At - - - LISA ANN THOMPSON V. PAUL RICHARD THOMPSON
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RENDERED : SEPTEMBER 22, 2005
TO BE PUBLISHED
ixprentt (90urf of
2004-SC-000062-DG
LISA ANN THOMPSON
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
NO. 2002-CA-1535-MR
CARTER CIRCUIT COURT NO. 99-CI-00354
PAUL RICHARD THOMPSON
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
This case arises from a dispute concerning the amount of child support
owed by Appellee, Paul Richard Thompson, for the period of December 1999 through
August 2000 . His two children were in the custody of their mother, Paul's now former
wife, Lisa Ann Thompson (now McCleese), during this period . Two orders, each issued
by a different court, are alleged to govern Paul's child support obligation during this
period . Lisa contends that an order of the Carter District Court governs the obligation,
while Paul contends that an order of the Carter Circuit Court is controlling .
Consequently, we must thoroughly review the convoluted procedural history of this
case .
Paul filed a petition for dissolution of the marriage on December 1, 1999,'
in Carter Circuit Court . On December 10, 1999, Lisa obtained a domestic violence
order (DVO) against Paul in Carter District Court . The DVO awarded Lisa temporary
custody of the two minor children and a temporary support order requiring Paul to pay
child support in the amount of $500.00 per week. Thereafter, on June 12, 2000, the
district court purported to set aside its child support order and "sent" the matter to the
circuit court where the dissolution of marriage case was pending . The circuit court
rendered a dissolution decree on July 28, 2000, but reserved jurisdiction to calculate
and order child support after receiving evidence of the parties' incomes .
On August 14, 2000, Lisa made a motion for the circuit court to set final
child support. The Domestic Relations Commissioner (DRC) heard the motion on
August 28, 2000, and apparently recommended child support at $568 .00 per month .
We cannot discern the exact terms of the recommendation because it is not a part of
the record . Rather, our only evidence of the recommendation is a subsequent
recommendation by the DRC which refers to the hearing and prior recommendation .
Nonetheless, the parties in various court filings have agreed that August 28, 2000, is
the end of the time period in which support is disputed . On February 20, 2001, Lisa
These parties assert in their briefs to this Court that the petition was filed on
December 13 . However, the case history and the petition reveal that the date of filing
was actually December 1, 1999 . The summons shows issuance by the clerk on
December 1, 1999, and return by the sheriff on January 17, 2000, unserved due to
inability to locate Lisa.
2 Ironically, neither party acknowledges, in brief, this order of the District Court. This
order states as follows : "Upon motion of the Respondent, it is hereby ordered and
adjudged that all matters concerning child support heretofore entered are set aside and
the child support question shall be, and the same hereby is, sent to the Circuit Court in
action no . 99-CI-00354, being a dissolution of marriage proceeding pending between
the parties. IT IS SO ORDERED this 12 day of June, 2000."
2
filed another motion to set child support, and on April 27, 2001, she moved to increase
child support retroactive to August 28, 2000 .
By order dated June 8, 2001, the circuit court confirmed
recommendations made by the DRC on May 9, 2001, validating the district court order
of $500 .00 per week for temporary child support, and setting support at $568.00 per
month for the period thereafter. However, upon Paul's motion on August 14, 2001, the
circuit court vacated its June 8, 2001, order because Paul had not received proper
notice of the proceeding . Upon the parties' agreement, child support was set at
$568 .00 per month from August 2000 until changed by the court, and the case
remanded to the DRC for a hearing, inter alia, on the issue of "support for the period of
December 1999 through August 28, 2000 ."
On May 15, 2002, after a hearing, the DRC recommended the amount of
child support at $822 .24 per month, retroactive to December 1999 . Thus, while the
recommendation reflected a decrease from the $500.00 per week amount that Lisa
claimed during the relevant period, it also reflected an increase for the period thereafter .
On May 30, 2002, Lisa filed exceptions to the DRC's recommendations .
On June 17, 2002, the circuit court overruled the exceptions and on June 19, 2002, the
circuit court entered a final judgment denying Lisa's exceptions and incorporating the
DRC's recommendations into the final judgment, setting child support at $822.24 per
month retroactive to December 1999 . It is this judgment from which Lisa appealed .
The Court of Appeals affirmed the circuit court. As with the parties, the
Court of Appeals incorrectly recited the date the divorce petition was filed . It relied on
KRS 403 .160 but failed to take account of KRS 403.213. In effect, the Court of
Appeals' view disregarded the December 1999 DVO which provided for temporary child
support.
Lisa contends that the circuit court lacked jurisdiction to retroactively
modify child support. According to her view, the district court child support order would
remain in effect until one of the parties, Lisa or Paul, moved the circuit court to set child
support . She relied on KRS 403 .213 which states in pertinent part:
The 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.
However, at the time of her motion, the district court had already granted and then set
aside its temporary child support order and further ordered that "the child support
question shall be, and the same hereby is, sent to the circuit court in action no. 99-CI00354, being a dissolution of marriage proceeding pending between the parties ."
To summarize the relevant facts, after Paul's divorce petition was filed,
but prior to service of process, Lisa obtained a district court custody and support order
in conjunction with a domestic violence proceeding . Neither party took any action on
the case for several months, but on June 12, 2000, pursuant to Paul's motion, the
district court purported to vacate its support order and send the case to circuit court.
Thereafter, in August 2000, Lisa moved the circuit court to set child support and this
was ultimately, albeit not expeditiously, accomplished . Moreover, the final circuit court
judgment relative to child support purported to vacate the district court support order.
Thus, we have a district court support order arising out of a domestic violence
proceeding that was subsequently vacated by the district court and that was also
subsequently vacated, expressly or by implication, by the circuit court when it set child
support from December 1999.
From these facts the issue that emerges is whether a child support order
rendered by a district court, ancillary to a domestic violence proceeding, may be
retroactively modified by the rendering court or by a circuit court in a dissolution
proceeding . In other words, was the district court order of December 1999 subject to
subsequent eradication, and elimination of the accumulation of child support at $500.00
per week from December 1999 until June 12, 2000?
KRS 403.750(1)(e) and (f) provide that a district court may award
temporary custody and temporary child support ancillary to a domestic violence
protection proceeding . KRS 403 .750(1)(f) incorporates the criteria of KRS 403.213 .
The reason for these statutes would appear obvious . Where parties are restrained
from contact with one another due to domestic violence, it is necessary that one party
have custody and receive support for the children during the effective period of the
domestic violence order. Moreover, the Cabinet for Health and Family Services is often
a party in interest as an "agency substantially contributing to the support of the child."3
Of course, the Cabinet is entitled to reimbursement to the extent that child support
equals or exceeds the amount it contributes . Thus, it appears that the December 1999
order concerning custody and child support was a lawful order.
We recognize that KRS 403.160(6) allows a temporary order to be
revoked or modified before final decree. Notwithstanding, KRS 403.213(1),
incorporated in KRS 403.750(1)(f), provides that "the provisions of any decree
3 KRS 403.211(1).
4 KRS 205 .780.
respecting child support may be modified only as to installments accruing subsequent
to the filing of the motion for modification . . . . .. Where two conflicting statutory
provisions cannot be reconciled, the one containing "express and positive language
relating to the particular subject should take precedence over a provision dealing with a
matter in general terms ." 5 Thus, as we have often held, child support orders may not
be retroactively modified and the statutes permit no departure from this rule for child
support orders entered in a domestic violence proceeding . Accordingly, as with other
child support orders, when each weekly installment payment of $500 became due
pursuant to the December 1999 district court order, that installment became a fixed,
liquidated debt, not subject to retroactive modification .
By their very nature, child support payments are exigent. Such payments
cannot be indefinitely postponed while parties litigate . If a subsequent court order
retroactively cancels a child support debt, parties would be encouraged to refrain from
payment in the hope of obtaining relief subsequently. Moreover, a party aggrieved by a
district court child support order may seek relief by a motion in circuit court for an order
of support. Thus, Paul or Lisa, if dissatisfied with the district court order, could have
gone to circuit court seeking an order of support that would apply thereafter . Their
failure to seek such relief suggests, at a minimum, acquiescence or waiver of complaint .
This case well illustrates the desirability of having all matters relating to a
family's domestic conflicts handled by the same court. This case began in circuit court,
orders were entered in district court, hearings were held before commissioners in circuit
court, and orders and judgments were rendered by the circuit court. The complex,
5 Commonwealth v. Martin , 777 S.W.2d 236, 238 (Ky. 1989) (quoting Morgan County
Board of Education v. Elliot 260 Ky. 672, 86 S .W.2d 670 (1935)).
" Pursley v. Pursley , 144 S .W.3d 820 (Ky . 2004) .
6
contradictory nature of this proceeding would likely have been eliminated if a single
judge presiding over both the district court and circuit court elements of the case had
conducted all proceedings as is done in family court.
For the foregoing reasons, the opinion of the Court of Appeals is reversed
and this cause is remanded to the circuit court for entry of orders consistent herewith .
Cooper, Graves, and Roach, JJ., concur. Johnstone, J., dissents by
separate opinion in which Scott and Wintersheimer, JJ ., join .
COUNSEL FOR APPELLANT :
Arnold Scott Coburn
238 East Main Street
P . O. Box 445
G rayson, KY 41143
COUNSEL FOR APPELLEE :
Robert W. Miller
P. O. Box 357
Grayson, KY 41143
RENDERED : SEPTEMBER 22, 2005
TO BE PUBLISHED
,,Suyrrmr 1 -11aurf of 'PtrnfurhV
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2004-SC-0062-DG
LISA ANN THOMPSON
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
2002-CA-1535-MR
CARTER CIRCUIT COURT NO. 1999-CI-0354
PAUL RICHARD THOMPSON
APPELLEE
DISSENTING OPINION BY JUSTICE JOHNSTONE
While I do not disagree with the majority's procedural analysis, I think the opinion
misses the point. The issue is not which court had the authority to modify the child
support ordered from December 1999 to August 2000, but whether the parties agreed
that the Carter Circuit Court should resolve the matter of the child support in question .
The answer to that inquiry lies in the Order entered August 15, 2001, which provides :
This matter having come before the Court upon a
motion to alter, amend or vacate filed by the Respondent ;
and the Court having reviewed the motion and the file
herein, does hereby find that the Respondent, Paul
Thompson, was without counsel at the time of the hearing
scheduled by the Domestic Relations Commissioner, and
that prior counsel had made a motion to withdraw, and
Respondent was afforded thirty days to obtain new counsel,
and therefore, does SUSTAIN said motion, and does hereby
vacate the order entered herein on June 8, 2001 .
The Court hereby ORDERS, upon agreement of the
parties hereto, that child support shall be paid by the
Respondent to the Petitioner in the sum of $568.00 per
month from August 28, 2000 until changed by orders of this
Court .
The Court further ORDERS that this case be
remanded to the Domestic Relations Commissioner for
hearing on the issue of child support for the period of
December 1999 through August 28, 2000, for any
increases from August 28, 2000, and for any and all
other issues involved herein .
(Emphasis added) .
The above Order was signed by the circuit judge, and counsel for both parties
certified that they had "Seen and Agreed to" the Order. It is clear that, by agreement,
the terms of the Order provided that Paul was to pay no less than $568.00 per month
from August 28, 2000, and that the matter was to be remanded to the domestic
relations commissioner for a determination of the proper amount of child support for the
disputed period of December 1999 through August 2000 .
Ironically, Lisa does not challenge the circuit court's jurisdiction to increase the
amount of child support from August 2000 (which it did), but takes issue with the court's
authority to modify support during the period in which the decision was not in her favor
(December 1999 through August 2000). In my opinion, the issue in this case is resolved
by Lisa's own agreement. I would affirm the Court of Appeals.
Scott and Wintersheimer, JJ., join this dissenting opinion .
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