Summary
In Sammet, the mother—like Heidi here—testified the emancipated child was dependent on her, rather than the father, when moving the trial court to require the father to insure the child.
Summary of this case from McCain v. McCartyOpinion
NO. 2015-CA-001350-MR
01-27-2017
CHARLES C. SAMMET APPELLANT v. BETH DARLENE SAMMET APPELLEE
BRIEFS FOR APPELLANT: Paul V. Hibberd Louisville, Kentucky BRIEF FOR APPELLEE: George R. Carter Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 10-CI-00720 OPINION
REVERSING AND REMANDING
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BEFORE: COMBS, THOMPSON AND VANMETER, JUDGES. THOMPSON, JUDGE: Charles C. Sammet (Chuck) appeals the order requiring him to pay the cost of health care insurance for his adult son pursuant to Kentucky Revised Statutes (KRS) 403.211(7)(c)3, which allows continuing insurance coverage for a child beyond the age of majority who is: (1) unmarried up to age twenty-five; (2) a full-time student; and (3) primarily dependent on the insured parent.
Judge Laurance B. VanMeter concurred in this opinion prior to being elected to the Kentucky Supreme Court. Release of this opinion was delayed by administrative handling.
Chuck and Beth Darlene Sammet were married in 1991 and had one child, Benjamin Sammet (Ben), in 1996. In 2010, Chuck filed a petition for dissolution of marriage. The dissolution action was very contentious and complicated, but we will limit our discussion of it to matters that are pertinent to the issue before us.
By agreed order entered on January 26, 2011, Chuck was responsible for maintaining Ben's health insurance. On August 3, 2011, the family court entered its findings of fact, conclusions of law, judgment and order, which contained the following provision regarding Ben's health insurance:
Chuck shall continue to maintain health insurance coverage for Ben . . . . If the health insurance provides for covered services beyond the age of 18 years, then coverage shall be maintained for Ben up to age 25 years if he is a full-time student and enrolled in and attending an accredited educational institution and if he is primarily dependent on either parent for maintenance and support.This provision tracked the statutory requirements under KRS 403.211(7)(c)3.
While Ben was a minor, Chuck consistently kept him insured. In 2014, after Chuck remarried and Ben turned eighteen-years-old, Ben curtailed contact with Chuck. Chuck began to oppose providing Ben with insurance coverage. In a July 17, 2014, notice of changed circumstances filed by Chuck, Chuck alleged that due to recently remarrying, no longer being an equal caregiver for Ben, and moving outside of Oldham County, he was not able to provide health insurance for Ben.
During this time when Chuck changed insurance policies, he failed to disclose to Beth the new policies or provide her with current insurance cards for Ben, which she subsequently obtained pursuant to court orders.
On October 3, 2014, the family court ordered Chuck to pay the full cost of health care insurance that Beth obtained for Ben through KYNECT, finding Chuck had misstated the truth and could have continued providing family coverage insurance to Ben at no additional cost, but chose to voluntarily cancel his coverage for Ben. Chuck continued to oppose paying for Ben's health care and refused to pay Beth anything, arguing he should only pay a percentage of the total cost in proportion to the parties' relative income. On January 7, 2015, and February 10, 2015, the family court found Chuck in contempt for failing to pay Beth for the cost of Ben's health care insurance.
On March 30, 2015, Chuck filed a motion to terminate his payment of Ben's health care costs and insurance as of May 17, 2015, because Ben would graduate from high school as of that date and the provisions of KRS 403.211(7) were inapplicable because Ben's health insurance was provided through a separate policy. On May 4, 2015, the family court ordered Chuck relieved from his payment obligation on this basis, effective May 17, 2015, finding that Ben's insurance policy was not part of Chuck's or Beth's health care coverage but was a separate policy.
On May 13, 2015, Beth filed a motion to set aside this order pursuant to Kentucky Rules of Civil Procedure (CR) 60.02, arguing it was made pursuant to the mistaken premise that Ben was insured on his own policy when she previously testified Ben was added to her insurance policy as a dependent. Beth provided a copy of her premium detail confirming Ben's status on her policy as a dependent; this copy redacted the policy numbers and descriptions of the policies. Beth requested the family court order Chuck to continue to reimburse Beth for maintaining health care coverage for Ben up to age twenty-five while he remains a full-time student and an insured dependent on her policy.
On May 22, 2015, the family court entered an order directing Chuck "to ascertain whether the child of the marriage can be added as a dependent to [Chuck's] health insurance plan, and add him if there is no additional cost." On June 1, 2015, Chuck filed a notice stating that Ben was uninsurable under his family's medical policy because Ben does not reside in his household and proof of Ben's enrollment and attendance in a post-secondary educational program had to be verified.
On July 1, 2015, a hearing was held on these issues. Beth stipulated that Ben was alive, living primarily with her and had chosen as an adult of his own free will to cut off all contact with his father. She testified Ben is dependent upon her for support and a dependent on her health insurance plan that she obtained through KYNECT.
We note that in an agreed order entered on March 17, 2011, the parents agreed that a savings account and investment account "shall be Ben's sole property . . . to be used solely for education-related expenses incurred by or on behalf of the child. Any remaining balance of funds in either of the aforesaid accounts, after all college-related expenses have been paid for the child, shall be transferred to the child." The order did not specify the value of these accounts, so it is unclear how much the funds in these accounts contribute towards Ben's college tuition and expenses.
Beth testified that Ben was planning to attend college. Beth was asked by both the family court judge and Chuck where Ben would be attending college. Beth refused to answer, stating Ben did not want his father to know where he was attending and asked her not to disclose this information.
Chuck testified his family received insurance coverage through his new wife's health insurance policy but Ben was not insured under this policy. Chuck testified he could not insure Ben because he was not a member of his household.
On July 6, 2015, the family court entered an order holding that its previous determination that Ben was insured under a separate policy was based on an incorrect understanding of Beth's previous testimony. The family court allowed Chuck fifteen days to provide it with an authenticated document kept in the ordinary course of business stating the conditions upon which an individual may be a dependent on Chuck's health insurance policy.
On July 17, 2015, Chuck filed his response. Chuck stated that he believed he should be relieved of all responsibility of providing insurance coverage for Ben because Ben terminated all contact with him and Chuck did not want Beth to have access to his family's confidential medical information. Rather than providing a document stating the conditions upon which an individual may be a dependent on his insurance policy, Chuck acknowledged that Ben could be covered if currently enrolled in a post-secondary program, but he would have to have proof of such enrollment and, even if he were to obtain insurance for Ben, he would refuse to provide Ben with an insurance card.
On August 3, 2015, the family court entered an order determining Chuck had an ongoing obligation to pay the full cost of Ben's health care coverage, reasoning as follows:
[Chuck] has again lied to this Court. He has provided no proof, because none exists, that the child could not be covered on the health insurance plan in which he is a participant. [Chuck] attempts to distract the Court from his own bad deeds and perjury by claiming that [Beth] is to blame for destroying his relationship with his son. The Court is well-aware that both parties have acted badly and lied to this tribunal under oath; neither has clean hands. In fact, in this whole case the only individual for whom the Court has any sympathy is the parties' child. [Chuck] rightly points out that Ben cannot be covered on the family health insurance plan unless it is known that he is enrolled in a post-secondary education program and [Beth] refuses to confirm whether or where he is enrolled. [Beth] claims it is not her information to share which is ridiculous and were it not for the best interests of Ben, the Court would be inclined to let its Order of May 4 stand. However, based on the testimony of the [Beth] it is clear to this Court that Ben was not on his own health insurance policy and that this Court made a mistake when it released [Chuck] from his obligation to provide health insurance for Ben pursuant to the language of the August 3, 2011 Findings of Fact. Therefore, per CR 60.02(a) the Court vacates the entire Order of May 4, 2015. [Chuck] has an ongoing obligation to pay the full cost of Ben's health insurance coverage in the amount of $170.53 by the 10th of each month. [Chuck] shall pay all sums owed to [Beth] by August 31, 2015. If [Chuck] does not make timely payment of his health insurance obligation in the future, counsel for [Beth] may file a "Notice of Filing" advising this Court of [Chuck's] violation of a Court Order and
the Court will find [Chuck] in contempt and Order him to serve 90 days at the Oldham County Jail.Chuck appealed. While the matter was pending on appeal, the family court continued to make rulings based on Chuck's failure to pay the amounts due as previously ordered.
On September 17, 2015, the family court found Chuck in contempt for failing to pay Ben's premium amount and ordered him to spend ninety days in jail, suspended during the appeal. On October 9, 2015, the family court finalized a judgment in Beth's favor for the amount currently due and ordered Chuck to pay her timely as ordered, post a supersedeas bond with the clerk for $4,583.84 or report to serve ninety days in jail. Chuck timely posted the bond.
Chuck argues that the family court erred by: (1) misapplying KRS 403.211(7)(c) to require him to continue paying for Ben's insurance; (2) concluding the proof offered was sufficient to satisfy KRS 403.211(7)(c) where the court failed to make the necessary findings and Beth did not provide proof Ben was unmarried, was primarily dependent on Chuck for maintenance and support, and a full-time student enrolled in and attending an accredited educational institution. Alternatively, even if he should be required to maintain insurance on Ben, these expenses should be allocated between the parents based upon their income.
Beth argues Chuck agreed to be responsible for Ben's insurance coverage past his eighteenth birthday and is bound to this arrangement because he failed to appeal from the family court's August 3, 2011, findings of fact, which made the necessary findings to comply with the statute. The record does not contain any agreement of this nature; the family court's findings of fact and conclusions of law imposed such an arrangement on Chuck pursuant to statutory authority rather than as a matter of a contractual agreement between the parties and such arrangement was contingent on the establishment of statutory conditions needed to make it effective on the parties after Ben graduated from high school.
KRS 403.211(7) specifies how health care insurance will be provided for children after their parents' divorce. The family court's authority to order Chuck to pay for the cost of Ben's health insurance as a dependent on Beth's policy depends upon the interpretation to be given to this statute. KRS 403.211(7) provides in relevant part as follows:
(a) If private health care insurance coverage is reasonable in cost and accessible to either parent at the time the request for coverage is made, the court shall order the parent to obtain or maintain coverage, and the court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, the cost of health care insurance coverage for the child, in addition to the support ordered under the child support guidelines.
. . .
(c) The court shall order the cost of health care of the child to be paid by either or both parents of the child regardless of who has physical custody. The court order shall include:
1. A judicial directive designating which parent shall have financial responsibility for providing health care for the dependent child, which shall include but not be limited to private health care insurance coverage, payments of necessary health care deductibles or copayments;
2. If appropriate, cash medical support. "Cash medical support" means an amount to be paid toward the cost of health care insurance coverage
that is provided by . . . another parent or person with whom the child resides through employment or otherwise, fixed payments for ongoing medical costs, extraordinary medical expenses, or any combination thereof; and
3. A statement providing that if the designated parent's health care coverage provides for covered services for dependent children beyond the age of majority, then any unmarried children up to twenty-five (25) years of age who are full-time students enrolled in and attending an accredited educational institution and who are primarily dependent on the insured parent for maintenance and support shall be covered.
We disagree with Chuck that the family court could not require him to continue to pay Ben's health insurance under KRS 403.211(7)(c). The statute provides for continuing health care coverage for children who have obtained their majority if enumerated conditions are found to exist. However, we agree with Chuck that the family court's order must be reversed and remanded because the family court failed to make the factual findings required for it to have the jurisdiction to order Chuck to pay cash support to Beth for Ben to be covered on her policy. See Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011) (discussing the requirement that trial courts comply with CR 52.01 and make findings of facts). While the family court implicitly modified its original child support order to direct Beth to maintain insurance coverage for Ben pursuant to KRS 403.211(7)(a) and (c)1 and directed Chuck to pay for it in accordance with KRS 403.211(7)(c)2, the family court failed to make findings that Ben qualified for continuing insurance coverage under KRS 403.211(7)(c)3 as an unmarried full-time student dependent on Beth (the insured parent).
Chuck did not challenge the family court's failure to explicitly order Beth to maintain insurance coverage. The family court likely failed to order this because it wanted Chuck to continue to provide insurance coverage under his family policy if Ben could properly be covered under it as it would not result in any additional cost; however, in light of Chuck's refusal and Ben's obtaining coverage under Beth's policy, unless the family court plans to order Chuck to insure Ben, on remand it should explicitly order Beth to provide coverage because Chuck can still be ordered to pay for it through cash support. This also avoids the problem of ordering Chuck to insure Ben when Ben is not primarily dependent upon Chuck as required under KRS 403.211(7)(c)3, which was part of the basis Chuck relied upon for avoiding insuring Ben.
Pappe v. Pappe, No. 2010-CA-002071-MR, 2012 WL 5371891 (Ky.App. 2012) (unpublished) is instructive. It held that a family court erred when it required a father to continue providing health insurance for his emancipated children without entering sufficient findings to support its judgment. Id. at 1. While the original decree provided a basis for continuing coverage if certain conditions were met under KRS 403.211, the family court still must make factual findings that those conditions were satisfied before ordering father to provide insurance coverage. Id. The Court reversed and remanded for appropriate findings, explaining that if the conditions were met the family court should order the father to provide insurance so long as those conditions continued to be met. Id. at 2.
We may appropriately consider this unpublished case pursuant to Kentucky Rules of Civil Procedure 76.28(4)(c) because there is no published opinion that addresses what is needed to comply with KRS 403.211 when parents seek continuing insurance coverage for emancipated minors.
Having reviewed the hearing the family court conducted prior to ordering Chuck to pay Beth to cover Ben's insurance cost, we conclude there was insufficient evidence presented for the family court to make factual findings on whether Ben is unmarried and is a full-time student enrolled in and attending an accredited educational institution. Sufficient evidence was introduced to establish that Ben is primarily dependent on Beth for maintenance and support. On remand, the family court may decide whether to have Beth submit an appropriate affidavit from which the family court may make such rulings, or conduct another hearing to produce such evidence.
We do not believe that Beth must disclose the name of the educational institution Ben is attending to Chuck for the family court to make a finding that he is a full-time student enrolled in and attending an accredited educational institution. The family court may decide what information it requires to make such a finding, how it can be submitted to it, and the redacted form that would be appropriate for Chuck to have. Because Chuck is not enrolling Ben in his insurance, he does not require this information; having reviewed Chuck's ongoing actions to obstruct Ben from having insurance coverage on his plan and access to insurance cards when coverage has been provided, the family court may appropriately find that even if Chuck decides he wants to apply for coverage for Ben that it is not in Ben's interest that coverage be provided in this manner because Chuck is likely act in a manner restricting Ben from accessing it. --------
We note that the family court could appropriately order Chuck to be responsible for the entire cost of Ben's insurance coverage if it made appropriate findings supporting such a decision because the parents incurring any additional cost at all was caused by Chuck's refusal to cover Ben on his family's policy.
Accordingly, we reverse and remand the family court's order requiring Chuck to pay Beth for Ben's health insurance premium for the family court to obtain appropriate evidence from which to make factual findings as to whether Ben qualifies for ongoing health insurance coverage.
ALL CONCUR. BRIEFS FOR APPELLANT: Paul V. Hibberd
Louisville, Kentucky BRIEF FOR APPELLEE: George R. Carter
Louisville, Kentucky