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Kimbler v. Arms3/14/2003
TO BE PUBLISHED
OPINION AFFIRMING
Alleging that Johnson Circuit Court misapplied Kentucky Revised Statutes (KRS) 411.137 and KRS 391.033 in determining that he "willfully abandoned" his son, Boyd Kimbler appeals from the court's opinion and order finding that he is disqualified from receiving his statutory share of the wrongful death settlement proceeds recovered by his son's mother, Tammie Arms. Kimbler also appeals from a subsequent order denying his motion to alter, amend or vacate the court's original order in which it clarified that "the nonpayment of child support , while relevant and material under the applicable legal principles," was not the controlling factor in its decision.
The present dispute stems from the tragic and untimely death of nine-year-old Justin Arms, the biological son of Arms and Kimbler, who died on September 27, 1997, from an injury he sustained when an automobile driven by Larry Gray struck the bicycle he was riding. On March 23, 1998, Arms was appointed administratrix of Justin's estate with Kimbler waiving notice of a hearing on the appointment. A few months later, Arms initiated a wrongful death action against Gray and unnamed defendants alleging that Gray had operated his motor vehicle in a "reckless, careless, and/or negligent" manner on the day of the accident and that the fatal collision was a "direct and proximate result" of this "reckless, careless, and/or negligent act." Arms and Gray entered into negotiations and ultimately settled the case for the sum of $46,250.00. Shortly thereafter, Arms filed a motion pursuant to Mandy Jo 's law seeking to disqualify Kimbler from receiving his statutory share of the recovery due to his alleged abandonment of Justin.
On September 21, 2001, the circuit court conducted an evidentiary hearing on the matter at which six witnesses testified, including Kimbler and Arms. In an order entered on December 5, 2001, the court made the following findings of fact:
1. The Plaintiff, Tammie Arms, and Boyd Kimbler are the biological parents of Justin Arms who died at the age of nine on September 27, 1997, arising out of an automobile collision.
2. During the month Justin Arms died, Boyd Kimbler was in arrearages on his monthly child support obligation of $60.00 per month in the approximate sum of $3,200.00, which can be calculated to being approximately four and one-half years in arrearages.
3. During Justin's life, Tammie Arms was in sole custody of the child with visitation rights given to Boyd Kimbler. The evidence given by Mr. Kimbler with regards to his presence at these visits and his residence during the applicable time period is false and misleading and as such is given minimal weight by this Court.
4. During Justin's life, Mr. Boyd Kimbler did not participate in the child's educational upbringing. When questioned as to Justin's last teacher and Justin's last grade level, Mr. Kimbler could not give a definitive answer and was wrong in his ultimate response.
5. Mr. Kimbler did not attend Justin's funeral, nor did he contribute to the burial or funeral expenses.
6. Under the wrongful death statute, the surviving parents are entitled to a one-half share of any wrongful death proceeds, subject to the remedial statute better known as Mandy Jo 's Law.
7. The Plaintiff, Tammie Arms, filed such a wrongful death action and sought compensation for her consortium claim and testified as to loss of companionship as the result of Justin's death.
8. Mr. Boyd Kimbler did not file such a consortium claim, nor did he participate in the instant action.
9. In the instant action, a settlemen
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