Opinion
NO. 2017-CA-001610-ME
04-26-2019
TROY NALLY APPELLANT v. SARAH MULLINS APPELLEE
BRIEF FOR APPELLANT: Justin Key Sarah Huyck Jeffersonville, Indiana BRIEF FOR APPELLEE: John H. Helmers, Jr. Corey Shiffman Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 14-CI-503911 OPINION
AFFIRMING
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BEFORE: J. LAMBERT, MAZE, AND SMALLWOOD, JUDGES. MAZE, JUDGE: Troy Nally appeals from an order of the Jefferson Family Court modifying his parenting time and ordering him to pay child support to Sarah Mullins. He argues that the family court exceeded its authority by granting Mullins's CR 59.05 motion based on a reconsideration of the evidence. He further argues that the family court clearly erred in finding that the parties were no longer exercising equal parenting time, and the family court abused its discretion by declining to deviate from the Child Support Guidelines based on this finding.
Judge Gene Smallwood concurred in this opinion prior to the expiration of his term of office. Release was delayed by administrative handling.
Kentucky Rules of Civil Procedure.
We conclude that the family court was authorized to reconsider the evidence already of record. We further find that the family court did not clearly err in its findings concerning the parties' practices concerning parenting time. Lastly, while the family court would have been authorized to deviate from the guidelines based on the current parenting schedule, we conclude that the court did not abuse its discretion by applying the guidelines in this case. Hence, we affirm.
Troy Nally and Sarah Mullins were never married, but are the parents to one child, R.N., who was born in 2012. The parties entered into a mediated settlement agreement in 2015, under which they shared joint custody of the child. The agreement provided for rotating physical custody on a two-week alternating schedule. Under the schedule, Troy would have custody of R.N. for three days each week, and Sarah would have custody for four days. They also agreed to alternate or equally divide major holidays with the child. The parties agreed that neither would pay child support to the other, but Troy would provide insurance and pay for child care as needed.
In May 2016 Mullins filed motions to adjust the parenting schedule and to set child support. The family court referred the matter to mediation. Thereafter, in August 2016 Nally filed a motion seeking an appointment of a custodial evaluator. The family court granted the motion, appointing Dr. Sally Brenzel to conduct the evaluation. In November 2016, Mullins filed motions again seeking modification of the parenting schedule and child support. Both parties asserted that they were unable to agree on the school that the child would attend for the 2017-18 school year.
On February 6, 2017, the parties entered into a "Temporary Agreed Order." Under the modified schedule, Mullins would have the Friday overnight preceding her weekend with the child, and Nally would have the Thursday overnight preceding his weekend.
The matters came before the court for a hearing on May 12, 2017. In addition to the testimony of each party, the court considered Dr. Brenzel's report. Dr. Brenzel noted that the parties have problems communicating with each other and often disagree over parenting decisions. However, Dr. Brenzel also concluded that each parent was fit to have custody of the child. Dr. Brenzel recommended that the parenting schedule be adjusted to minimize the amount of time spent transporting the child, and that Nally should continue to arrange for the majority of that transportation.
The family court addressed the pending motions in its findings of fact, conclusions of law and an order on July 11, 2017. With respect to the parenting schedule, the court found that R.N. benefits greatly from the time he spends with both parents and found that it would not be in his best interests to substantially limit Nally's parenting time to no overnight visitation during the school week. The court also concluded that the impact of the transportation issues did not outweigh the value of the time spent with each parent. Consequently, the court declined to designate a residential parent, opting for a more limited determination regarding where the child would attend elementary school. Accordingly, the court directed the parties to exercise a 2-2-3 rotating schedule, with separate provisions for holidays.
With respect to child support, the family court granted Mullins's motion to modify child support. Based on the parties "essentially equal parenting time," the court found that a deviation from the child support guidelines was warranted. As adjusted, the court set Nally's child support obligation at $192 per month.
Following entry of this order, Mullins filed a timely motion to alter, amend or vacate pursuant to CR 59.05. She complained of multiple factual errors and typographical errors in the prior decision. Nally opposed the motion, arguing that the prior order was supported by the evidence of record.
The family court entered an amended order on September 22, 2017. Based on the testimony at the May 12 hearing, the court found that the parties had been following a different parenting schedule than was set out in the in the February 10, 2017 agreed order. The court had understood that the parties were rotating five days with Nally and six days with Mullins. The court found that the parties had actually agreed that Mullins would have Monday and Tuesday overnights, Nally would have Wednesday overnights, and that the parties would alternate Thursdays, Fridays and weekends.
The family court further noted that it had deviated from the child support guidelines based on the parties "essentially equal" parenting time. But while the parties practice regarding parenting time only amounted to a difference of a few days per month, the court concluded that the parties were no longer exercising "essentially equal" parenting time. Consequently, the court concluded that its deviation from the child support guidelines was not warranted. Based on its application of the guidelines, the court set Nally's child support obligation at $586 per month. Nally now appeals from this order.
Nally first argues that the family court exceeded its authority in granting the CR 59.05 motion. We review the family court's ruling on a CR 59.05 motion under the abuse of discretion standard. Bowling v. Kentucky Dep't of Corrections, 301 S.W.3d 478, 483 (Ky. 2009). While reconsideration of a judgment is a power that should be used sparingly, the court has broad authority to amend and alter its own judgments. Gullion v. Gullion, 163 S.W.3d 888, 891-92 (Ky. 2005). However, a party cannot invoke CR 59.05 to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment. Id. at 893.
Nally complains that the trial court improperly cited to certain testimony for the first time in its CR 59.05 ruling. However, the court expressly stated that this testimony had been presented at the May 12, 2017, hearing, but it simply misunderstood the import of that testimony in light of the other evidence of record. We conclude that the family court was well within its authority to change its prior evaluation as to the weight of the evidence.
The more significant issues concern the family court's factual findings concerning the amended parenting schedule, as well as its decision to set support based on the guidelines set out in KRS 403.212. When reviewing a decision in a child custody case, the test is whether the findings of fact of the family court were clearly erroneous or the decision constitutes an abuse of discretion. Burton v. Burton, 355 S.W.3d 489, 493 (Ky. App. 2011). Likewise, the family court has broad discretion in setting child support. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). As long as the trial court's discretion comports with the statutory guidelines, or any deviation is adequately justified in writing, this Court will not disturb the trial court's ruling. Id. The family court's factual findings are not clearly erroneous when supported by substantial evidence, that is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
Kentucky Revised Statutes.
Nally argues that the family court erred in finding that the parties agreed to modify the parenting schedule after entry of the February 12, 2017, agreed order. He correctly notes that the agreed order was a temporary agreement and should not be viewed as a voluntary or permanent settlement of the pending motions to modify the parenting schedule. Nally further contends that the family court gave improper weight to the agreed order and to Mullins's testimony regarding their subsequent oral modification of that schedule.
But contrary to Nally's argument, the family court was entitled to accept Mullins's testimony regarding the schedule which the parties were actually following. Furthermore, since this schedule was different from the one set by the February 12, 2017 agreed order, we are not convinced that the family court gave undue weight to the terms of that order.
The family court's finding on this issue led directly to its conclusion that the parties were no longer exercising equal or "essentially equal" parenting time. Based upon that conclusion, the trial court determined that it was no longer appropriate to deviate from the Child Support Guidelines. Since the actual modification of the parenting schedule represents only a few days a month, Nally argues that this slight change did not warrant such a drastic increase in his support obligation.
In Plattner v. Plattner, 228 S.W.3d 577 (Ky. App. 2007), the Court held that a court may consider the period of time during which the children reside with each parent in determining child support, and a relatively equal division of physical custody may constitute valid grounds for deviating from the guidelines. Id. at 579. See also Downey v. Rogers, 847 S.W.2d 63, 65 (Ky. App. 1993). Contrary to the family court's understanding, "relatively equal" physical custody does require a showing that the division of parenting time is precisely, or even essentially equal.
Rather, the amount of time that a child spends in each home is only one factor to be considered in the decision to deviate from the Child Support Guidelines. The court must also consider the relative financial position of each parent, as well as any other factors of an "extraordinary nature" which justify a deviation from the guidelines. McFelia v. McFelia, 406 S.W.3d 838, 841 (Ky. 2013) (citing KRS 403.211(3)(g)). Thus, the decision to deviate from the guidelines is a matter of discretion, and the family trial court is in the best position to weigh the appropriate factors under KRS 403.211. Id.
We are concerned that the family court may have unduly circumscribed its own discretion by focusing only on whether the parties' parenting time with the child was "essentially equal." The family court has discretion to deviate from the Child Support Guidelines even where the parenting schedule is somewhat less than equal. This is particularly true where there are other factors which warrant a deviation from the guidelines.
Nevertheless, we cannot conclude that the trial court ultimately abused its discretion by applying the guidelines in this case. The family court's amended order raised Nally's support obligation by about three times the amount it was set under the July 12, 2017, order. In isolation, such a large increase seems unwarranted by the relatively small alteration in the amount of time each parent spends with the child.
On the other hand, the party opposing application of the guidelines has the burden of showing the existence of a factor of an extraordinary nature justifying deviation. Id. at 841. Nally has nearly twice the income as Mullins, so the previous arrangement of waiving any child support was no longer warranted either. Furthermore, Nally does not argue that the amended support amount imposes an undue or unfair hardship upon him. Under the circumstances, we cannot find that the family court abused its discretion by setting his support obligation based on the Child Support Guidelines.
Accordingly, the affirm the order of the Jefferson Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Justin Key
Sarah Huyck
Jeffersonville, Indiana BRIEF FOR APPELLEE: John H. Helmers, Jr.
Corey Shiffman
Louisville, Kentucky