336 S.W.3d 433
In August 2006 the Laurel Family Court entered a decree dissolving the marriage of Roy Shane Howard and Sondra Howard.1 The decree awarded the parties joint custody of their minor child, with Sondra as primary residential custodian.2 The court ordered Shane to pay child support calculated on his imputed earnings as a federal prison guard after finding him voluntarily underemployed for quitting that position.3
The decree also divided marital property and assigned Shane responsibility for several marital debts, including a National City loan secured by the parties' Dodge Durango that had already been repossessed.4 Fifteen months later Shane moved the trial court to reduce his child support obligation, filing an affidavit that cited health problems including back surgery, unsuccessful applications for correctional work, and his filing of a Chapter 7 bankruptcy petition.5
Sondra filed cross-motions seeking to hold Shane in contempt for failing to pay the Durango debt, on which the creditor had begun collection efforts against her, and requesting an award of attorney's fees.6 At the ensuing hearing both parties testified about their current incomes, insurance, and childcare expenses. Shane confirmed that he had received a Chapter 7 discharge and that Sondra had received notice of the bankruptcy filing but had taken no action in the bankruptcy court.7
The trial court found Shane in contempt for nonpayment of the Durango debt, denied the motion to modify child support on the ground that no new facts had been shown since entry of the decree, and ordered Shane to pay $500 of Sondra's attorney's fees.8 Shane appealed all three rulings to the Court of Appeals, which affirmed the trial court in full.9 The Supreme Court of Kentucky granted discretionary review.10
Whether a trial court may enforce, through contempt, a divorce decree obligation to pay a marital debt to a third-party creditor after the obligated spouse receives a Chapter 7 bankruptcy discharge, and the other spouse received notice but filed no adversary proceeding?11
Under 11 U.S.C. § 523(a)(15) as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, a debt to a former spouse incurred in the course of a divorce or separation is excepted from discharge in a Chapter 7 case.12 There is no requirement for an adversary proceeding by the former spouse.13 State courts retain concurrent jurisdiction to determine whether a particular debt falls within the discharge. Kentucky trial courts possess authority to enforce obligations under divorce decrees through contempt powers.14
Yes. The divorce decree assigned Shane responsibility for the National City loan on the repossessed Dodge Durango as part of the division of marital debts.15 Shane received a Chapter 7 discharge after Sondra received notice but took no action in the bankruptcy court.16 Post-BAPCPA amendments, the obligation to Sondra under the decree constitutes a nondischargeable debt to a former spouse under 11 U.S.C. § 523(a)(15), allowing enforcement through contempt even without a hold harmless clause.17
The trial court properly enforced the divorce decree obligation through its contempt powers.18
Whether a motion to modify child support was properly denied when the original support amount rested on imputed income from a finding of voluntary underemployment and the movant presented evidence of post-decree health issues, job applications, full-time employment at lower wages, and bankruptcy?19
Kentucky Revised Statutes KRS 403.213(1) permits modification of child support only upon a showing of a material change in circumstances that is substantial and continuing.20 Under KRS 403.212(2)(d), a court may find a parent voluntarily underemployed without finding intent to avoid or reduce the child support obligation, and the movant bears the burden to prove the requisite change since the decree.21
Yes. Shane's affidavit and testimony regarding health problems, unsuccessful job applications, and lower earnings did not establish that these events occurred after the decree or constituted a material change, as the evidence indicated many predated the decree.22 The bankruptcy discharge improved Shane's financial position by eliminating other debts, and Sondra testified that payments became more regular afterward.23 The trial court did not abuse its discretion in finding no material and continuing change in circumstances.24
The motion to modify child support was properly denied.25
Related opinions on this issue
Joined by Cunningham And Noble, Jj.
Justice Scott dissents from the denial of modification.26 He argues that the family court failed to analyze Roy's subsequent two-year effort at economic betterment, including continued full-time employment and increased earnings from $17,000 to $21,000 per year.27 Scott contends that once a finding of voluntary underemployment is made, the court must consider anew whether the parent remains so upon a proper motion, and the evidence here was sufficient to compel renewed analysis rather than an automatic continuation of the prior finding.28
He believes the family court's refusal to consider the evidence constituted an abuse of discretion.29
Whether the trial court abused its discretion by awarding one party $500 in attorney's fees after considering the parties' financial resources and ruling on multiple motions?30
No. The trial court heard detailed testimony from both parties regarding their incomes, insurance, and childcare expenses before awarding $500 of Sondra's attorney's fees, limiting the amount because contempt was found on only one issue.33 The evidence does not compel a finding that Sondra's financial condition was so superior that the award was unreasonable, and Shane was not entitled to favorable rulings on all issues.34
The trial court did not abuse its discretion in awarding $500 in attorney's fees.35