Judge not bound by parties agreement of modification of child support for change of circumstances: HOOFRING v. FITE (COA 3/28/2008)

HOOFRING V. FITE
FAMILY LAW:  Child support modifications, agreements, arrearages; judge not bound by parties agreement of modification of child support for change of circumstances
2007-CA-001466
PUBLISHED: AFFIRMING
PANEL: DIXON PRESIDING; COMBS, KNOPF CONCUR
KENTON COUNTY
DATE RENDERED: 3/28/2008

The parties, never married, entered into a series of child custody and support agreements. The last agreement in February 2005 provided that Fite have physical custody of the child again. Hoofring was not to pay any child support, but he was to maintain health insurance for the child until the end of 2005. The agreement also released Fite from any liability regarding the child support arrearages she owed to Hoofring.

In 2006 Hoofring insisted that Fite obtain health insurance for the child. Fite then pursued a modification of child support. The TC ordered that Hoofring pay $672.14 per month in child support, retroactive to the February 2005 agreed order, and maintain health insurance for the child. The TC also ordered Fite to pay $5,183.07 in arrearages. Hoofring filed a motion to vacate the order or, in the alternative, hold an evidentiary hearing. In May 2007, after a full evidentiary hearing on all issues, the TC ordered that Hoofring pay $646 per month in child support, retroactive to October 2006, and maintain the child’s health insurance. The TC did not address Fite’s arrearages, but noted that the February 2005 agreed order was an enforceable order. Hoofring appealed.

The COA noted that a party is entitled to modification of child support if he/she can show a material change in circumstances that is substantial and continuing. KRS 403.213. The child support obligation of $646 per month is clearly a 15% increase over the prior amount of $0. Moreover, while parties may enter agreements regarding child support, the terms are not binding on the trial court under KRS 403.180(2). In addition, KRS 403.180(6) prohibits any attempts to preclude modification of agreements concerning child support, custody, or visitation. Therefore, the TC retained jurisdiction over the child support and is not bound by the parties’ agreement. COA held that TC properly exercised its discretion to modify the child support obligation, while properly enforcing the other provisions of the 2005 agreed order, which release Fite from liability for her past arrearage. AFFIRMED.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

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