Opinion
NO. 2014-CA-001064-ME
04-10-2015
BRIDGET R. BOICE APPELLANT v. KEVIN MARVIN GIB SON APPELLEE
BRIEF FOR APPELLANT: Gwendolyn L. Snodgrass Louisville, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM OLDHAM FAMILY COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 03-CI-00685
OPINION
REVERSING AND REMANDING
BEFORE: DIXON, JONES AND THOMPSON, JUDGES. THOMPSON, JUDGE: Bridget R. Boice appeals from an order reducing Kevin Marvin Gibson's child support obligation with a downward deviation from his presumed child support guideline amount.
Kevin and Bridget married in 1998 and three children resulted from the marriage. During the marriage, Bridget was the primary wage earner in the household and Kevin stayed home with the children. Kevin and Bridget divorced on June 10, 2004. As part of their marital settlement agreement adopted by the family court in its decree of dissolution of marriage, they agreed to joint custody with Bridget designated as the primary residential custodian. Bridget agreed to temporarily forgo child support to allow Kevin to complete his education.
In 2005, Kevin's visitation was temporarily halted and then changed to supervised visitation. In 2007, regular visitation resumed.
On April 1, 2007, the family court ordered Kevin to begin paying $540 child support per month. On March 9, 2011, Kevin's child support obligation was reduced to $400 per month.
In 2012, in response to co-parenting issues, the family court appointed a parenting coordinator. The children were having difficulties transitioning between the two households and there were conflicts between them, Kevin and Kevin's new wife. Kevin sought custody, attributing the cause of the difficulties to Bridget. In 2013, the family court appointed Dr. Kelli Marvin to conduct a custodial evaluation. Kevin and the children also began to attend weekly counseling sessions with Dr. James Shields.
On September 30, 2013, Bridget filed a motion to modify child support, arguing a material change in circumstance had occurred since child support was last set, based upon a period of her being unemployed and her subsequent reemployment at a lower salary level. Kevin objected to modifying the existing child support order arguing Bridget's income should be imputed from her previous salary.
On November 21, 2013, the family court adopted the parenting coordinator's recommendation and modified the child support order to require Kevin to pay $674 per month. Kevin then filed a motion to alter, amend or vacate arguing the amounts used to calculate child support were incorrect because his income was overestimated, Bridget's income was underestimated and the amount of child support should not include the cost of covering the children on her insurance.
On March 26, 2014, the family court held a hearing to consider custody and Kevin's motion alter, amend or vacate. Based upon Dr. Marvin's report recommending that Bridget be granted sole custody with no visitation unless requested or initiated by the children and no contact between the children and their step-mother, the family court granted temporary sole custody to Bridget. The court denied Kevin's motion determining the correct amount of child support had been ordered pursuant to accurate guideline calculations. However, the family court sua sponte lowered Kevin's obligation based upon the custody change:
The family court was without authorization to make a modification to Kevin's child support obligation without an appropriate written request for modification from Kevin. Holland v. Holland, 290 S.W.3d 671, 675 (Ky.App. 2009). Kevin's motion to alter, amend or vacate was based on other grounds, had already been overruled and could not be interpreted to be a motion to modify based on a change in custody that had not yet occurred. Additionally, because Kevin did not seek a modification, he could not meet his burden of rebutting the guideline presumption in order to obtain a downward deviation for other extraordinary reasons. McFelia v. McFelia, 406 S.W.3d 838, 840 (Ky. 2013).
With the Court's Order of awarding temporary sole custody to Ms. Boice, as well as the Court understanding that Mr. Gibson has had little to no contact with the three children since January 1, 2014, the Court will exercise
the discretion granted it in Kentucky statutes and will lower the child support obligation of Mr. Gibson to Ms. Boice to the amount of $180.00 per month effective January 1, 2014.
On April 4, 2014, Bridget filed a motion to alter, amend or vacate this order. She argued the deviation from the guidelines was not supported by applicable law and the family court failed to make any specific factual findings to justify a downward deviation in Kevin's child support obligation.
On June 4, 2014, following a hearing and testimony, the family court ordered the children remain in Bridget's sole custody and made factual findings to support its previous child support ruling:
In recognition of Mr. Gibson's objection to the parenting coordinator's calculation and further recognizing that Mr. Gibson's current spouse has complained publically through Facebook and other social media about the expense of monthly child support; and further recognizing that this Court has now terminated Mr. Gibson's current contact with his children; the Court felt justified in making a significant downward deviation from the guidelines child support amount to the level of $180.00 per month. None of the factors which led this Court to make the downward deviation have changed. Mr. Gibson continues to have no contact at all with his three children, pursuant to this Court's Order. Further, Mr. Gibson has a significant lower earning capacity than Ms. Boice and continued contact between Ms. Boice and Mr. Gibson in an attempt to collect the parenting coordinator's recommended child support amount will cause continued disagreements and could negatively affect the children. This Court therefore DENIES the motion to alter, amend, or vacate its downward deviation of child support and will require Mr. Gibson to continue to pay current child support in the amount of $180.00 per month, as well as catch up on all child support arrearages incurred prior to the Court's March 21st Order.
Bridget argues that the factual findings the court made cannot justify a downward deviation in the amount of child support Kevin must pay and, therefore, its decision was an abuse of discretion. Kevin, proceeding pro se, has not filed a brief.
We note that although CR 76.12(8)(c) provides when an appellee fails to file an appellate brief, we may accept the appellant's statement of facts and issues as correct or reverse the family court's judgment, we are not compelled to do so and in this case will consider the matter on the merits.
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We review child support awards for abuse of discretion. Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky.App. 2013); Jones v. Hammond, 329 S.W.3d 331, 334 (Ky.App. 2010).
Within statutory parameters, the establishment, modification, and enforcement of child support obligations are left to the sound discretion of the trial court. Van Meter v. Smith, 14 S.W.3d 569 (Ky.App. 2000). However, this discretion is not unlimited. Keplinger v. Keplinger, 839 S.W.2d 566 (Ky.App. 1992). It must be fair, reasonable, and supported by sound legal principles. Downing v. Downing, 45 S.W.3d 449 (Ky.App. 2001).Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky.App. 2007).
[T]he legislature has provided child support guidelines that are presumptively appropriate, and if there is to be a deviation, the moving party must convince the trial court that the guidelines amount is unjust or inappropriate, either initially or on modification. The trial court must weigh the evidence in support of this claim, and exercise sound discretion in granting or denying a requested deviation. If there is a deviation, the trial court must make written findings as to why the guidelines amount is unjust or inappropriate. Unless there is a preponderance of the evidence to
support the trial court's deviation, the guidelines amount controls as a matter of law.McFelia v. McFelia, 406 S.W.3d 838, 841 (Ky. 2013).
"[G]enerally, as long as the trial court gives due consideration to the parties' financial circumstances and the child's needs, and either conforms to the statutory prescriptions or adequately justifies deviating therefrom, this Court will not disturb its rulings." Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.App. 2000). See Penner, 411 S.W.3d at 783-84; Brown v. Brown, 952 S.W.2d 707, 708 (Ky.App. 1997). However, the family court does not have the discretion to deviate from the guidelines because it believes the General Assembly erred in setting the appropriate levels of support or to ignore the guidelines. Clary v. Clary, 54 S.W.3d 568, 570-71 (Ky.App. 2001); Keplinger v. Keplinger, 839 S.W.2d 566, 568 (Ky.App. 1992). The family court should not deviate from the guidelines if the party opposing the guidelines fails to show the existence of an extraordinary factor justifying deviation. McFelia, 406 S.W.3d at 841.
KRS 403.213 allows for modification of the child support order as follows:
(1) The Kentucky child support guidelines may be used by the parent . . . substantially contributing to the support of the child as the basis for periodic updates of child support obligations . . . only upon a showing of a material change in circumstances that is substantial and continuing.
(2) Application of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support
due per month shall be rebuttably presumed to be a material change in circumstances. Application which results in less than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed not to be a material change in circumstances....
If modification is appropriate due to a material change in circumstances, KRS 403.211 explains how child support shall be modified:
(2) . . .[I]n any proceeding to modify a support order, the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for . . . modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.
(3) A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:
(a) A child's extraordinary medical or dental needs;
(b) A child's extraordinary educational, job training, or special needs;
(c) Either parent's own extraordinary needs, such as medical expenses;
(d) The independent financial resources, if any, of the child or children;
(e) Combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines;
While the family court is given discretion to determine what "extraordinary" means, the factors for adjusting the imputed guideline amount relate to financial factors regarding the increased needs or resources of the parents or the children. Therefore, the catch all provision of KRS 403.211(3)(g) (emphasis added), allowing for deviation from the guidelines for "[a]ny similar factor of an extraordinary nature[,]" relates to needs or financial resources.(f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. . . .; and
(g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.
(4) "Extraordinary" as used in this section shall be determined by the court in its discretion.
Parents have a duty to support their children. Jones, 329 S.W.3d at 340. "Kentucky's child support guidelines . . . reflect the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes." Plattner, 228 S.W.3d at 579. This duty is not contingent on whether a parent has custody or exercises visitation.
In Jewell v. Jewell, 255 S.W.3d 522, 523-24 (Ky.App. 2008), the Court determined a father was not relieved of his financial obligation to pay a portion of his child's funeral expenses by virtue of mother being awarded sole custody and father seldom exercising visitation; to permit a modification from father's support obligations to allow him to avoid such obligation "would be unjust or inappropriate." See Rodney P. v. Stacy B., 169 S.W.3d 834, 836-37 (Ky. 2005) (noting the Department of Juvenile Justice can require a noncustodial father to support child currently in the Department's custody, but if the Department does not require father to pay child support and mother proves she is still substantially contributing to the support of their child, father can be required to make child support payments to mother instead).
The lack of custody or visitation cannot justify a downward deviation from the presumed guideline amount of child support. Instead, the inverse is true. If a child resides with one parent, all the daily, necessary items for the children will be borne by that parent, along with the cost of maintaining a residence for the children on a permanent basis, while the parent without possession of the children will bear no daily expenses or resident expenses for them. See Brown v. Brown, 952 S.W.2d 707, 708 (Ky.App. 1997). Therefore, sole custody without visitation could be a basis for an upward deviation in the amount of child support due.
Similarly, the other reasons the family court provided for its decision do not justify a deviation. The presumed guideline amount takes into account Kevin's lower income in determining the appropriate amount he should pay. The fact that the noncustodial parent may earn less money and, therefore, spend a larger portion of income towards satisfying child support obligations is not a sufficient reason to deviate from the guidelines. Howard v. Howard, 336 S.W.3d 433, 438 (Ky. 2011). A spouse's complaints about child support and potential conflicts between parents relating to the payment of child support are ordinary conditions that exist in many families and voluntary, negative behavior cannot justify deviation. Therefore, the family court abused its discretion in ordering a downward deviation.
Accordingly, we reverse and remand the Oldham Family Court's order reducing Kevin's child support obligation.
ALL CONCUR. BRIEF FOR APPELLANT: Gwendolyn L. Snodgrass
Louisville, Kentucky
BRIEF FOR APPELLEE: No brief filed.