Published opinion from Ky Supreme Court on social security offsets to child support and attorney fees in paternity case

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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 Court 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 held that although Father was ordered to pay a pre-petition child support, he was not in arrears because there was no order for support in place until the May 24, 2012 Judgment. Thus, the child’s social security dependent benefits could be applied to Father’s pre-petition support liability. Moreover, the Court of Appeals held 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.

Both parties moved the Supreme Court for discretionary review on separate issues, which was granted.

The Supreme Court first addresses Father’s jurisdictional argument that a paternity action cannot be brought by a private attorney pursuant to KRS 406.021. The Supreme Court holds that “complainants under KRS 406.021 are authorized to bring a paternity action through private counsel, if they so choose.” The mandatory language in the statute relates to the obligations of the County Attorney or Cabinet, and not how the Complaint can proceed.

The Supreme Court second turns to the attorney fees issue, first disagreeing with the Court of Appeals holding that “KRS 403 does not provide an avenue for a party in a paternity action to recover attorneys’ fees.” The Supreme Court believes the plain language of KRS 403.220 clearly refers to only proceedings “under this chapter” which does not include the paternity statutes.

The Supreme Court then looks to Mother’s next argument on attorney fees, that KRE 407 which provides for attorney fees applies because KRS 406.051 states that “All remedies under the uniform reciprocal enforcement of support act are available for enforcement of duties of support under this chapter.” The Supreme Court holds that “KRS 407 does not provide an avenue for a prevailing obligee to recover attorneys’ fees in a paternity action.” As the paternity statutes pre-dated the KRS 407 UIFSA provision regarding attorney fees, the legislature could not have intended the attorney fee remedy when it enacted KRS 406.051.

The Supreme Court goes on to hold that “A court is no longer imbued with equitable power to award attorneys’ fees.” The American Rule applies unless there is a statutory exception for fees. “While attorneys’ fees are awardable as a sanction ‘when the very integrity of the court is in issue, trial courts may not award attorney’s fees just because they think it is the right thing to do in a given case.’” Thus, if the Court believe equity dictated Mother was entitled to attorney fees, it is without authority to award them to her.

Third, turning to the issue of excess social security benefits, the Supreme Court agrees with the Court of Appeals in holding that a trial court may use its discretion to “apply excess social security retirement dependent benefits as a credit against the pre-petition liabilities a father incurs when a paternity action is initiated before a child turns four years old.” The Supreme Court notes that its holding only applies in narrow cases when “a debt owed for past costs… only become legally due after adjudication and decision by the court.” The Supreme Court empowers trial courts to use discretion to “equitably determine whether credit for prepetition liabilities…should be gleaned from excess benefit” instructing courts should consider the KRS 403.211 (3) factors in their equity analysis. “Thus, the guiding light in making this decision should be: what best protects the interests and needs of the child?” The Supreme Court remands this issue back to the trial court for fact-finding consistent with its decision.

Justice Wright dissents, in part, arguing trial courts should not have equitable discretion to offset pre-petition liabilities with the excess social security income because the funds belong to the child and the court does not have authority to take a child’s assets to pay a parent’s debt.

Digested by Elizabeth M. Howell

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