Martin v. Ky. Cabinet for Health & Family Servs.

• Citation: 583 S.W.3d 12
• Decision Date: 10 May 2019
• Docket Number: NO. 2017-CA-001940-ME,2017-CA-001940-ME
• Parties: Shawn P. MARTIN, Appellant v. Commonwealth of Kentucky CABINET FOR HEALTH AND FAMILY SERVICES, Appellee
• Court: Court of Appeals of Kentucky

583 S.W.3d 12

Shawn P. MARTIN, Appellant

v.Commonwealth of Kentucky CABINET FOR HEALTH AND FAMILY SERVICES, Appellee

NO. 2017-CA-001940-ME

Court of Appeals of Kentucky.

MAY 10, 2019; 10:00 A.M.

Discretionary Review Denied by Supreme Court September 18, 2019

BRIEF FOR APPELLANT: John Douglas Hubbard, Bardstown, Kentucky.

NO BRIEF FOR APPELLEE.

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND TAYLOR, JUDGES.

OPINION

ACREE, JUDGE:

Appellant, Shawn Martin, appeals the September 12, 2017 order of the Nelson Circuit Court requiring him to pay $ 161.00 per month in child support and $ 25.00 per month toward an arrearage to his former spouse, Diana Martin. For the reasons stated below, we vacate the order and remand with instructions.

FACTS AND PROCEDURE

Diana and Shawn Martin were married in Nelson County on March 23, 2002. They are the biological parents of three children: Dakota, born in 2000; Destiny, born in 2003; and Danica, born in 2010. When the parties separated, Diana secured legal counsel who prepared a settlement agreement. Diana chose to file her petition for divorce in neighboring Hardin County.

It seems Shawn was unrepresented because the clerk’s certificate distributing copies of the Hardin Family Court’s final decree and incorporated settlement agreement were sent directly to Shawn. (Record (R.) 40).

Before entering the decree, the Hardin Family Court considered the provisions of the parties' separation agreement. The specific language affecting this review states:

4. IT IS AGREED, that [Diana] and [Shawn] shall have joint legal custody of the parties' children.... [Diana] shall be the primary residential custodian of the parties' children ... and [Shawn] shall have visitation as agreed upon between the parties.

5. IT IS AGREED, that parties shall not pay any amount of child support to either party as agreed upon between the parties. The parties have knowingly and voluntarily agreed to deviate from the Kentucky Child Support Guidelines and child support worksheet filed herewith and attached hereto. The parties' children are covered for health insurance purposes by Passport.^[1] The parties shall equally divide the costs of any uncovered medical, dental and eye-care for the parties' children.

[Diana] shall claim the parties' children for federal and state income tax exemption/dependent purposes and earned income tax status purposes each year.

(R. 42-43).

As the decree noted, the parties attached to the settlement agreement a Kentucky Worksheet for Monthly Child Support Obligation. (R. 48). The worksheet showed Diana’s monthly income as a state employee at $ 2,008 and Shawn’s Supplemental Security Income from his disability at $ 660.² The worksheet, designating Shawn as the non-custodial parent, indicated his monthly child support obligation would have been $ 192.50.

Assessing the whole agreement, the family court found it to be fair, equitable, and not unconscionable, and accepted the parties' stipulation that both Shawn and Diana would pay $ 0 in child support. The family court incorporated the settlement agreement into its decree and entered it on August 16, 2016.

In May 2017, about nine months after entry of the divorce decree, Diana went to the Nelson County Attorney’s Office, Division of Child Support, for help collecting child support from Shawn. When asked if she had been receiving any support, Diana responded, "Absolutely not.... Not for lack of asking." (Video Transcript (VT) 9/6/2017; 11:07:45 – 11:08:24).

On May 23, 2017, Diana assigned to the Cabinet for Health and Family Services (CHFS) her right to "all child, medical, and spousal support due me" and "authorize[d] CHFS, to collect on my behalf all current and/or past-due child support, medical support and spousal support payable to me for the benefit of myself and/or my minor child(ren)." (R. 4).

A week later, the Nelson County Attorney, on behalf of CHFS, filed an action in Nelson Circuit Court against Shawn. As we explain more fully in the analysis, the complaint CHFS filed did not comply with FCRPP³ 9(4). Rather, it simply demanded the court to order Shawn "to pay temporary and continuing child support according to the Kentucky child support guidelines ... [plus] an amount equal to all sums paid by [CHFS] for Medical Assistance ... [plus] the cost of health insurance ... [plus] the cost of extraordinary medical expenses in proportion to [Shawn’s] income[.]" (R. 2). The complaint also sought a wage assignment. Notably, the complaint makes no reference to the Hardin Family Court decree that established Shawn’s obligations regarding child support and unreimbursed medical, dental, and vision costs.

The Nelson Circuit Court conducted a hearing on September 6, 2017. Diana testified that she was employed by the Commonwealth and her monthly salary had increased to $ 2,427.44. The children’s medical care was still covered by Passport.

Shawn testified he receives disability-related Supplemental Security Income of $ 735.00 per month, identifying that as his sole source of income. He stated he does not work otherwise and has no money left from paying necessities such as rent and bills to support his children. He also testified that he lives with his new wife. He acknowledged they went on vacation to Florida but stated his father-in-law paid the trip costs. Shawn also stated he recently got a tattoo costing $ 40, and that he has paid for three tattoos over the last three years which encompasses time before the parties' divorce. He testified he also has a cellular phone.

CHFS put on no evidence of having paid any amounts for "Medical Assistance," despite having sought reimbursement for any such payments. After the hearing, the Nelson Circuit Court took the matter under submission.

The order the court entered on September 12, 2016, recognizes the Hardin Family Court decree and its incorporation of the parties' settlement agreement. However, after noting that a court addressing child custody, support, and visitation is not bound by a separation agreement, the Nelson Circuit Court rejected Shawn’s argument that Diana waived the right to claim child support. The court also rejected Shawn’s argument that the court was required to factor into the child support calculation any payment received by his children from the Social Security Administration on account of his disability. (R. 82-83).

Further discounting the effect of the Hardin Family Court decree, the Nelson Circuit Court identified the nature of CHFS’s claim as an "action to establish child support" as though the Hardin Family Court had not already done so. (R. 82 (emphasis added)). The court then proceeded to set child support by applying KRS ⁴ 403.211. Specifically, the circuit court ordered that Shawn:

be required to pay temporary and continuing child support according to the Kentucky child support guidelines. ...

That [Shawn] be required to pay [CHFS] an amount equal to all sums paid by [CHFS] for Medical Assistance to the date of any order or judgment entered herein ...

That [Shawn] be required to pay the cost of health care insurance ...

[and] to pay all such amounts to the Division of Child Support....

(R. 2).

The court stated that, based on the child support worksheet, Shawn’s support obligation would be $ 256.28 per month. However, applying KRS 403.211(3)(g), the court found that amount "would be ‘unjust or inappropriate’ because Shawn would not be able to meet his monthly needs." (R. 83).

Although the complaint sought more, the court only ordered:

1. That the defendant, Shawn P. Martin, shall pay child support in the amount of $ 161.00 per month retroactive to May 30, 2017.

2. That any arrearage shall be paid at the rate of $ 25.00 per month.

3. That this Order is final and appealable with no just cause for delay.

(R. 84). Shawn filed a motion to amend the circuit court’s order. After a hearing on November 1, 2017, the court denied the motion. Shawn immediately appealed.

PRELIMINARY ISSUES

CHFS tendered a brief more than thirty days after its due date accompanied by a motion for additional time to file it. The Court denied the motion and the clerk returned the tendered brief. This circumstance affords the reviewing court certain options. The applicable rule says:

If the appellee’s brief has not been filed within the time allowed, the court may: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.

CR 76.12(8)(c).

The simple course is to deem all facts in Shawn’s brief admitted. Karem v. Bryant , 370 S.W.3d 867, 868 (Ky. 2012) ("As the Appellee in this matter has failed to file a brief, the facts are undisputed."). However, this Court’s inclination is to review the record to confirm an appellant’s version of the facts when "the record is neither large nor unwieldy, and we can readily find all the information we need with little difficulty...." Eplion v. Burchett , 354 S.W.3d 598, 602 (Ky. App. 2011). Still, "we strongly suggest that the best practice is to file a[ timely] appellee brief, as the failure to do so exposes appellees to the penalties in CR 76.12(8)(c)." Hawkins v. Jones , 555 S.W.3d 459, 461 (Ky. App. 2018).

Next, a reviewing court must be ever mindful of jurisdictional infirmities. Both Hardin Family Court and Nelson Circuit Court have subject matter jurisdiction over cases involving child support. However, in this action for divorce and child support, the Hardin Family Court was first to exercise particular case jurisdiction. "Subject matter jurisdiction and particular case jurisdiction are related, but they are different in that the former concerns a more broad, general class; whereas, particular case jurisdiction focuses on a more limited or narrow fact-specific situation." Hisle v. Lexington-Fayette Urban County Government , 258 S.W.3d 422, 429 (Ky. App. 2008). "While the...