Opinion
2023-CA-1057-MR 2023-CA-1070-MR
09-20-2024
COMMONWEALTH OF KENTUCKY, EX REL. CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. H.A.R.; A.S., A MINOR CHILD; D.S.; L.R.; AND S.R. APPELLEES AND COMMONWEALTH OF KENTUCKY, EX REL. CABINET FOR HEALTH AND FAMILY SERVICES APPELLANT v. H.A.R.; D.S.; D.S., A MINOR CHILD; L.R.; AND S.R. APPELLEES
BRIEFS FOR APPELLANTS: GALEN C. MYERS ASSISTANT KENTON COUNTY ATTORNEY COVINGTON, KENTUCKY NO BRIEF FOR APPELLEE.
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT HONORABLE TERRI SCHOBORG, JUDGE ACTION NOS. 12-J-01068-002, 12-J-01069-003
BRIEFS FOR APPELLANTS: GALEN C. MYERS ASSISTANT KENTON COUNTY ATTORNEY COVINGTON, KENTUCKY
NO BRIEF FOR APPELLEE.
BEFORE: EASTON, ECKERLE, AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE
The Commonwealth of Kentucky, ex rel. Cabinet for Health and Family Services (the Commonwealth), has appealed from two orders of the Kenton Family Court denying its motions to modify child support. Because the family court required the Commonwealth to establish proof not mandated by the applicable statutes and regulations, we vacate and remand.
H.A.R. (the Mother) is the mother of two sons born in 2007 and 2008. The underlying actions began with the filing of a Juvenile Dependency, Neglect, and Abuse (DNA) Petition by a social worker for each child in 2014. As a result of those proceedings, the family court granted permanent custody of the children to the maternal grandparents and ordered the Mother to pay $346.00 per month in child support through the Division of Child Support.
Several years later, on May 23, 2023, the Commonwealth, through the Kenton County Attorney, moved the family court to modify child support pursuant to Kentucky Revised Statutes (KRS) 403.213 due to a material change in the Mother's circumstances that resulted in more than a 15% increase in her support obligation under the statutory guidelines. The supporting child support worksheet indicated that the non-custodial parent (the Mother) had a gross monthly income of $3,380.00 and therefore owed $757.62 per month in child support for both children.
The Commonwealth and the Mother appeared for the August 9, 2023, motion docket, but the maternal grandparents/permanent custodians did not appear. At the hearing, the Mother disagreed with the increased amount and stated that she could not afford what she was currently paying as she was only bringing home $200.00 per week. The court indicated that it was hesitant to go forward without the current custodians as there was insufficient evidence to establish that they still had custody of the children or were even requesting an increase in child support. The Commonwealth responded that issues relating to child support had been assigned to it upon the custodians' application for KTAP or AFDC benefits and that, by statute, custody could not be used as a bar to payment of child support. The court denied the motions in a docket order entered the following day, stating that it "will not modify child support without proof as to custody and the current circumstances of the child[ren]." On the record, the court stated that the ruling could be alleviated if the Commonwealth were to subpoena the custodians. These appeals now follow.
Kentucky Transitional Assistance Program.
Aid to Families with Dependent Children.
On appeal, the Commonwealth argues that the family court erred as a matter of law because the Kenton County Attorney was appropriately before it on behalf of the legal custodians and because the family court should not have required it to prove the current legal custody and circumstances of the children. We agree.
We note that no appellee brief was filed in this appeal. In such cases, Kentucky Rules of Appellate Procedure (RAP) 31(H)(3) provides:
If the appellee's brief has not been filed within the time allowed, the court may: (a) accept the appellant's statement of the facts and issues as correct; (b) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (c) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.
We shall accept the Commonwealth's statement of the facts and issues as correct under subsection (a), but we decline to impose further penalties. Therefore, we will consider the merits of the Commonwealth's arguments.
We generally review rulings related to child support obligations for abuse of discretion:
As the courts of this Commonwealth have repeatedly stated, trial courts have broad discretion in determining child-support matters. See Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010) ("The trial court is vested with broad discretion in the establishment, enforcement, and modification of child support."); Van Meter v. Smith, 14 S.W.3d 569, 574 (Ky. App. 2000) ("[T]his state's domestic relations law is founded upon
general statutory guidelines and presumptions within which the trial court has considerable discretion. The trial court has discretion in many instances, moreover, to deviate from the statutory parameters, but only if it makes findings clearly justifying the deviation."). "[T]hat discretion extends, pursuant to KRS 403.211(2)-(4), to deviations from guidelines-determined child support amounts." Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011).C.D.G. v. N.J.S., 469 S.W.3d 413, 418 (Ky. 2015). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." C.D.G., 469 S.W.3d. at 421 (quoting Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)).
The Commonwealth first asserts that the Kenton County Attorney, on behalf of the legal custodians, was properly before the family court. At the hearing on the motion to modify child support, the Commonwealth advised the family court that the legal custodians received KTAP benefits on behalf of the children, which the Mother did not dispute. Based upon the receipt of these benefits, the statutory authority to enforce and collect child support belongs to and is the duty of the Cabinet via the Kenton County Attorney.
In Cabinet for Human Resources v. Houck, 908 S.W.2d 673, 673-74 (Ky. App. 1995), this Court explained the legislative background, both federal and state, related to the enforcement of child support obligations in such situations:
The United States Congress, as part D of Title IV of the Social Security Act (hereinafter referred to as IV-D services), provided for appropriations for the purposes of enforcing child support obligations, obtaining child and spousal support and assuring that assistance in obtaining support would be available to all children, whether or not eligible for aid to families with dependent children (AFDC). See 42 USC §§ 651 through 667. 42 USC § 666 provides that each state receiving allocations from the federal government must assemble a statewide plan for providing child support services for all children. The plan must include the periodic modification of prior child support orders to comply with child support guidelines.
The Kentucky General Assembly, in response to these federal directives, enacted KRS 205.710 through KRS 205.800. KRS 205.712 established the division of child support enforcement of the cabinet to administer Part D of Title IV of the Social Security Act. It provides that the cabinet may enter into arrangements with appropriate courts and law enforcement officials to assist the cabinet in administering child support recovery. Under this statute, the local county attorney shall be considered the designee of the cabinet for purposes of administering the program of child support recovery within a county. Under KRS 205.765, the cabinet or its designee may appear in any judicial proceeding on behalf of the dependent child in order to secure support for the child from his parent or parents.
We note that these statutory provisions were repealed, reenacted as new sections, and amended by 2023 Kentucky Laws Ch. 124, § 8-46 (SB 48), effective July 1, 2025.
Specifically, by receiving these benefits, a custodian assigns his or her rights relative to the ordered child support:
By applying for Title IV-D services or accepting public assistance for or on behalf of a needy dependent child, the recipient shall be deemed to have made an
assignment to the cabinet of the right to any child support or maintenance owed up to the amount of public assistance paid by the cabinet to the recipient . . . . The cabinet shall be subrogated to the right of the child or the person having custody to collect and receive all child support payments and to initiate any support action existing under the laws of this state.KRS 205.720(1). We agree with the Commonwealth that the Kenton County Attorney was properly before the family court on the motions to modify child support in these actions.
For its second argument, the Commonwealth asserts that the family court erred when it required it to establish proof of the current legal custody and circumstances of the children before it would consider modification of child support. We agree that such proof, under these circumstances, has no bearing as to whether a motion to modify child support has merit.
KRS 403.211 addresses the establishment of child support and, in subsection (2), provides that, "[a]t the time of initial establishment of a child support order, whether temporary or permanent, or in any proceeding to modify a support order, the child support guidelines in KRS 403.212 or 403.2122 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support." And in KRS 403.213, addressing the modification of child support, subsection (1) provides that, "[t]he Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care." These statutes do not require a party, such as the Commonwealth in these cases, to provide evidence of current legal custody or the circumstances of the minor children, which is what the family court mandated here. There is no indication in these cases that the maternal grandparents were no longer the children's permanent custodians, and the Mother confirmed at the hearing that they still acted in this capacity when she informed the court that she intended to get custody back from them.
Similarly, the Commonwealth argues that the family court's statement that there was no proof that the custodians had asked for a modification of child support is in direct conflict with federal regulations addressing child support orders. The applicable federal regulation instructs:
The State must have procedures under which, within 36 months after establishment of the order or the most recent review of the order (or such shorter cycle as the State may determine), if there is an assignment under part A, or upon the request of either parent, the State shall, with respect to a support order being enforced under title IV-D of the Act, taking into account the best interests of the child involved:
(i) Review and, if appropriate, adjust the order in accordance with the State's guidelines established pursuant to section 467(a) of the Act if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines[.]45 Code of Federal Regulations (CFR) § 303.8(b)(1). The Commonwealth was required to monitor child support and file motions to modify if necessary under the statute; there is no provision that the custodians had to request the change.
We hold that the family court abused its discretion in denying the motions to modify as its decision was not based upon sound legal principles. The court improperly construed the applicable statutory and regulatory authority when it required the Commonwealth to establish proof of the current status of the children's legal custody and circumstances, such as by issuing a subpoena for the custodians to appear at the hearing. This constitutes a clear abuse of discretion.
For the foregoing reasons, the orders of the Kenton Family Court denying the Commonwealth's motions to modify child support are vacated, and this matter is remanded for proper consideration of the motions.
ALL CONCUR.