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Lawrence D. Gorin
Lawrence D. Gorin, Family Law Attorney
Category: Family Law
Satisfied Customers: 1506
Experience:  30+ years family law experience. QDROs, UIFSA, UCCJEA expertise.
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I need to find a case law, either Kentucky or higher court, ...

Customer Question

I need to find a case law, either Kentucky or higher court, or anything in SW2nd dealing with this issue... If you have two children, one child is 16 the other is 10. There is NO ORDER FOR CHILD SUPPORT IN EFFECT ON THE 16 yr old, in fact, there is the last order from 1997 stating NO CHILD SUPPORT PAID BY EITHER PARTY, (the children share a father but the mother's are different. The older child is from the first marriage in 1991 and the 10 yr old is from second marriage.) No there has been a legal seperation between 2nd wife and father. There is a child support order filed and entered with the court for the younger child. The mother of the 16 yr old now decides to ask for child support for the next 2 yrs. Her motion was made and her order will be entered AFTER the order for the 10 yr old. KRS 403 discusses "prior court order for prior born children" that the amount is deducted when doing worksheet for support on another child. Which child support order is first?
Submitted: 6 years ago.
Category: Family Law
Expert:  Lawrence D. Gorin replied 6 years ago.
ANSWER:
The EXISTING support order pertaining to the younger child (stemming for the judgment of legal separation from Mother # XXXXX) is the “first order” and will be deemed as a “pre-existing” order in relation to the yet-to-be finalized support order for Mother #1, even though child # XXXXX (the 10 y/o) is not literally a “prior-born” child in relation to child # XXXXX (the 16 y/o).

HOWEVER, I am unable to find a Kentucky case that is “on all fours” with your situation. And, arguably, establishing the support obligation for child # XXXXX would not involve any deduction for the support your pay for child # XXXXX since child # XXXXX is not a child who is “prior-born” in relation to child # XXXXX Arguably, after the support obligation for child # XXXXX is finalized, you may have to go back and modify the support provision for child # XXXXX as established by the judgment of legal separation, so as to deduct from your income the amount of support you pay for child # XXXXX (who would then be a “prior-born” child in relation to child # XXXXX

I suspect, and would not be surprised, that a judge, in calculating the support obligation for the older child (the 16 y/o from Mother # XXXXX), will take into consideration the support that you pay for child # XXXXX But the more definitive thought on this will have to come from a Kentucky family law lawyer who has a greater familiarity with the judges of that state and their judicial tendencies than do I. It would be well-worth your money to at least confer with a Ky family law lawyer on the question you are presenting here.

Also, in needs to be understood that the “guideline amount” of child support is simply an amount that is PRESUMED to be the “correct” amount of the obligation. But like all presumptions established by law, it is REBUTTABLE. Thus, if a judge, taking into consideration the fact that you are paying support for child # XXXXX (even though that child is not a “prior-born” child), concludes that the guideline amount of support you should pay for child # XXXXX is “unjust or inappropriate,” the judge can depart from the guideline amount and order some alternative amount that, in the opinion of the judge, it just and proper under the totality of the circumstances.

KRS 403.412(2)(g): "Combined monthly adjusted parental gross income" means the combined monthly gross incomes of both parents, less any of the following payments made by the parent: * * * 2. The amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders * * *.”

Cases construing and/or involving “prior-born child” or just making a reference to the phrase:

Schoenbachler v. Minyard, 110 S.W.3d 776 (Ky. 2003).

Kimbrough v. Commonwealth of Kentucky, 215 S.W.3d 69 (Ky App 2006).

Following website should also be searched to locate the opinions mentioned below:
http://apps.kycourts.net/supreme/sc_opinions.shtm

Allen v. Burford, Ky App, 12/3/2004. Unpublished opinion:
“The sole issue in this appeal is whether a child who is adopted after support has been determined for another child is to be considered a “prior born child” for purposes of amending the support of the later born child.

Hays v. Hays, Ky App, 5/2/1997. Unpublished opinion:
While KRS 403.212(2)(g)(3) and (4) provide credit for child support for prior-born children, there is no statutory credit for after-born children or stepchildren. John Doug contends that the denial of credit on child support payments for after-born children constitutes a violation of equal protection and that the trial court should have considered the presence of his new wife's child from a previous marriage in the home as a factor of an extraordinary nature under KRS 403.211(3)(g) which would make the application of the child support guidelines inappropriate.

“Concerning prior-born children, we agree with the South Dakota Supreme Court that there is no equal protection violation where a state law provides credit for the support for prior-born children but not for after-born children. Feltman v. Feltman, 434 N.W.2d 590 (S.D. 1989). While parents are obligated to support all of their children, the children from the first family are entitled to a priority of their claim against a noncustodial parent's income. A noncustodial parent who remarries does so with the knowledge of a continuing responsibility to the children of the first marriage. Id. at 593. For the same reasons, the presence of a stepchild is not a factor of extraordinary nature which would make application of the child support guidelines inappropriate.’

OK. Hope this helps.
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