 encompassing the entire June, 1996 judgment, with interest, and did not determine amount of child support owed by wife.  Husband moved to vacate and argued that property division and marital debt does not constitute support.


In March, 2007, wife requested the court to enter superseding orders because the February, 2009 orders did not comply with Illinois law, to which husband objected.  He asserted that the failure to determine the amount to be offset before entering orders constituted an abuse of discretion or a violation of due process and that UIFSA does not support issuance of orders for property division or reimbursement of marital debt.




Supreme Court held that the family court’s failure to determine the amount wife owed was an abuse of discretion and remanded for further proceedings.  The Court reasoned that since the parties had agreed that wife’s child support would be determined and offset against husband’s arrearage and their agreement was found to be enforceable in the court’s September 2004 Order, it was error to enter an Income Withholding Order before offsetting wife’s obligation.


The Supreme Court disagreed with the Court of Appeals’ holding that the statutory definition of “support order” was sufficiently broad to include all items in the original 1996 trial court judgment, and held that monies owed for interest in marital property or for payment of marital debt cannot be construed as support within the context of the Family Support Act.  The court reasoned that the UIFSA does not provide for litigation of matters collateral to child or spousal support, thus reimbursement of a marital debt paid is not child support and cannot be enforced by an Income Withholding Order.


The decision of the Court of Appeals is reversed and matter remanded to Jefferson County Family Court for proceedings consistent with opinion.


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

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