Opinion
NO. 2012-CA-000106-ME
10-05-2012
LAURA HUDSON (NOW STANBURY) APPELLANT v. DONALD HUDSON APPELLEE
BRIEF FOR APPELLANT: John T. Fowler, III Louisville, Kentucky BRIEF FOR APPELLEE: Amy B. DeRenzo Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PAULA SHERLOCK, JUDGE
ACTION NO. 09-CI-503251
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON AND STUMBO, JUDGES. DIXON, JUDGE: Appellant, Laura Hudson (now Stanbury) ("Mother"), appeals from an order of the Jefferson Family Court denying her request for a wage assignment to collect a judgment from Appellee, Donald Hudson ("Father"), and refusing to award post-judgment interest on the judgment. Finding no error, we affirm.
The parties herein were married February 19, 1993, and are the parents of a son born July 28, 1994. The marriage was dissolved by decree entered January 19, 1996, in the Jefferson Circuit Court. Per the decree, Father was ordered to pay child support in the amount of $210 per month. However, in August 2009, Mother moved for an increase in child support. At the hearing, the primary dispute between the parties was over the proper treatment of the son's $513 per month Social Security payment (received because of Mother's disability) in calculating Father's child support obligation. By order entered September 24, 2009, the family court concluded that such payment warranted a deviation from the child support guidelines. The family court considered the parties' combined income (excluding the son's Social Security benefits) and found that the parties' base monthly support obligation to the son totaled $969 per month. The court reduced this base monthly total by $513 (the amount of the son's Social Security payments). The family court then calculated Father's portion of this reduced base obligation to be $369.72 per month, and modified Father's child support obligation accordingly.
Ultimately, however, the matter reached the Kentucky Supreme Court and, in an unpublished opinion rendered on September 25, 2011, the Court concluded that based upon Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010), Social Security benefits received by a child as a result of a parent's disability are not the type of "independent financial resources" that would permit a deviation from the child support guidelines pursuant to Kentucky Revised Statutes (KRS) 403.211(3)(d). Accordingly, the Court remanded the matter for a recalculation of Father's child support obligation.
Following a December 2011 hearing, the family court ordered that Father's support obligation should be increased to $801.00 per month, retroactive to September 24, 2009. Specifically, the court noted:
Accordingly, the Court finds that Father underpaid child support in the amount of $93.29 per week for a period of 109 weeks and two (2) days (September 24, 2009 through October 31, 2011) for a total of $10,195.15.Following the denial of her motion to alter, amend or vacate, Mother appeals to this Court challenging the family court's refusal to issue a wage assignment against Father to collect the judgment or to award interest on such.
The Court hereby grants Mother a common law judgment in the amount of $10,195.15. However, at the discretion of the Court, the judgment shall bear a zero percent (0%) interest rate if it is satisfied by regular consistent payments after the date of emancipation as Father has agreed to do. Father relied upon decisions of both this Court and the Court of Appeals when making the $396.72 per month child support payments. It would be inequitable to charge interest on the now accrued arrearage as Father has demonstrated that had he been ordered to pay $801 per month, he would have paid the appropriate amount. In addition, Father has agreed to satisfy the judgment within a reasonable time frame.
The parties' minor child will become emancipated in July 2012. Father has offered to continue to pay $801.00 per month after July 2012 until the judgment is paid in full, a period of thirteen months. The Court will not uphold a garnishment of his wages if he pays off the judgment as he has agreed to do. Otherwise, Mother may execute her judgment in any lawful manner.
As are most other areas of domestic relations law, the establishment, modification, and enforcement of child support is generally prescribed by statute and largely left, within the statutory parameters, to the sound discretion of the trial court. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008); Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000). However, a trial court's discretion is not unlimited. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
KRS 403.215 provides:
After July 15, 1990, any new or modified order or decree which contains provisions for the support of a minor child or minor children, shall provide for a wage assignment which shall begin immediately except for good cause shown, and which shall be paid based upon the payment schedule of wages of the employer to whom the wage assignment is directed, and at a minimum, on a monthly basis. If good cause is shown, the wage assignment shall take effect when an arrearage accrues that is equal to the amount of support payable for one (1) month, pursuant to KRS 405.465.Admittedly, there is little guidance concerning what constitutes "good cause." As noted in Graham and Keller, West's Kentucky Practice, Domestic Relations Law:
Courts will need to develop a definition of good cause. . . . The legislature obviously intended that some obligors be excused from wage assignment but did not make clear the basis for such an excuse. Trial courts should exercise caution in developing the concept of good cause. . . . Good cause exceptions should be given only when other factors in the case indicate an overwhelming likelihood that timely payments will be made.16 Ky. Prac. Domestic Relations L. § 17:39 (2011-2012). Indeed, even the Kentucky Attorney General has concluded that "'[g]ood cause' is not defined, but is left to judicial interpretation." Ky. OAG 88-84 (December 12, 1988).
We are of the opinion that the family court herein was well within its discretion in denying Mother's request for a wage assignment. As the court observed, Father had consistently paid his support obligation. Further, the arrearage judgment was solely the result of a recalculation of that obligation as ordered by the appellate court. Mother failed to introduce any evidence that Father did not comply with the prior order. See Stewart v. Madera, 744 S.W.2d 437, 440 (Ky. App. 1988) (Wage assignment proper since father "is living proof that he will voluntarily pay only when the spirit moves him.") In fact, Father plainly stated during the hearing that had he been ordered to pay the higher amount in the original decree he would have done so. Without question, we believe that the facts herein constituted "good cause," and the family court properly used its discretion to find that if Father would continue to pay his new obligation he would not be subject to a wage assignment.
We likewise find no merit in Mother's claim that she was entitled to post-judgment interest on the judgment. Mother argues that KRS 360.040 requires that interest at the rate of 12% be awarded on the judgment as of the date it becomes enforceable. However, Mother fails to recognize that a trial court has the discretion to deny such if "such an award would be inequitable." Hoskins v. Hoskins, 15 S.W.3d 733, 735 (Ky. App. 2000). See also Guthrie v. Guthrie, 429 S.W.2d 32, 36 (Ky. 1968) (interest should be allowed on child support "in the absence of factors making it inequitable.")
We agree with the family court that it would be inequitable to charge interest on the accrued arrearage. Again, this is not a case where Father is delinquent in his payments. He faithfully fulfilled his obligation in accordance with the prior child support order and stated that he would continue to pay the revised amount until the judgment is satisfied. Given the facts of this matter, the family court properly concluded that post-judgment interest was not warranted.
For the reasons stated herein, the order of the Jefferson Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: John T. Fowler, III
Louisville, Kentucky
BRIEF FOR APPELLEE: Amy B. DeRenzo
Louisville, Kentucky