Bentonv.Louisville Ky. Child Support Div.

Commonwealth of Kentucky Court of AppealsApr 18, 2014
NO. 2013-CA-001250-MR (Ky. Ct. App. Apr. 18, 2014)

NO. 2013-CA-001250-MR

04-18-2014

DAVID LEWIS BENTON APPELLANT v. LOUISVILLE KENTUCKY CHILD SUPPORT DIVISION APPELLEE

BRIEF FOR APPELLANT: David Lewis Benton, Sr. Pro Se Jeffersonville, Indiana BRIEF FOR APPELLEE: Michael J. O'Connell Stephanie French Jefferson County Attorney Louisville, Kentucky


NOT TO BE PUBLISHED


APPEAL FROM JEFERSON CIRCUIT COURT

HONORABLE OLU A. STEVENS, JUDGE

ACTION NO. 12-CI-006265


OPINION

AFFIRMING

BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES. LAMBERT, JUDGE: David Lewis Benton, Sr. appeals the Jefferson Circuit Court's order granting the Louisville KY Child Support Division's motion to dismiss. After careful review, we affirm.

On December 5, 2012, Benton filed a complaint against the Louisville KY Child Support Division seeking damages for improper actions that allegedly occurred from 2006 to October 31, 2012. Specifically, Benton claims that the Child Support Division violated his state constitutional rights by pursuing a non-meritorious claim for arrearages of support. Benton also contested the suspension of his Kentucky Operator's License, which was initiated by the Child Support Division as a result of Benton's failure to pay child support. To date, Benton has failed to provide payment for arrearages of support. Benton has been notified that his license will be reinstated upon entering into a payment agreement, or by paying the arrearages in full, but he has declined to furnish any funds.

On January 29, 2013, the Child Support Division filed a motion to dismiss the complaint on the basis of sovereign immunity. Subsequently, in March 2013, Benton filed a motion for summary judgment. The Child Support Division filed a response to Benton's motion on March 20, 2013, reiterating the reasons stated in its motion to dismiss. On May 6, 2013, the trial court entered an order granting the Child Support Division's motion to dismiss. Benton filed a notice of appeal on May 20, 2013.

On appeal, Benton continues to argue that the Child Support Division violated his constitutional rights by pursuing a non-meritorious claim for arrearages of support. Benton's brief identifies a litany of violations that he avers were committed by the Child Support Division. Although some of these claims were identified at the circuit court level, those alleging violations of the First, Seventh, Eleventh, and Fourteenth Amendments are presented for the first time on appeal and were not considered by the trial court. Benton also raises alleged violations of Kentucky Revised Statutes (KRS) and the United States Code, which are similarly novel issues. Kentucky courts have long held that a reviewing court is confined to consideration of those issues that were presented at the trial court level. "It is a matter of fundamental law that the trial court should be given the opportunity to consider an issue, so an appellate court will not review an issue not previously raised in the trial court." Marksberry v. Chandler, 126 S.W.3d 747, 753 (Ky. App. 2003) (citations omitted). Furthermore, the introduction of new claims without reference to the record impedes the ability of the reviewing court to assess whether an "issue was properly presented to the trial court and therefore, is appropriate for...consideration." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Therefore, we decline to address the issues that were not first presented to the trial court for review.

Regarding the rest of Benton's claims, we note that the Child Support Division of Jefferson County is an agent of the Kentucky Cabinet for Health and Family Services (the Cabinet) that provides child support services under Title IV-D of the Social Security Act. 42 U.S.C. § 651 et. seq. Kentucky courts have repeatedly held that the Cabinet is an agency entitled to insulation from suit. Hamblen ex. rel. Byars v. Kentucky Cabinet for Health & Family Services, 322 S.W.3d 511, 514 (Ky. App. 2010) (The Cabinet has sovereign and governmental immunity).

Sovereign immunity confers on state agencies the right to be free of the burden and expense of mounting and maintaining a defense to suits filed against them, as well as any of the other consequences of litigation. Yanero v. Davis, 65 S.W.3d 510, 518 (Ky. 2001); Lexington-Fayette Urban County Gov't v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004). Sovereign immunity is an absolute immunity from action that provides total protection from the costs and other burdens of engaging in discovery, trials, and all other judicial proceedings. Id. Sovereign immunity exists for the benefit of the public, thereby permitting the government to concentrate its resources and energies for uses in the best interests of its citizens, and to exercise fully independent judgment, free of any concerns of actual or potential litigation. Id.

Under the doctrine of sovereign immunity, the Jefferson County Attorney's Office is immune from suit. Sovereign immunity precludes an action "against the state unless the state has given its consent or otherwise waived its immunity." Yanero, 65 S.W.3d at 518. As political subdivisions of the state, state officers are likewise entitled to sovereign immunity. KRS 67C.101(2)(e); Yanero, 65 S.W.3d at 518. Furthermore, because "suit against a state official in their official capacity is regarded as a suit against the state, it seems logical to regard a suit against a County official in their official capacity as a suit against a County." Smallwood v. Jefferson County Gov't., 743 F.Supp. 502, 503 (W.D.Ky. 1990).

Kentucky courts have repeatedly affirmed that prosecutors are entitled to immunity "upon commencement of prosecution and the assumption of [their] role as prosecutor." McCollum v. Garrett, 880 S.W.2d 530 (Ky. 1994); Jefferson County Com. Attorney's Office v. Kaplan, 65 S.W.3d 916, 920 (Ky. 2001). Accordingly, as an employer of said agents, the County Attorney's Office, including its Child Support Division, enjoys immunity from suit. Hancock v. Washtenaw County Prosecutor's Office, 548 F. Supp. 1255, 1256 (E.D.Mich. 1982).

Because the Child Support Division enjoys immunity from suit, the Jefferson Circuit Court properly granted its motion to dismiss Benton's claims against it. Finding no error, we affirm the court's May 6, 2013, opinion and order dismissing Benton's complaint.

ALL CONCUR. BRIEF FOR APPELLANT: David Lewis Benton, Sr. Pro Se
Jeffersonville, Indiana
BRIEF FOR APPELLEE: Michael J. O'Connell
Stephanie French
Jefferson County Attorney
Louisville, Kentucky