Opinion
NO. 2016-CA-000880-ME
02-09-2018
ANEESAH R. NU'MAN APPELLANT v. WESLEY MAYES APPELLEE
BRIEF FOR APPELLANT: Felicia J. Nu'Man Louisville, Kentucky BRIEF FOR APPELLEE: Ray H. Stoess, Jr. Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 14-CI-503651 OPINION
AFFIRMING
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BEFORE: CLAYTON, DIXON, AND MAZE, JUDGES. MAZE, JUDGE: This appeal arises from a Jefferson Family Court denying the Appellant's, Aneesah Nu'Man, motion to enforce an oral contract with the Appellee, Wesley Mayes, for child support costs. Appellant also appeals the court's granting of Appellee's motion for alleged overpayment of costs to Appellant, and subsequent arrearage reduction. As the record shows the trial court's findings were supported by substantial evidence and were not an abuse of discretion, we affirm.
Background
Aneesah Nu'Man (Aneesah) and Wesley Mayes (Wesley) are the biological parents of J.E.N., born in April of 2009. In November 2014, Wesley filed a petition for paternity and custody of J.E.N. In January 2015, Aneesah responded and filed a counter petition which included an allegation that there was an oral contract, entered into in 2009 or 2010, wherein Wesley would pay child care costs either to Aneesah or the child care provider directly. She alleged that Wesley agreed to pay $400 per month. Aneesah further alleged that because he breached the oral contract, she was owed arrears for the childcare expenses.
In January 2015, a temporary child support order was entered ordering Wesley to pay $553.55 per month. This was in part based on Aneesah's child support worksheet reflecting that she incurred work-related child-care costs in the amount of $300 per month. The parties then attended mediation and an agreed order was signed. In the agreed order, Wesley agreed to pay $553.55 per month "per guidelines and includes...day care. Aneesah shall provide proof of day care costs." Wesley subsequently failed to pay the agreed upon amount and Aneesah filed a motion for contempt. Aneesah never provided proof of child care expenses.
At the April 2016 hearing, Wesley did not testify as to the issue of the oral contract. Aneesah testified that she believed the contract was discussed over the phone and there were no witnesses. Aneesah presented evidence of three checks from 2010 in which Wesley paid $185 and $200 to the child care center and $110 directly to Aneesah. The trial court dismissed Aneesah's claim and found that Aneesah had not met her burden of proving that an oral contract existed.
At the same hearing, Wesley motioned for reimbursement of childcare costs. His motion was based on the fact that Aneesah had misrepresented her childcare costs as $300 per month, when in fact her costs were actually $58 per month. The trial court reduced Wesley's future child support obligation and offset his arrearage based on the amount he overpaid for child care. Aneesah appeals from both findings.
Standard of Review
On appellate review, a trial court's findings of fact will only be disturbed if clearly erroneous. CR 52.01; Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). A finding of fact is clearly erroneous if it is not supported by substantial evidence. Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003). "Substantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person." Id., citing Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998); Sherfrey v. Sherfrey, 74 S.W.3d 777, 782 (Ky. App. 2002). We review questions of law de novo. Id.
Kentucky Rules of Civil Procedure. --------
A trial court's denial or granting of a motion for reimbursement of an overpayment of childcare costs is evaluated under an abuse of discretion standard. To amount to an abuse of discretion, the trial court's decision must be "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Clark v. Commonwealth, 223 S.W.3d 90, 95 (Ky. 2007), citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Absent a "flagrant miscarriage of justice," the trial court will be affirmed. Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
Analysis
On appeal, Aneesah contends that the trial court erred by finding that there was no enforceable oral contract and by granting Wesley's motion for offsetting his arrearage.
As the trial court explained in its opinion, contract formation "requires mutual assent and consideration[.]" Cuppy v. General Accident Fire and Life Assurance Corp., 378 S.W.2d 629, 632 (Ky. 1964). "Not every agreement or understanding rises to the level of a legally enforceable contract." Kovacs v. Freeman, 957 S.W.2d 251, 254 (Ky. 1997). Additionally, "an enforceable contract must contain definite and certain terms setting forth promises of performance to be rendered by each party." Id. (internal citations omitted). It is the burden of the party seeking to enforce the contract to at the very least provide "prima facie evidence of an agreement." JP Morgan Chase Bank, N.A. v. Bluegrass Powerboats, 424 S.W.3d 902, 910 (Ky. 2014) (internal citations omitted).
Here, Aneesah's only evidence of an agreement consisted of the three checks, of different value, paid to her and the childcare center. Aneesah could not say with certainty when or where the contract was formed and there were no witnesses. We therefore agree with the trial court that Aneesah did not meet her burden of providing prima facie evidence of a valid agreement. Therefore, we find that the trial court's findings of fact were not clearly erroneous and were supported by substantial evidence. We note, therefore, the statute of limitations issue is moot.
Next, Aneesah contends that the trial court erred by granting Wesley's motion for credit for overpayment of support because Wesley signed the mediated agreement and knowingly waived his right to discovery. She therefore contends that the amount owed was not contingent on the actual cost of daycare and Wesley waived his right to such by signing the mediated agreement.
There is a general public policy prohibition against retroactive modification of child support. Clay v. Clay, 707 S.W.2d 352, 353 (Ky. App. 1986). Specifically, "it is settled that support payments, once accrued, are fixed and may not be modified by the trial court, and any change in the amount of support only operates prospectively." Id. (internal citations omitted). Therefore, "there is a strong inference that recoupment or restitution should be disallowed in the event a support order is reversed or vacated on appeal." Id. The current case, however, is distinguished from the situation in Clay and the trial court correctly relied instead on Connelly v. Degott, 132 S.W.3d 871 (Ky. App. 2003).
In Connelly, as in the current case, a mother had misrepresented the amount of child care costs in the support calculation and the court granted the father a reimbursement. This Court explained that while there is a general public policy prohibition against retroactive modification of child support, those "policy concerns do not extend to a situation...where a litigant has misled the court as to the truth of his or her circumstances. Surely a litigant cannot misrepresent the facts...and avoid the consequences of those actions." Id at 873. In other words, there is a difference between trying to receive retroactive reimbursement because the child support amount changes due to a modification either due to a motion or an appeal, compared to when a party misrepresents an amount owed when calculating child support in accordance with the guidelines.
Here, Aneesah claimed that she incurred $300 in child care costs monthly. The mediated agreement clearly required Aneesah to provide proof of child care costs, but she never did. Once Wesley subpoenaed the childcare costs, it became clear that Aneesah's actual costs were an average of $58 per month. At the hearing, Aneesah claimed that the $300 calculation was based on the previous year's child care costs. She also claimed that she paid her parents to babysit the child, but provided no proof. We therefore agree with the trial court's finding of fact that Aneesah overstated the amount of child care costs incurred which impacted the child support calculation and misled Wesley as to the correct amount when signing the mediated agreement. The court's findings of fact were supported by substantial evidence and were, therefore, not clearly erroneous. The trial court did not abuse its discretion in granting Wesley's motion.
Conclusion
For the reasons stated herein, we affirm.
ALL CONCUR. BRIEF FOR APPELLANT: Felicia J. Nu'Man
Louisville, Kentucky BRIEF FOR APPELLEE: Ray H. Stoess, Jr.
Louisville, Kentucky