Ivy v. Cabinet for Health and Family Services, et al, Ky COA, Child Support, SSI, Contempt

Ivy v. Cabinet for Health and Family Services, et al, 2009-CA-001279-ME

Ivy v. Cabinet for Health and Family Services, et al, 2009-CA-001279-ME

Issue:  Disabled SSI recipient held in contempt and ordered to pay child support or go to jail.

Published:  Reversed

County:  McCracken

Renee Ivy appeals from Order of McCracken Family Court holding her in contempt and ordering her to pay child support or go to jail for 30 days.  Court of Appeals reversed.

Ivy gave birth to D.G. on February 20, 2008 and on February 22, 2008 Larry Barnes filed a petition to establish paternity and child custody.  Ivy and Barnes were not married or in a relationship.  Ivy was in a relationship with Jonathan Knighten when D.G. was born.

On April 14, 2008, the trial court awarded joint custody to Ivy and Barnes and designated Barnes primary residential custodian.  Ivy was not awarded primary residential custodian of the infant because of her history of mental health issues such that she could have been declared disabled by the Social Security Administration with a representative payee appointed to handle her financial affairs.

On May 15, 2008, pursuant to the April Order, Barnes filed a notice of filing of petitioner’s wage information in which he said Ivy received gross income in 2008 of $637.00 from Social Security disability benefits.  The court used that amount to calculate Ivy’s child support and entered an Order setting child support at $106.00 per month.  Ivy did not request reconsideration or file an appeal.

At a hearing on August 26, 2008, Ivy testified that she was able to drive an automobile and also that she was pregnant.  At subsequent hearings, she testified that she had given birth to another child and that her bipolar condition was being controlled with medication.

On June 16, 2009 family court held a hearing on a motion to hold Ivy in contempt for failure to pay child support as ordered.  Kenneth Anderson of the county public guardian’s office, the official agency of the Social Security Administration appointed to provide assistance to Ivy, testified that she required supervision and her benefits are paid into a fiduciary account.  Anderson reported that Ivy’s income was $647.00 per month.  After disbursements for her rent and utilities, Ivy receives the balance, usually between $25.00 and $50.00 per month.  Ivy testified that she had no other income from which to pay child support.

The family court found that Ivy was capable of performing some work and her failure to make child support payments constituted contempt of court.  Her child support was reduced to $60.00 per month and an additional $5.00 to be applied to arrearage.  Ivy appealed.

Ivy argued that her due process rights were violated when the court failed to make a finding about her ability to pay, when the evidence was overwhelming that she had only $25.00 to $50.00 per month after payment of bills.  Citing Lewis v. Lewis, 875 SW2d 862 (Ky. 1993) the Court of Appeals noted that civil contempt charges must be related to the amount the defendant is able to pay and that it is unfair to compel the doing of an impossible act.  Since Ivy has only $25.00 to $50.00 per month for personal expenses, it is impossible for her to pay $60.00 per month in child support and $5.00 in arrearages.  The trial court’s finding was arbitrary, unfair, and an abuse of discretion.

The Commonwealth argued that since Ivy could drive a car or mow the yard, she could work to support her child.  The Court of Appeals disagreed, however, because Ivy had been denied custody of the child because of her disability and needed a representative payee to manage her finances.

Finally, since holding even a minimum wage job would generate sufficient income to disqualify Ivy for SSI benefits, a court order requiring Ivy to pay child support or else be in contempt essentially forces Ivy to forgo disability benefits.  Because the evidence established her disability and entitlement to benefits, the Order was arbitrary, unfair and an abuse of discretion.

The Order of McCracken Family Court holding Ivy in contempt and requiring her to pay child support was reversed because it was an abuse of discretion and in error. 

Judge Caperton, in a separate opinion, dissented, stating that “one who has the children incurs the obligation and owes support accordingly.”

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

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