Thompson v. Thompson, 172 SW3d 379 (Ky. 2005)

Thompson v. Thompson, 172 SW3d 379 (Ky. 2005)
Child support accrues as each installment becomes due and such
fixed, liquidated debt is not subject to retroactive modification.

The dispute herein arises from the amount of child support Paul should have paid for the period of December 1999 through August 2000 for his two children in their mother's custody. Two orders were issued by different courts, Carter District and Carter Circuit. Mrs. Thompson contends the District Court Order controls; Mr. Thompson relies upon the Circuit Court Order.

Paul filed for divorce on December 1, 1999 in the Carter Circuit Court. On December 10, 1999, Lisa obtained a DVO granting her temporary custody of the parties' two minor children and a temporary child support order of $500 per week. On June 12, 2000, pursuant to Paul's motion, the District Court set aside its Order and referred the issues to Circuit Court where the divorce was pending.

On August 14, 2000 Lisa moved the Circuit Court to set child support. The DRC heard the motion and recommended $568 per month on August 28, 2000. The parties agree that August 28, 2000 is the end of the time period in which child support is disputed. Thereafter, as a result of various motions and hearings, the DRC on May 15, 2002 recommended child support at $822.24 per month retroactive to December 1999. Lisa filed exceptions, which were overruled.

Lisa appealed to the Court of Appeals, which affirmed the trial court. She then requested and was granted Discretionary Review by the Kentucky Supreme Court, which reversed the Court of Appeals, citing KRS 403.213, which states that child support may be modified only as to installments accruing subsequent to the filing of a motion for modification. The payments due between December 1999 and June 12, 2000 (or August 28, 2000 - the opinion is not clear) vest as they become due and cannot be modified retroactively - apparently not even by agreement of the parties (Justice Johnstone dissents, joined by 2 others, pointing out Lisa signed an Agreed Order authorizing the Circuit Court to set child support retroactive to December, 1999).