Opinion
NO. 2019-CA-000823-ME
05-08-2020
KRISTA HAMBLIN APPELLANT v. DENVER HAMBLIN APPELLEE
BRIEF FOR APPELLANT: David B. Jorjani Corbin, Kentucky BRIEF FOR APPELLEE: Larry Brandon West Barbourville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM KNOX CIRCUIT COURT
HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 17-CI-00110 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND K. THOMPSON, JUDGES. COMBS, JUDGE: Krista Hamblin appeals from an order of the Knox Circuit Court, Family Division, granting Denver Hamblin's motion for retroactive modification of his child support obligation pursuant to CR 60.02. After our review, we affirm in part, vacate in part, and remand.
Kentucky Rules of Civil Procedure.
The parties were married in 2012 and are the parents of one minor child. Denver petitioned the circuit court for dissolution of the marriage in 2017. Subsequent to the filing of Denver's petition, Krista moved the court for temporary child support. Krista then supplemented her motion with a child support worksheet, a copy of her 2016 W-2, proof of childcare expenses, copies of her paystubs, and information regarding the child's health insurance premiums. Krista also attached a proposed child support worksheet, which included Denver's income and a deduction for his child support obligation for his prior-born children -- although neither was supported by documentation. Denver did not file a response to the motion; nor did he provide the circuit court with proof of his income, health insurance expenses, or child support obligation for his prior-born children.
Denver has two prior-born children, but testimony at the hearing indicated that the older of those two children is now over the age of 18. At the hearing, there was disagreement about whether Denver should be granted a deduction for the entire amount of the prior obligation. Krista argued he should only be allowed a deduction of part of the prior obligation because he was no longer obligated to support the older of the two prior-born children. Denver argued he should be able to deduct the full amount of the prior obligation because it had not been reduced to account for the child's turning 18. The court adopted Denver's calculation, and Krista did not raise this argument on appeal.
On August 5, 2017, the circuit court ordered Denver to pay temporary child support in the amount of $759.64 per month based upon the information provided by Krista. The circuit court further ordered as follows:
It appears that the circuit court entered an identical temporary child support order on August 2, 2017.
5. The Petitioner shall have seven (7) days from the entry of this Order to file his objection to the extent Petitioner's income and payments for his minor child of a previous marriage are not correctly represented in Respondent's proof.Denver failed to file such a motion objecting to the court's child support order within the time prescribed.
6. To be considered by the Court, the Petitioner's motion must be accompanied by (a) Petitioner's 2016 w-2 [sic], (b) Petitioner's proof of monthly support payment for the one (1) minor child of his previous marriage and (c) Petitioner's child support worksheet.
7. The properly filed objection shall be set for hearing within fourteen (14) days of this Order.
More than a year later, on September 19, 2018, Denver filed a motion for retroactive modification of his child support obligation pursuant to CR 60.02. He argued that he was entitled to relief under CR 60.02(a) because of a mistake or inadvertence. Specifically, Denver argued the circuit court's calculation of his obligation failed to include his payment of child support for his prior-born children and his expenses for health insurance on behalf of the child of this marriage.
Counsel for the parties appeared before the circuit court on September 28, 2018, and the court scheduled a date to hear Denver's motion for retroactive modification. Prior to the date of that hearing and without ruling on Denver's motion, the court entered findings of fact, conclusions of law, and a decree of dissolution on October 18, 2018. The court incorporated the temporary child support order into the decree.
The court then heard Denver's motion to retroactively modify his child support obligation on December 5, 2018. Both parties testified as to their incomes and claimed to provide health insurance for the child. Denver also testified to the amount of his child support obligation for his prior-born children. At the close of testimony, the circuit court ordered the parties to submit written arguments and proposed orders on retroactive modification of child support, Denver's prospective child support obligation, and which party should be allowed to carry the child on his or her health insurance.
In his memorandum of law, Denver argued that his child support obligation should be retroactively modified to August 5, 2017, pursuant to CR 60.02(a). He requested reimbursement of funds that he claimed to have overpaid since entry of the August 5, 2017, order. In her memorandum, Krista argues that CR 60.02 relief is unavailable to Denver and that his motion should be denied because KRS 403.213(1) prohibits retroactive modification of child support except for installments accruing subsequent to the filing of the modification motion.
In his memorandum, Denver requests his obligation be modified to $370 per month. However, in his September 19, 2018, motion, Denver requests it be modified to $362 per month. The discrepancy appears to be attributable to differing child support obligations for prior-born children listed in the attached child support worksheets. Denver's paystubs, which were entered as exhibits at the December 5, 2018, hearing, indicate that the obligation for his prior-born children is correct on the September 19, 2018, worksheet.
Kentucky Revised Statutes. --------
On April 26, 2019, the circuit court granted Denver's motion for retroactive modification of his child support obligation pursuant to CR 60.02. In its order, the court set Denver's obligation at $362 per month and found that he was owed a credit for overpayment in the amount of $13,673.52. In order to allow for Denver's overpayment, the court modified his future obligation by reducing his monthly payments by $136.73 through June 8, 2027. In modifying Denver's obligation to the amount of $362 per month, the circuit court adopted the amount that had been proposed by Denver in the worksheet attached to his motion, which also included an offset for the health insurance premiums paid by Denver on behalf of the child. Neither party filed post-judgment motions, and this appeal followed.
On appeal, Krista first claims that KRS 403.213(1) prohibits retroactive modification of child support except for those installments which accrue subsequent to the filing of the motion for modification. Krista next argues that the court erroneously relied on CR 60.02 in granting Denver's motion. Finally, she contends that the court improperly granted Denver an offset for payment of the child's health insurance premiums.
"We review the establishment, modification, and enforcement of child support obligations for abuse of discretion." Wilson v. Inglis, 554 S.W.3d 377, 381 (Ky. App. 2018) (citing Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007)). However, "[t]his discretion is far from unlimited." Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000) (citations omitted). Abuse of discretion occurs "when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009) (citing Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001)).
First, we may not consider Krista's argument that KRS 403.213(1) prohibits retroactive modification of Denver's child support obligation. Although Krista raised this argument repeatedly before the circuit court, the court did not address KRS 403.213(1) in its April 26, 2019, order. Instead, the circuit court granted Denver's motion solely based upon CR 60.02.
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.CR 52.04.
It is fundamental that a party who asserts a claim must prove that claim to the satisfaction of the trier of fact, and on failure of the fact-finder to rule on the contention, the pleading party must seek a ruling from the trial court by means of a request for additional findings of fact.Vinson v. Sorrell, 136 S.W.3d 465, 471 (Ky. 2004) (emphasis added). Failure to file a motion under CR 52.02 or otherwise to make a written request for additional findings is fatal to an appeal. Id. As the circuit court did not address Krista's argument relating to KRS 403.213(1) and Krista did not request additional findings, this issue is not preserved for our review.
We next consider Krista's argument that the circuit court erred in granting Denver relief pursuant to CR 60.02. The standard of review for relief under CR 60.02 is abuse of discretion. Brenzel v. Brenzel, 244 S.W.3d 121, 125 (Ky. App. 2008). CR 60.02 states, in relevant part, as follows:
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; . . . . The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken.
In his memorandum of law, Denver argued that he was entitled to relief because of a mistake or inadvertence, placing his argument and the court's subsequent order under the ambit of CR 60.02(a). Denver initially filed his CR 60.02 motion for relief from the court's temporary order. When the court did not rule on his motion, Denver again requested relief from the temporary order and the subsequent decree of dissolution, into which the temporary child support order was incorporated.
We must consider whether the circuit court erred in granting Denver CR 60.02 relief from the temporary order and the subsequent decree of dissolution separately.
First, Krista argues that Denver is not entitled to relief pursuant to CR 60.02(a) because he did not file his motion within the prescribed one-year period. It is true that Denver did not file his motion until more than one year had elapsed from the date of entry of the temporary order. However, regardless of the timeliness of Denver's motion, temporary orders are interlocutory in nature and, therefore, are not subject to CR 60.02 relief. On this basis, the circuit court erred in granting him relief from the August 5, 2017, order pursuant to CR 60.02.
Next, we must consider whether Denver is entitled to CR 60.02 relief from that portion of the decree of dissolution which addressed child support. Denver claimed that he was entitled to relief pursuant to CR 60.02(a) because of a mistake or inadvertence. "CR 60.02 is designed to provide relief where the reasons for the relief are of an extraordinary nature." U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 541 (Ky. App. 2007) (internal quotation marks and citation omitted). "[O]ne of the chief factors guiding the granting of CR 60.02 relief is the moving party's ability to present his claim prior to the entry of the order sought to be set aside." Id. at 541-42 (citation omitted).
Denver clearly had the ability to present proof of his child support obligation for his prior-born children and the cost of the child's health insurance premiums on multiple occasions prior to entry of the decree. His failure to provide the court with this information when it was available to him is not a proper ground for relief pursuant to CR 60.02(a). Therefore, the circuit court erred in granting Denver relief from the decree of dissolution pursuant to CR 60.02.
Finally, Krista argues that the circuit court erred by allowing Denver to provide the child's health insurance and in granting the resulting offset under the child support guidelines. She claims that because she was granted sole custody of the child, Denver is not entitled to make any healthcare decisions for the child -- including providing his health insurance.
Krista's argument is conclusory and without support under Kentucky law. When establishing a party's child support obligation, "[t]he court shall order the cost of health care coverage of the child to be paid by either or both parents of the child regardless of who has physical custody." KRS 403.211(7)(c) (emphasis added). On this basis, we cannot conclude that the circuit court abused its discretion in ordering Denver to continue to provide the child's health insurance and in granting him the associated offset for payment of premiums. Therefore, we affirm the portion of the circuit court's order modifying Denver's obligation prospectively to include the offset for the expense of the child's health insurance premiums.
To recapitulate, we affirm that portion of the circuit court's April 26, 2019, order modifying Denver's child support obligation prospectively to grant him an offset for the child's health insurance premiums. We vacate the remainder of the order (1) granting Denver retroactive modification of his child support obligation to August 5, 2017, and (2) granting him a credit for an offset for overpayment.
Although (for the reasons discussed earlier) we have refrained from addressing Krista's argument relating to KRS 403.213(1) as to retroactive modification of child support, we nonetheless direct the court on remand to address that issue in arriving at a new amount of child support to be ordered.
We AFFIRM in part and VACATE in part the court's order of April 26, 2019, and REMAND for entry of a new order of child support consistent with this Opinion.
ALL CONCUR. BRIEF FOR APPELLANT: David B. Jorjani
Corbin, Kentucky BRIEF FOR APPELLEE: Larry Brandon West
Barbourville, Kentucky