Thompson v. Thompson

172 S.W.3d 379, 2005 Ky. LEXIS 301, 2005 WL 2316182
CourtKentucky Supreme Court
DecidedSeptember 22, 2005
Docket2004-SC-000062-DG
StatusPublished
Cited by3 cases

This text of 172 S.W.3d 379 (Thompson v. Thompson) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Thompson, 172 S.W.3d 379, 2005 Ky. LEXIS 301, 2005 WL 2316182 (Ky. 2005).

Opinions

Opinion of the Court by

Chief Justice, LAMBERT.

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 ease.

Paul filed a petition for dissolution of the marriage on December 1, 1999,1 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.2 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 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 [381]*381district 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-CI-00354, 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.

[382]*382From 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(l)(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(l)(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.

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Thompson v. Thompson
172 S.W.3d 379 (Kentucky Supreme Court, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
172 S.W.3d 379, 2005 Ky. LEXIS 301, 2005 WL 2316182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-thompson-ky-2005.