Tucker v. Hill

763 S.W.2d 144 (1988)

Paul Lynwood TUCKER, Jr., Appellant,
v.
Paula HILL (Formerly Tucker) and Stephen K. Mershon, Mershon Naber and Joyner, Appellees.

No. 87-CA-002025-S.

Court of Appeals of Kentucky.

December 16, 1988.

Hollis L. Searcy, Louisville, for appellant.

Stephen K. Mershon, Mershon, Naber & Joyner, Louisville, for appellees.

Before CLAYTON, DYCHE and HAYES, JJ.

DYCHE, Judge.

Paul Tucker and Paula Tucker Hill were divorced in Floyd County, Indiana, in June 1972. Custody of their one-year-old child was granted to Paula, and Paul was ordered to pay child support in the amount of twenty dollars per week. The Indiana decree is silent regarding the termination date of the father's support obligation.

All the parties involved have since become domiciled in Kentucky: Paula and the child moved here in November 1972, and Paul changed his residence to this commonwealth in 1974.

In April 1987 Paula filed a petition in Jefferson Circuit Court seeking arrearages, an increase in child support payments, attorney fees and costs and an order requiring payment until the child reaches the age of twenty-one. She and Paul were able to settle the amount of arrearages ($1500.00) and an increase ($280.00 per month) and submitted the issues of fees and costs and termination date for the circuit court's determination.

By order entered August 17, 1987, the circuit court ruled that the Indiana decree was entitled to full faith and credit by Kentucky and must, therefore, be interpreted according to Indiana law. Applying Indiana Code 31-1-11.5-12(d), which provides that, barring certain exceptions, "[t]he duty to support a child under this chapter ceases when the child reaches his twenty-first birthday," the Jefferson Circuit Court ordered Paul to continue support payments accordingly. That court also awarded Paula attorney fees and costs.

We agree with Paul's first argument that the circuit court erred in applying Indiana law to determine the termination date of the child support payments. "In the absence of a statute, it is generally held that the law of the forum is controlling in an action instituted to enforce a judgment obtained in another state." Ley v. Simmons, Ky., 249 S.W.2d 808 (1952) (citations omitted). In 1965 the Kentucky General Assembly lowered the age of majority from twenty-one years to eighteen. Therefore, it was the law at the time Paula and her child moved here from Indiana. Additionally, absent evidence that the parties contemplated payments to continue until age twenty-one, the noncustodial parent's support obligation terminates when a child reaches age eighteen. See Showalter v. Showalter, Ky., 497 S.W.2d 420, 421 (1973). As the decree was silent, no such evidence exists here.

Furthermore, if the more important issue of custody^[1] can be determined under Kentucky law by means of "significant connection" with this commonwealth, KRS 403.420(1)(b), it only makes sense that Kentucky law would apply to a determination of child support where all the interested parties have lived here for over thirteen years. It was thus error for the circuit court to not order the support payments to cease on the child's eighteenth birthday.

We cannot agree with appellant that the circuit court erred in awarding attorney fees and costs to Paula. The allocation of court costs and attorney fees is entirely within the discretion of the trial court. KRS 403.220; Browning v. Browning, Ky. App., 551 S.W.2d 823, 825 (1977). Appellant has failed to successfully demonstrate any abuse of that discretion.

The judgment of the Jefferson Circuit Court is affirmed regarding the award of costs and fees to appellee. It is reversed on the issue of termination of the support obligation and remanded for entry of an order not inconsistent with this opinion.

Further, pursuant to CR 76.15(3)(A), the application of CR 76.20 and CR 76.32, as well as other appropriate rules of civil procedure for further appellate steps, is reinstated effective the date of this opinion.

All concur.

NOTES

[1] See generally Uniform Child Custody Jurisdiction Act, KRS 403.400-.620.