Serrano v. Serrano

Full title: SAMANTHA DAWN SERRANO APPELLANT v. JORGE CHASE SERRANO APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 13, 2020

NO. 2018-CA-001888-ME (Ky. Ct. App. Mar. 13, 2020)

Opinion

NO. 2018-CA-001888-ME

03-13-2020

SAMANTHA DAWN SERRANO APPELLANT v. JORGE CHASE SERRANO APPELLEE

BRIEF FOR APPELLANT: Brandon M. Music Grayson, Kentucky BRIEF FOR APPELLEE: Sharon E. Rowsey Ashland, Kentucky

ACREE, JUDGE

NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE JOHN F. VINCENT, JUDGE
ACTION NO. 18-CI-00302 OPINION
AFFIRMING, IN PART, REVERSING, IN PART, AND REMANDING

** ** ** ** **

BEFORE: ACREE, COMBS, AND MAZE, JUDGES. ACREE, JUDGE: Samantha Serrano (Mother) appeals the Boyd Circuit Court's decree of dissolution awarding her $67 in monthly child support from Jorge Serrano (Father). She believes the trial court erred in calculating Father's child support obligation, and further erred by failing to articulate a reason for deviating from the child support guidelines and worksheet. She also contends KRS¹ 403.211 and KRS 403.212 are fundamentally unfair as measures of the support obligation when parents are awarded joint custody with equal parenting time. Lastly, Mother believes the trial court erred by failing to award her attorney's fees.

1 Kentucky Revised Statutes.

Because the trial court deviated from the child support guidelines and worksheet but failed to identify a factor of an extraordinary nature justifying the deviation as required by KRS 403.211(2) and (3)(g), we reverse the child support award and remand for further proceedings.

Because the trial court may be unaware, we note that Kentucky courts are permitted, though not compelled, to consider applying the Colorado Method of deviating from the support guidelines in some cases in which joint custody with equal parenting time is awarded. On remand, the trial court should consider the evidence to determine if the amount of time the children are with each parent increases the expenses of maintaining two homes and, if so, whether that fact is an extraordinary factor justifying a greater total child support obligation than contemplated by the existing child support guidelines, KRS 403.212(7), and the Kentucky Worksheet for Monthly Child Support Obligation (CS-71, Line 10).²

2 The Kentucky Worksheet for Monthly Child Support Obligation, CS-71, was created by the Cabinet for Health and Family Services pursuant to authority granted by the legislature in KRS 194A.050(1) and KRS 205.795 to provide a formulaic means of calculating child support obligations. See 921 Kentucky Administrative Regulations (KAR) 1:400 § 1(2)(a).

Lastly, because the trial court did not abuse its discretion regarding attorney's fees, we affirm that part of the decree.³

3 The Court elected not to publish this opinion. Either party may, by filing a timely petition for rehearing or modification under Kentucky Rules of Civil Procedure (CR) 76.32(1)(a), move the Court of Appeals to publish the opinion notwithstanding the Court's designation, "Not To Be Published." Commonwealth v. Crider and Rogers, Inc., 929 S.W.2d 179, 180 (Ky. 1996). The petition should state the reasons for urging publication.

BACKGROUND

The parties married on July 6, 2011, and had two children. Seven years later, the parties separated. They were able to successfully co-parent by equitably dividing physical custody and parenting time with the children. They coordinated work schedules, so the children were always with a parent. This minimized the need for formal daycare and the accompanying expenses.

Following a hearing before a domestic relations commissioner (DRC) to finalize their divorce, the Boyd Circuit Court entered its findings of fact, conclusions of law, and decree of dissolution on November 30, 2018, adopting the commissioner's findings as its own.

Specifically, the court found that Mother works for Bon Secours Health System and earns $3,223.39 per month. The court found Father works for the Ashland Police Department earning $4,351.90 per month and has a second income of $541.87 per month for a total monthly income of $4,893.77.

The family incurs child care expenses of $33 per day for an average of three days per month and a total monthly cost of $99. Additionally, Father pays monthly health insurance premiums for the children of $174. Applying the law to these facts, the court ordered Father to pay Mother $67 per month as child support.

The child support ordered is a deviation from the amount calculated on the worksheet of $722. (R. 206, R. 213: CS-71, Line 13, Column B). The court failed to articulate a reason for the deviation downward to $67. After the trial court denied both Mother's motion to alter, amend, or vacate the order, and her motion seeking attorney's fees, she brought this appeal.

STANDARD OF REVIEW

We review support orders for abuse of discretion. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009). The standard "is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles." Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013) (citation omitted). The grant or refusal to award attorney's fees pursuant to KRS 403.220 is also reviewed for abuse of discretion. Allison v. Allison, 246 S.W.3d 898, 909 (Ky. App. 2008). Claims of legal error are reviewed de novo. Oster v. Oster, 444 S.W.3d 460, 466 (Ky. App. 2014) (citing Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006)).

ANALYSIS

Child Support

The trial court, adopting the DRC recommendations, calculated child support by a method this Court has seen before. It utilizes the worksheet in a modified way not expressly authorized by the statutes or regulations that govern its use. Rather than following the worksheet that requires one parent to pay the other parent the full amount calculated on the worksheet's Line 13, Column B, this modified method looks to each parent's individual monthly obligation, calculates the difference between the two, and orders the parent with the greater obligation to pay the difference to the parent with the lesser obligation. Because this method necessarily deviates from the guidelines, the family court, or circuit court sitting as a family court, must comply with KRS 403.211(2) with "a written finding or specific finding on the record . . . specifying the reason for the deviation." The Boyd Circuit Court followed this method but failed to explain its reason for deviating from the guidelines.

Mother argues the trial court erred in two primary ways. She says first that the court misapplied the support statute, KRS 403.212, in calculating the support obligation. Second, she says the support award is a deviation from what a proper calculation would yield, and that the trial court erred by failing to articulate a justification or reason for that deviation as required by KRS 403.211(2)-(3).

Mother's second point is clearly correct. Proper calculation of the support amount using the Kentucky Worksheet for Monthly Child Support Obligation directs Father to pay Mother $722, an amount presumed correct pursuant to KRS 403.211(2). The court reduced that amount to $67 without identifying a "factor of an extraordinary nature" under KRS 403.211(3)(g) to overcome that presumption. Therefore, this Court must reverse and remand the case, at least to allow the court to express its reasoning for the deviation. KRS 403.211(2) ("[T]he child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for . . . the amount of child support. . . . Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation."); Carver v. Carver, 488 S.W.3d 585, 593 (Ky. 2016) ("[T]he statute requires the court to make a specific finding for the deviation.").

However, Mother's other argument squarely presents another issue of merit - how should courts calculate child support when joint custody and equal parenting time are awarded? The applicable statutes and regulations clearly guide the courts when sole custody is awarded, whether it is traditional sole custody or that rare "subset of sole custody - split custody." Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). But, as Mother correctly points out, the legislature failed to say how courts should calculate support after an award of joint custody with equally shared parenting time, despite expressing the public policy preference for such custody awards.⁴

4 This opinion refers to "joint custody and equally shared parenting time" or a shorter version of the same idea, "joint custody and equal parenting time," because it is the language used by the legislature. KRS 403.270(2). It also avoids any confusion that may exist about what our courts mean by "shared custody." Consider the differences in the descriptions of "shared custody" in two important cases, decided by the Supreme Court on the same day. Compare Frances v. Frances, 266 S.W.3d 754, 755 (Ky. 2008) (discussing "shared custody agreement, under which the Appellant functioned as the primary residential parent and the Appellee enjoyed nearly equal time sharing with [child]"), with Pennington, 266 S.W.3d at 764-65 ("In shared custody, both parents have legal custody . . . [but u]nlike full joint custody, time sharing . . . frequently mirrors a typical sole custody pattern where the child may live with one parent during the week and reside with the other on alternate weekends.").

Mother believes the Boyd Circuit Court erred in its support calculation because it failed to apply the Colorado Method (discussed below) for deviating from the support schedule set out in KRS 403.212. She also notes the Kentucky Supreme Court has approved the Colorado Method for use in Kentucky's 17th Judicial Circuit. See Campbell Fam. Ct. Rule 7.H.3. Mother "proposes that this Court adopt the Colorado Method for calculating child support in a true shared parenting situation . . . and provide guidance to Trial Courts across the state . . . ." (Appellant's brief, pp. 7-8).

Mother posits that the lack of legislative guidance has forced family courts (and circuit courts sitting as such) to resort to creative, though not always uniform, solutions. There is some accuracy to that observation, and good reason to address it. As discussed below, uniformity in child support awards across the state is both a federal and a state mandate. Assuring uniformity is therefore essential.

"Generally speaking, a trial court enjoys 'broad discretion in the establishment, enforcement, and modification of child support.'" Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014) (emphasis added) (citing Com., Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011)). That aphorism was truer before 1990 than it is today. Before 1990, a court could order any amount it believed "reasonable or necessary" after considering "all relevant factors" including five (5) enumerated in KRS 403.210 (1988; repealed 1990).

That pre-1990 statute was typical of those in many states. But, according to Congress, such broad discretion had created the specific problems that "child support awards were inadequate to cover the actual costs of raising a child," and that "child support orders varied drastically for no apparent reason." Linda Henry Elrod, The Federalization of Child Support Guidelines, 6 J. AM. ACAD. MATRIM. LAW. 103, 111 (1990). To solve the problems, Congress motivated state governments to change their laws with a mandate tied to federal funding of welfare programs. See Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988) (codified at 42 U.S.C. § 601 et seq.).

If the states wanted to ensure receipt of federal funding, they would have to establish a child support commission and add several procedures to their laws relating to child support establishment and collection. 45 C.F.R. § 304.95 and Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 (1984) (codified at 42 U.S.C. §§ 651, 653-58, 664 (1988) (amending Part D of Title IV of the Social Security Act)). Subsequent federal legislation required each state's child support commission to establish guidelines and child support formulas based on specific descriptive and numeric criteria. Family Support Act of 1988, at § 103(a)(3), 102 Stat. 234 (codified at 42 U.S.C. § 667(b)(2)).

Furthermore, states were required to adopt language that an award based on these numeric criteria and formulas was presumed to correctly determine a just child support obligation. Id. No court would have the discretion to deviate from the child support award calculated under the criteria without a written finding that one or more factors of an extraordinary nature made application of the statutory criteria and formulas unjust or inappropriate. Id.

Congress's goal, taking several years and encompassing a series of laws to accomplish, was a nationalized system of "[n]ormative support guidelines making most child support orders capable of mathematical calculation . . . [and making] it possible to expedite the setting of support because it could be done by nonjudicial personnel without the necessity for a judicial proceeding in every case." Elrod, Federalization, supra, at 116. The states' compliance with these mandates injected federal initiative and authority deeply into the states, as now the amount - not just the enforcement - was a matter of federal concern. Linda D. Elrod, Child Support Reassessed: Federalization of Enforcement Nears Completion, 1997 U. ILL. L. REV. 695, 707, passim (1997) ("The trend since 1974 has moved increasingly toward more federalization of the entire area of child support, especially support enforcement.").

The broad discretion afforded Kentucky judges in the pre-1990 version of KRS 403.210 failed to assure the uniformity, expedition, or sufficiency in child support awards Congress required. Seemingly addressing that version of KRS 403.210 directly, the federal mandate "made it clear that a mere listing of factors for a judge to consider, such as the financial resources of the parties and needs of the child, was not sufficient to meet the intent of the legislation." Elrod, Federalization, supra, at 116. Kentucky's law had to change.

To bring Kentucky in line with this federal schema, the state legislature repealed and replaced KRS 403.210, and added two new statutes, KRS 403.211 and KRS 403.212. 1990 Ky. Acts ch. 418 §§ 1-3 (H.B. 639). The newer version of KRS 403.210 "recognizes that under the federal 'Family Support Act of 1988,' P.L. 100-485, the Commonwealth of Kentucky is required to implement child support guidelines." KRS 403.210.

The guidelines themselves were established in a section of one of the new statutes, KRS 403.212(7). The other new statute, KRS 403.211, included language that:

the 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.

KRS 403.211(2). Other statutes, KRS 194.050 (repealed in 1998 and replaced by KRS 194A.050) and KRS 205.795, authorized the predecessor of Kentucky's Cabinet for Health and Family Services to prepare worksheets to assist courts, lawyers, and parties in making what were intended to be simple mathematical support calculations. This was the legislature's attempt to comply with federal law to bring about uniformity in child support awards throughout the state and, not incidentally, to continue the state's receipt of federal funding.

As much as Congress's mandate influenced support awards, it does not dictate how states should decide custody itself. Kentucky's legislature, on the other hand, has changed the common law regarding custody. Unfortunately, the impact of those changes upon the support award is not reflected in Kentucky statutes. But trial courts, which determine both awards, cannot avoid addressing their interaction. Consider first the legislative change in custody awards.

Before 1972, custody decisions in Kentucky were guided only by the common law. Because of "the variety of factors which may affect an award of custody," the common law afforded the trial court "broad discretion in selecting the child's custodian." Tinsley v. Boggs, 325 S.W.2d 335, 336 (Ky. 1959); Newby v. Newby, 275 S.W.2d 779, 780 (Ky. 1955) ("In awarding custody . . . wide discretion must be given . . . .").

As parties challenged the discretion of trial courts on appeal, the common law evolved in such a way that "sole custody was the rule for most of the 20th century." Pennington, 266 S.W.3d at 763. Some opinions of our predecessor Court of Appeals displayed a harsh adversity to alternative custody orders. The Court viewed it as "foolish to keep shifting [a child] between his parents whose incompatibility has wrecked their attempt to establish a home . . . ." McLemore v. McLemore, 346 S.W.2d 722, 724 (Ky. 1961) (quoting Davis v. Davis, 289 Ky. 618, 159 S.W.2d 999, 1001 (1942)). This attitude led to a judicial policy that "looks with disfavor upon split custody[,]" understood to mean joint custody when read in context. Knight v. Knight, 419 S.W.2d 159, 159 (Ky. 1967).⁵

5 McLemore, supra, was the subject of an American Law Reports article, M. L. Cross, Annotation, Comment Note. - "Split," "divided," or "alternate" custody of children, 92 A.L.R.2d 695 (Originally published in 1963). The 2020 update to the article says: "[I]n most of the Kentucky cases, decided after as well as before the McLemore decision, the Court of Appeals has affirmed orders for divided custody of a child." Id. at 695 n.5 (database updated 2020).

Other than favoring sole custody, there were few bounds on the trial courts' discretion in determining who gets custody. Our highest court "continually refused to establish rigid guidelines which a trial court should follow when determining questions of child custody." Dudgeon v. Dudgeon, 458 S.W.2d 159, 160 (Ky. 1970). However, soon after the Court in Dudgeon noted its refusal to create a rule, the legislature decided some legislative guidance was called for.

In 1972, the legislature enacted KRS 403.270 to govern the issue of child custody. 1972 Ky. Acts ch. 182 § 17 (S.B. 133). Soon thereafter, in 1980, the legislature rejected some of our common law by doing away with the judicial policy favoring sole custody and allowed that a "court may grant joint custody to the child's parents if it is in the best interest of the child." 1980 Ky. Acts ch. 158 § 1 (H.B. 356) (modifying KRS 403.270). Only then did it become "impermissible to prefer sole custody over joint custody." Squires v. Squires, 854 S.W.2d 765, 770 (Ky. 1993). Nearly four decades later, in 2018, the legislature concluded that, in modern Kentucky, "joint custody and equally shared parenting time is in the best interest of the child." KRS 403.270(2). Absent sufficient evidence to the contrary, custody awards are now presumed to be joint with equal parenting time.

To whatever degree the legislature has kept pace with society when it comes to custody itself, it lags much further behind when it comes to the child support statutes. For ten years, KRS 403.210-.212 remained largely as enacted in 1990.⁶ A calculation of support under those statutes in 2000, just as in 1990, was based on the judiciary's preference for sole custody awards. Then, without actually leaving the sole custody domain, the legislature created a provision for an alternative custodial arrangement - that rare "subset of sole custody - split custody." Pennington, 266 S.W.3d at 765.

6 However, during that decade, specifically in 1994, the legislature stripped trial courts of the discretion to order health care insurance for the child, making that order mandatory. 1994 Ky. Acts ch. 330 § 10 (H.B. 472) (amending KRS 403.211).

Before discussing statutory "split custody," it is appropriate to note that, notwithstanding efforts to define and accurately apply terms relating to custody and support, confusion persists.⁷ The term "split custody" is an example.

7 See Pennington, 266 S.W.3d at 765, 768 (stating that post-divorce terms are "frequently misused" and noting that "Fenwick [v. Fenwick, 114 S.W.3d 767 (Ky. 2003), overruled by Pennington] has an extensive, learned discussion on the confusion that surrounds relocation, custody and timesharing/visitation."); Caskey v. Caskey, 328 S.W.3d 220, 221 (Ky. App. 2010) ("[A]s is often the case . . . terminology of custody and primary residential custodian or parent is confused[.]"); Aton v. Aton, 911 S.W.2d 612, 614, 615 (Ky. App. 1995), abrogated by Fenwick, 114 S.W.3d 767 ("[T]he parties and the trial judge in this case have inappropriately commingled joint and sole custody terminology. Such misuse of terms frequently has become a source of confusion for courts and litigants alike. . . . [O]ur very own Court has contributed to the confusion . . . ."); Tessier v. Blomberg, No. 2018-CA-001100-ME, 2019 WL 1872050, at *2 (Ky. App. Apr. 26, 2019) ("[T]o most people, having custody means having possession of the child. . . . This confusion has led parents to often request a modification of custody or timesharing when they are actually seeking a modification of the other." (internal quotation marks and citation omitted)); Riley v. Plunkett, No. 2015-CA-001773-ME, 2016 WL 3962288, at *2 (Ky. App. July 22, 2016) ("parties' loose use of legal nomenclature hindered the circuit court's decision"); Hamilton v. Hamilton, No. 2014-CA-001292-ME, 2015 WL 1968430, at *3 (Ky. App. May 1, 2015) ("[O]ur Supreme Court has endeavored often" to clarify post-divorce terms but "confusion endures[.]"); Cooper v. Brunson, No. 2013-CA-001618-ME, 2014 WL 2795839, at *1 (Ky. App. May 30, 2014) ("[O]ur Supreme Court addressed the potentially confusing terminology involved in a custody or time-sharing dispute[.]"); Koskela v. Koskela, No. 2011-CA-000543-ME, 2012 WL 601218, at *4 (Ky. App. Feb. 24, 2012) ("[B]oth the bench and the bar are still transitioning to a consistency in the use of the proper terms.").

Before the legislature exercised its prerogative to redefine "split custody," our courts considered the term synonymous with "joint custody"; however, by any name, the courts used to frown upon the concept. In Knight, supra, the Court used the term "split custody" to describe what was clearly an award of joint custody with equal parenting time that the Court in Towles v. Towles, 176 Ky. 225, 195 S.W. 437 (1917), expressly rejected. Knight, 419 S.W.2d at 159 ("order provid[ed] alternate custody of a five-year-old boy between his parents"; "court looks with disfavor upon split custody" (citing Towles, 195 S.W. at 438 in which "judgment . . . awards the custody of the two children . . . jointly to the father and mother, one to have the custody one month and the other the next month")). The Court in McLemore, supra, rejected what is clearly another joint custody award with equal parenting time, saying, "the Court does not look with favor upon split custody of small children." 346 S.W.2d at 723-24 (original award said "each parent shall have custody of the children alternately for a week at a time"). The Court even used a third synonym when it stated that "divided custody should be avoided if possible . . . ." Id. at 724 (emphasis added).

The version of "split custody" enacted as law in 2000 is fundamentally different from the judiciary's prior understanding of the term as equivalent to joint custody. 2000 Ky. Acts ch. 430 § 9 (S.B. 218). The legislature's codification more closely resembles the kind of split sole custody celebrated in popular culture.⁸ But, in addition to redefining the term, the legislature articulated clear and specific rules for calculating child support whenever the trial court ordered the legislature's version of split custody.

8 In 1998, two years before the legislature redefined "split custody," Disney Studios distributed the movie "Parent Trap," a remake of the 1961 film of the same name. It tells the story of twins whose parents, upon divorce, each takes sole custody of one of the twins.

The law first defines the term, as follows:

"Split custody arrangement" means a situation where each parent is the residential custodian for one (1) or more children for whom the parents share a joint legal responsibility.

KRS 403.212(2)(h). This meaning contemplates, as Pennington indicates, a kind of sole custody in which the parents, both of whom have legal responsibility for each child, individually have legal custody of only one or more, but not all, children of the marriage. 266 S.W.3d at 767 (noting whether award is "shared (joint) custody or split (sole) custody" is determinative of other custody issues).

This split (sole) custody relationship is illustrated in Wallace v. Wallace, where a joint custody order regarding three children was modified to grant father sole custody of one child while mother was awarded sole custody of the remaining two. 224 S.W.3d 587, 588 (Ky. App. 2007). Similarly, in Ellis v. Ellis, parents with joint legal responsibility for their offspring "agreed upon split custody of their two children, with [the father] having primary custody of their son and [the mother] having primary custody of their daughter." 420 S.W.3d 528, 529 (Ky. App. 2014).

The legislative scheme made calculating support in the split custody arrangement simple and logical. And it used the existing sole custody support calculation worksheet, CS-71. First, each of the two sole custody situations is treated as though it stands alone, independently of the other parent's household and independently of the other child or children in that household. Two separate worksheets are used. The legislature described how the calculation works as follows:

(a) Two (2) separate child support obligation worksheets shall be prepared, one (1) for each household, using the number of children born of the relationship in each separate household, rather than the total number of children born of the relationship.

KRS 403.212(6)(a).

Second, the separate worksheets are compared. The legislation describes what happens next most concisely, as follows:

(b) The nonresidential custodian with the greater monthly obligation amount shall pay the difference between the obligation amounts, as determined by the worksheets, to the other parent.

KRS 403.212(6)(b).

Taking nothing from the accomplishment of addressing split custody, it remains true that the legislature has yet to devise a statutory support calculation for what has become a far more common custody arrangement - joint custody and equal parenting time. The Kentucky Child Support Guidelines Review Commission has urged legislation to address joint custody and equal parenting time cases that would assure compliance with the federal mandate of uniformity, but legislative proposals failed to gain traction. These efforts date back at least to 2011. Although Kentucky legislators have recognized the need for a "shared parenting adjustment" in the support calculation, every proposed bill died either in the House Judiciary Committee or Senate Judiciary Committee.⁹

9 H.B. 218, 11 Reg. Sess. (Ky. 2011); S.B. 87, 13 Reg. Sess. (Ky. 2013); H.B. 169, 13 Reg. Sess. (Ky. 2013); S.B. 190, 14 Reg. Sess. (Ky. 2014).

Without guidance from the legislature, the judiciary is left to decide support by creatively applying existing statutes and the existing sole custody worksheet to circumstances for which they are not designed. As the Supreme Court noted, the variety of custody arrangements "makes it difficult to apply standardized provisions of the law, especially when the existing statutes do not fully address all the permutations that can occur." Pennington, 266 S.W.3d at 765.

The case under review illustrates this challenge. The custody ordered was joint custody of the parties' two children, with equally shared parenting time. With ill-suited guidance from the legislative branch (statutes) and executive branch (regulations and worksheet), and minimal judicial guidance in appellate court decisions, the Boyd Circuit Court had the following options:

(1) apply KRS 403.212(2)(h), (6)(a) and (b) by engaging in the legal fiction that joint custody with equal parenting time is the same as split custody;

(2) apply KRS 403.212(3), (4), and (7) using a single worksheet to denominate one of the parents as the "NonCustodial Parent (NCP),"¹⁰ and calculate that parent's support obligation as the "Amount the NCP pays to the CP [Custodial Parent]"; then the court could consider determining whether a "factor of an extraordinary nature" under KRS 403.211(3)(g) makes the amount the "NCP" pays to the "CP" "unjust or inappropriate" so as to allow the court to deviate from the support obligation the legislature deems presumptively correct; or

(3) apply the judicially sanctioned Colorado Method of calculating child support under the existing statutes as has been approved by the Supreme Court for Campbell Family Court and utilized in at least two other Kentucky family courts.

We will examine the propriety of each of these methods. Method 1: Legal fiction that Joint Custody is the same as Split Custody

10 The Kentucky Worksheet for Monthly Child Support Obligation, CS-71, forces the trial court to denominate each parent either as the "Custodial Parent (CP)" or the "NonCustodial Parent (NCP)."

Regardless how the courts defined split custody in the past, the legislature preempted the common law and redefined the term as splitting the children between two sole custodians. If the custody order does that, the court must apply KRS 403.212(2)(h), (6)(a), and (6)(b) to calculate support. The question then is: may a court apply those provisions when the custody award is joint with equal parenting time based on the fiction that such a custody award is the same as a split custody award?

Courts that answer the question in the affirmative ignore its false premise. Split custody, a form of sole custody, is not the same as joint custody with equal parenting time.

With split custody, each parent supports only a portion of the original family offspring because neither household will be supporting all the children. Once custody of the children is divided between the parents, each child will have one primary home and one custodial parent and will only visit the other parent's abode. Economically speaking, the visit will not increase the noncustodial parent's expenses to any greater degree than would a visit by any guest. As insensitive as it may sound, that is how sole custody works and split custody is sole custody.

But when custody is joint with equal parenting time, the two separate households of each parent will be home to all the children whenever they are present. The differing economics of these distinct custodial arrangements have long been understood.

There is general agreement that shared custody is more expensive than sole custody. The major cause of this

additional expense is the need to duplicate housing and related costs, such as utilities, household furnishings, play and study space, toys, and play equipment. These expenditures have been estimated to constitute from one-fourth to one-third of the total child-related expenditures for a child up to age eighteen. They are items that must be duplicated when a child resides with both parents.

Marygold S. Melli & Patricia R. Brown, The Economics of Shared Custody: Developing an Equitable Formula for Dual Residence, 31 HOUS. L. REV. 543, 554-55 (1994) (footnote omitted). This recognized economic disparity negates the rationale for applying the same support obligation calculation to both split (sole) custody awards and awards of joint custody with equal parenting time.

The fact that nothing in the split custody support calculation provisions of KRS 403.212(2) and (6) authorizes their use in any other context did not prevent the authors of the Kentucky Practice Series for Domestic Relations Law from expressing concern. They correctly predicted the 2000 amendment adding a special split custody support calculation to KRS 403.212 would "raise[] a number of issues," noting those issues would "become clear only as the new statute is interpreted by appellate courts." Louise Everett Graham & James E. Keller, 16 KY. PRAC. DOMESTIC RELATIONS L. § 24:30, Child support - Split custody. "Not the least of those issues," said the authors, "relates to the legislature's use of the words 'joint legal responsibility' to describe the parent-child relationships that fall within the amended statute's parameters."¹¹ Id. Use of the term "joint legal responsibility" in Chapter 403 predates the 2000 amendment. It was in the 1990 amendment and never meant joint custody. See 1990 Ky. Acts ch. 418 § 3 (H.B. 639). The term should confuse no one.

11 Implicit here is the concern that courts would confuse the term "joint legal responsibility" with "joint custody." "Joint legal responsibility" never implied a joint custodial relationship; it referred directly to the legal duty of care imposed upon biological and adoptive parents by KRS 405.020 irrespective of the marital relationship. As we said in Ciampa v. Ciampa, "parents not only have a universal and moral duty to support and maintain their minor children, but they also have a statutory duty. KRS 405.020." 415 S.W.3d 97, 101 (Ky. App. 2013). "This duty applies equally and jointly to both parents, whether married, divorced, or otherwise." Smothers v. Baptist Hospital East, 468 S.W.3d 878, 883 (Ky. App. 2015) (emphasis added). If we treated "joint legal responsibility" and "joint custody" synonymously, then KRS 403.212(2)(d) would yield the ludicrous result that a court could not impute income to a joint custodian of a child under three years of age but could impute income to the sole custodian of a child under three years of age. See KRS 403.212(2)(d) ("[A] determination of potential income shall not be made for a parent . . . caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility." (emphasis added)).

Nevertheless, the treatise's authors were fearful that courts might apply the split custody support calculation provisions in other contexts. Focusing especially on the crux of "split custody" that "some children reside primarily in each parental household[,]" the authors say:

The legislature thus appears to have determined that a joint custody decree that does not place some marital children in each of two separate households would not qualify for treatment under the amended statute. The statutory amendment should have no effect on "shared custody" cases, those in which each parent has the children for a significant portion of time. It applies only to "split custody" cases.

16 KY. PRAC. DOMESTIC RELATIONS L. § 24:30 (emphasis added).

We agree with this understanding of KRS 403.212(2)(h), (6)(a) and (b). Courts should not utilize this split custody, two-worksheet support calculation where the circumstances are like those in the case under review. In fact, the Boyd Circuit Court did not use this method, correctly stating: "KRS 403.212(6) provides the statutory scheme for calculating child support in a split custody arrangement, NOT shared custody. There is no statutory scheme for calculating child support in a shared parenting arrangement." (R. 225). Method 2: Deviation from child support worksheet calculation

Generally, this is the approach taken by the Boyd Circuit Court in this case. Up to the point that the trial court failed to articulate a reason for deviation from the guidelines, this approach has met with approval by the reviewing courts.

But, no matter what permutation of custody is awarded, courts start the calculation of child support by filling out (or having the parties fill out) the ubiquitous Kentucky Worksheet for Monthly Child Support Obligation. The worksheet was created by the Cabinet and is based on the Income Shares Model which reflects "[t]he fundamental premise . . . that a child's standard of living should be altered as little as possible by the dissolution of the family." Downing v. Downing, 45 S.W.3d 449, 457 (Ky. App. 2001). However, as has been noted, neither the Cabinet's regulations nor the worksheet makes any accommodation to calculate support awards other than when sole custody is ordered.¹² Despite being authorized to do so, the Cabinet has neither modified the existing worksheet nor created a new one to address other forms of custody.

12 When the legislature amended KRS 403.212 to calculate support in split-custody situations, the existing worksheet sufficed precisely because split custody is sole custody, the kind of custody the worksheet was designed to calculate.

The current worksheet suffers from a fundamental flaw when it comes to calculating support other than when sole custody (or split-sole custody) is ordered. Designed as it was when sole custody awards predominated, the worksheet presumes only one of the parties has been awarded custody - i.e., only one party needs to make a home for the child or children and the child will be "visiting" the other parent. This design characteristic is not unique to Kentucky. "Embedded in the child support guidelines of all states is the presumption that one parent will have custody while the other parent will have 'standard visitation.'" Jo Michelle Beld & Len Biernat, Federal Intent for State Child Support Guidelines: Income Shares, Cost Shares, and the Realities of Shared Parenting, 37 FAM. L.Q. 165, 194 (2003).

The worksheet forces the court to identify the mother and father either as the "Custodial Parent (CP)" or the "NonCustodial Parent (NCP)." Both parents have an obligation, but the worksheet presumes the NonCustodial Parent pays his share to the Custodial Parent whose responsibility it is to spend the combined support amounts for the benefit of the children. These presumptions are contrary to the joint custody-equal parenting time award. When a court forces the calculation of support using the worksheet for joint custodians with equal parenting time, as was done in this case, this fundamental flaw becomes obvious.

In this case, the calculation began as it always does, by populating the first two blanks on the form with the parties' respective "Monthly Gross Income[s]." (R. 213, Line 1, Columns A and B). This is trickier, and more consequential, than it seems. The court must decide whether the father's or the mother's Monthly Gross Income is listed in Column A. That column identifies the "Custodial Parent (CP)."

In this case, the trial court put Mother's income in Column A. Because the worksheet is only designed for sole custody with no statutory provision for deviating from the worksheet short of KRS 403.211(3), this decision foretold that Mother would retain her monthly child support obligation (R. 213, Line 11, Column A), whereas Father (who by default becomes the "NonCustodial Parent (NCP)" on the worksheet) must pay his support obligation to Mother. (R. 213, Line 13, Column B (identifying the "Amount the NP pays to the CP")).

If the Boyd Circuit Court had remained true to the existing statutes and the worksheet, it would have ordered Father to pay Mother $722 per month after crediting him $273 for his direct payment of child care and health insurance costs. (R. 213, Lines 8 and 9, Column C). That is what the worksheet expressly instructs. (R. 21, Line 13). But the whole calculation could have gone otherwise.

If the trial court had placed Father's Monthly Gross Income on Line 1, Column A, denominating him on the form as the Custodial Parent, Mother would have been obligated to pay him $655, the support she owes her children based on the worksheet calculation. Making either joint custodian with equal parenting time pay his or her support obligation to the other is obviously unjust and, frankly, antithetical to the custody award.

The sole custody focus of the support statutes and the worksheet makes them inherently flawed tools for calculating support when the parents have equal or roughly equal parenting time. The flaws are so obvious that it is no wonder the trial court deviated from the worksheet. The full $1,650 Total Child Support Obligation (R. 213, Line 10, Column C) owed by these joint custodians should not end up in the total control of either of them. So, the trial court disregarded the language of the worksheet and did not order Father to pay Mother $722. The court's math is easy to follow. It subtracted Mother's support obligation (R. 213, Line 11, Column A) of $655 from Father's support obligation (R. 213, Line 13, Column B) of $722 and ordered Father to pay Mother the difference of $67.

The trial court's stated goal was to "equalize" the funds available to each household for the support of the children. Father agrees with the trial court's approach and says, under the authority of KRS 403.211(3)(g), "[t]he [Boyd Circuit C]ourt made it clear that it was deviating from the guidelines to equalize the available income in each household due to the shared custody." (Appellee's brief, p. 7). Mother argues that if the existing guidelines must be used, the trial court should have "equalized" the households' funds based on Line 11 of the worksheet showing Mother's and Father's respective support obligations of $655 and $995 and ordering Father to pay Mother the difference of $340. Assuming equalization is the goal, neither the trial court's nor Mother's solutions accomplishes that.

Ordering Father to pay Mother $67 equalizes nothing. Before that payment and after netting out his direct payments for child care and insurance, Father will have control of $67 more of the parties' total funds allocated to child support than Mother. After the payment, the situation is only reversed. Mother will have control of $67 more of the parties' total funds allocated to child support than Father. It is the same under Mother's solution. After Father pays $340 to Mother, she would have control of $995 and Father would be left with $655. If "equalizing" is the goal, it is only accomplished by ordering payment of one-half the difference to the other parent.¹³

13 Interestingly, the trial court did state "there should be $688.50 in each household." (R. 226). This would be so if the trial court had ordered Father to pay Mother one-half of $67 instead of the full amount.

Irrespective of this math error, Mother's two overriding objections to the court's order remain: (1) there is no factual finding identifying any factor of an extraordinary nature to justify deviating from the child support calculation; and (2) the trial court's role was not equalizing the income in each household, but "seeing to it that the children have an appropriate amount of child support." (Appellant's brief, p. 5). We will address both these claims before discussing the Colorado Method urged by Mother.

The problem in the case under review is that the Boyd Circuit Court unquestionably disregarded the worksheet calculation that required Father to pay Mother $722. The federal mandate and the state statute fulfilling it allow the trial court to "deviate from the guidelines," i.e., the worksheet, but only upon "[a] written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate" and only "if based upon one [of seven] criteria" specifically enumerated in the statute. KRS 403.211(3). Of the seven criteria, none could apply here except the "catch-all" provision in subsection (3)(g), which says the deviation can be based on "[a]ny similar factor [similar to the first six criteria] of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate." The judicial discretion that remains after the federal mandate is now found in subsection (4) which says, "'[e]xtraordinary' as used in this section shall be determined by the court in its discretion." KRS 403.211(4).

When "sole custody was the rule," Pennington, 266 S.W.3d at 763, courts had the greater discretion of calling an award of joint custody and equal parenting time a factor of an extraordinary nature justifying deviation. For example, in 1993 this Court reviewed a family law case unusual for its time because "the parties not only shared joint legal custody of the children but shared physical possession of the children on an equal basis." Downey v. Rogers, 847 S.W.2d 63, 64 (Ky. App. 1993). We held that factor sufficient under KRS 403.211 to "deviate from the guidelines [because it was a] circumstance of an 'extraordinary nature.'" Id. at 65; see also Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007) ("[E]qual division of physical custody may constitute valid grounds for deviating from the guidelines."). Reviewing courts accepted that as a justification for deviation as recently as 2014. Maclean v. Middleton, 419 S.W.3d 755, 775 (Ky. App. 2014) ("[E]qual division of physical custody may constitute valid grounds for deviating from the guidelines."); McGregor v. McGregor, 334 S.W.3d 113, 118 (Ky. App. 2011) ("[S]hared-custody arrangement" is an extraordinary factor justifying exercise of "discretion to deviate from the guidelines."); Dudgeon v. Dudgeon, 318 S.W.3d 106, 107 (Ky. App. 2010) ("[W]here each parent enjoys nearly equal physical time with the children, each parent earns nearly equal income, and each parent pays nearly equal amounts of other expenses related to the children . . . these three specific circumstances are of an 'extraordinary nature' rendering the child support guidelines inapplicable . . . .").

Today, we cannot say an award of joint custody with equal parenting time is a "factor of an extraordinary nature." KRS 403.211(3)(g). As Mother points out, the 2018 amendment to KRS 403.270(2) makes joint custody and equal parenting time the rebuttable presumption for all custody determinations. Absent other factors, that is the norm. The legislature, by law, made joint custody and equal parenting time an ordinary circumstance; in and of itself, joint custody and equal parenting time can no longer be considered an extraordinary factor.

As discussed below regarding the Colorado Method, this is not to say a trial court cannot find as fact that such a custody award, in a particular case, will increase the cost of providing two homes beyond what the statutory guidelines contemplate. Such a finding could constitute an extraordinary factor justifying deviation from the child support calculation reached by adhering to the worksheet, CS-71.

The Boyd Circuit Court does not identify such an extraordinary factor for reducing Father's child support obligation. We agree with Mother that failing to do so was error. Therefore, we must reverse and remand the case to allow the court to identify an extraordinary factor.

This leads directly to Mother's other claim of error that simply equalizing the money available to both parents is arbitrary, capricious, and contrary to law because, under the evidence in this case, it fails to assure adequate support for the children. She urges recognition of something this opinion already acknowledged; in some joint custody arrangements with equal parenting time "the children live in two separate households which . . . require the payments of two sets of utilities, mortgage, rent, putting food on the table, providing clothing for the children and the like." (Appellant's brief, p. 5). Father seems in agreement. (Appellee's brief, p. 7 ("Both parties are responsible for . . . providing a home for the children, while they are in each of their care.")).

She also argues that her overall resources are sufficiently less than Father's and that militates against "equalizing" the parties' control of the total support obligation. She argues for the lion's share of the total support obligation because her contribution comes from a smaller pool of total assets, thereby depleting the source of funds for housing, utilities, and the like.

Mother's argument is persuasive. The solution, argues Mother, is for this Court to reverse the decree and "adopt the Colorado Method for calculating child support in a true shared parenting situation." (Appellant's brief, p. 7). Although the Colorado Method has the Supreme Court's sanction, it is not mandatory, and this opinion will not make it so. However, we cannot tell from the record whether the trial court was aware the Colorado Method is available for it to consider in tailoring a child support order. Therefore, we address it here. Method 3: Colorado Method

The Colorado Method is among a variety of solutions for the support calculation problems brought about by the modern trend toward normalizing the joint custody award with equal parenting time. Like many of the methods, it uses a "multiplier" to account for the increased costs of two households that are not accounted for in the statutory guidelines or worksheet.

This Court first referenced the Colorado Method in 2005 in an unpublished opinion appealed from Mercer Circuit Court, Doughty v. Doughty, No. 2003-CA-002385-MR, 2005 WL 3001919 (Ky. App. Nov. 10, 2005).¹⁴ When the case was again before this Court after remand, Justice Michelle Keller, then writing for this Court, quoted with approval the trial court's reliance on the Colorado Method, and its explanation for deviating from the child support guidelines, as follows:

14 We do not cite these unpublished cases as though they are precedent; they only illustrate the practice in our trial courts of applying the Colorado Method.

This method determines the support obligation based on the percentage of time the child(ren) spends with each parent. This method is only to be employed where the Court first finds that there has been an actual shifting of expenses between the parties during the time the child(ren) is in their care. Based upon the proof in the record, the Court so finds in this case.

This calculation was based upon proof in the record that the children spent 56% of their time with [Father] and 44% of their time with [Mother].

Doughty v. Doughty, No. 2007-CA-000572-MR, 2008 WL 540934, at *3 (Ky. App. Feb. 29, 2008).

After noting the trial court's representation that the Colorado Method was employed in Jefferson Family Court and finding no local rule to that effect, the opinion quotes the method's inspiration, the "Colorado statute, C.R.S.A.¹⁵ § 14-10-115(8)(b)[.]" Id. at *3 n.2. This Court again referred to use of the Colorado Method in Lee v. Horn, No. 2008-CA-001879-ME, 2009 WL 2136967 (Ky. App. July 17, 2009). Another reference to this method can be gleaned from an opinion reviewing a case from Fayette Family Court, Williams v. Williams, No. 2007-CA- 002345-MR, 2009 WL 413998 (Ky. App. Feb. 20, 2009). In Williams, child support was calculated using a 1.5 multiplier formula, though not expressly identified in the opinion as the Colorado Method. Id. at *2.

15 Colorado Revised Statutes Annotated.

More significantly than these unpublished opinions, however, is the fact that the Kentucky Supreme Court approved the Colorado Method for use by the 17th Judicial Circuit. Since 2012, the Campbell Family Court Rules have said that "[i]n cases where shared parenting exceeds forty percent (40%), the Court in its discretion may apply the 'Colorado Rule.'" Campbell Fam. Ct. Rule 7.H.3. That rule refers the Campbell Family Courts to the Rules' Appendix C, which explains the method and provides examples for its use.

Applying the Colorado Method means adding two steps to the existing formula and, therefore, deviating from it. The deviation is justified when evidence supports a factual finding that the parents are maintaining two separate domiciliary households for their children and not just one as presumed by the guidelines. See Doughty, 2008 WL 540934, at *7 ("[B]oth had to maintain a home and incur expenses as if a primary residential parent[.]").

The first additional step calls for multiplying the support obligation determined under KRS 403.212(7) by 1.5 or 150%. This assures that the total support award is adequate to the needs of the children. Campbell Fam. Ct. Rule Appendix C(1). The second additional step requires factoring in "the percentage of 'shared parenting[,]'" i.e., the percentage of the time the children spend with each parent. Id. at (3). The parent who, in fact, has physical custody of the children a greater number of days is presumed to have a commensurate increase in costs attributable to that physical custody. Beld & Biernat, supra, 37 FAM. L.Q. at 190 ("[T]he apparent consistency of support outcomes . . . rests on an important assumption: that a parent with a given percentage of parenting time automatically assumes that same percentage of the children's expenses . . . .").

Although the Supreme Court only expressly approved the Colorado Method for Campbell Family Court, there is a necessary implication that it is impliedly available to family courts throughout Kentucky. Otherwise, the goal of uniformity would be thwarted and compliance with the federal mandate at risk.

Because the Colorado Method is an approved means by which to calculate child support under fact patterns often present in equal parenting time situations, the Boyd Circuit Court should consider whether its application is appropriate. Attorney's Fees

Mother also argues the trial court erred by failing to order an award of attorney's fees in her favor. Whether an award of attorney's fees is warranted is a matter of discretion, and the trial court is under no duty to award them, even when faced with a financial disparity. Smith v. McGill, 556 S.W.3d 552, 555 (Ky. 2018). When there is such a disparity, KRS 403.220 allows a trial court the discretion to order one party to pay a reasonable amount of fees. Poe v. Poe, 711 S.W.2d 849, 852 (Ky. App. 1986).

The Commissioner found "[t]here is not a substantial difference in the parties' incomes" and that, "[b]ased on the foregoing, the Commissioner finds that each party should pay their respective attorney fees." (R. 129). The trial court agreed. Accordingly, we cannot find the trial court abused its discretion in failing to award attorney's fees. The trial court did not find the parties had disparate incomes. Based on this record, we can find no abuse of the trial court's broad discretion. Therefore, we affirm the trial court's denial of attorney's fees. However, upon remand and after recalculation of the parties' gross monthly incomes, the parties will have the opportunity to raise the issue again.

CONCLUSION

Based on the foregoing, we reverse the Boyd Circuit Court's November 30, 2018 order calculating child support and remand for further findings justifying the deviation from the guidelines. We affirm the trial court's order denying attorney's fees.

COMBS, JUDGE, CONCURS IN RESULT ONLY.

MAZE, JUDGE, CONCURS IN RESULT ONLY AND FILES SEPARATE OPINION. MAZE, JUDGE, CONCURRING IN RESULT: To begin, I must compliment Judge Acree for his thorough and well-researched lead opinion. As the lead opinion aptly demonstrates, the lag between the development of the law relating to custody and the development of the law relating to child support has led to the dilemma presented in this case. Most notably, our current child support statutes and worksheets do not fully account for the reality of joint custody with equal (or nearly equal) time sharing. Consequently, I fully agree with the lead opinion that this matter must be remanded for additional findings justifying the deviation from the child support guidelines.

But while I agree with much of the analysis in the lead opinion, I must part ways on some of its conclusions. First, the lead opinion suggests that joint custody with equal parenting time is no longer a circumstance warranting deviation from the guidelines under KRS 403.211. I respectfully disagree.

A trial court's discretion to deviate from the guidelines is conditioned upon a finding that "the application of the guidelines would be unjust or inappropriate in a particular case . . . ." KRS 403.211(3). As the lead opinion notes, the most applicable factor to this situation is the provision allowing for deviation based upon "[a]ny similar factor of an extraordinary nature . . . which would make application of the guidelines inappropriate." KRS 403.211(3)(g). The trial court has discretion to determine whether a factor or need is extraordinary. KRS 403.211(4).

Recently, our legislature established a presumption that joint custody with equal parenting time is in the best interest of the children. See KRS 403.270(2) & KRS 403.340(6).¹⁶ Consequently, this custody arrangement is no longer considered unusual. Nevertheless, Kentucky's child support guidelines still do not contemplate such a shared custody arrangement. In light of this disparity between the custody and support statutes, I cannot agree that the legislature intended to disturb the settled law in this area. Therefore, I must conclude that a relatively equal division of physical custody remains a valid ground for deviating from the guidelines. Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007) (citing Brown v. Brown, 952 S.W.2d 707 (Ky. App. 1997), and Downey v. Rogers, 847 S.W.2d 63 (Ky. App. 1993)).

16 These amendments became effective on July 14, 2018. 2018 Ky. Acts ch. 198 §§ 1, 4. --------

Second, I disagree with the lead opinion's seeming endorsement of the "Colorado Method" to calculate child support in cases involving joint custody with equal parenting time. Once a trial court determines that application of the guidelines is inappropriate, the court has broad discretion to determine child support based upon the resources of the parents and the reasonable needs of the children. See Downing v. Downing, 45 S.W.3d 449, 454-57 (Ky. App. 2001). It is not appropriate to circumscribe that discretion through the use of methods which have not been adopted by the legislature. Id. at 456-57.

And even when a local rule has been adopted with the approval of the Supreme Court, the local rule cannot contradict any substantive rule of law. See Delahanty v. Com. ex rel. Maze, 295 S.W.3d 136, 143 (Ky. App. 2009), and Drury v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000). I am concerned that the lead opinion oversteps our role as an intermediate appellate court by adopting or endorsing a method of calculating child support that the legislature has not enacted. Therefore, I agree with the lead opinion that a trial court has the discretion to apply the Colorado Method to calculate child support in cases involving joint custody with equal parenting time. But I must strongly disagree with any implication that this method should be favored or presumed correct in such cases. Therefore, I concur in the result reached by the lead opinion to the extent that it remands this matter for additional findings justifying deviation from the child support guidelines and, if necessary, a re-calculation of support based upon either the guidelines or the exercise of the trial court's sound discretion. BRIEF FOR APPELLANT: Brandon M. Music
Grayson, Kentucky BRIEF FOR APPELLEE: Sharon E. Rowsey
Ashland, Kentucky