Opinion
NO. 2012-CA-000488-ME
02-01-2013
ALLEN CULVER, JR. APPELLANT v. RENAE CULVER (NOW SCHUM) APPELLEE
BRIEF FOR APPELLANT: Susan M. Meschler Shelbyville, Kentucky BRIEF FOR APPELLEE: Michael J. O'Connell Jefferson County Attorney Karen J. Collins Assistant Jefferson County Attorney Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA L. DELAHANTY, JUDGE
ACTION NO. 95-FC-05595
OPINION
AFFIRMING
BEFORE: COMBS, LAMBERT, AND NICKELL, JUDGES. NICKELL, JUDGE: Allen Culver, Jr. challenges the limited finding of the Jefferson Circuit Court, Family Division, that his son, Garrett, although over the age of eighteen, testing at an IQ of 82, and a graduate of a specialized program for high school students with learning and emotional disabilities, is "wholly dependent" as that term is defined in KRS 405.020 and therefore, entitled to continue receiving child support despite being beyond the usual age of emancipation. Following a hearing, the trial court found Garrett to be a wholly dependent adult child due to his mental and physical disabilities who remains financially dependent upon his parents for support, as well as health insurance premiums and medical expenses. Having reviewed the briefs, the record and the law, we affirm.
Kentucky Revised Statutes.
Garrett is the younger of two children born to the union of Allen and Renae Culver (now Schum). Born on April 21, 1993, his parents separated two years later, and in 1996, he was placed with Renae.
Due to Garrett's receipt of IV-D funds, in 2006, the Cabinet for Health and Family Services ("Cabinet") entered the case as an intervening petitioner. In April 2011, the Cabinet moved to extend child support beyond Garrett's 18th birthday and beyond his anticipated graduation from Mary Ryan Academy—a public high school with a specialized program for children with learning, emotional and mental disabilities.
As explained in Kenton County Fiscal Court v. Elfers, 981 S.W.2d 553, 554 (Ky. App. 1998), this provision is a part of the Social Security Act, § 451 et seq., as amended, 42 U.S.C.A. § 651 et seq., providing "federal matching funds to states to assist in locating absent parents, in establishing paternity, obtaining child support and enforcing child support orders for families who receive Aid to Families with Dependent Children (AFDC) and for those who do not qualify for such benefits. Also found in KRS 205.710 et seq.
The motion was heard on August 15, 2011. Renae testified Garrett has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD); Obsessive-Compulsive Disorder (OCD); Emotional Behavioral Disorder (a reading disability known as EBD); Tourette's Syndrome; bi-polar disorder; and asthma. He takes daily prescriptions of Zoloft, Lamotrigine, Clarithomycin, Adderall XR, Abilify, Doxcycline, Singulair, Advar and Albuterol. At the time of the hearing, the cost of co-pays for his doctor visits and prescriptions was about $230.00 per month.
Renae testified Garrett must be reminded daily to perform basic hygiene such as bathing, wearing clean clothes and taking medication. While she has seen some improvement in her son's functioning, she noted Garrett's compulsive need to tell Renae he loves her, to check the doors repeatedly throughout the night to ensure they are locked, and to shriek and squeal uncontrollably. She also testified Garrett suffers from tremors (involuntary constant movements) including tics, rocking, biting and pinching.
Renae testified Garrett had attended Jefferson County Public Middle School and Myers Middle School before being placed at Newburg Middle School. He attended Fern Creek High School for one year before failing. Upon being told a mainstream high school was not the best alternative for Garrett, Renae enrolled him in Mary Ryan Academy where he received personalized instruction with one-on-one teaching and a scribe to record notes for him because his Tourette's Syndrome made it difficult to hold a pen and write. Upon completing three years at Mary Ryan, Garrett received a diploma that was unsupported by grades or a grade point average.
When the motion to extend child support was filed by the Cabinet in April 2011, Renae was uncertain of Garrett's future after June 2011. By the time the hearing was held in August 2011, Renae had enrolled her son in a state-funded food service training program at the Carl D. Perkins Vocational Training Center. The program was established through the Commonwealth's Education and Workforce Development Cabinet, Office of Vocational Rehabilitation. The placement was based on Garrett's responses to a career aptitude test indicating he was a candidate for training in food service, groundskeeping or custodial work and building maintenance. At the time of the hearing, Garrett had been at the Perkins Center for three weeks. During that brief time he had been treated in the infirmary twice, moved to a different dormitory and assigned a new roommate. Renae testified she had twice made the seven-hour roundtrip to visit Garrett, bringing him food, clothing and personal hygiene items. She also testified her son was being moved out of the food services track to concentrate on remedial educational requirements. She questioned the appropriateness of Garrett's being taught knife skills when he had been assigned a scribe at Mary Ryan because he could not hold a pen to take his own class notes.
The trial court rejected Allen's suggestion that Garrett was receiving a regular college experience at the Perkins Center. The court noted that Allen's limited contact with his son (limited to a few phone calls because Allen never attended Garrett's doctor visits or teacher conferences; never visited Mary Ryan other than the "graduation" ceremony; and, had not visited the Perkins Center) prevented him from realizing the true extent of Garrett's condition and limitations. Moreover, Allen admitted Garrett "rocked" while a passenger in his car and was unaware that his son had requested and received a scribe while a student at Mary Ryan. Allen stated a willingness to give Garrett some money, but disputed the need for regular child support payments.
The trial court wrote in its opinion granting the Cabinet's motion,
The Court finds that the child at issue is wholly dependent in light of his physical and mental disabilities. The fact that the child has experienced some educational success at a high school designed to provide special education does not diminish his ongoing need for support. Thus, the Court concludes that the Cabinet's motion to extend the current support order beyond the child's emancipation is appropriate and shall be granted. The current obligation shall remain the same until further Order of this Court. Said obligation shall continue to be paid by current wage assignment.Allen moved the trial court to alter, amend or vacate the order. The trial court denied the motion, modifying its prior opinion to correct some factual misstatements, but otherwise reiterating its finding that Garrett "is wholly dependent on his parents and incapable of supporting himself due to permanent physical and mental disabilities." This appeal followed.
ANALYSIS
KRS 403.213(3) states in relevant part:
Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18).An exception to the foregoing provision is stated in KRS 405.020(2), which reads in relevant part,
The father and mother shall have the joint custody, care, and support of their children who have reached the age of eighteen (18) and who are wholly dependent because of permanent physical or mental disability.Thus, as explained in Nelson v. Nelson, 287 S.W.3d 667, 669-70 (Ky. App. 2009) (quoting Abbott v. Abbott, 673 S.W.2d 723, 726 (Ky. App. 1983)),
parents of children who are wholly dependent because of a permanent physical or mental disability share a joint obligation to support them. A wholly dependent child is not emancipated by operation of law at the age of eighteen, and [his] parents' support obligation continues even after the child reaches the age of majority.See also 16 Ky. Prac. Domestic Relations L. § 24:10 (2012-2013 ed.).
Whether an adult child is "wholly dependent" is a factual finding and will be reversed only if clearly erroneous, meaning it is unsupported by substantial evidence. CR 52.01; Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). "Whether evidence is 'substantial' is 'whether taken alone or in the light of all the evidence' it has sufficient probative value to induce conviction in the minds of reasonable men." Wadkins' Adm'x v. Chesapeake & O. Ry. Co., 298 S.W.2d 7, 10 (Ky. 1957). We will not substitute our judgment for the trial court's view of the evidence.
Kentucky Rules of Civil Procedure.
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The trial court set forth in sufficient detail its rationale for deeming Garrett to be "wholly dependent." Should Garrett's circumstances change in the future, Allen may petition for modification of his continuing obligation to provide his son child support. For the foreseeable future, however, we have no grounds to reverse the trial court's determination that the parental child support obligation should continue indefinitely. Thus, we AFFIRM.
ALL CONCUR. BRIEF FOR APPELLANT: Susan M. Meschler
Shelbyville, Kentucky
BRIEF FOR APPELLEE: Michael J. O'Connell
Jefferson County Attorney
Karen J. Collins
Assistant Jefferson County Attorney
Louisville, Kentucky