Nosarzewski v. Nosarewski, Ky COA, Child Support Reimbursement for Child Care Expense Not Incurred

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Nosarzewski v. Nosarzewski

No. 2011-CA-002148-ME

Published: Opinion Affirming

County: Fayette

Mother appeals from a judgment awarding $10,828.61 to Father for overpayment of child care expenses.

In 1999, a child support order established father’s obligation at $453.00 per month, which included $270.56 in child care expenses.  In 2003, father sought a reduction in child support but was advised by the County Attorney he did not meet the requirements for modification.

In June, 2011 father filed a motion for reimbursement of child care expenses and modification of child support.  He sought reimbursement of $18,366.59 for child care expenses which were never incurred.  Mother appealed father’s motion, arguing that he had unreasonably delayed requesting a reduction of child care expenses.

Following a hearing, the court concluded father was entitled to reimbursement of $10,828.61 for the overpayment of child care expenses.  Mother filed a motion to set aside the order, asserting that the doctrine of laches barred father’s claim.  Mother’s motion was denied and the parties executed an agreed order providing father a credit of $200.00 against his monthly child support obligation to satisfy the judgment.  This appeal followed.

Mother contends the trial court erred by concluding that the doctrine of laches did not bar father’s claim.  After a hearing, Mother’s counsel conceded laches had not been established because neither party was aware that a decrease in child care expenses warranted modification of support.

Father testified that he was advised by the County Attorney in 2003 that he was not eligible for reduction, and both parties testified they did not understand how child care expenses factored into the calculation of child support.  The Court concluded the trial court did not abuse its discretion by rejecting mother’s laches defense.

Mother argued that according to Clay v. Clay, 707 S.W.2d 352 (Ky. App. 1986), an overpayment of child support cannot be recouped unless there exists an accumulation of benefits not consumed for support. The Court of Appeals held, however, that Olson v. Olson, 108 S.W.3d 650 (Ky. App. 2003) controls the outcome of this case.  Olson held that the modification of child care expenses is appropriate when warranted by the facts, regardless of whether there is a 15% material change in circumstances.

The trial court considered all the facts including mother’s evidence to mitigate the amount father sought to recoup and the parties’ agreement which minimized the detrimental effect on the child by providing credit against father’s child support obligation.  The trial court’s judgment was supported by sound legal principles and there was no abuse of discretion, thus the judgment was affirmed.

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

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