Court of Appeals November 15, 2024 Minutes
Ashley Nicole Harney v. Stuart Austin Harney, No. 2022-CA-1202-MR
Jessamine County Family Court
http://opinions.kycourts.net/COA/2022-CA-001202.PDF
APPELLATE COURT CONSIDERS APPROPRIATE INTEREST AWARD ON CHILD SUPPORT ARREARS
In a contentious post-dissolution custody case, Father’s child support increased multiple times over a three-year period before he filed a motion to modify custody and timesharing, to reallocate the child tax exemption, and for reimbursement of childcare costs that he had paid to Mother, but that Mother had not actually incurred. The family court granted his motions and determined that no interest was to accrue on his arrears because no prior order included interest as part of the arrearage calculation.
Mother filed a motion to alter, amend, or vacate (AAV), arguing that Father should not be permitted to claim Child on his taxes because Father was still in arrears on his child support obligation and requesting the family court reevaluate its order on Father’s child support arrears. The family court denied Mother’s motion regarding the child tax exemption but granted it as to the accrual of interest on the arrearage, stating that Mother would be entitled to interest on each payment from the time it is past due until paid in full.
Father filed a motion to AAV as to the interest. Mother filed a motion to modify child support. A hearing was held after which the family court – relying on Gibson – granted Mother interest for Father’s unpaid child support from 2015 to 2018 but not for child support from 2018 to present. Mother appealed, arguing she should receive interest on all unpaid child support.
The Court of Appeals upheld the family court’s order regarding interest on the child support arrearage. It held that a family court may decide whether to impose post judgment interest on child support after considering whether the obligor met either of the Gibson factors during that time (i.e. whether there was an attempt by the obligor to provide any services to the children, and whether the obligor made any attempt to substantially comply with the child support order). From 2015 to 2018, Father met neither Gibson factor. Thus, awarding interest for that period was equitable. From 2018 forward, Father actively worked to pay down his arrearage. Thus, he met one of the Gibson factors and imposing interest for that period would not be equitable.
The Court also made findings on other issues raised by Mother in her appeal. First, it held that the family court erred by not awarding Mother interest on the attorney fee amount Father was ordered to pay per the parties’ 2015 Separation Agreement. The Court reversed and remanded this issue for the family court to calculate the interest owed on that amount, so that it could be awarded. Second, it upheld the family court’s order directing that Father receive a credit on his arrearage for his overpayment of childcare costs. The Court explained that childcare costs are addressed in KRS 403.211, which states that the amount allocated for the cost of childcare is in addition to the amount ordered under the child support guidelines. Thus, if the expense was not incurred, then the overpaying party is entitled to a reimbursement. Finally, the Court upheld the family court on its reallocation of the child tax credit. Father was permitted to claim the child as a dependent on his 2021 taxes because he was current on his child support obligation and his children’s medical expenses for that year and was therefore compliant with the language in the parties’ Separation Agreement.
Carter Anderson
