Opinion
NO. 2015-CA-001735-ME
01-13-2017
GARRETT STALLION APPELLANT v. RHONDA STALLION APPELLEE
BRIEF FOR APPELLANT: Tommie L. Weatherly London, Kentucky BRIEF FOR APPELLEE: Heidi Schultz Powers Somerset, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 09-CI-01556 OPINION
AFFIRMING
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BEFORE: JONES, MAZE, AND THOMPSON, JUDGES. JONES, JUDGE: The Appellant, Garrett Stallion, brings this appeal asking us to reverse the Pulaski Circuit Court's conclusion that it lacks the authority to modify the duration of a child support order originally entered by a Hawaii state court. For the reasons set forth below, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Garrett and Rhonda Stallion were divorced in November of 2003 while living in Hawaii with their two children. A Decree Granting Absolute Divorce was entered in the Family Court of the First Circuit for the State of Hawaii on November 25, 2003. In addition to dissolving the parties' marriage, the decree set forth the amount and duration of child support Garrett was to pay Rhonda. This appeal concerns only the duration of child support for the parties' oldest child. In relevant part, Section 3 of the Decree provides:
Payments shall continue for said child until said child attains the age of 18 years or graduates high school or discontinues from school whichever occurs last, subject to further order of the Court. Child Support for said child shall further continue uninterrupted so long as said children continues his/her education post high school on a full-time basis at an accredited college or university, or in a vocational or trade school, or until such child attains the age of 23 years, whichever event shall first occur.
Subsequent to the divorce, both parties and the children relocated to Pulaski County, Kentucky. The Pulaski Circuit Court registered the Hawaii Divorce Decree on October 21, 2009.
In January of 2010, Rhonda petitioned the Pulaski Circuit Court to increase the amount of child support, alleging a number of materially changed conditions. On June 14, 2010, the Pulaski Circuit Court entered an Agreed Order modifying the amount of support owed by Garrett to a total of $600.00 per month.
On October 4, 2014, the parties' oldest child, G.S., turned 18 and was expected to graduate from high school in May 2015. In anticipation of G.S.'s graduation from high school, on April 13, 2015, Garrett filed a Motion to re-docket and modify child support. In Garrett's memorandum in support of his motion to reduce child support, he argued that the court should apply Kentucky, not Hawaii law to the issue of modification of child support. Garrett argued that if Kentucky law was applied, his child support obligation for G.S. would terminate when the child graduated from high school in May of 2015.
On May 27, 2015, the court entered an Order finding that Hawaii law governs and that the parties agreed in writing to the duration of the child support obligation in their Hawaii Divorce Decree. The court then set the matter for a hearing to determine if the child planned to continue his education such that the child support obligation would continue. At the hearing, Rhonda provided proof that G.S. was enrolled as a full-time student at Somerset Community College for the Fall 2015 term.
Following the hearing and the parties' submission of their wage information and relevant documentation, the court entered an order denying Garrett's motion. The court found that G.S. was enrolled as a full time college student and concluded that the original Hawaii Decree governed the length of time child support is to be paid and under what circumstances. The court cited to the original Hawaii Decree which provided that child support was to continue uninterrupted so long as said child continues his/her education post high school on a full time basis at an accredited college or university, or in a vocational or trade school, or until such child attains the age of 23 years, whichever event shall first occur.
This appeal followed.
II. ANALYSIS
The crux of this appeal is whether a Kentucky court has the authority to modify the duration of a Hawaii child support order. Because this is a question of law, we will review it de novo. See Revenue Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).
As described above, the original Divorce Decree, including the order for child support, was entered in Hawaii on November 25, 2003. The Pulaski Circuit Court registered the Hawaii Decree on October 21, 2009. Under KRS 407.5613(1): "If all of the parties who are individuals reside in this state and the child does not reside in the issuing state, a tribunal of this state has jurisdiction to enforce and to modify the issuing state's child support order in a proceeding to register that order." There is no dispute that the parties properly registered the Hawaii Decree and that the Pulaski Circuit Court had continuing and exclusive jurisdiction under KRS 407.5613. Thus, no question exists that the Pulaski Circuit Court properly modified the amount of Garrett's child support obligation in June of 2010.
Kentucky Revised Statutes. --------
The question we must now answer is whether the Pulaski Circuit Court has the authority to modify the duration of the child support award to conform to Kentucky's law. Having reviewed the applicable legal authority, we agree with the circuit court's conclusion that Hawaii law governs the duration of the child support obligation.
In Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767 (Ky. 2015), cited by both parties, our Supreme Court recently addressed modification of a support order from another state under the Uniform Interstate Family Support Act ("UIFSA") in a situation very similar to the one before us. In that case, the parties were divorced in Indiana before relocating to Kentucky. The Kentucky Supreme Court held that although all parties lived in Kentucky, and Indiana transferred its jurisdiction over all child custody, visitation, and support matters, Indiana law still controlled the duration of the award, including the issue of emancipation. Id. at 778. The Kentucky Supreme Court's opinion is absolutely clear on this point:
[D]uring this time, Logan turned 18, which gives rise to another legal issue in this case related to support. After Logan's 18th birthday, Tod moved the court to modify child support because Logan was emancipated. In response, Rachel argued that Logan was not emancipated under Indiana law, and that the Oldham Family Court did not have jurisdiction to modify the duration of support set by the Indiana court.
Rachel is correct. Kentucky's version of UIFSA has always provided that "[a] tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state." KRS 407.5611(3). Though there is a long history of state courts extending the duration of support, usually through agreements by the parties, most states have a minimum age through which support must extend, unless the child is otherwise emancipated. For example, in Kentucky, parents owe a duty of support until at least age 18. KRS
405.020(1). The no-modification provision of KRS 407.5611(3) has been read to mean that "the duration of the support obligation remains fixed despite the subsequent residence of all parties in a new state with a different duration of child support." Unif. Interstate Family Support Act § 613 cmt. (1996). The official commentary to Section 611, which has been adopted as KRS 407.5611, also specifically notes that the duration of child support is controlled by the issuing state. Id. § 611 cmt.
And, if the matter were not clear enough, UIFSA was amended in 2001 to specifically state that the law of the state that issued the initial controlling order governs the duration of support. See Unif. Interstate Family Support Act § 611 (2001) (adding language that non-modifiable aspects "includ[e] the duration of the obligation of support"). Kentucky adopted this provision, which took effect on June 24, 2015. See 2015 Ky. Acts ch. 18, § 50. While this more specific language did not become a part of our statutes until this year, it is further proof of what has always been intended.
Kentucky's UIFSA choice-of-law provisions make it clear that duration of support is a matter of law of the issuing state because that is a non-modifiable aspect of the issuing state's order. Thus , it has long been clear that a subsequent court that obtains continuing and exclusive jurisdiction to modify the amount of support , may not modify the duration of payment of support.
The rationale behind this is that many times, given today's mobile society, multiple states obtain jurisdiction to modify the amount of support under UIFSA. There are sound reasons for such modifications to reflect changing incomes and the needs of the child. However, the duration question lends itself to forum shopping, with the obligor parent seeking to decrease the support obligation by moving to a subsequent state with a lower age of emancipation, which is the duration listed in most support orders. Also, this rule avoids a multiplicity of orders with duration set at different ages for the same
child. The rule is simply a policy decision embedded in the UIFSA.Id. at 778-79 (emphasis in paragraph 4 added).
Smyrichinsky governs the issue before us. And, it makes clear that Hawaii's substantive law must be applied to Garrett's request to modify the duration of his child support obligation for G.S. A review of the record shows that Garrett's arguments before the trial court focused on his contention that he did not have to pay child support because Garrett was emancipated under Kentucky law.
Under Hawaii law, if child support is to continue beyond the age of 19, the adult child and/or custodial parent has the burden of proving that the child will attend as a full-time student for the next semester a post-high school university, college or vocational school. See Yasumura v. Child Support Enf't Agency, 108 Haw. 202, 208, at fn.4; 118 P.3d 1145, 1151 (Ct. App. 2005). At the hearing, the parties presented proof that G.S. was enrolled as a full-time student at a local community college. Thus, the trial court properly determined that Garrett was still obligated to pay child support for G.S.
Moreover, even if Kentucky law did apply, we do not believe that Garrett was entitled to terminate his obligation upon G.S. graduating from high school. Kentucky law permits the parties to agree to extend child support beyond the age of majority if the agreement is in writing. See KRS 403.213(3). The Hawaii court entered a divorce decree, which was agreed to in writing by both parties, providing for support for the parties' children to extend beyond the age of majority. Kentucky courts routinely enforce provisions extending child support beyond the age of majority. See Pursley v. Pursley, 144 S.W.3d 820 (Ky. 2004).
III. CONCLUSION
For these reasons, we affirm the Order of the Pulaski Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Tommie L. Weatherly
London, Kentucky BRIEF FOR APPELLEE: Heidi Schultz Powers
Somerset, Kentucky