Opinion
NO. 2016-CA-000872-ME
05-26-2017
MICHAEL WAYNE ROSS APPELLANT v. ANGELA DAWN RIGDON AND CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY, CHILD SUPPORT ENFORCEMENT APPELLEES
BRIEFS FOR APPELLANT: Mark Harris Woloshin Newport, Kentucky BRIEF FOR APPELLEE: Robin David Rice Assistant Mason County Attorney Maysville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 14-CI-00143 OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: JONES, TAYLOR AND THOMPSON, JUDGES. THOMPSON, JUDGE: Michael Wayne Ross appeals from an order by the Mason Circuit Court distributing child support money collected from Ross. He seeks restitution of $11,352 on the basis that he was not obligated to pay child support to his daughter's mother, Angela Dawn Rigdon, after they married, and he is not obligated to reimburse the Kentucky Transitional Assistance Program (K-TAP) for assistance Rigdon wrongfully received after she moved to Ohio with him.
In 2010, Ross's and Rigdon's daughter was born in Lexington, Kentucky. Daughter resided with Rigdon in Lexington. At all relevant times, Ross resided and continues to reside in Aberdeen, Ohio.
In 2011, Ross filed for custody of daughter in the Fayette Family Court. On January 26, 2012, Ross and Rigdon entered into a domestic mediation agreement in which the parties agreed to joint custody of daughter, with daughter residing primarily with Rigdon and Ross having timesharing. The parties agreed Ross would pay child support of $516 per month through a wage assignment, as ordered on April 30, 2012, and effective on March 1, 2012. Ross never made any child support payments to Rigdon.
Only portions of the Fayette Family Court action are contained in the Mason Circuit Court record; these consist of only those filings that were submitted as attachments by counsel.
On July 19, 2012, Ross and Rigdon were married in Tennessee and a son was born a year later in Lexington. Whether Rigdon and the children resided with Ross in Ohio after the marriage is in dispute.
It is unclear from the record when Rigdon began receiving payments from K-TAP. However, as part of these payments, she assigned her rights to collect child support to K-TAP and was provided with child support enforcement services pursuant to Title IV-D of the Social Security Act, 42 U.S.C. 651 et. seq., which is administered in Kentucky as provided in KRS 205.710 et. seq., through the relevant county child support enforcement agencies under the auspices of the Cabinet for Health and Family Services, Division of Child Support. Therefore, when Ross did not pay child support, the Cabinet sought enforcement in collecting arrearages through the Fayette County Child Support Enforcement Office (Fayette CSEO). In 2013, Fayette CSEO collected $6,886 through a tax intercept which was subsequently distributed to K-TAP and Rigdon.
On January 10, 2014, Rigdon was incarcerated in Kentucky after violating the terms of her Ohio probation and the children were placed with Ross. Later, Rigdon was accepted into the Drug Court Program in Mason County. Sometime in early 2014, Ross filed a pro se divorce action in Ohio.
The Mason Circuit Court record only contains the Ohio divorce decree.
In 2014, Fayette CSEO sought to collect an additional $4,466 as the balance Ross owed Rigdon for daughter's child support through December 2013. Fayette CSEO only sought to enforce the child support order through December 2013, because it was aware that in January 2014, Rigdon was incarcerated and daughter was placed with Ross. However, the child support order remained in effect.
On April 21, 2014, the Fayette County Attorney filed a motion in the Fayette Family Court action requesting an order staying Ross's ordered child support as of July 10, 2014, because daughter resided with Ross. On May 15, 2014, Rigdon petitioned the Fayette Family Court for custody of the children and filed a motion requesting that the matter be transferred to Mason County. The motion to stay child support was apparently never heard because on June 6, 2014, the court transferred the custody action to the Mason Circuit Court.
On July 16, 2014, the Ohio court entered a divorce decree dissolving the marriage between Ross and Rigdon, and determining both children were children of the marriage. The Ohio court found based on the previous judgment entered in Kentucky, jurisdiction pertaining to issues concerning the minor children, including but not limited to custody and child support, was retained by the Kentucky courts.
Beginning on March 10, 2015, Ross's counsel repeatedly requested that Mason Circuit Court release jurisdiction, arguing based on the length of time children resided with father in Ohio, further child custody proceedings should be conducted there. However, the circuit court repeatedly refused to transfer jurisdiction until it was confident that regular visitation was established for Rigdon. The circuit court eventually released jurisdiction to the Ohio courts. We note that the circuit court retains jurisdiction to enforce the collection of the relevant child support arrearages at issue here, but would not necessarily have jurisdiction to modify the child support order or custody based on the length of time the children have remained in Ohio. See Gibson v. Gibson, 211 S.W.3d 601, 609-11 (Ky.App. 2006). We do not discuss this issue further as it is inapplicable to this appeal.
Meanwhile, the Mason County Child Support Enforcement Office (Mason CSEO) took over collecting back child support from Ross. In May 2014, Ross contacted Mason CSEO and challenged Rigdon's entitlement to any money for child support. In accordance with its policies, when Mason CSEO collected an additional $4,764.00 from Ross via a tax return intercept it refrained from paying this money to cover the remaining debt until a determination could be made as to the propriety of such action by the court.
On September 19, 2014, in the Mason Circuit Court action, Ross sought temporary custody of the children and child support from Rigdon. On October 16, 2014, the court ordered the children to remain in Ross's care, but did not order any child support.
Because Ross already shared joint custody with Rigdon, we interpret his request for temporary custody to be a request to either temporarily become the primary residential parent or to temporarily be granted sole custody. By seeking child support, Ross was implicitly also seeking a modification in the existing child support order.
On April 17, 2015, the Commonwealth, through IV-D enforcement for Mason CSEO, sought a hearing to adjudicate child support arrearages owed by Ross. This motion was referred to the domestic relations commissioner.
On July 27, 2015, Ross filed multiple motions including a motion to release escrowed child support funds to him and hold a final hearing on this matter, and requested child support. The Mason Circuit Court never ruled on Ross's request for child support.
According to statements made by counsel for Ross and the Commonwealth in the hearing before the domestic relations commissioner, in October 2015, Rigdon began paying Ross child support of $40 a month. It appears this child support was ordered in the Ohio action. In a later hearing before the Mason Circuit Court, these same attorneys represented that child support remained at $40 a month, despite a request from Ohio for an increase, which Ross opposed.
In the hearing conducted before the domestic relations commissioner, testimony was provided by Elizabeth Simmons of the Mason County Child Support Office, Tracy Roark from K-TAP, Rigdon and Ross. Simmons established the amount Ross owed from March 1, 2012, through December 31, 2013, ($516 multiplied by twenty-two months) was $11,352. Ross was credited with paying $6,886 which was collected from an earlier tax intercept. There remained a balance of $2,038 due K-TAP and $2,428 due Rigdon for this period, which could be satisfied by the $4,764 received from the most recent tax intercept, but those funds were not yet distributed because Ross objected.
Simmons referred Ross's allegations of K-TAP fraud to the support office claims department. If her office had known Ross and Rigdon were residing together or that Rigdon was living out of state, it would have likely filed a motion to terminate support. She testified Mason CSEO stopped enforcement in 2014 because Rigdon was incarcerated and Ross had the children.
Roark testified that if a Kentucky resident moves out of the state K-TAP is discontinued. If the person then returns to live in Kentucky, it is necessary to reapply for K-TAP benefits. Roark did not provide any testimony as to the specifics involved in Rigdon's situation, such as whether Rigdon would have still been eligible for K-TAP benefits after marrying Ross.
Rigdon and Ross both testified. They agreed they married, but disagreed as to where they lived after the marriage. Rigdon testified she continued to live in Lexington separately from Ross. She worked in Lexington and children's daycare and physicians were in Lexington. Ross testified they lived together at his home in Aberdeen, Ohio, and submitted into evidence mail addressed to Rigdon at his address, forwarded there and a copy of Rigdon's signed Ohio probation agreement requiring her to live in Ohio.
On February 8, 2016, the domestic relations commissioner filed her report. The commissioner found Ross never filed a motion to modify child support, never appealed the current child support order and never filed a motion to vacate the order under Kentucky Rules of Civil Procedure (CR) 60.02.
The commissioner concluded as a matter of law that accrued child support payments may not be retroactively modified under Kentucky Revised Statutes (KRS) 403.213 unless the child support judgment was appealed and reversed, or fraud or misrepresentation was established concerning the parentage of the child. The commissioner stated that regardless of whether Rigdon committed K-TAP fraud because no motion to modify child support was ever filed, Ross had a child support obligation in the amount of $11,352 from March 1, 2012 through December 2013, and child support enforcement should distribute the funds. On February 16, 2016, Ross filed objections to the report.
On March 30, 2016, the Mason Circuit Court adopted the commissioner's report. The circuit court ordered that the $4,764 federal tax refund for Ross be used to satisfy Ross's remaining child support arrears totaling $4,466 from March 2012 through December 2013. The distribution was as follows: $2,038 to reimburse the Commonwealth for distributions made from K-TAP; $2,428 to Rigdon as back child support; and $298 reimbursed to Ross.
On April 6, 2016, Ross filed a motion to reconsider and for the court to enter the judgment as final and appealable. On May 17, 2016, the circuit court amended its earlier order to include finality language and Ross timely appealed.
Ross argues Rigdon was not entitled to receive child support from him after they married and cohabitated with their daughter in Ohio and, therefore, Rigdon should not receive any child support for this period. He also argues the circuit court erred by delivering funds collected from him to pay Rigdon's temporary assistance from K-TAP because Rigdon had no right to receive such benefits after she moved to Ohio with him and, thus, by accepting such benefits she committed fraud and should repay the Commonwealth.
As provided in KRS 403.213(1), "[t]he provisions of any decree respecting child support 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." Our courts have interpreted this provision to mean that "each installment of child support becomes a lump sum judgment, unchangeable by the trial court when it becomes due and is unpaid." Stewart v. Raikes, 627 S.W.2d 586, 589 (Ky. 1982). Courts lack discretion to retroactively change accrued child support obligations. Price v. Price, 912 S.W.2d 44, 46-47 (Ky. 1995); Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky.App. 1994). Courts can approve private agreements to modify after-the-fact, but this is not a retroactive change because these agreements operate prospectively from when the parties entered into them. Price, 912 S.W.2d at 46. Ross failed to request a modification in child support after the parties married and does not claim that his marriage acted as Rigdon's agreement to modify his child support obligation.
The issue of whether the act of marrying itself voids child support obligations is one of first impression in Kentucky. Kentucky courts have been largely silent about whether the marriage or remarriage of children's parents impacts those parents' existing obligations toward their children. The Kentucky Court of Appeals in Gray v. Gray, 745 S.W.2d 657, 659 (Ky.App. 1988), did make a statement that would seem to be highly relevant to this issue, that "[u]pon resumption of the marriage, the noncustodial parent is restored to the same marital rights afforded prior to the divorce[,]" but the context in which it was made makes it doubtful that the Court was adopting this proposition, or that it should control our ruling here.
In Gray, the husband relied on Cain v. Garner, 169 Ky. 633, 185 S.W. 122 (1916), for the proposition that a second marriage between the parties annulled the first divorce decree for purposes of extinguishing his obligation to make car payments required under the first divorce decree which wife demanded after their second dissolution. In distinguishing Cain, the Court explained that Cain was not applicable because it concerned "the rights of divorced and remarried parents over their children" before making the above statement. Gray, 745 S.W.2d at 659. The Court then held that a divorced person does have a right to retain personal property awarded in a dissolution decree after the parties remarried because separate personal property is excluded from being marital property. Id. Cain was interpreting Iowa law when it stated that although the mother was awarded custody of the son, the act of the parents remarrying restored the father's rights to son. Cain, 185 S.W. at 124. Therefore, it did not resolve what effect parents remarrying has under Kentucky law.
In other jurisdictions that have considered what effect remarriage between the parents has on existing child support orders, the general rule is that the remarriage of the parties to each other automatically nullifies or renders unenforceable any previous child custody and support provisions entered pursuant to a divorce action. Griffis v. Griffis, 202 W.Va. 203, 208-09, 503 S.E.2d 516, 521-22 (1998). While fewer jurisdictions have considered the effect of marriage on a prior child support order when the parents were not previously married, those that have also apply the same general rule. Id. at 210, 503 S.E.2d at 523; Ballenger v. Ballenger, 444 S.W.3d 914, 918 (Mo.App. 2014); In re Marriage of Wilson & Bodine, 207 Cal.App.4th 768, 777, 143 Cal.Rptr.3d 803, 809 (2012).
The reasoning behind marriage or remarriage rendering a prior divorce decree unenforceable as to child support, is that "[i]t would be absurd to hold that once parents remarry each other and the family is again intact and residing in the same household, the former noncustodial parent must pay future installments of child support to the other parent per the past divorce decree." In re Marriage of Root, 774 S.W.2d 521, 523 (Mo.App. 1989).
When divorced parties remarry, the general obligations to support one's family again apply. When parties remarry, they agree to look to each other for the support of themselves and their children. Parties who remarry should not be placed in a different situation than parties who have not been previously married and divorced.In re Marriage of Mitchell, 319 Ill.App.3d 17, 22, 745 N.E.2d 167, 171 (2001) (internal citations omitted).
The subsequent marriage or remarriage of those parents [previously subject to an order of custody or child support] creates joint rights and liabilities for custody and support of their children extinguishing their former separate rights and liabilities. Upon the legal separation or termination of the marriage or the second marriage between the parents, custody and support are determined anew.Ballenger, 444 S.W.3d at 918 (internal citations omitted).
Wilson & Bodine, 207 Cal.App.4th at 774-77, 143 Cal.Rptr.3d at 807-10, the Court considered whether a child support order resulting from a paternity case should apply after the parents who subsequently married, separated. The Court concluded that the marriage "extinguishes any preexisting order of child support entered for the child's benefit" and the child would be protected by statutes allowing courts to enter support orders during the dissolution process. Id. at 777, 143 Cal.Rptr.3d at 809-10. Therefore, obligor father could be required to pay arrearages for the time period before his marriage when he failed to make child support payments, but father was not responsible for child support pursuant to the previous support order after the parents married and then separated, which ultimately culminated in a divorce. Id. at 777, 143 Cal.Rptr.3d at 810. The Court noted that the father "still had an obligation to support his children during this time period[.]" Id. at 777, 143 Cal.Rptr.3d at 810.
In the case before us, because Rigdon claims she lived separately from Ross during the marriage, this raises the issue of what protection children who were previously entitled to receive child support will have if their parents marry or remarry and this voids the previous child support order, but then the previous obligor fails to support them. While it might be more convenient to have an established order that merely needs to be enforced, there are still various mechanisms that a parent or the Commonwealth can pursue to obtain a new child support order if needed. See KRS 403.211(1); KRS 403.160(2)(a); KRS 405.430(4).
Having considered the rulings of our sister courts, we hold that the act of parents subject to a child support order marrying each other voids any future obligations of child support under such an order. Therefore, after a marriage takes place no child support may be collected unless a new child support order is granted.
We must next resolve whether parties can collect arrearages that were incurred prior to the marriage or remarriage, after the marriage or remarriage takes place. Our sister courts differ in their resolution of this question. Compare Griffis, 202 W.Va. at 211-15, 503 S.E.2d at 524-28 (remarriage prospectively bars collection of child support payments but not arrearages) with Ringstrom v. Ringstrom, 101 Ill.App.3d 677, 680-81, 428 N.E.2d 743, 746 (1981) (remarriage annuls the previous decree, thus it cannot be the basis for collecting arrearages).
We believe the better approach is to allow the collection of arrearages acquired prior to the marriage or remarriage because as these amounts become due, they vest rights in the judgment holder or government agency to which they have been assigned. Griffis, 202 W.Va. at 215, 503 S.E.2d at 528. However, there cannot be any vested right in payments due to a parent after marriage or remarriage because the right to such payments is rendered unenforceable by the parties' marriage or remarriage. Mitchell, 319 Ill.App.3d at 21, 745 N.E.2d at 171.
If a parent decides not to pursue arrearages acquired prior to the marriage or remarriage, that parent cannot prevent a state agency that has a valid assignment of a support judgment from collecting under it because its rights cannot be affected by the parents' decision to remarry. Greene v. Iowa Dist. Court for Polk Cty., 312 N.W.2d 915, 918 (Iowa 1981); Conway v. Dep't of Pub. Aid, 139 Ill.App.3d 1062, 1065, 487 N.E.2d 1240, 1242-43 (1986). Because the marriage voids the child support order prospectively, there cannot be any arrearages arising during the marriage based on the void order, so there is nothing for an agency to collect on after the marriage or remarriage without a new child support order. If the parent receiving governmental benefits was not eligible to receive such payments after the marriage (perhaps for no longer meeting household income eligibility requirements) or for any other reason (such as here for possibly living out of state), it would appear that parent who applied for benefits and has an ongoing obligation to update the Commonwealth as to changes in household income and residence would be legally liable to repay the governmental agency, rather than the parent who was originally ordered to pay child support.
We hold that the marriage itself cannot void any arrearages that arose prior to the marriage or the right of a state agency to collect on those arrearages under an assignment agreement. Therefore, Ross was responsible for child support between March 1, 2012 and July 19, 2012 (the date of the marriage), and the Cabinet would be entitled to reimbursement for K-TAP during this period under the assignment agreement.
We next examine Ross's claim that Rigdon's fraud in collecting K-TAP benefits while living in Ohio would have any affect over whether he is liable to repay the Commonwealth under the child support assignment agreement for the period of time that he claims Rigdon was cohabitating with him in Ohio prior to their marriage. Claims of fraud or misrepresentation can only provide a basis for challenging a mother's entitlement to child support arrearages if the father can prove there was fraud or misrepresentation as to his paternity of the child during the original custody and child support action. Denzik v. Denzik, 197 S.W.3d 108, 111-113 (Ky. 2006); Wheat v. Commonwealth Cabinet for Health & Family Servs., ex rel. C.P., 217 S.W.3d 266, 270-71 (Ky.App. 2007). Therefore, Ross's claim that Rigdon committed fraud against the Commonwealth in obtaining K-TAP benefits while living in Ohio cannot relieve Ross from any obligation he had to pay child support during the period before they married.
Accordingly, we reverse and remand the order by the Mason Circuit Court distributing child support money collected from Ross. Upon remand, the circuit court should clarify what relief is being sought by each party in light of our ruling, and then hold an evidentiary hearing to resolve these issues.
We note that Ross only sought reimbursement from Mason CSEO. While the totals Ross claimed would include all the amounts distributed to Rigdon and K-TAP through the previous tax intercept, he does not appear to claim that Rigdon should reimburse him for amounts already paid to her in excess of the amounts due to K-TAP. It is also unclear whether Mason CSEO wishes to pursue any possible recourse it may have against Rigdon, or even whether this would be the appropriate forum for such an action. --------
JONES, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Mark Harris Woloshin
Newport, Kentucky BRIEF FOR APPELLEE: Robin David Rice
Assistant Mason County Attorney
Maysville, Kentucky