Opinion
NO. 2017-CA-000817-MR
10-26-2018
ANGELA R. DAVIS APPELLANT v. ROBERT C. MOBLEY APPELLEE
BRIEF FOR APPELLANT: Julia B. Barry Louisville, Kentucky BRIEF FOR APPELLEE: Katie Brophy Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 12-CI-501886 OPINION
REVERSING
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BEFORE: KRAMER, D. LAMBERT, AND MAZE, JUDGES. MAZE, JUDGE: This appeal arises from a judgment of the Jefferson Family Court, ordering the payment of $1,974.00 for recoupment of overpaid child support. We conclude that the trial court was without authority to order recoupment under the facts of this case. Hence, we reverse.
Background
Appellant, Angela Mobley (now Davis) married Appellee, Robert Mobley (Mobley) in 2005, and divorced in 2013. Two children were born of the marriage. The parties entered into a mediation with joint custody on an equal parenting schedule. Mobley also agreed to pay Davis child support in the amount of $686.83 per month.
On August 3, 2015, Mobley filed a motion to terminate his child support obligation, alleging a substantial change in both parties' incomes. Following a hearing, the trial court entered a written order on November 14, 2015, granting his motion and terminating Mobley's child support obligation. The written order terminated the obligation, retroactive to the August 3, 2015, motion date, but did not reference any award of recoupment of child support.
Davis filed a motion to alter, amend or vacate pursuant to CR 59.05, which was denied. Davis then appealed that order and an unrelated order to this Court. On appeal, this Court affirmed the family court's termination of Mobley's child support obligation. Mobley v. Mobley, No. 2015-CA-001990-ME, 2016 WL 5956987 (Ky. App. 2016).
Kentucky Rules of Civil Procedure.
On March 1, 2016, while that appeal was pending, Mobley filed a motion for summary judgment on a variety of issues, including overpayment of child support. Mobley and Davis attempted mediation, which was unsuccessful. At an evidentiary hearing, the parties stipulated that Mobley had paid $1,974.00 from the date he filed his motion to terminate child support until the order was granted. Davis admitted the overpayment but argued that Mobley was not entitled to recoup that amount unless there was an accumulation of benefits not spent for support of the children.
In an order entered on April 21, 2017, the trial court disagreed. While noting the general rule against recoupment, the trial court pointed out that its November 16, 2015, order specified that the termination of Mobley's support obligation was retroactive to the date of his motion. Consequently, the court concluded that its prior order had deliberately contemplated recoupment of the excess support paid. And since that order was final, the court concluded that it did not have the authority to modify that order under the provisions of CR 60.01. Therefore, the court entered a judgment in favor of Mobley for the full amount of the overpayment. Davis filed a motion to alter, amend or vacate, which was denied. This appeal follows.
Standard of Review
Family courts generally have broad discretion in setting child support within the boundaries of the child-support guidelines. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). As found in the prior appeal, the family court made sufficient findings to support is decision to terminate Mobley's child support obligation. However, the question in this case is whether the trial court properly ordered Davis to repay the excess child support that Mobley paid between the filing of his motion and the entry of the order terminating his support obligation. The trial court's authority to enter such an order is an issue of law, which we review de novo. Koerner v. Koerner, 270 S.W.3d 413, 415 (Ky. App. 2008).
Analysis
It is well established that modifications increasing child support may be applied retroactively to the date of the filing of the motion. Pecoraro v. Pecoraro, 148 S.W.3d 813, 815 (Ky. App. 2004); Pretot v. Pretot, 905 S.W.2d 868, 871 (Ky. App. 1995). Furthermore, the language of KRS 403.213(1) permits that any modification of child support, including decreases, to be retroactive to the date of the filing of the motion. But since child support is for the benefit of the child, not the parent, Kentucky courts have held that for recoupment to be had for previously paid child support, there must be unexpended child support funds from which recoupment can be made. Clay v. Clay, 707 S.W.2d 352, 354 (Ky. App. 1986). See also Hempel v. Hempel, 432 S.W.3d 730, 731-32 (Ky. App. 2014).
Kentucky Revised Statutes.
1. Application of CR 60.01
As an initial matter, the family court concluded that this authority is not applicable because its November 14, 2015, order made the modification of Mobley's support obligation retroactive to the date of his motion. Since that order implicitly contemplated repayment of the excess support, the court found that it was not a "clerical" error subject to correction under the provisions of CR 60.01. Davis contends (for the first time on appeal) CR 60.01 precluded the trial court from making such a substantial change its November 14, 2015, order.
We agree that CR 60.01 was not applicable, but for different reasons from those advanced by either the trial court or Davis. Although the November 14, 2015, order modified Mobley's child support retroactively to the date of the motion, that order was silent as to repayment of any excess support. Indeed, that issue was never raised until Mobley filed his motion on March 1, 2016. Consequently, the trial court was not being asked to modify a final order with respect to issue of recoupment. Rather, Mobley sought to reduce the excess payment to a judgment against Davis. Hence, the provisions for modification of a final order under CR 60.01 and 60.02 did not apply in this case.
2. Entitlement to Recoupment
Moreover, the recoupment of excess support is a separate legal question from the retroactivity of the modification. As noted above, child support rests on a different footing than ordinary judgments because child support is designed to be used exclusively for the benefit of the child. Hempel, 432 S.W.3d at 731-32. Therefore, the remedy for any payment of excess support must be carefully crafted to avoid placing "the onus of the remedy" upon the child as opposed to the receiving parent. Clay, 707 S.W.2d at 354.
For this reason, Clay expressly holds that recoupment of excess support is limited to situations where it would not be detrimental to the child and there is an equivalent accumulation of benefits available for repayment. Id. The circumstances justifying recoupment typically involve issues of fact for the trial court to decide. But in this case, the trial court expressly found, "[b]ased on the uncontroverted testimony, . . . the overpaid child support was expended for the benefit of the children and there were no accumulated funds remaining from unspent child support." Having made this finding, the trial court was without authority to enter a judgment for Mobley for the excess child support. Therefore, we must reverse the trial court's recoupment order.
There may be other equitable circumstances justifying reimbursement, such as when the original payments were replaced by a different source, such as Social Security Disability payments, and the obligor parent is required to reimburse the original source of the support payments. See Van Meter v. Smith, 14 S.W.3d 569, 573-74 (Ky. App. 2000). --------
Conclusion
For the above-stated reasons, we reverse the judgment of the Jefferson Family Court ordering Davis to reimburse Mobley for overpaid child support in the amount of $1,974.00.
KRAMER, JUDGE, CONCURS.
D. LAMBERT, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Julia B. Barry
Louisville, Kentucky BRIEF FOR APPELLEE: Katie Brophy
Louisville, Kentucky