RENDERED: MARCH 22, 2018 TO BE PUBLISHED
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HARRY L. SEEGER APPELLANT
ON· REVIEW FROM COURT OF APPEALS V. CASE NOS. 2013-CA-001591-DG AND 2013-CA-001661-DG NELSON CIRCUIT COURT NO. 12-XX"'.00010
SHARON LANHAM APPELLEE
AND
2017-SC-000146-DG
SHARON LANHAM CROSS-APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NOS. 2013-CA-001661-DG AND 2013-CA-001591-DG NELSON CIRCUIT COURT NO. 12-XX-00010
HARRY.L. SEEGER CROSS-APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING IN PART, REVERSING IN PARTAND REMANDING
Both parties appeal separate holdings of the Court of Appeals. This
action originated as a paternity action pursuant to Kentucky Revised Statute. / (KRS) 406.021 in the Nelson District Court.· The.issues before the Court have
been consolidated into one action. We now address each issue in turn and
affirm in part and reverse in part the holding of the Court of Appeals.
I. BACKGROUND
Harry Seeger ("Seeger").and Sharon Lanham ("Lanham"), while each.
married-to other partners, engaged in a· relationship leading to the_ birth of a \ - child on June 13, 2007. On December 30, 2009, Lanham filed a paternity
action. In J ap.uary 2011, during the pendency of the action to resolve child
support and other issues, Seeger retired and began receiving Social Security
Retirement Income of $1,969.00 per month. As a result,_ Seeger and Lanham's
child also began receiving monthly dependent benefits in the amount of
$1,204·.00 in November 2011. In May 2012, the Nelson District Court,
Paternity Division, entered its final findings of fact, conclusions of law, and
judgment. Relev~t to this appeal are three conclusions and judgments: (1) the
court had jurisdiction to hear the case pursuant to KRS 406.02!1; (2) the
child's Social Security benefit payments above the current child support order
would be credited to the pre-petition liabilities Seeger was ordered to pay
($795.00 of the $1,204.00 monthly payment was considered "excess" as I
current support was ordered for $409.00 per month); and, (3) in a separate
opinion and order entered August 23, 2011, that there was no statutory avenue·
for attorneys' fees as Lanham had requested.
1 This issue was also resolved pursuant to Seeger's motion to dismiss for lack of jurisdiction and the Court's subsequent order. The grounds addressed are the same grounds raised in the appeal and will be discussed herein. 2 LanhaIJ1 first appealed several issue~ to the Nelson Circuit Court. As to
the issues presented in this appeal, the Nelson Circuit Court found that it was
error for the district court to credit th~ social security benefits to the pre-
petition liabilities owed by Seeger but that it had not erred in holding attorneys'. . " fees were inappropriate in this case.2 Both parties then appealed to the Court
of Appeals. The Court of Appeals held that the trial court may, in its
discretion, apply ex~ess social security retirement dependent benefits to pre-
petition liabilities. The Court of Appeals.also held that Lanham's argument for
attorneys' fees was sound, and remanded to the district court to assess . . whether, under KRS 403.220, Lanham was entitled to attorneys' fees.
Both parties have moved this Court for discretionary review on separate
issues. We have granted discretionary review in both cases and now address
each issue presented to this Court.
II~ ANALYSIS
A. A paternity.action can be brought by a private attorney.
Seeger first· argues that the district court lacked the jurisdictional
authority to even. hear this paternity case pursuant to KRS 406.021. As this
question would be dispositive were we to rule in Seeger's favor, we will address
it first. To address this issue, we must analyze questions of law, including
statutory interpretation. We conduct such analysis de novo, with no deference
to the analysis of the lower courts. Commonwealth v. Love, 334 S.W.3d 92, 93
(Ky. 2011) (citing Commonwealth v. McBride, 281 S.W.3d 799, 803 (Ky. 2009)):
2 The jurisdictional issue was not addressed again until appeal to this Court. 3 There are three separate types of jurisdiction: personal jurisdiction,
subject-matter jurisdiction, and jurisdiction over a particular or specific case
before the court. See Nordike v. Nordike, 231 S.W.3d 733, 737-38 (Ky. 2007)
(citing Milby v. Wright, 952 S.W.2d 202, 205 (Ky. 1997) and Covington Tritst Co.
of Covington v. Owens, 129 S.W.2d 186, 190- (Ky. 1939)). "[J]urisdiction over
the particular case at issue ... refers to,_the authority and power of the court to
decide a specific case, rather than the class of cases over which the court has
subject-matter jurisdiction." Nordike, 231 S.W.3d at 738 (quotjng Milby, 952.
S.W.2d at 205) (emphasis original). This jurisdictional requirement . ' can often
turn on the failure of a party to meet certain statutory requirements in bringing . ,J
a suit. See Nordike, 231 S.W.3d at 738. As such, it is this brand of
jurisdiction which Seeger claims that the district court lacked in ~earing this . \
case.
KRS 406.021(1) states that paternity actions "shall be brought by the
county attorney or by the Cabinet for Health and Family Services or its
.designee upon the request of complainant ... " Seeger argues that the· word . . "shall" in the statute. is dispositive of the jurisdictional issue. Because Lanham
chose to hire a private attorney to initiate this paternity action; he argues that
there is no statutory authority allowing .a private attorney to bring a paternity
action under this chapter. His reading of the statute requires that all paternity
actions be brought by the Cabinet or County Attorney:
We agree with the generally mandatory meaning of the word "shall" in
statutory interpretation. See Alexander v. S & M Iv.rotors, Inc., 28 S.W.3d 303,
4 305 (Ky. 2000) (Citing KRS 446.010(2)). However, the rest of the sentence in
KRS 406.021(1) must be acknowledged: the action "shall be brought by the
county attorney or by the Cabinet ... upon the request of complainant ... "
(emphasis added). The term "shall" is mandatory here, but mandatory as to
what the County Attorney or Cabinet must do when requested. In other words, __j
when the complainant (mother, putative father, child, or any other party
authorized underKRS 406.021(1)).seeks the assistance of the County Attorney
or the Cabinet in proceeding with a paternity action, the County Att_orney or
Cabinet shall proceed in bringing the necessary paternity action.
However, the term "shall" is not mandatory as to how the complainant
must proceed, be it through government agency action or by hiring a private
attorney. Seeger cites to an u~;r-eported case in which the Court of Appeals . . affirmed dismissal of a paternity action. -The Court of Appeals stated ·that the
father, "in this jurisdiction, must bring the action through the above
government entities," listed in the statute. J.L v. J.B., No. 2007-CA-002428,
2008 WL 2219912, *3 (Ky. App. May 30, 2008). However, this Court has stated
that the paternjty action "may be brought by and prosecuted by-the mother,
child, person or agency substantially contributing to the support of a child by
an atto~ey of their ow"! choosing." Commonwealth ex rel._Stumbo v. Wilson,
622 S.W.2d 912, 914 (Ky. 1981) (emphasis added). "[T]he county attorney gets
into the case only when so requested by the complainant." Id. However, upon
such a request, "the county attorney is obligated to" initiate the action. Id.
5 We must ~ook first to. the plain language of a statute and, if the language
is clear, our inquiry ends. See Revenue Cabinet v. O'Daniel, 153 S.W.3d 815,
819 (Ky. 2005). Based on the plain language of the statute, we h.old that
complainants under KRS 406.021 are authorized to bring a paternity action
. through private counsel, if they so choose. Only when a complainant requests
assistance from the County Attorney or the Cabinet must those agencies
proceed in bringing the paternity action. We therefore affirm the finding of the
district court that it was empowered with the jurisdiction to hear the paternity
action as brought by Lanham. Thus, seeing no jurisdictional bar to Lanham's
claims, we now proceed to the substantive issues on appeal.
B. Attorneys' Fees are not recoverable in paternity actions.
Lanham ·moved the Nelson District Court to award attorney fees. As the
basis for her motion, Lanham cited to KRS 406.051. · The statute states that I.
"[a]ll remedies under the. uniform reciprocal enforcement of support act are
available for enforcement of duties of support under this chapter." She linked.
this proyision to KRS 407.5313, which states that "[a]ttorney's fees may·be
truced as costs, and may be ordered paid directly fo the attorney . :. " The .
district court denied the motion, finding that KRS 406.051 specifically referred
to the enforcement of judgments and duties . of support. The. district court also /
found that, had the legislature intended attorneys' fees to be recoverable, it
would have created a specific statute allowing sq, similar. to KRS 403.220,
which allows attorneys' fees for maintaining or defending dissolution
proceedings. ) On appeal, the Nelson Circuit Court similarly held tha_t the remedies
"referenced in KRS 406.051 are limited to those "provided for the enforcement of
previously entered judgments under a statutory framework designed to
facilitate reciprocal recognition of support orders from other ·states." Citing a
Latin maxim meaning that "the expression of one thing implies the exclusion of
the other," the circuit court concluded that the legislature did not intend to I ·.
provide a statutory avenue for attorneys' fees in paternity actions.
On appeal to the Court of Appeals, Lanham reiterated her argument that
KRS 406.0.51, referencing Chapter 407, provides an avenue for attorneys' fees
to be awarded. However, she also argued that KRS 406.025, which permits
child support orders in paternity actions to be based upon the guidelines
encoded in KRS 403.212, therefore confers upon a paternity action the
· applicability ofKRS 403.220. KRS 403.220 permits a trial court to "order a
party to pay a reasonable amount for the cost to the other party of maintaining
or defending any proceeding under this chapter and for attorney's fees ... "
(emph?-sis added). The Court of Appeals held that the specific reference in the
trial court's order to KRS 403.212 imbued it with the power under KRS
403.220 to order attorneys' fees. It remanded the case to the district court to
determine whether Lanham was entitled to such an award. The Court of
Appeals limited its holding to this fact-specific case in which there was a ) request for child support pursuant to KRS Chapter 403. We shall address each
of the potential statutory bases presented by Lanham in turn. Once again, we
7 are faced with an issue of statutory interpretation and review the issue de novo.
Love, 334 S.W.3d at,93 (citing McBride,'281 S.W.3d at 803).
1) . KRS 403 does not provide an avenue for a party in a paternity action to recover attorneys' fees.
KRS 406.025(5) specifically requires the trial court to utilize 'the child
support guidelines in KRS 4q3.212 in ordering temporary child support. 3 KRS
406.051(2) also require~ the district court to "utilize the provisions of KRS
Chapter 403 relating to child ~ustody and visitation."4 Clearly, the crafters of
KRS 406 inferred that KRS 403 would be helpful and instructive in determining
issues under KRS 406 actions. However, this does not necessarily mean that
the instructive value of KRS 403 thereby makes the entire chapter applicable to
paternity actions under KRS 406. KRS 403 was adopted from the Unifo;rm
Marriage and Divorce Act, whereas KRS 406 was based on the Uniform Act on
Paternity. Each act clearly addressed differing goals: the former to provide
instruction on dissolution of marital relatipnships and the second to provide an
avenue for a c~ild to receive support from a putative parent when that child
was born outside the confines of marriage. Thus, it is very well within the
·realm of possibility that certain procedures .or provisions of one chapter may be
entirely inapplicable to the other.
3 "The court shall, within fourteen (14) days from the filing of the motion, order an amount of temporary child support based upon the child support guidelines as provided by KRS 403.212 .... " KRS 406.025(5). 4 "The District Court may exerci~e jurisdiction, concurrent with that of the Circuit Court, to determine matters of child custody and visitation in cases where paternity js established . . . . The District Court, in making these determinations shall utilize tP,e provisions of KRS Chapter 403 relating to child custody and visitation .... " KRS 406.051(2).
8 The relevant statute in Chapter 403 is KRS 403.220, which states that
"[t]he court from time to time ~.fter considering the financial resources of both
parties may order a party to pay a reasonable amount for the cost to the other
party of maintaining or defending any proceeding under this chapter and for
attorney's fee,s ... "
The purpose of the fee-shifting statute, we have noted, is simply to ensure the fairness of domestic relations procee~ings: 'to prevent one party to a divorce action from controlling the outcome simply because he or she is in a position of financial superiority,' [Neidlinger v. Neidlinger, 52 S.W.3d 513, 521 (Ky. 2001)], and 'to equalize the status of the parties to a dissolution proceeding ... in an effort to eliminate the inequities resulting from the termination of the relationship.' [Sullivan v. Levin, 555 S.W.2d 261, 263 (Ky. l977)(overruled on other grounds by Hale v. Hale, 772 S.W.2d ·628 (Ky. 1989))].
Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014). Based on this statute,
"trial court[s] enjoy[] a broad discretion ... to allocate costs and award fees[.]"
Rumpel, 438 S.W.3d at 363 (citing Wilhoit v. Wilhoit, 521 S.W.2d 512, 514 (Ky.
1975)). This Court has noted that the fee~shifting structure "is not intended
primarily to be punitive or sanctioning. It is intended ... to ensure that
dissoluti~n and child-custody proceedings are fair and not skewed in favor of I
the party in the financially superior position." Rumpel, 438 S.W.3d at 364.
This Court not~d the specific and unique nature of "domestic relations
proceedings" as "often charged with bitter contentiousness" and being
"particularly susceptible to domineering tactics and manipulation by the side·
with the deeper pockets." Id. at 365. Thus, "the main concern is simply to
9 ensure that the proceedings do not impose an unreasonable or an unfair
burden on the party with fewer financial resources." Id.
At this juncture~ we cannot hold that the purpose ofKRS 403.220
applies to paternity actions. While it may seem perfunctory, we are
constrained to the plain language of the statute, if that statute is clear." When
examining the plain language of a statute, "[w]here the~e is no ambiguity in the
statute, there is. no need to resort to the rules of statutory . .. constn..iction in
interpreting it~ The words of the statute are simply accorded their commonly
understood meaning." Stewarl v. Estate of James Cooper, 102 S.W.3d 913, • - I '
915-16 (Ky. 2003) (quoting Regional Jail Auth v. Tackett, 770 S. W .2d 225, 229 ·
(Ky.· 1989)). KRS 403.220 clearly states that a trial court may "order a party to
pay a reasonable amount for the cost to the other party of maintaining or
defending any proceeding under this chapter and for attorney's fees ... "
(emphasis added). We cannot ignore this clear language which triggers the ' trial court's discretion to award attorney's fees in cases proceeding under KRS
Chapter 403.
Lanham valiantly attempts to tie KRS 403 to 406 by means of multiple
references in Chapter 406 to the child support guidelines in KRS 403.
However, KRS 403· gUides practitioners and courts in the dissolution of
marriage and divorce. It is not a chapter solely devoted to the child support _
· tables and guidelines. If it were, Lanham's argument may bear more weight.
However, this action was simply not an action under KRS 403; it was, properly,
a proceeding pursuant to KRS 406. We hold that the references to use of the
/ child support tables is insufficient to make this action one "under this chapter"
of KRS 403. As such, the attorneys' fees provision in KRS 403.220 is
inapplicable to Lanham's paternity action. We, therefore, reverse the opinion of
the Court of Appeals as to this holding.
2) KRS 407 does not provide an avenue for a prevailing obligee to recover attorneys' fees in a paternity action.
As we reject the argument made by Lanham that was accepted by the
Court of Appeals, we will address the alternative argument she made in the
courts below. KRS 406.051 states that "All remedies under the uniform
. reciprocal enforcement of support act are available for enforcement of duties of
support under this chapter." While the Nelson Circuit Court deemed that this \ .
final sentence "clearly refers to the remedies provided in KRS 407," we· are
inclined to further examine to what exactly the legislature was ~nferring.
The Uniform Reciprocal Enforce~ent of Support Act ("URESA.") was a
model act drafted by the National Conference of Commissioners on Uniform
State Laws ("NCCUSL") "[i]n 'response to the need for a simple, inexpensive, and
consist~nt interstate approach" in child support proceedings. Office of Child
Support Enforcement, U.S. Department of.Health & Human Services,
ESSENTIALS FOR ATTORNEYS IN CHILD SUPPORT ENFORCEMENT 330 (3rd ed. 2002)
(available at https:.//www.acf.hhs.gov I css/resource/ essentials-for-attorneys-
in-child-suppoit-enforcement-3rd-edition)(last accessed Jan. 29, 2018).
PRESA was amended in 1952, 1958, and 1968. Id. at 331. The 1968
amendments were referred to as the Revised Uniform Reciprocal Enforcement
of Support Act ("RURE.SA"). Id. "All States and U.S. territories enacted some 11 form of URESA or. similar legislation" although some "modified' or omitted
certain provisions to comply with their own State law-s on procedure and
enforcement." Id. Thus, despite the object, URESA "was therefore never truly
uniform." Id. Based on the need for major changes, NCCUSL developed the
Uniform Interstate Fam.ily Support Act ("UIFSA") in 1989. In 1996, Congress
required states to enact UIFSA in its most current form in order to receive
federal funds. Id. at 333. Although URESA was considered revolutionary when
first enacted, UIFSA was enacted to address multip~e shortcomings. Id. at 334-
35. Thus, although some provisions may be similar, UIFSA includes multiple
provisions that are strikingly new or different than URESA oi RURESA. See
generally id. at Chapter 12.
KRS 406.051 was first enacted in 1964, undergoing amendments and
reenactmen.ts in 1976, 1984, and 1996. In 1964,(Kentucky's statutes included
Chapter 407, entitled the Uniform Support of Dependents Act. Although
Kentucky's legislature titled it differently than URESA, it seems to be based in
part or in whole on URESA. Additionally, our courts have referred to UIFSA as )
replacing URESA in our statutory scheme. See Lichtenstein v .. Barbanel, 322
. S.W.3d 27, 35 (Ky. 2010) ("The United States Congress required that every J
state adopt [UIFSA] by Janµary 1, 1998. ··:Kentucky adopted the UlFSA on
January 1, 1998, replacing [URESA].").
At the time.that KRS 406.051 was enacted, the Uniform Support of
Dependents Act had no provision regarding attorney fees. It was only with the
passage of UIFSA that the Kentucky legislature created a statutory avenue for
12 the recovery of attorneys' fees in KRS 407.5101. Thus, we must question
whether the· legislature intended to allow a remedy that had not theretofore .
been created when it enacted KRS 406.051. Our answer must, logically, be no.
While the reference to KRS 407.5101 seems.strong, KRS 407.5101 is not
·a remedy under URESA. As such, the remedies referenced in KRS 406.051
cannot include the option for attorneys' fees. We question the legislature's.
dedsion to single out paternity actions as the only cause of action related to
domestic matters in which there is no statutory basis for the shifting of fees.
However, it is the duty of the General Assembly to l~gislate; and it is our duty
, to interpret such legi~lation. As such, we must hold that KRS 406.051 also \
fails to provide Lanham the statutory basis necessary for the award of
attorneys' fees in this case.
3) A court is no longer imbued with equitable power to award attorneys' fees.
The Court of Appeals made passing reference to the fact that neither of
the parties claimed attorneys' fees as a matter of equity and only addressed the
statutory bases presented by Lanham. The coµrts of the Commonwealth were
previously empowered to award attorneys' fees as ari equitable measure, when,
within the discretion of the court, it was deemed appropriate. See Dorman v.
Baumlisberger, 113 S.W.2d 432, 433 (Ky. 1938) and Kentµcky State Bank v. AG
Sero.; Inc., 663 S.W.2d 754, 755 (Ky. App. 1984) (citing. Dorman, 113 S.W.2d at
433). However, in Bell v. Commonwealth, this Court determined an equitable
13 award of attorneys' fees was inappropriate. See 423 S.W.3d 742, 750 (Ky.
2014).
"Historically, courts ruled based on the common law, code or statutory
la~, and equity.". Id. at 747. However,. "[e]ventually, at least in most states, the
courts of equity and law were combined ... " I
by statutory and rule-based law, "those rules are also binding. Equity practice,
in general, is merged with law, or the statutory provisions .. Only when there.is
no law or precedent does. a court have the ?Uthority to exercise pure equity."
Id. (citing ViUitow v. Keene, 95 S.W.2d 1083, 1084 (Ky. 1936)). Thus, "[l]aw
trumps equity." Bell, 423 S.W.3d at 748.· Under the American rule, "attorney's
fees in Kentucky are not awarded· as costs to the prevailing party unless there
is a statute permitting it or as··a term of a contractual agreement between the
parties." Id. While attorneys 1 fees are awardable as a sanction "when the yery
integrity ofthe court is in issue," id. at 749 (emphasis original), "trial courts
may not award ,attorney's fees just because they think it is the right thing to do
in a given case.". Id. at 750.
Thus, we take this opportunity to clarify that, without a sound basis in
contract or statute, a trial court may not award attorneys' fees. The trial court
is still empowered to order a party to pay attorneys' fees as a sanction, but only
when the integrity of the·court is at stake. _I
14 C. The trial court must. make additional findings before crediting the excess social security income payments to the pre-petition liabilities.
Lanham and Seeger's child began receiving a monthly Social Security
dependent benefit of $1,204 per month in November 2011. The Nelson District . I
Court, in an order dated after the child began receiving these benefits, set
current' s~pport obligation for Seeger' at $409 per month. The district court
also ordered that the dependent benefits be applied to current support, leaving
an extra monthly benefit of $795.
The Nelson District Court also ordered that Seeger pay a statutory
liability of $46,820 for birthing expenses, child care costs, pre-petition child
care costs, and pre-petition KRS 403.212 child support (hereinafter referred to
as "pre-petition liabilities"). The district court specifically·found that Seeger's
""statutory liability for birthing expenses, child ca.re cost~ and child support
shall be-deemed satisfied by the social security benefits paid to [Lanham] for
I . the benefit of the Subject Child which are in excess of [Seeger]'s KRS 403.212
base monthly child support obligation." The court cited to the Court of Appeals
decision in Miller v. Millet, 929 S.W.2d 202 (Ky. App. 1996), as the
jurisprudential basis of its decision.
. Upon appeal, the Nelson Circuit Court remanded back to the district , -
court for further findings. The circuit court stated that "[a]pplying the rule in
Miller, Seeger may receive the benefit of the 'excess' dependent benefit
payments to pay the arrearage _accruing between the date of his retirement and
the date the child received the first dependent benefit payment." Seeger retired
15 I in January 2011 and the child began receiving monthly benefits in November
2011. Thus, from January to November 2011, the excess payment could be
credited toward the pre-petition liabilities. However, "the remaining arrearage
cannot be paid through the benefit payments." Thus, the circuit court
remanded to the district court to apportion the credit accordingly.
The Court of Appeals also addressed the issue and held that a triaI court
may, "in its discretion," "apply excess social security retirement dependent
benefits as a credit against the pre-petition ... li~bilities a father incurs when a
paternity action is initiated before a child turns four years old." Although we
ultimately agree with the Court of Appeals and affirm its holding, we b,elieve
further guidance is necessary for trial courts to utilize when making this
discretionary decision.
In reviewing t1J.is issue, we have a dual standard in our review. First, we I .
must determine whether this credit is even permissible under the appropriate
law. This being a purely legal issl.1:e, we review it de novo. Jones v. Hammond,·
329 S.W.3d 331, 335 (Ky. App. 2010) (citing Revenue Cabinet v. Comcast Cablevision ojthe South, 147 S.W.3d 743 (Ky. App. 2003)). If the trial court
utjlized its discretion and applied the correct standard,5 then vv:e must .
'. determine whether its ultimate· decision was an abuse of discretion. Downing
_v. Downing, 45 S.W.3d 449·, 454 (Ky. App. 2001) (citing Goodyear Tire.& Rubber
s The findings of fact here have not been questioned. Such facts would be reviewed under a clear ettor standard. See Miller·v. Eldridge, 146 S.W.3d 909, 915 (Ky. 2004) ("Glear error applies to a review of a trial court's findings of fact[:]").
16 Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) and Commonwealth V; English,
993 S.W.2d 941, 945 (Ky. 1999)).
First, we shall clarify the issues that are not before us today. We are not
presented . with the issue . , of whether a benefit payment to a child, be it through ·
government-sponsored retirement or dis~bility benefits, can be used to satisfy a
current support order of the non-custodial parent. This Court and the Court of
Appeals have already determined that allowing such a satisfaction is well
within the trial court's "general authority and discretion to determine child-
support questions." C.D.G. v. N.J.S., 469 S.W.3d 413, 421 (Ky. 2015); see also·
Miller, 929 S.W.2d at 205-06. Additionally, our courts have already determined
that allowing ~ credit from benefits to the child against arrearages owed by the
non·-custodial parent at the time the benefits began is wholly inappropriate. I .
Miller, 929 S.W.2d at 205 ("As to the remainder of any surplus, it must be
considered as a gratuity and not allowed to offset any arrearage for support
which accrued prior to the disability. Such an amount constitutes an existing
legitimate debt which should never have accrued and for which no credit can.
now be given ... ").
The issue before us today is narrow. Can a non-custodial parent receive
credit for a surplus government benefits payment to the child (received because
of the non-custodial parent's status as either retiree or disabled) towards pre-
petition liabilities? It is markedly different from the situations we have already
decided. It is not a debt wh_ich was legally owed or collectable prior to a
judgment. But neither is it a payment towards the current support of the
17 child. It is a debt owed for past costs that only bec,ome legally due after
adjudication and decision by. the_ court. Our decision in this case is limited to
such situations.
In making this decision, we have a clash between the interests of the I
child and those of the non·custodial parent. On one hand, "the primary
purpose of ... social security payments.... [is to] meet the current needs of the
dependents." Miller, 929 S.W.2d at 205 (quoting Potts v. Potts, 240 N.W.2d
680, 682 (Iowa 1976)) (emphasis added). It would therefore seem inconsistent
to allow a portion of those payments to pay pff old debts, even if those debts
were not legally enforceable when they arose in relation to the care of the child.
:Sut, we also recognize that "[r]etirement benefits are ... income from a
government-required investment, the benefits of which are realized only after a
certain age. And dependent benefits are Ii~~ the income of an investment trust /
or an annuity whose benefits are paid to a third party[.]" C.D.G., 469 S.W.3~ at
420 (citing Van Meter v. Smith, 14 S.W.3~ 569, 573 (Ky. App. 2000)). Thus, but
for the non_.custodial parent's payment into_ the federal"government system, the
child would not be receiving these benefits. "[S]ince the obligor has paid in
advance for these benefits over .the years (albeit mandatorily), they should be
recognized as the fruits of his labor." Children & Youth Servs. v. Chorgo, 491
A.2d 1374, 1377 (Pa.Super. 1985).
· Several other jurisdictions have addressed similar issues and tried to .
determine which of these two parties is entitled to the greater benefit. In Ohio,
the courts recognized that "the benefit [of Social Security benefits] inures
18 directly to the child, notwithstanding the prerequisite status of the parent."
Fuller v. Fuller, 360 N.E.2d 357, 358 (Ohi? App. 1976). In deciding whether
excess b~nefits· could be credited towards the non-custodial parent's accrued
arrearages, the court stated that such a credit would be "in effect, ordering the
children to pay the. accrued arrearages for their own. support." Id. The
Supreme Court of New Mexico was also presented with the is.sue of whether
these excess payments could be credited towards arrears. Mask v. !Yfask, 620
P.2d. 883 (N.M. ·1980). It posited that if it:
[allow[ed] such credits, the defendant would receive a windfall, since the delinquent support payments would be made with the funds of the social security administration and not with his own. If [the court] disallow[ed] the credits, the daughter will receive the benefit of the extra payments since she will receive not only the support arrearages but also the monthly social security checks.
Id. at 886. Faced ·with this conundrum, the court determined that "[w]hen the
windfall comes, equitably it should inure not to the defaulting husband's
benefit, but to his bereft children." Id.
The interests before us are diverse and divergent. Yet, "[a]mong the
highly varied holdings of these and other cases, we find one consistent·
similarity: the consideration of equitable factors in an effort to reach a fair and
just result." Grays v. Ark. Office of Child Support Erif't, 289 S.W.3d ·12, 44 (Ark. ( 2008). "While general rules and guidelines are desirable for consistency of
results, the trial court must have the ability to fashion its orders around the
contours of specific fact situations." Chorgo, 491 A.2d at 1378. We agree with
the sound reasoning of our sister states and deem that trial courts must be -
19 empowered with discretion to equitably determine whether credit for pre-
petition liabilities as in this case should be gleaned from excess benefit .
payments to the child. This resolution is in accord with our recognition of the
trial court's "general authority. and discretion to determine child-support
questions." C.D.G., 469 S.W.3d at 421. Indeed, "[t]here are few matters over
which the trial court has more discretion than cases involving domestic
relations issues." Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396,
400 (Ky. App.· 2000). However, we must present the trial courts with some
guiding principles to remember in making these decisions.
As in determining whether the gtiidelines for child support would be
"unjust or inapprppriate," co.u.rts should look to the factors enumerated in KRS
403.211(3) to decide. whether the credit as described would be equitably
appropriate. Those factors are:
(a) A child's extraordinary medical or dental needs;
(b) A child's extraordinary educational, job training, or special needs;
(c) Either parent's own extraordinarz needs, such as medical expenses;
(d) The independent financial resources, if any, of tq.e child or children; (e) Corr;ibined monthly adjusted parental gross income in excess of the
Kentucky child support guidelines;
(f) [Agreements to child support differentiating from the guidelines]; and
(g) Any similar factor of an extraordinary nature . . . .
KRS 403.211(3). These factors assist the triel". 0f fact in concluding whether the
needs of the parties would be equitably served by this credit or would be better
20 served by· allowing the excess to go to~ards the needs of the child. This list of
factors is not exhaustive for the tri~l court's determination; jnstead, it should ·
serve as a starting point for the court's equitable consideration. The trial court
is most familiar with each party's situation and can deem whether there ·are
other factors.relevant in each case.
Additionally, our family courts are cognizant of the overarching purpose
of child support orders: to benefit the dependent child in question. "The
purpose of the [Kentucky child support] statutes and the guidelines ... is to
secure the support needed by the children commensurate 'with the ability of ).
the parents to meet those needs." Gossett v. Gossett, 32 S.W.3d 109, 112 (Ky.
App. 2000). "Child support is a statutory duty intended to benefit the\ children,
rather· than the parents. The right to child support belongs to the child[,] not '
the parents." Gibson v. Gibson, 211 S.W.3d 601, 609 (Ky. App. 2006) (citing
Clay v. Clay, 707 S.W.2d 352 (Ky. App. 1986) and Gaines v. Gaines, 566
S.W.2d 814 (Ky. App. 1978)). Thus, the_guiding light in making this decision
should be: what best protects the interests and needs of the child? .
Thus, we have determined that the trial court is empowered with
discretion to determine whether to allow the credit. However, our courts have
also acknowledged that the trial court's discretion in these matters is not
without some limitation. Marshall, 15 S.W.3d at 400 (citing Keplinger v.
Keplinge~, 839 S.W.2d 566 (Ky. App. 1992)). Decisions regarding child support
obligations "must be frur, reasonable, and supported by sound legal principles."
Jones, 329 S.W.3d at 334 (citing Downing, 45 S.W.3d at 454). In this case, the
21 trial court found that the "logical extension of Miller requires that the statutory
liabilitj for pregnancy, confinement, child care, and children's health insurance
premiums also be payable from a child support obligor[1s 'excess' social
security benefits payments received on behalf of the child being supported"
(emphasis added). In· essence, the triaCcourt determined that Mille-r's holding
required it to credit these "excess" benefits to the pre-petition liabilities.
There is no such requirement. It is within the court's ·discretion to
determine whether the credit is equitably just under the guidelines we have
described. This decision, then, was not "supported by sound legal principles."
See Jones, 329 S.W.3d at 334 (citing Downing, 45 S.W.3d at 454) .. We
. recognize . '_that the trial court is in the best position to determine the equitable
needs of the parties in this case. As such, we must remand back to the trial
court to make further findings of fact and reassess whether the credit in this
case is equitable, just, and fair. .
III. CONCLUSION
In conclusion, we hold th.at a paternity action pursuant to KRS 406.021
may be brought by a private attorney. Only upon request .of the complainant
must the County Attorney or the Cabinet bring the petition. We therefore
uphold the order of the Nelson District Court that it had jurisdiction over this
case. We do, however, reverse the holding of the Court of.Appeals that KRS 1
403.220 provides a statutory avenue for attorneys',fees in this case. Although
it is unfortunate for parties proceeding under KRS Chapter 406, the
legislature's language at this time is clear. There is no statutory language
22 permitting the award of attorneys' fees under Chapter 406. We affirm the
holding of the Court 'of Appeals that a trial court has the discretionary
authority to allow credits of "excess" dependent benefi,ts (over and above any
current support ordered by the court) towards pre-petition liabilities. However,
rather than simply upholding the Nelson District Court's allowance of the
cr~dit, we-..remand for further factual findings in light of this opinion and a
renewed determination of whether that credit is appropri~te.
All sitting. Minton, C.J., Cunningham, Hugh~s, Keller, VanMeter and
Venters, JJ., concur. Wright, J., concurs in part and dissents in part by
separate opinion.
WRIGHT, J., CONCURRING IN PART AND DISSENTING IN PART: While I
agree with the majority's well-reasoned opinion in a~l other respects, I dissent
as to its remand for the trial court to. determine whether it would be equitable
to offset the father's pre-petition liabilities with the child's "excess" social
security income. While I firmly believe that trial courts should be afforded a
great deal of discretion in such matters, the child's dependent social security
benefits are funds that the federal government has paid for the benefit of the
child. How can a state court have the 1authority to take a child's money to pay
an existing del?t.of tp.e father?
To quote the majority, "the overarching purpose of child support orders
[is] to benefit the dependent child in question." In this case, Seeger's current
support obljgation is set at $409 per month, and his child receives social
security benefit of $1204 per month based on Seeger's Social Security
23 retirement. While the amount of the cl).ild's dependent social security benefit is
greater than the amount of the father's child support obligation, that does not
change the fact tl1:e funds belong to the child. This is clear from the statute
providing the entitlement. USC§ 402 (d)(l) rea~s, in pertinent part:
"Every child . . ; 'of an individual entitled to old-age or disability insurance
benefits, or· of an individu~ who dies a fully or currently insured individual, ..
. shall be entitled to a child's insurance benefit .... " (Emphasis added.) The
child is entitled. to the benefit-not a parent. While it might be appropriate to
reduce child support payments by the amou.nt of any support benefit paid the
child based on the retirement of the parent, it is beyond the authority of the
court to take any child's money and use these funds to pay debts the father
already owes.
This Court's ·precedent allows the portion of the current support
obligation owed by the non-custodial parent to be derived from the child's
. benefit. This is logical, as the father is no longer working and the child's Social
Security benefit is for the child's support. Therefore, what our precedent
ailows is a direct substitution of these sources of future child support .. Here,
the majority gives the trial court the authority to take the child's benefits in
excess of what was awarded as child support under the guidelines to pay a
debt already owed by the father. The trial court lacks the authority to take the
child's assets to pay the father's debt. The child is only a party to a child
support action in order to. receive funds owed to that child-not to have a court
invade the child's own assets for the father's benefit.
24 The child support benefit is paid by Social Security to support and care
for the child and it is totally inappropriate to take that child's money to pay the
father's past debts. A trial court should not have the discretion to do so.
Therefore, I respectfully dissent as to this issue .. .
.\
COUNSEL FOR APPELLANT/CROSS-APPELLEE, HARRY L. SEEGER:
William David Tingley William D. Tingley, PLLC
COUNSEL FOR APPELLEE/CROSS-APPELLANT, SHARON LANHAM:
James Gregory Troutman Troutman Law Office, PLLC
Julie Ashley Johnson Johnson Kang Cook Abbott & Flynn, PLLC