SHAWN P. MARTIN APPELLANT
COMMONWEALTH OF KENTUCKY CABINET FOR HEALTH AND FAMILY SERVICES APPELLEE
FROM NELSON CIRCUIT COURT HONORABLE CHARLES C. SIMMS III,
JUDGE ACTION NO. 17-CI-00311
FOR APPELLANT: John Douglas Hubbard Bardstown, Kentucky.
BRIEF FOR APPELLEE.
BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.
Shawn Martin, appeals the September 12, 2017 order of the
Nelson Circuit Court requiring him to pay $161.00 per month
in child support and $25.00 per month toward an arrearage to
his former spouse, Diana Martin. For the reasons stated
below, we vacate the order and remand with instructions.
and Shawn Martin were married in Nelson County on March 23,
2002. They are the biological parents of three children:
Dakota, born in 2000; Destiny, born in 2003; and Danica, born
in 2010. When the parties separated, Diana secured legal
counsel who prepared a settlement agreement. Diana chose to
file her petition for divorce in neighboring Hardin County.
seems Shawn was unrepresented because the clerk's
certificate distributing copies of the Hardin Family
Court's final decree and incorporated settlement
agreement were sent directly to Shawn. (Record (R.) 40).
entering the decree, the Hardin Family Court considered the
provisions of the parties' separation agreement. The
specific language affecting this review states:
4. IT IS AGREED, that [Diana] and [Shawn] shall have joint
legal custody of the parties' children . . . . [Diana]
shall be the primary residential custodian of the
parties' children . . . and [Shawn] shall have visitation
as agreed upon between the parties.
5. IT IS AGREED, that parties shall not pay any amount of
child support to either party as agreed upon between the
parties. The parties have knowingly and voluntarily agreed to
deviate from the Kentucky Child Support Guidelines and child
support worksheet filed herewith and attached hereto. The
parties' children are covered for health insurance
purposes by Passport. The parties shall equally divide the costs
of any uncovered medical, dental and eye-care for the
[Diana] shall claim the parties' children for federal and
state income tax exemption/dependent purposes and earned
income tax status purposes each year.
decree noted, the parties attached to the settlement
agreement a Kentucky Worksheet for Monthly Child Support
Obligation. (R. 48). The worksheet showed Diana's monthly
income as a state employee at $2, 008 and Shawn's
Supplemental Security Income from his disability at
$660. The worksheet, designating Shawn as the
non-custodial parent, indicated his monthly child support
obligation would have been $192.50.
the whole agreement, the family court found it to be fair,
equitable, and not unconscionable, and accepted the
parties' stipulation that both Shawn and Diana would pay
$0 in child support. The family court incorporated the
settlement agreement into its decree and entered it on August
2017, about nine months after entry of the divorce decree,
Diana went to the Nelson County Attorney's Office,
Division of Child Support, for help collecting child support
from Shawn. When asked if she had been receiving any support,
Diana responded, "Absolutely not. . . . Not for lack of
asking." (Video Transcript (VT) 9/6/2017; 11:07:45 -
23, 2017, Diana assigned to the Cabinet for Health and Family
Services (CHFS) her right to "all child, medical, and
spousal support due me" and "authorize[d] CHFS, to
collect on my behalf all current and/or past-due child
support, medical support and spousal support payable to me
for the benefit of myself and/or my minor child(ren)."
later, the Nelson County Attorney, on behalf of CHFS, filed
an action in Nelson Circuit Court against Shawn. As we
explain more fully in the analysis, the complaint CHFS filed
did not comply with FCRPP 9(4). Rather, it simply demanded the
court to order Shawn "to pay temporary and continuing
child support according to the Kentucky child support
guidelines . . . [plus] an amount equal to all sums paid by
[CHFS] for Medical Assistance . . . [plus] the cost of health
insurance . . . [plus] the cost of extraordinary medical
expenses in proportion to [Shawn's] income[.]" (R.
2). The complaint also sought a wage assignment. Notably, the
complaint makes no reference to the Hardin Family Court
decree that established Shawn's obligations regarding
child support and unreimbursed medical, dental, and vision
Nelson Circuit Court conducted a hearing on September 6,
2017. Diana testified that she was employed by the
Commonwealth and her monthly salary had increased to $2,
427.44. The children's medical care was still covered by
testified he receives disability-related Supplemental
Security Income of $735.00 per month, identifying that as his
sole source of income. He stated he does not work otherwise
and has no money left from paying necessities such as rent
and bills to support his children. He also testified that he
lives with his new wife. He acknowledged they went on
vacation to Florida but stated his father-in-law paid the
trip costs. Shawn also stated he recently got a tattoo
costing $40, and that he has paid for three tattoos over the
last three years which encompasses time before the
parties' divorce. He testified he also has a cellular
put on no evidence of having paid any amounts for
"Medical Assistance," despite having sought
reimbursement for any such payments. After the hearing, the
Nelson Circuit Court took the matter under submission.
order the court entered on September 12, 2016, recognizes the
Hardin Family Court decree and its incorporation of the
parties' settlement agreement. However, after noting that
a court addressing child custody, support, and visitation is
not bound by a separation agreement, the Nelson Circuit Court
rejected Shawn's argument that Diana waived the right to
claim child support. The court also rejected Shawn's
argument that the court was required to factor into the child
support calculation any payment received by his children from
the Social Security Administration on account of his
disability. (R. 82-83).
discounting the effect of the Hardin Family Court decree, the
Nelson Circuit Court identified the nature of CHFS's
claim as an "action to establish child
support" as though the Hardin Family Court had not
already done so. (R. 82 (emphasis added)). The court then
proceeded to set child support ...