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Moody v. Demala

Court of Appeals of Kentucky

July 19, 2019



          BRIEFS FOR APPELLANT: Ray H. Stoess, Jr

          BRIEF FOR APPELLEE:. Kimberly Withers Daleure



          LAMBERT, JUDGE:

          Deanna Moody (the Mother) appeals from the Jefferson Circuit Court's order awarding Dean Demala (the Father), as child support payments, a portion of the children's monthly social security benefits. We affirm.

         The parties were married in 2006, separated in 2013, and their marriage was dissolved in 2014. They are the parents of three minor children, born in 2007, 2008, and 2010. The parties were able to reach a settlement agreement wherein they would share joint custody of the children, with the Mother having them four nights per week, and the Father the remaining three. Neither party would receive maintenance. The Father, who has been disabled since birth, received monthly assistance of $684.00 per child.

         Prior to their agreed settlement order, the Mother had been injured in a vehicle accident and was awaiting resolution of her disability benefits. On May 29, 2014, the Father was ordered to share 50% of the children's benefits with the Mother. In August of that year, the Father moved to modify support because the Mother had received her disability award and, because her award was higher than the Father's monthly benefits, the children's benefits were increased accordingly, with 100% of those benefits going to the Mother. Since the Father had been ordered to share the children's benefits when they went to him, he argued that the Mother likewise should be ordered to do the same now that she was receiving them.

         Other motions were filed the next two years. The circuit court held a hearing consolidating all outstanding motions on November 15, 2016. An order was entered two weeks later. The circuit court made the following findings regarding the children's support:

Both parties are unemployed as a result of disabilities. [The Father] has a brain injury from birth and has never been able to work. As a result, his disability payment when he was receiving it for the children was a total of $684.00 per month [per child]. [The Mother] was injured in a car accident and had worked until that time. When her benefits commenced she began receiving $791.00 per child per month. She also received a lump sum payment of approximately $23, 000.00 for the children for unpaid benefits up to that time. At that time [the Father] ceased receiving any benefits for the children as [the Mother's] benefits were higher. When he no longer received benefits for the children his monthly income dropped to $1, 460.00 per month. He has no other sources of income.
[The Father] believes the child support Order should be amended to order [the Mother] to pay to him one-half of the amount she receives on behalf of the children. Additionally he claims the Court should order [the Mother] to pay him one-half of the amount she has received, from the date of the filing of his motion to present. In light of the circumstances of this matter the Court orders that the child support shall be modified to reflect that [the Mother] shall pay to [the Father] one-half of the amount of social security benefits she receives on behalf of the children. This modification shall be retroactive to the date of the filing of the motion seeing same, November 17, 2014. The Court does not have information as to the date benefits began, etc.[, ] nor the specific amount of the lump sum payment received by [the Mother] for the children so an amount due and owing to [the Father] cannot be calculated by the Court at this time. The Court instructs counsel for [the Mother] to provide the necessary information to counsel for [the Father] and attempt to work out an amount due and owing to [the Father]. The Court will not order a division of the lump sum award as it represents retroactive sums owed and to order division of same and repayment of retroactive amounts received would result in double dipping in the event counsel cannot reach agreement as to what is owed the Court will reserve a portion of the April 19, 2017 hearing to address the issue.

         Subsequently, the Mother moved to alter, amend, or vacate the order, arguing that the award was in error because the children's benefits were received because of her disability and she was entitled to retain 100% of them. She further contended that it was error for the circuit court to consider the benefits as child support, thus making the division of those benefits erroneous as well. The Mother also requested that the circuit court amend its order regarding retroactivity to November 2014. The circuit court entered its order denying the Mother's motion on February 17, 2017. The Mother filed an appeal from that order as well as the prior order entered in November 2016.[1]

         We begin our discussion by enunciating the standard of reviewing the issue of child support obligations:

As the courts of this Commonwealth have repeatedly stated, trial courts have broad discretion in determining child-support matters. See Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010) ("The trial court is vested with broad discretion in the establishment, enforcement, and modification of child support."); Van Meter v. Smith, 14 S.W.3d 569, 574 (Ky. App. 2000) ("[T]his state's domestic relations law is founded upon general statutory guidelines and presumptions within which the trial court has considerable discretion. The trial court has discretion in many instances, moreover, to deviate from the statutory parameters, but only if it makes findings clearly justifying the deviation."). "[T]hat discretion extends, pursuant to KRS [Kentucky Revised Statute] ...

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