Opinion
NO. 2015-CA-000027-ME
08-28-2015
JEFFREY GLENN MCENANEY APPELLANT v. LINDA MICHELLE MCENANEY APPELLEE
BRIEF FOR APPELLANT: Linda J. Noll Louisville, Kentucky BRIEF FOR APPELLEE: Julie A. Johnson Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 09-CI-500822
OPINION
AFFIRMING
BEFORE: DIXON, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Jeffrey Glenn McEnaney appeals from an order of the Jefferson Family Court increasing his child support obligation for the parties' three minor children. He argues the family court erred when it did not deviate from the Kentucky child support guidelines set forth in Kentucky Revised Statues (KRS) 403.212 and the family court should have imputed income to the children's mother, Linda Michelle McEnaney (Michelle). We conclude the family court did not abuse its discretion and affirm.
Jeffrey and Michelle divorced on June 4, 2009. At the time of the dissolution, the parties agreed the parties' four children would reside primarily with Michelle, with Jeffrey having liberal visitation. Because the children would be spending approximately 40% of their time with Jeffrey, it was agreed that the parties would deviate from the child support guidelines and Jeffrey would pay $138.46 per week. It was also agreed Michelle would provide medical, dental, and vision insurance for the children, and each parent would be responsible for providing shelter, food, clothing, school supplies, gifts, and overnight gymnastic meet accommodations while the children were in their respective care.
On February 10, 2011, Michelle filed a motion to increase child support alleging the children were spending more than 60% of their time with her and that she was paying the majority of their incidental expenses, including health insurance, school-related costs, cell phone costs, automobile insurance, and gymnastics fees and costs. At that time, Michelle was earning $4,050 per month and Jeffrey was earning $4,424.50 per month. After a hearing, the family court ordered Jeffrey's child support obligation to remain the same, but required Jeffrey to pay half the children's gymnastics costs.
In May 2011, Jeffrey filed a motion to reduce his child support obligation. The family court found there had not been any substantial change in circumstance sufficient to warrant a reduction and denied the motion. Jeffrey appealed, and this Court affirmed.
After the oldest child graduated high school, Jeffrey again filed a motion to reduce his child support obligation. At that time, Michelle's income was $5,552 per month while Jeffrey earned $4,500 per month. The motion was denied on November 22, 2013.
When Michelle filed her motion to increase child support on October 1, 2014, the parties' twins were eighteen years of age but in high school, and the youngest child was fourteen. At that time, the twins were estranged from Jeffrey and not spending time with him. A hearing was held and the following evidence heard.
Jeffrey is an elevator repairman and currently earns $4,571 per month. He testified he pays half the youngest child's cheerleading expenses and a portion relative to his income of medical and dental expenses and half of miscellaneous expenses for the youngest child. He does not provide additional support for the twins beyond the child support ordered.
Michelle is an open heart recovery nurse at Baptist East Hospital who works an average of 30 hours per week. She testified that the hospital's open heart unit discourages her from working additional shifts in other units so that she is available for open heart nursing should the need arise. Her current income is $6,540 per month.
After hearing the evidence, the family court declined to deviate from the child support guidelines and ordered Jeffrey to pay $815.49 per month. The family court noted that circumstances may change when the twins graduate high school at which time Jeffrey's support obligation for the twins will cease.
Jeffrey contends the family court erred because the circumstances required that it deviate from the guidelines when modifying child support. We disagree.
By enacting the Kentucky child support guidelines, the legislature created "a rebuttable presumption that the guideline amount is the appropriate amount of support in determining child support." Clary v. Clary, 54 S.W.3d 568, 570 (Ky.App. 2001). The guidelines apply to original awards as well as modification of child support "upon a showing of a material change in circumstances that is substantial and continuing." KRS 403.213(1). KRS 403.211(2) provides:
[T]he child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or 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.
After enactment of the guidelines, this Court recognized that "setting an appropriate amount of child support is an art rather than a science. Nevertheless, it is an art as to which the Legislature has every right to make prescriptions and set limitations." Keplinger v. Keplinger, 839 S.W.2d 566, 568 (Ky.App. 1992). KRS 403.211(3) directs that any deviation must be based on one or more of the following factual findings:
(a) A child's extraordinary medical or dental needs;In McFelia v. McFelia, 406 S.W.3d 838, 841 (Ky. 2013), our Supreme Court instructed as follows:
(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;
(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. However, no such agreement shall be the basis of any deviation if public assistance is being paid on behalf of a child under the provisions of Part D of Title IV of the Federal Social Security Act; and
(g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.
The bottom line is that the 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 inDespite the clear directive of the statute and case law that the guidelines are presumed to apply unless one of the statutory exceptions set forth are met, Jeffrey argues deviation was appropriate because the youngest child is in his home approximately 50% of the time.
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.
The accuracy of Jeffrey's factual assertion is questionable. Although the youngest child spends approximately 50% of the nights with Jeffrey, as the family court found, she spends approximately 60% of her time with Michelle. Moreover, any decrease in child support owed by Jeffrey to support the parties' three children is not warranted because Michelle maintains a household for all three children and is the primary residential custodian.
Any argument that a different calculation was required by KRS 403.212(6) applicable to split custody arrangements is without merit. Jeffrey is not the residential custodian for one or more children. KRS 403.212(2)(h).
Jeffrey's argument is similar to that made in McFelia where the father argued "child support must be tied to the amount of time a child spends in each home." McFelia, 406 S.W.3d at 841. Our Supreme Court rejected this argument. Although the Court held while the amount of time a child spends in each home may be sufficient for a trial court to depart from the guidelines under the "extraordinary" provision of KRS 403.211(3)(g), it is not "required to do so, absent an abuse of discretion, and should not do so if the party opposing the guidelines has simply failed to show the existence of a factor of an extraordinary nature." Id. Jeffrey has failed to demonstrate a factor of an extraordinary nature.
We also reject Jeffrey's contention that the family court was required to impute income to Michelle. KRS 403.212(2)(a) and (d) provide the standard for imputing income to a parent who is underemployed for purposes of the child support guidelines. KRS 403.212 (2)(a) defines "income" as "actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed." KRS 403.212(2)(d) provides:
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation."[I]ncome should not be imputed .... without due consideration of all of the statutory factors." Gripshover v. Gripshover, 246 S.W.3d 460, 469 (Ky. 2008).
Michelle testified that she works approximately 30 hours per week and that because of the nature of her profession, her employer discourages additional hours. When she works evening shifts, she earns an additional $5.27 per hour. As found by the family court, at her current earnings, Michelle will earn more than $78,000 per year, an amount in excess of full-time work at her regular earnings at her hourly rate. The family court did not abuse its discretion when it refused to impute income to Michelle.
Based on the forgoing, the order of the Jefferson Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Linda J. Noll
Louisville, Kentucky
BRIEF FOR APPELLEE: Julie A. Johnson
Louisville, Kentucky