COURT OF APPEALS JUDGE SARA COMBS CALLS FOR MODIFICATION OF STATUTE REGARDING CHILD SUPPORT OBLIGATION. WHEN CHILD BECOMES EMANCIPATED.– LAW ALLOWS CHILD SUPPORT TO CONTINUE UNTIL PARENT FILES MOTION WITH COURT TO TERMINATE THE OBLIGATION.

 Case No.  2010-CA-001016  TO BE PUBLISHED  FROM SCOTT CIRCUIT COURT  June 10, 2011

BENNETT, ROBERT LAWRENCE

VS.

BENNETT, THERESA RENEE

OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

ACREE (PRESIDING JUDGE) TAYLOR (CONCURS) AND COMBS (CONCURS BY SEPARATE OPINION)

In this case there is an important statement by Court of Appeals  Judge  Sara Combs warning of problems with current statute regarding cessation of child support.  In this case the father was found liable for retroactive child support because he did not timely file a motion to suspend child support after emancipation of two of his three children.   The Court ruled that under the statute he remained liable for child support on all his children until he moved to terminate support for his emancipated children.

 Judge Combs concurred in the results of this opinion but warned of a trap for parents which should be remedied by the Legislature.

 ”…the circuit court correctly held that Robert was not entitled to retroactive automatic modification of the support obligation based on the emancipation of fewer than all his children covered by the prevailing support order.”

 COMBS, JUDGE, CONCURS BY SEPARATE OPINION

 ”This case is a nightmarish example of a legal pitfall for the unwary. It serves as a stunning caveat for the increasing number of pro se litigants attempting in good faith to negotiate suitable settlements only to discover – to their dismay and to their financial detriment – that the law may produce this kind of inequitable result: an arguable financial support obligation of under $500 mushrooming into a judgment of more than $35,000 in arrearage.

 Mr. Bennett did not evade his obligation; he in fact provided support.

 The judgment in this case amounts to a penalty – facially legal, but inherently inequitable.

 Under the current state of the law, we are clearly compelled to rule as we have done in this case. However, this particular set of facts is not so unique as to avoid repetition among pro se litigants attempting to resolve their dissolution issues among themselves.

 This is a case of which the General Assembly should be made aware. It may perhaps consider the merits of allowing a statutory exception to good faith negotiation to be considered by a trial court prior to the actual date of filing of a motion to alter or amend a child support obligation.”

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