Opinion
NO. 2011-CA-001465-ME
07-20-2012
CHRISTOPHER ALLEN BALLOU APPELLANT v. KRISTINA MARIE BALLOU APPELLEE
BRIEFS FOR APPELLANT: B.J. Foley Williamsburg, Kentucky BRIEF FOR APPELLEE: Marcia A. Smith David O. Smith Corbin, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 10-CI-00942
OPINION
AFFIRMING
BEFORE: LAMBERT, THOMPSON, AND VANMETER, JUDGES. THOMPSON, JUDGE: Christopher Allen Ballou appeals from a post-decree order entered by the Whitley Circuit Court that increased his child support obligation. He argues that the circuit court abused its discretion by: (1) including his veterans' disability compensation as gross income for purposes of computing child support; and (2) permitting a wage assignment to be issued pursuant to KRS 405.465. After careful review, we affirm.
On May 16, 2007, the Whitley Family Court dissolved the marriage of Christopher and Kristina Marie Ballou. The parties agreed that Kristina would have custody of the parties' four children, and Christopher was consequently ordered to pay child support in the amount of $540 per month pursuant to the statutory child support guidelines. This amount was based on a reported income of $1,620 per month for Christopher and $893 per month for Kristina. Christopher later moved to reopen and re-docket the case, and it was transferred to the Whitley Circuit Court upon his motion.
On December 14, 2010, Kristina filed a motion to increase Christopher's monthly child support obligation. At this point, the parties had five children as a fifth child had been born in 2008 following their divorce. The request was based on the fact that Christopher had begun receiving $3,074 per month in veterans' disability benefits, as well as $1,156 per month in Social Security benefits for a total of $4,230 per month. At the time of this filing, Kristina's gross income was $951 per month and, due to Christopher's Social Security award, she was receiving $576 per month for the benefit of the children.
The parties do not dispute that Christopher is the child's biological father.
Kristina argued that Christopher's benefits should be considered "gross income" for purposes of calculating his child support obligation and that an increase in that obligation was, therefore, merited. Christopher subsequently filed a response objecting to Kristina's motion in which he contended that his veterans' disability compensation was exempt from inclusion as gross income for child support purposes pursuant to certain federal statutes.
On July 14, 2011, the circuit court entered an order increasing Christopher's child support obligation to $1,305 per month after concluding that his $4,230 in monthly benefits should be considered gross income for purposes of child support. However, Christopher was given a monthly credit of $575 for the Social Security benefits received by Kristina for the children, so his actual obligation was $730 per month. The court also found a child support arrearage of $4,380 and ordered Christopher to pay an additional $200 per month towards that arrearage. The court further allowed for the possibility of a future wage assignment pursuant to KRS 405.465 if an additional arrearage accrued that was equal to the amount of support payable for one month. This appeal followed.
It is unclear why the credit was not for $576 per month, but the parties did not present the issue of this discrepancy below and we do not address it on appeal.
Christopher argues that the circuit court should not have considered his veterans' disability compensation as gross income for purposes of determining his child support obligation because such compensation is not explicitly included in the list of income sources set forth in KRS 403.212(2)(b).
KRS 403.212(2)(b) provides:
"Gross income" includes income from any source, except as excluded in this subsection, and includes but is not limited to income from salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities,Christopher is correct that veterans' disability benefits are not specifically listed as a source of gross income in this provision. However, these benefits "are not excluded merely because they were not listed in the statute, because the statute itself does not state that these are the only sources of income a trial court may consider." Stewart v. Burton, 108 S.W.3d 647, 649 (Ky.App. 2003). KRS 403.212(2)(b) plainly states that gross income includes income "from any source" not specifically excluded and, "includes but is not limited to," the income sources listed therein. Consequently, the circuit court did not err in interpreting KRS 403.212(2)(b) as allowing Christopher's veterans' disability compensation to be included as gross income for purposes of determining his child support obligation.
capital gains, Social Security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received. Specifically excluded are benefits received from means-tested public assistance programs, including but not limited to public assistance as defined under Title IV-A of the Federal Social Security Act, and food stamps.
Christopher next contends that his veterans' disability benefits are exempt from being considered income for purposes of child support on Supremacy Clause grounds. He argues that a number of federal provisions evidence Congress's intent to shield such benefits from being considered income for purposes of calculating child support. Therefore, any state law purporting to allow otherwise is in conflict with federal law and is preempted.
In support of this position, Christopher first cites to 38 U.S.C. § 5301(a)(1), which provides:
Payments of benefits due or to become due under any law administered by the Secretary shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary.Christopher next cites to 42 U.S.C. § 659(a), which provides:
Notwithstanding any other provision of law (including section 407 of this title and section 5301 of Title 38), effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the Armed Forces of the United States, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to withholding in accordance with State law enacted pursuant to subsections (a)(1) and (b) of section 666 of this title and regulations of the Secretary under such subsections, and to any other legal process brought, by a State agency administering a program under a State plan approved under this part or by an individual obligee, to enforce the legal obligation of the individual to provide child support or alimony.Christopher contends that this provision's reference to "moneys (the entitlement to which is based upon remuneration for employment)" reflects Congress's intent that veterans' disability benefits not be subject to any legal process aimed at diverting funds for child support. Instead, a veteran's benefits are subject to inclusion as income for purposes of child support only if they are based on employment and not disability.
However, neither of the federal provisions relied upon by Christopher suggests that veterans' disability benefits may not be considered income for purposes of calculating child support. A similar argument was rejected by the United States Supreme Court in Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987).
In Rose, a Tennessee statute provides that the "earning capacity, obligations and needs, and financial resources of each parent" be considered when seeking child support. Id., 481 U.S. at 622, 107 S. Ct. at 2032, citing Tenn.Code Ann. § 36-5-101(e)(3) (1984) (formerly Tenn.Code Ann. § 36-820 (1977)). As in Rose, the appellant's "income was then, and is now, composed entirely of benefits received from the Veterans' and Social Security Administrations." Id. The Tennessee court considered the appellant's veterans' disability benefits as income for purposes of determining his child support obligation.
The appellant appealed to the United States Supreme Court, claiming that "jurisdiction to award as child support a portion of his monthly veterans' disability benefits and veterans' aid and attendance benefits rests exclusively in the Veterans' Administration" and that to the extent that § 36-820 authorized an award of a veteran's disability benefits as child support, it conflicted with federal law and was therefore preempted under the Supremacy Clause. Id., 481 U.S. at 624-625, 107 S. Ct. at 2033. The Supreme Court rejected the appellant's arguments, noting that "Congress clearly intended veterans' disability benefits to be used, in part, for the support of veterans' dependents." Id., 481 U.S. at 631, 107 S. Ct. at 2036. The Court concluded that the federal provisions relied upon by the appellant in support of his position were not in conflict with and did not preempt the Tennessee provision allowing such income to be used in calculating a child support obligation or contempt proceedings related to the appellant's failure to pay support. Id., 481 U.S. at 636, 107 S. Ct. at 2039. For example, the Court held that one provision shielding veterans' disability benefits from "attachment, levy, or seizure" (38 U.S.C. § 3101(a)), did not act to shield a veteran recipient from a state court action to compel child support or the use of his disability benefits in the calculation of child support. Id., 481 U.S. at 634, 107 S. Ct. at 2038.
Notably, the Supreme Court also rejected the same argument made by Christopher with respect to 42 U.S.C. § 659(a), concluding that while veterans' disability benefits "are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the veteran a state court cannot require that veteran to use them to satisfy an order of child support." Id., 481 U.S. at 635, 107 S. Ct. at 2039.
The Supreme Court ultimately concluded:
... that pursuant to former Tenn.Code Ann. § 36-820 the Tennessee Circuit Court has properly taken into account appellant's needs, along with the needs of his children, in setting his child support obligation. Neither the Veterans' Benefits provisions of Title 38 nor the garnishment provisions of the Child Support Enforcement Act of Title 42 indicate unequivocally that aId., 481 U.S. at 636, 107 S. Ct. at 2039. In light of Rose, we similarly conclude that the federal statutes relied upon by Christopher herein are not in conflict with and do not preempt KRS 403.212(2)(b).
veteran's disability benefits are provided solely for that veteran's support. We hold, therefore, that as enacted these federal statutes were not in conflict with, and thus did not pre-empt § 36-820. Nor did the Circuit Court's efforts to enforce its order of child support by holding appellant in contempt transgress the congressional intent behind the federal statutes.
We also note that Rose was recently referenced by our own Supreme Court and cited to favorably - particularly as to that decision's discussion with respect to 42 U.S.C. § 659(a) - in support of its determination that federal law did not prohibit SSI recipients from being held accountable for child support. See Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 338-339 (Ky. 2011).
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The federal statutes do not prohibit Christopher's veterans' disability benefits from being viewed as income for purposes of calculating child support and they are not in direct conflict with KRS 403.212(2)(b)'s plain directive that gross income includes income "from any source" not specifically excluded and "includes but is not limited to" the income sources listed therein. Cf. Com. ex rel. Morris v. Morris, 984 S.W.2d 840, 841-842 (Ky. 1998). Therefore, Christopher's argument is rejected.
In a related vein, Christopher argues that the circuit court erred by permitting a wage assignment to be issued pursuant to KRS 405.465, arguing that such a proposed assignment or garnishment is forbidden by the same federal provisions referenced above. However, we question whether this argument was adequately raised below and, therefore, whether it is preserved for our review. Keeton v. Lexington Truck Sales, Inc., 275 S.W.3d 723, 726 (Ky.App. 2008); Jewell v. City of Bardstown, 260 S.W.3d 348, 350-51 (Ky.App. 2008).
Christopher contends that the issue is preserved, because he implicitly argued below that his veterans' disability benefits were not subject to assignment or garnishment through his challenge of Kristina's motion to include the benefits as income for purposes of calculating child support. However, an "implicit" challenge is insufficient because Christopher's responsive pleading below was focused solely on whether his benefits could be considered income for purposes of calculating child support and did not mention KRS 405.465 in any context whatsoever. Moreover, the issue was not raised in a motion to alter, amend, or vacate the subject order.
More importantly, we do not believe that the issue is ripe for our consideration. Although the circuit court's order is somewhat confusing on this point, it appears that the court ordered Christopher to pay an additional $200 per month towards his child support arrearage, but it declined to immediately institute a wage assignment or to direct it towards the Veterans' Administration and offered Christopher the opportunity to avoid such a consequence. This is evidenced by the order's language providing that "[w]henever an arrearage accrues that is equal to the amount of support payable for one (1) month, a wage assignment pursuant to KRS 405.465 may issue." Consequently, it is entirely possible that a wage assignment may never issue. "Questions that may never arise or are purely advisory or hypothetical do not establish a justiciable controversy." Doe v. Golden & Walters, PLLC, 173 S.W.3d 260, 270 (Ky.App. 2005). Because an unripe claim is not justiciable, we have no subject matter jurisdiction over it. Id. Therefore, we cannot consider Christopher's claim on its merits.
We finally address Kristina's request that she be awarded "just damages" pursuant to CR 73.02(4) because the issues presented by Christopher are frivolous and without any reasonable basis or authority. Such an award is only merited if this Court finds that an appeal "is so totally lacking in merit that it appears to have been taken in bad faith." CR 73.02(4). We have emphasized that such sanctions "are appropriate only in egregious circumstances[.]" Kenton County Fiscal Court v. Elfers, 981 S.W.2d 553, 559 (Ky.App. 1998). We do not believe that the present appeal warrants such a considerable sanction. Therefore, Kristina's request is denied.
For the foregoing reasons, the order of the Whitley Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: B.J. Foley
Williamsburg, Kentucky
BRIEF FOR APPELLEE: Marcia A. Smith
David O. Smith
Corbin, Kentucky