APPELLANT CROSS APPELLEE v. PATSY CHAFIN APPELLEE CROSS APPELLANT

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Court of Appeals of Kentucky.

carmen chafin, as administrator and personal representative of the estate of ronald lee chafin APPELLANT/CROSS–APPELLEE v. PATSY CHAFIN APPELLEE/CROSS–APPELLANT

NO. 2010–CA–001569–MR AND NO.2010–CA–001719–MR

Decided: May 04, 2012

BEFORE:  CLAYTON, MOORE, AND NICKELL, JUDGES. BRIEFS FOR APPELLANT:  Robert G. Miller, Jr. Paintsville, Kentucky BRIEF FOR APPELLEE:  A. David Blankenship Prestonsburg, Kentucky

NOT TO BE PUBLISHED

OPINION AND ORDERDISMISSING APPEAL AND AFFIRMING CROSS–APPEAL

Carmen Chafin, as administrator and personal representative of the estate of her deceased son, Ronald Lee Chafin, appeals from a judgment entered on August 4, 2010, by the Martin Circuit Court, and an amended judgment entered by the same court on August 16, 2010, awarding her former daughter-in-law, Patsy Chafin, $60,869.48 in past due child support.   Patsy has filed a cross-appeal challenging the court's denial of fifteen years of interest on the child support arrearage.   Having reviewed the briefs, the record and the law, we dismiss the appeal for noncompliance with CR  Double 76.12(4)(c)(v) and affirm the cross-appeal.

Ronald and Patsy married in 1979.   Two children were born of their union, Rhonda Lynn in 1980 and Ronald Rush in 1983. Double Patsy moved the court to dissolve the marriage in May of 1985 while Ronald was incarcerated.   Ronald had been a coal truck driver living in Ohio, but he was unemployed at the time the decree was entered.   Patsy lived in Kentucky, did not work outside the home and had no income.   Patsy asked the court to award custody of the children to her as well as a “reasonable amount of support for her infant children.”

On December 13, 1985, the court entered Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage stating in relevant part:

2. That [Patsy] be awarded the temporary and permanent care, custody and control of the parties (sic) infant children.

3. That [Patsy] be awarded a reasonable amount of child support.

4. That [Ronald] shall have child visitation rights from 6:00 p.m. on Fridays until 6:00 p.m. on Sundays.

Ronald did not contest the decree but paid no child support.   Patsy did not ask the court to set a monthly child support obligation, nor did she actively pursue enforcement of the decree because Ronald was imprisoned much of the time and apparently had no money with which to pay.

Many years later, Patsy learned from her son that Ronald, now a paraplegic living in Florida and confined to a wheelchair, had been injured in an industrial accident and was expecting a significant financial award.   Believing Ronald would now be solvent and able to pay, Patsy contacted an attorney in 2009, Hon. A. David Blankenship, to enforce the 1985 decree.

Hoping to resolve the matter without litigation, Blankenship telephoned Ronald's personal injury attorney in Florida, Hon. J. Richard Moore, Jr., and at Moore's suggestion, on May 26, 2009, sent Moore a summary of the child support owed by Ronald which Blankenship figured to be $66,993.08.   Because the 1985 decree did not specify the amount of child support owed, Blankenship calculated the amount based on what a coal truck driver earning a monthly average income of $1,500.00 Double would have owed beginning in 1985;  he did not adjust for inflation, nor did he adjust for the boom experienced by the coal industry in the mid–1980's.   No income was imputed to Patsy, a homemaker.   Although the decree was entered about five years before Kentucky adopted statutory guidelines Double for determining child support, Blankenship followed the guidelines in calculating the arrearage.   Moore responded to Blankenship stating:

I am in receipt of your May 26 th correspondence regarding my client, Ronald Chafin.   I have passed this information on to Mr. Chafin for his review.

He did not say he did not represent Ronald on the child support matter.   When neither Ronald nor Moore responded to the content of Blankenship's letter, Blankenship moved the Martin Circuit Court to re-docket the dissolution case to allow Patsy to move for determination of the child support arrearage and judgment on the arrearage.   The case was re-docketed and Blankenship filed the motion for determination and judgment on March 26, 2010.   In the pleading, Blankenship detailed his communication with Moore and mailed a copy to Ronald, and a courtesy copy to Moore, both of whom were in Jacksonville, Florida.   The motion calculated the principal amount of the arrearage to be $75,024.00.   Citing KRS 360.040, the motion also asked the court to award interest to Patsy at a rate of twelve percent compounded annually from December of 1985 forward for a grand total of $577,545.34.

A hearing was held on April 14, 2010;  neither Ronald nor anyone on his behalf attended.   As a result of the hearing, the court required Patsy to provide proof that the motion for determination and judgment had been served on Ronald.   Two days later, the court entered an order giving Ronald ten days from the date of service by certified mail to respond to Patsy's motion.   On April 26, 2010, Blankenship filed a Notice of Filing stating:  he had mailed a certified letter to both Ronald and Moore, he had re-served the motion as directed by the court, and he had received a return receipt card confirming Moore's office had received delivery of the motion.   Blankenship filed a second Notice of Filing on April 28, 2010, stating a return receipt card confirmed the letter had also been successfully delivered to Ronald's home, as evidenced by the signature of Carmen Chafin, Ronald's mother.   No response to the motion was filed.

On May 3, 2010, the court scheduled a hearing for May 12, 2010.   Notice of the hearing was mailed to both Ronald and Moore.   Ronald did not object to the scheduling of the hearing, nor did he file any response.   Blankenship attended the hearing;  Ronald did not, nor did anyone appear on his behalf.   In close proximity to the hearing, word reached the court that Ronald would not be in attendance.   Ms. Muncey from the Martin County Attorney's Office told the court that the county attorney had been involved in the case at some point but the archived file had not been retrieved.   Ms. Muncey also mentioned that as a matter of policy, the Martin County Attorney does not assess interest on child support arrearages because it is difficult enough to collect the principal amount.   The court stated Ronald definitely had received notice of the hearing as evidenced by the numerous calls made by him and by others on his behalf to the court, Blankenship and the county attorney's office.   The court stated it would enter judgment for Patsy in the principal amount requested and Ronald could challenge that decision if he so desired.   The court stated she would also consult with colleagues to see if the issue of interest on a child support arrearage had been addressed in a written opinion.   The court directed Blankenship to recalculate the amount of support owed to impute income to Patsy at the minimum wage for the period of time she was not caring for a child under the age of three.   The court also allowed Patsy to retain the right to argue she was entitled to interest on the arrearage.   All in attendance agreed that Ronald needed to file some sort of pleading.

On May 21, 2010, the court entered an order partially granting Patsy's motion to determine Ronald's child support arrearage and to award her a judgment on that arrearage.   The court gave Patsy two weeks to recalculate the amount of support and interest claimed.   The court found:  calculating the arrearage according to Kentucky's child support guidelines was reasonable even though the divorce decree was entered before adoption of the statutory guidelines;  Patsy's use of $1,500.00 as Ronald's monthly income was conservative, reasonable and unchallenged;  income based on the minimum wage in effect for each year had to be imputed to Patsy;  and, by the time the two children had turned age 18 (Rhonda Lynn in 1991 and Ronald Rush in 2001), Ronald's child support arrearage had reached $66,993.08.   As a result, the court awarded Patsy judgment in that amount with interest at the legal rate accruing from May 21, 2010.

That same day, Hon. Robert G. Miller, Jr. of Paintsville, Kentucky, entered his appearance as Ronald's attorney and moved the court, without explanation, to alter, amend or vacate the judgment it had awarded at the hearing on May 12, 2010. Double On May 27, 2010, Miller filed a motion to alter, amend or vacate the judgment entered on May 21, 2010.   As grounds for the motion, Miller argued:  there was no proof Ronald earned $1,500.00 a month and his Social Security records indicate he made less than that amount;  a hearing should be convened at which Ronald's earnings should be determined, Ronald should be allowed to challenge Patsy's imputed income, and a reasonable child support obligation should be set;  Patsy's twenty-five year delay in asking the court to set a reasonable child support obligation acts as a waiver;  Patsy may have committed fraud by receiving government assistance for the children when they were not in her care;  Patsy has claimed support for periods of time when the children were not living with her;  and, while Patsy sent certified mail to Ronald and Moore, as directed by the court, there was no proof of personal service on Ronald as to the hearing date or the motion to determine arrearage and award judgment on that arrearage.   Accompanying the CR 59.05 motion were affidavits signed by Ronald and Carmen;  Ronald's Social Security Statement;  a document signed by Patsy on October 3, 1997, giving custody of Rhonda Lynn to Carmen;  and, a document signed by Patsy on September 2, 2000, giving Carmen full guardianship of Ronald Rush.

In late May, 2010, Moore wrote a letter to the judge stating:

I continue to be served with pleadings in the above captioned and note my name on the Clerk's Certificate of Service.   I have informed counsel for [Patsy] on multiple occasions that I do not represent Ronald Lee Chafin in the above captioned matter and have never represented him in this matter.   I respectfully request that I be removed from the Certificate of Service.

The letter, which was filed by the court on June 3, 2010, was not copied to Blankenship.

Citing Gibson v. Gibson, 211 S.W.3d 601, 611 (Ky.App.2006), Patsy filed a pleading in favor of interest being awarded on the arrearage.   She argued she was entitled to interest under KRS 360.040 because Ronald was a dead beat dad and “[o]nce a payment becomes delinquent, it becomes a judgment, and interest generally runs from the payment's due date until it is paid.”  Id. (citing Young v. Young, 479 S.W.2d 20, 22 (Ky.1972)).   Ronald countered the argument by stating Gibson was inapplicable because the court had never specified a monthly child support obligation and asked for an evidentiary hearing on the matter.

In responding to Ronald's motion to alter, amend or vacate, Patsy argued Ronald had waited too long to get involved in the case and urged the court to reject his pleas to undo all that had been done.   Patsy also acknowledged her attorney had erred in computing the arrearage because Rhonda Lynn had lived with her grandmother in Ohio for about three and one-half years and Ronald Rush had lived in Florida for about one year.   Thus, she agreed that the court should reduce the amount of the calculated arrearage to reflect the time Rhonda Lynn and Ronald Rush were not in her care.

The court gave the parties two weeks to file supplemental pleadings.

Ronald filed a reply stating he was not represented by Moore;  his mother had attempted to postpone the hearing date;  the judgment of May 21, 2010, should be set aside;  and an evidentiary hearing should be convened.   A month later, he filed a memorandum of law stating:  a hearing was required under CR 8.01(2) because the 1985 dissolution decree had not specified a liquidated damage amount;  Patsy had offered only speculation about his earnings;  and the period of time for which Patsy had claimed support was inaccurate because the children were not living with her during a portion of that time.   Filed with the reply were affidavits signed by Ronald and his son, Ronald Rush. In Ronald's affidavit, he admitted that while his workers' compensation case was pending, he “was contacted through my workers' compensation attorney by [Patsy] seeking back child support.”   Ronald alleged that after entry of the dissolution decree in 1985, he and Patsy had reconciled and lived as a family with the children until 1990 and that during that five-year period he had supported the children by working occasional odd jobs and receiving financial help from his mother.   He further alleged that after 1990, Patsy left the family in Ohio and returned to live in Kentucky and provided no further support to the children until 1995 through 1999 when Ronald Rush resumed living with her.   Ronald said nothing more about whether interest should be assessed on the arrearage.

Patsy filed a supplemental response urging the court to reject Ronald's request for a “re-do.”   Patsy argued Moore acted as Ronald's agent when Blankenship contacted him by telephone on May 26, 2009, and continued acting in that capacity for more than a year.   Moore requested a settlement package which Blankenship provided to him and on receipt Moore transmitted it to Ronald.   It was not until late May of 2010 that Moore sent a letter to the court stating he did not represent Ronald on the child support issue.   When Patsy sent items to Moore, she also sent them directly to Ronald which exceeded what was necessary to comply with CR 5.02.

On August 4, 2010, the court entered an order modifying the judgment entered on May 21, 2010, to eliminate child support for the three and one-half years Rhonda Lynn did not live with Patsy and the one year Ronald Rush did not live with her, but denied the remainder of Ronald's motion to alter, amend or vacate.   On the issue of interest, the court found it to be appropriate to award interest only from May 21, 2010, forward.   An amended judgment was entered on August 16, 2010, finding Ronald's child support arrearage to be $60,869.48.

Ronald timely appealed and Patsy cross-appealed.   Ronald died on October 7, 2010, and Patsy moved the court to substitute Carmen for Ronald as administrator and personal representative of his estate.   On April 29, 2011, the court entered an order reviving the action and substituting Carmen for Ronald.   This appeal and cross-appeal follow.

We begin with a comment on the rules governing appellate practice.   Patsy properly points out that Carmen's brief fails to comply with CR 76.12(4)(c)(v) because the beginning of each argument does not contain “a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.”   Such noncompliance authorizes us to strike Carmen's brief, which we choose to do.  CR 76.12(8).   While this outcome may seem harsh, it is clear to us that Ronald had numerous opportunities to participate in this case before judgment was entered, but he chose not to do so.   At the hearing on June 23, 2010, which both Ronald and his Kentucky attorney attended to urge the court to alter, amend or vacate the judgment it had entered on May 21, 2010, the following exchange occurred:

COURT:  I have made [Patsy] pretty well bend over backwards to give [Ronald] an opportunity to respond.

RONALD'S ATTORNEY:  Well, obviously he's got a physical disability.

COURT:  I understand that, and that's why I've done that.   I have made them do numerous things, re-notice it several times, just to make sure he had an opportunity.

There are serious consequences to sitting on one's hands, and dismissal of an appeal is one of those consequences.   Notice of motions and hearings was provided to Ronald and his attorney in Florida and received by both.   Hearings were scheduled and convened but not attended by Ronald or anyone on his behalf.   Responses were expected, but none were filed with the court until Miller Double entered an appearance for Ronald and moved the court to alter, amend or vacate the judgment that was entered on May 21, 2010.   This is a case of “too little, too late” and for that reason the appeal is dismissed.

On cross-appeal, Patsy argues she is entitled to interest on the child support arrearage and the trial court erred in not awarding it.  KRS 360.040 permits interest to be awarded on a child support arrearage.  Gibson, 211 S.W.3d at 611.   However, awarding interest is “clearly discretionary with the court․”  Here, the trial court chose not to award interest and we cannot say that decision was an abuse of discretion.   Although not argued by either party, no one sought to enforce the 1985 dissolution decree until 2009.   We understand that Patsy believed trying to get money from Ronald would have been wasted effort because he was incarcerated and without money, but it was in her best interest to have a court determine Ronald's exact child support obligation while the children were still young enough to benefit from it.   It was also in Ronald's best interest to have the court determine the precise amount he owed.   Neither party having acted timely, we affirm the trial court's denial of interest prior to entry of judgment on May 21, 2010.

For the foregoing reasons, the appeal is DISMISSED for noncompliance with CR 76.12(4)(c)(v) and the cross-appeal is AFFIRMED.

clayton and moore, judges, concur in result only.

Date:  May 4, 2010 _ /s/ C. Shae Nickell _

Judge, Kentucky Court of Appeals

NICKELL, JUDGE:   Double