Opinion
NO. 2012-CA-001989-MR NO. 2013-CA-000554-MR
11-26-2014
KAREN MARTIN DOYLE, N/K/A KAREN MARTIN BRADLEY APPELLANT v. JAMES SAMUEL DOYLE, A/K/A SAM DOYLE APPELLEE
BRIEFS FOR APPELLANT: Darrell Hall Whitesburg, Kentucky Bobby D. Williams Hindman, Kentucky BRIEFS FOR APPELLEE: J. Kevin West Columbus, Ohio
NOT TO BE PUBLISHED APPEALS FROM KNOTT FAMILY COURT
HONORABLE DWIGHT S. MARSHALL, JUDGE
ACTION NO. 93-CI-00232
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Karen Martin Doyle n/k/a Karen Martin Bradley filed separate appeals from two orders of the Knott Family Court. In her first appeal, Karen alleges the family court erred when it ruled it did not have authority to award Karen a child support arrearage judgment because she had not filed a motion for child support until after the emancipation of the child in her custody. In her second appeal, she alleges the family court erroneously denied her prejudgment interest on $24,277.02 awarded to her as marital property.
Karen and James Samuel Doyle, a/k/a Sam Doyle, divorced and the questions of child custody, support, and division of property were reserved in the decree. On March 13, 1998, a judgment pertaining to custody, child support and division of property was entered. Karen was awarded custody of the parties' three minor children and child support of $1,410.66 per month. On August 5, 1997, when the oldest of three children reached eighteen, Sam's child support was modified to $1,055 per month.
The parties have four children. The oldest had reached eighteen when the judgment was entered and, therefore, custody of that child was not an issue.
In the summer of 2000, Sam filed a motion to modify custody requesting he be awarded custody of the parties' youngest child. At the same time, he filed a motion to modify child support. The court issued an order in September 2000, finding Sam had satisfied his child support obligation during the pendency of the dissolution of marriage action. After Karen did not comply with requests to submit her financial records and medical and dental records concerning the children, a contempt order was entered on October 16, 2000. Karen appealed and this Court affirmed.
An order granting Sam's motion for a modification of custody of the youngest child was entered on November 8, 2000. Custody was to be transferred following the child's Christmas school break in December. The parties' second youngest child remained with Karen. A decision on child support was reserved.
After the parties' youngest child was transferred to Sam, the family court scheduled a hearing concerning child support. Karen continued to refuse to produce sufficient financial information to calculate child support. On May 16, 2001, an order was entered terminating Sam's child support obligation "pending further orders of the Court[.]"
Sam renewed his motion for child support on November 29, 2004. At that time, the child in Karen's custody had been emancipated. No action was taken on that motion and after December 2000, Karen did not pay child support to Sam and Sam did not pay child support to Karen.
The issue of child support did not surface again until 2010 when Sam filed a motion to release a judgment lien Karen filed against property owned by Sam for an amount awarded to her in the dissolution action as marital property. In addition to requesting the lien be released, Sam filed a motion for an arrearage judgment for unpaid child support for the parties' youngest child. In response, on July 29, 2010, Karen filed a motion for arrearage judgment for unpaid child support for the parties' then emancipated second youngest child.
After several hearings on child support were held, on August 20, 2012, the family court issued an order stating it had authority to retroactively set child support owed by Karen to Sam from December 2000, when custody of the youngest child was transferred, until the child turned eighteen in September 2006. The family court noted Sam filed several prior motions to require Karen to pay child support. However, the family court further stated it did not have authority to grant Karen's motion for an arrearage judgment for unpaid child support because the motion was filed more than seven years after the child in her custody reached eighteen. Subsequently, the family court issued an order clarifying the basis for its denial of child support to Karen was that KRS 403.213 prohibits a retroactive modification of a child support obligation if no written motion is filed. Karen did not file any motions after May 16, 2001, concerning child support until after the emancipation of the child in her custody.
We agree Karen cannot succeed on her claim for child support arrearages. In 2001, the family court terminated child support to Karen for the parties' child in her custody "pending further order of the court" because she repeatedly refused to provide financial records necessary to award child support to either party. Karen did not file a motion to modify that order until July 29, 2010.
KRS 403.213(1) provides child support provisions "may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing." The statutory directive is explicit that "child support orders may only be modified prospectively and only after a motion for modification." Price v. Price, 912 S.W.2d 44, 46 (Ky. 1995). Because statutory and case law preclude retroactive awards of child support for any amount owed prior to the filing of a written motion for modification, Karen cannot be awarded any arrearages owed by Sam.
In addition to her appeal from the order denying child support arrearages, Karen appeals from an order denying interest on $24,277.02 awarded to her in 1998 to equalize the division of marital property but which, as of July 5, 2012, had not been paid.
On February 15, 2008, Karen filed a judgment lien against property owned by Sam in the amount of $24,277.02 plus interest at the legal rate from March 12, 1998, until paid. On May 26, 2010, Sam filed a motion to release the judgment lien. The lien was not released and, in 2012, Sam filed a motion to modify judgment pursuant to CR 60.02(f) requesting the court credit him $20,308 against the $24,277.02 and alleging certain items were taken from his office at Karen's directive. The court denied the motion.
On September 13, 2012, Sam filed a motion to prohibit the collection of interest on the amount owed which was sustained. The family court denied Karen's motion to alter, amend or vacate that order and Karen appealed.
KRS 360.040 provides that a "judgment shall bear twelve percent (12%) interest compounded annually from its date." Karen points out it has been held that trial courts are without authority to impose less than that statutory rate of interest in dissolution proceedings, Ridge v. Ridge, 572 S.W.2d 859 (Ky. 1978), and interest must run from the date of the judgment. Johnson v. Johnson, 564 S.W.2d 221 (Ky.App. 1978). Consequently, she maintains the judgment must bear interest at the statutory rate from the date of the judgment. She also contends the family court had no jurisdiction to modify its 1998 judgment to exclude interest.
As a preliminary matter, we address Karen's procedural argument regarding jurisdiction. The family court did not modify its 1998 judgment. Its order was an interpretation of its earlier judgment and, therefore, the family court had jurisdiction to consider the issue.
If the parties enter into an enforceable settlement agreement that is silent as to interest and provides no time for performance, in conformity with the parties' intent, the court will not award interest. Withers v. Commonwealth, Depart. of Transp., Bureau of Highways, 656 S.W.2d 747 (Ky.App. 1983). However, in the absence of an agreement, interest is not precluded on a judgment that is silent regarding interest. The general rule was cited in Com., Dept. of Highways v. Young, 380 S.W.2d 239, 240 (Ky. 1964). "In 47 C.J.S. Interest § 21, p. 34, it is stated: 'Although the rule is otherwise in some states, it has generally been held that the fact that a judgment or decree is silent as to interest will not prevent the recovery of interest thereon."'
Despite the mandatory language of KRS 360.040, the statute simply requires that a trial court must impose 12% interest once it determines interest is appropriate. Courtenay v. Wilhoit, 655 S.W.2d 41, 42 (Ky.App. 1983). In the context of a dissolution action, it has been held it is within the trial court's discretion to determine interest is not appropriate given the equities of the particular case. Id.
Here, the family court denied interest because it found the amount was unliquidated, the judgment was silent regarding interest and no date was specified for payment. Although KRS 360.040 permits the court to award less than 12% interest on unliquidated amounts in a judgment, the $24,277.02 awarded is not an unliquidated amount. Despite their many post-judgment disputes, the March 13, 1998 judgment awarded Karen the determined and fixed amount of $24,277.02. Miller v. Stumbo, 661 S.W.2d 1, 2 (Ky.App. 1983) (quoting Black's Law Dictionary 838 (rev. 5th ed. 1979)). Moreover, the fact the judgment is silent regarding interest is not a basis for denying interest. Young, 380 S.W.2d at 240.
We conclude the family court acted based on erroneous interpretations of the law. Therefore, we are compelled to reverse and remand for consideration of whether to award interest on the $24,277.02 from the date of judgment. If interest is denied, the family court is required to make specific findings of fact to supports it decision.
Based on the forgoing, the order denying Karen arrearages for child support is affirmed. The order denying Karen interest is reversed and remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Darrell Hall
Whitesburg, Kentucky
Bobby D. Williams
Hindman, Kentucky
BRIEFS FOR APPELLEE: J. Kevin West
Columbus, Ohio