Pre-Petition Child Support, Dependant Social Security Beneifts, Attorney Fees in Paternity Action – Ky Court of Appeals

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Unmarried mother filed an action to establish paternity and set child support. On May 24, 2012 the District Court set child support, and awarded pre-Petition support. The District Court ordered that the child’s social security dependent benefits satisfied Father’s child support obligation, and ordered that the surplus dependent benefit could act as a monthly credit towards Father’s pre-Petition support liability. The District Could also held it was without the authority to award attorney fees. Father and mother both appealed to Circuit Court which affirmed as to fees and the current child support obligation, but concluded that the child’s excess dependent social security benefits could not act as a monthly credit towards Father’s pre-Petition support liability. The Court of Appeals granted discretionary review.

The Court of Appeals first turns to the question of whether the surplus social security dependent benefits could be used to pay Father’s pre-Petition support liability. As the paternity action was initiated before the child turned four, pursuant to KRS 406.031(1) the district court appropriately awarded pre-petition support. The Court of Appeals holds that although Father was ordered to pay a pre-Petition liability, he was not in arrears because there was no order for support in place until the May 24, 2012 Judgment. The Circuit court erred in considering the pre-Petition liability an arrears. On May 24, 2012, the child was already collecting social security depended benefits, which could be applied to Father’s pre-Petition support liability.

The Court moves on to consider the question of attorney fees. KRS Chapter 403.220 allows for an award attorney fees for any proceeding under Chapter 403, but both the District and Circuit Court found there was no statuary authority to permit an award of attorney fees as the paternity case was initiated under KRS Chapter 406. The Court of Appeals holds that because Mother was represented by a private attorney and her request for child support fell “squarely under KRS Chapter 403” the Court could consider an award for attorney fees pursuant to KRS 403.220.

Digested by Elizabeth M. Howell

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