Fortwengler v. Fortwengler, 2011-CA-0018933-MR and 2011-CA-002077-MR
Published: Affirming
County: Jefferson
Ex-Husband appealed FC’s order
terminating his garnishment of maintenance payments to Wife for satisfaction of
debt to Ex-Husband’s father as well as FC’s order denying Ex-Husband’s parents’
motion to be joined as parties to the dissolution action in order to collect
the debt.
FACTS:
Fortwengler v. Fortwengler, 2011-CA-0018933-MR and 2011-CA-002077-MR
Published: Affirming
County: Jefferson
Ex-Husband appealed FC’s order
terminating his garnishment of maintenance payments to Wife for satisfaction of
debt to Ex-Husband’s father as well as FC’s order denying Ex-Husband’s parents’
motion to be joined as parties to the dissolution action in order to collect
the debt.
FACTS:
When parties divorced, FC ordered that
$20,000 owed to Husband’s father was a marital debt and that each party should
be equally responsible. Ex-Wife appealed
from this order. While the appeal was
pending, Ex-Husband filed a non-wage garnishment against Ex-Wife to collect the
debt, in the amount of $1,200, the monthly amount of maintenance he had been
ordered to pay to her. Ex-Wife filed
motion to quash the garnishment and an affidavit challenging the garnishment,
contending that FC did not have jurisdiction of the issue as an appeal was
pending, that no judgment had been issued to Ex-Husband’s parents because they
were not parties to the case and did not have standing, and that Ex-Husband was
attempting to evade his maintenance obligation.
Ex-Husband responded that FC did have jurisdiction because Ex-Wife had
not posted supersedeas bond and that FC should set a hearing on the challenge
to the garnishment. After hearing, FC
granted Ex-Wife’s motion to terminate the garnishment, noting that no common
law judgment has been entered nor had a separate lawsuit been entered by
Ex-Husband’s parents; that they could not assign the debt to Ex-Husband to be
collected in the dissolution as it appeared to be an attempt to circumvent his
maintenance obligation. Ex-Husband filed
a timely appeal of this order.
Subsequently, Ex-Husband’s parents filed a motion to intervene in the
divorce proceeding for the limited purpose of setting a payment schedule in
order to effectuate Ex-Wife’s payment of her portion of the debt. FC denied the motion and Ex-Husband timely
filed an appeal of that order.
ANALYSIS:
CA noted that Ex-Husband’s frequent
iteration of the phrase “this assignment of error was preserved for appellate
review” is insufficient to identify preservation of issues in the record as
required by CR 76.12(4)(c)(v), but nonetheless proceeded with review on the
merits.
CA disagreed with Ex-Husband’s
contention that because the creditor, his father, testified regarding the debt
and the debtor, Ex-Wife, had an opportunity to cross-examine the creditor and
raise any defenses she may have, his father should not have to obtain a
judgment in separate proceeding, and that FC could have joined his father as a
party to the case for this purpose under KRS 403.150(6). CA found the additional parties to be jointed
referenced in that statute would not be third-party creditors, but rather
parties who may have custody rights to children of the parties. The proper method for Ex-Husband’s father to
collect on the debt is through a common law judgment or through a separate
lawsuit. Regarding his father’s motion
to intervene, CA held that denial of the motion was proper as no attempt had
been made by Ex-Husband’s father to collect the debt via common law judgment or
separate lawsuit.
Affirmed.
Digested by Michelle Eisenmenger
Mapes, Diana L. Skaggs + Associates
