Lexington Family Law

There are a number of lessons to be learned from the recently released Kentucky Court of Appeals case Mickler v. Mickler, 2006-CA-001313-MR (Jan. 25, 2008)(to be published). A few of the lessons come from the procedure and facts of the underlying case rather than the appeal itself.

In Mickler, some affluent folks, Andrew and Terry got divorced. Andrew was an otolaryngologist who made in excess of $200,000.00 per year. The first lesson is that the harder it is to pronounce what you do, the more you will likely be paid. At the time of the divorce, Terry was 53 years old and had not worked outside the home for the duration of the twenty-two year marriage. The trial court awarded Terry $111,809.03 for her share in Andrew’s medical practice, half the proceeds from the sale of the marital residence and another piece of property, her car, and over $400,000.00 in retirement funds. In addition, Terry was awarded $7,000.00 in monthly maintenance for 12 years (that’s $1,008,000.00 for my fellow coupon clippers).

The second lesson is that if you are married to a highly paid professional, it pays to not pursue your own career. Actually, this is not a hard and fast rule because the majority of Kentucky appellate cases where long-term maintenance is awarded involves some form of disability on the part of the receiving spouse. I would consider this situation a gray area regarding maintenance for two reasons. First, being 53 is not really a disability although it can be more difficult to obtain gainful employment at that age without relevant experience. Second, Terry received considerable assets in the divorce. To receive maintenance, you must show that you cannot meet your reasonable living expenses and your standard of living only comes into play after crossing that initial hurdle.

Arguably, Terry could meet those reasonable living expenses (and even some unreasonable ones) with the assets distributed to her. Here though, the trial court seemed to define Terry’s reasonable living expenses by her prior lifestyle which is a bit of circular logic. If the legislature had meant for all divorced folks to maintain their prior standard of living, then they would have made the initial hurdle “lacks sufficient property . . . to provide for his standard of living established during the marriage” instead of “reasonable needs“. KRS 403.200.

I suspect these apparent errors by the trial court encouraged the filing of the appeal. Here is where the third lesson came into play. Because Andrew (actually his attorney) failed to file a supersedeas bond to stay the execution of the trial court’s orders pending the appeal. The lesson is that if you think the court messed up, be sure to do all you can to put those orders on hold while you appeal. Because Andrew did not do this, but also did not pay up, Terry filed a motion to hold him in contempt. Andrew responded with filing bankruptcy to get the stay on collection proceedings offered there.

Here is where Andrew made yet another mistake. He withdrew $64,000.00 from his checking account (I would never have another overdraft!) without disclosing this fact. That tends to be a no-no regardless of whether you are in Family or Bankruptcy court. Fortunately, Andrew was able to make a deal with Terry for temporarily reduced maintenance during that first appeal.

The Court of Appeals upheld the trial courts original order (well, I said it was a gray area - not clearly erroneous) and Terry came back with a second contempt motion. Andrew responded with yet another bankruptcy petition. This was the next mistake (sorry, I’ve lost track of how many) because this petition was quickly dismissed because (can you guess it?) the petition was filed for the purpose of avoiding compliance with the Family Court’s orders. The Supreme Court of Kentucky also turned down discretionary review of the divorce decree. Things just were not going well for Andy at this point.

Sensing that Andrew was on the ropes, Terry filed garnishments on various insurance carriers thought to owe funds to Andrew’s medical practice. That is where this particular appeal finally comes into play: click here for the rest of the story!

I have had the honor of representing parents in dependency, neglect and abuse (”DNA”) actions in a few different counties. Along with working for the Cabinet for Health & Family Services in child protection, I have learned that there is little uniformity in how various issues in these actions are handled across counties. One of these issues is the handling of child support assessed against the parents who have lost custody of their child(ren). Many practitioners and few parents realize that child support in DNA actions is governed by a different statute than child support in divorce cases. The statutes that determine child support in divorce actions are in KRS Chapter 403. A hallmark of child support in divorce is the use of standardized guidelines shown in KRS 403.212. Deviation from the guidelines has to be justified by the court.

In contrast to the highly regulated child support of divorce, child support in DNA actions is governed by only one statute, KRS 610.170. The only standard this law provides is that the court shall order a “reasonable sum” and this only IF the parent is able to contribute. The statute makes no reference to the guidelines of KRS 403.212. This omission was purposeful by the legislature and the entire thrust of KRS 610.170 shows a legislative intent to give greater discretion to the judge presiding over a DNA matter and for greater leniency in the amounts levied. There are practical reasons for this policy of leniency that are beneficial both to the parents and to the State. Unfortunately, many courts do not recognize the nuances built into this law and automatically apply the standard guidelines as if a divorce were occurring. Not only do many counties stick to the guidelines, they also divide the proceedings so that the child support is handled through an entirely separate docket. This leads to other difficulties for both the county and the parents.

Becuase the child support often is handled on a separate docket, the parents end up without representation. They were likely appointed counsel in the DNA proceeding due to a low income, but the scope of representation for the court appointed counsel (”CAC”) is not expected to include other hearings, such as for child support. Becuase of the limited scope of representation and because the parents cannot afford their own counsel, they end up without legal assistance in understanding the differences in the child support laws.

Separating the proceedings also impacts the courts and the County Attorney’s office by creating double dockets. Instead of one County Attorney familiar with the details of the situation, handling one case and showing up to one set of hearings, there are two County Attorneys and two sets of hearings. This lead to judicial inefficiency. Already impoverished parents must take more time away from work or job searches in order to attend hearings that will demand money from them leading to inefficiency from an economic standpoint. In other words, it creates waste for everyone.

Of course parents who have chosen to be or have inadvertently been neglectful or abusive should still support their children financially. However, there are some differences inherent in the DNA situation that call for different treatment than a divorce. In DNA actions, a third-party, the Cabinet, is stepping in and asserting authority to take the child from the parents. Occasionally this was due to an overreaction by the Cabinet. In rare circumstances, the removal was an out and out mistake. Regardless, the parents are often devastated and have few emotional, social and financial resources to successfully navigate the turmoil this brings about. The neglect and abuse likely flowed from a mental health issue or at least a deficit of parenting skills. The Cabinet always requests, and the courts order, various assessments, education programs and treatment regimens. Almost none of these requirments are free to the parents and only the rare few parents have insurance. Thus, the parents are stressed financially beyond what one typically sees in a divorce situations.

In order to reunite the child with the parents successfully, these various assessments and treatments must occur. That means fees paid to programs and time taken off of work to attend the classes or treatments. In other words, more expenses out and less income in. It is within this context that we see why the legislature simply used “reasonable sum” as the standard for child support in DNA matters. There is no way to factor all of those variables into a set guideline like one finds in the divorce statutes. So, the legislature comtemplated giving the judge, who could see what expenses were being required of the parent, to use their discretion to set child support at a level low enough to allow for success. This sets the stage for the parents to have every advantage towards being successful.

When more parents are given greater opportunity to succeed in reunification by maximizing the resources at their disposal (i.e. by keeping child support low) the State can actually save money. Some judges and County Attorneys worry that they are holding back money from the Cabinet that will help finance sufficient workers to do the job right. In truth, the amounts contemplated would only amount to a small fraction of the budget. Rather, if children go home faster then the State will encounter greater financial savings. Consider it this way, if it typically costs around $15.00 a day for a child to be in foster care (not to mention all the indirect costs) and the parents child support per guidelines would be $10.00 a day, then the state is falling behind $5.00 a day. Mathematicians can help me here, but there comes a point where the cost of low child support with fewer days in care becomes more financially efficient than high child support with more days in care. True, there will still be parents who do not do what they need even with low child support, but that can be addressed at a three or six month review where the court reassesses matters. It is better to start out setting that stage with every benefit to the parent to encourage success.

To pull all these ideas together, the best practice would be for either zero child support or a nominal amount to be assessed at the Temporary Removal Hearing in the DNA proceeding. Then, at the Disposition hearing, for the judge to look at all the requirments of the Cabinet and the parent’s income and determine a “reasonable sum”. This cuts out any extraneous proceedings, involves only one County Attorney, and insures that the parent’s court appointed counsel can advocate for them on the child support issue. Most importantly, it allows the judge to make their best determination as to what balance of child support will best allow the parents to obtain the assessments and treatment needed to get the child home. Finally, if the parent does nothing for the first three to six months, the judge can send one more wake-up call to them by upping the child support since it would then be “reasonable” to take treatment costs out of the equation. I cannot take credit for the process I recommend, but must give that credit a very wise County Attorney (he knows who he is) who has refined it over years in one county’s Family Court (I will take credit for illuminating the rationales for the policies though).