Opinion
NO. 2017-CA-001094-ME
03-30-2018
PHILLIP MOORE DAUGHERTY APPELLANT v. BRITTANY RENEE DAUGHERTY APPELLEE
BRIEFS FOR APPELLANT: Leah Hawkins Mt. Sterling, Kentucky BRIEF FOR APPELLEE: Ira S. Kilburn Salt Lick, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MONTGOMERY CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 16-CI-00131 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON AND J. LAMBERT, JUDGES. ACREE, JUDGE: Phillip Daugherty seeks reversal of the Montgomery Circuit Court's June 2, 2017 Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage awarding appellee Brittany Daugherty sole custody of the parties' two minor children, classifying and dividing marital debt, and imputing to Phillip $50,000.00 in income. We affirm.
The circuit court's order addressed a host of other issues. Only those referenced are at issue in this appeal.
Phillip and Brittany were married April 24, 2010. Two children were born of the marriage: Kaylin Alexis Daugherty, born in 2010, and Kayci Allyson Daugherty, born in 2011. The parties separated on November 4, 2015, and in June 2016, Phillip petitioned for dissolution of the marriage. The circuit court ordered the parties to share temporary joint custody of the children with equal timesharing consisting of a five-day on/five-day off, two-day on/two-day off schedule that coincided with Brittany's work schedule.
Brittany, a registered nurse, works five days, then is off five days, then works two days, and is off two days. On the days she works, the children stay with Phillip. On the days she is off work, the children stay with Brittany. This results in a five day on/five day off, two day on/two day off timesharing schedule.
A final hearing was held on March 28, 2017. At the hearing, the circuit court heard testimony and received evidence concerning child custody, child support, and the division of debt. The evidence at the hearing revealed the following.
When the parties married, Phillip was employed full time as an educator and Brittany was a full-time student who also worked at various jobs in the medical field and sold Premier Jewelry. Phillip testified he currently has fourteen years' experience as an educator and is a certified teacher and certified school administrator. He holds a teacher certificate, a K-12 Supervisor of Instruction certificate, a K-12 Principal certificate, and is fifteen hours shy of having a Superintendent certificate.
Phillip pleaded guilty in 1998-1999 (prior to the marriage) to conduct unbecoming a teacher due to an incident with a student, resulting in a two-day suspension of his teaching certificate. He was also released from his teaching position in Powell County. Phillip denied any wrongdoing, and testified he pleaded guilty to keep from embarrassing his father. He then taught for three years in Madison County, but resigned on his own. In additional assignments: he served as an assistant principal in Clark County, but was not rehired; he served as interim principal in Woodford County, but his contract was not renewed; he was principal at West Carter Middle School for two years; and he was principal in Menifee County, but his contract was not renewed. He earned $48,000.00 per year in his last principal position.
Phillip next went to work for the Kentucky Department of Education earning $42,000.00 per year but resigned after pornography was found on his work computer. His teaching certificate was suspended again following this incident. Phillip then went to work for a federal program called "Gear Up, Kentucky" earning $60,000.00 per year. He left that position in 2013 after a dispute arose over the return of equipment. Phillip testified the parties then agreed he would be a stay-at-home dad, caring for the children while Brittany worked and slept during the day. Brittany strongly denied this agreement existed.
This time Phillip's teaching certificate was suspended for five days.
Brittany testified that she did not agree or approve of Phillip not working. She explained she met Phillip shortly before graduating college with a biology degree. She wanted to go to medical school, but Phillip would not allow her to do so. Instead, she began nursing school in August 2010, a few weeks after giving birth to the parties' first child. Brittany testified she continued to do well in school all while caring for their child and home with little assistance from Phillip. She gave birth to their second child in 2011. She did not agree to Phillip being a stay-at-home dad in 2013 and begged him to work, particularly while she was in school but he refused, forcing Brittany to sign the children up for a medical card and food stamps for a period. She testified the parties relied upon Phillip's mother and her parents to survive financially.
Brittany graduated from nursing school in May 2014 and began working on her master's degree that fall. While working on her masters, she also worked full time, at night, in the intensive care unit of St. Joseph Hospital while Phillip remained unemployed and on medication for depression and bi-polar disorder. Brittany encouraged Phillip to get a job, but he refused. She testified he would apply, but never follow through. Brittany recently completed her education to be a nurse practitioner and is expected to leave her current employment as a registered nurse to begin her career as a nurse practitioner. She currently earns $60,681.00 per year.
Brittany disputed Phillip's impression that he was a stay-at-home dad. She testified Phillip refused to care for the girls while she studied or conducted jewelry parties to earn money for the family. She stated Phillip would leave the house when Brittany arrived home in the morning from work and he would shop with her debit card, purchasing items they did not need. Brittany further testified Phillip is controlling and wants to dictate every aspect of her life. After Phillip filed the divorce petition, he refused to allow Brittany to see the children except in his home for about a month, and when she would come to visit, Phillip's mother would block her car to prevent her from leaving.
Later, when the parties began timesharing exchanges, Phillip would draw out each exchange, causing the exchange itself to last one to two hours. Phillip testified the exchanges are lengthy because the children do not want to go with Brittany. Brittany countered by stating the real cause is Phillip, playing games with the children in the busy parking lot, like tag, and otherwise engaging in delay tactics. Brittany also testified Phillip calls her names, talks badly about her in front of the children, and upsets the girls by telling them, "I know you don't want to go," or "this wouldn't be happening if it weren't for her," or "it would be nice if your mom would come home," referring to Brittany. Phillip admitted to making these statements. He testified he thinks it is appropriate to make these kinds of remarks in front of the children and thinks the children should be aware of what is going on with the courts. Brittany reiterated Phillip does not want to co-parent, but wants to dictate to her and the children, and control every aspect of their lives.
Brittany testified as to Phillip's mental health. She stated he has been on depression medication since the beginning of their relationship and throughout the marriage. At the time of separation, he was also taking bi-polar medication. Brittany explained she picked up Phillip's medication from the pharmacy and was familiar with the medications prescribed.
Billie Toy, a neighbor, testified on Phillip's behalf. Toy testified it was her understanding that Brittany attended school while Phillip stayed home with the children, but she had observed Brittany playing with the children in the yard. Toy was aware of the parties' separation, had observed Phillip's mother caring for the children, and had observed Brittany come to Phillip's home two times a week to see the children. She testified that on a few occasions she witnessed domestic disputes in the driveway and heard yelling but did not feel the need to call the police. Toy testified she has no concerns about Phillip's care of the children.
Heather Johnson, another neighbor, testified on Brittany's behalf. Johnson lived next door to the parties for two years before Brittany left the marital residence. She is familiar with Phillip and Brittany. Johnson testified Brittany often appeared exhausted - "falling asleep standing up" - when she arrived home from work, yet Phillip would frequently leave as soon as Brittany arrived, leaving her alone with the children.
Johnson and Phillip have an ongoing boundary dispute that arose after Brittany left the marital residence. Johnson testified her children no longer play with the parties' children because of an incident involving a dog Phillip obtained after the parties' separation. Johnson testified the dog was biting, snarling, and growling at her children, and she had to separate the dog from the children using her foot. She testified Phillip sat on his porch during the incident, refused to intervene, and then accused Johnson of kicking his dog. Johnson claimed Phillip refuses to control the dog. Johnson further testified that the parties' children used to be well behaved and well mannered, but since Brittany left the residence they are disrespectful, and the youngest child will stand on the front porch and yell mean things.
Dr. Amber Lee Cobbler, a veterinarian, and Brittany's college friend, also testified on Brittany's behalf. Dr. Cobbler testified she visited Brittany and the children in their home monthly between 2013 and 2015. Dr. Cobbler stated Phillip made her feel uncomfortable. She disliked the way Phillip treated Brittany, describing him as petty and controlling. Dr. Cobbler also testified she had observed text messages Phillip sent to other women and was aware that Phillip told Brittany if she left him he would take the girls and that she would never see them again. The circuit court found Dr. Cobbler's testimony credible.
At this point the testimony shifted toward the parties' debts. Each party submitted a list of debts owed. Phillip testified he had several credit cards, including a Discover card, a Shell credit card, a Mastercard, and a Lowe's credit card, with outstanding balances totaling $15,752.95 at the time the parties separated. Phillip testified he used the Discover card for living expenses after the separation. Currently, however, he was using his mother's credit card for living expenses and she was responsible for the bill.
Phillip explained he routinely opens new credit cards (including a Citi Simplicity card and a Bank of America card) and transfers all or part of the balance from one card to another to avoid fees, interest, and other payments. He testified the Shell and Discover card balances have been transferred back and forth between those cards and the Citi Simplicity and Bank of America cards. He testified he obtained the Citi Simplicity credit card in December 2015, after the parties separated, which he used to purchase Christmas gifts for the children, food, and clothing. In all, Phillip testified he incurred an additional $8,690.66 in debt post-separation. He requested that his total credit card debt be declared marital debt.
Phillip also testified that the parties purchased two vehicles during the marriage: a 2006 GMC Yukon and a 2004 Chevrolet Tahoe. Neither vehicle is encumbered by a lien. Phillip testified they purchased the vehicles by way of a $50,000.00 loan from Citizen Guaranty Bank secured by a certificate of deposit owned by Phillip's mother. Brittany disputed Phillip's testimony, claiming they paid cash for the vehicles using their tax returns. She testified the Citizens Guaranty loan was Phillip's pre-marital debt that he incurred to purchase a boat and truck prior to the marriage.
Phillip owns a third vehicle, a 2008 Dodge Ram, that he purchased prior to the marriage.
Brittany submitted twenty-two debts that are in her name alone. The circuit court found four to be Brittany's non-marital debt: her department of education loans and debts to Merrick, T.D. Retail (Ashley furniture), and Traditional Bank. These debts are not at issue.
Brittany testified at length regarding the remaining debts. These included numerous store credit card debts, including cards from Kohl's, Goodies, Target, Belk, Macy's, J.C. Penney, Express, and American Eagle. Brittany explained that she used the store credit cards to purchase clothing for herself, Phillip, and the children. She testified even after the separation Phillip used her American Eagle credit card to purchase jeans for himself. She also testified she used Sears and Bank of America credit cards to pay the utilities and other household expenses, and the Chase, Capital One, and Best Buy credit cards for marital purchases "for all of us." Brittany stated she used a Credit One card to purchase pictures of the children that were split between the parties; a Premier credit card to purchase jewelry to sell to earn money for the family; and that Phillip made purchases for her on the Victoria's Secret card and gave her items from Victoria's Secret as gifts. Brittany reiterated she had no debt at the time of the marriage, and all the debts submitted, except for those previously excluded as her non-marital debts, were acquired during the marriage for the benefit of the parties and their children.
The parties agreed that Phillip owned the marital residence prior to the marriage. They also agreed marital funds were used to reduce the debt on and make improvements to that property, resulting in $27,000.00 in equity.
By order entered June 2, 2017, the circuit court awarded Brittany sole custody of the children with equal visitation time for Phillip. It ordered the parties to adhere to the current five-days on/five-days off, two-days on/two-days off visitation schedule that coincided with Brittany's night work schedule. It also ordered that Phillip have access to the children's school and medical records.
The circuit court awarded no child support, but stated that, if Brittany's night work schedule changed to a day schedule, Phillip shall receive standard visitation and shall pay child support in accordance with Kentucky's Child Support Guidelines. It found him voluntarily underemployed, imputed to him $50,000.00 in income, and ordered each party to pay for medical insurance and uninsured medical expenses in accordance with their percentage of income. The circuit court did not find credible Phillip's testimony that the parties decided he would be a stay-at-home dad, and found Phillip had made little to no effort to obtain gainful employment.
The circuit court found credible Brittany's testimony that her debts, totaling $22,097.94, were acquired during the marriage for marital purposes. It ordered each party responsible for half, or $11,048.97. It also declared Phillip's debts at the time of separation, totaling $15,752.95, to be marital debt. It ordered each party responsible for half, or $7,876.47. It held Phillip responsible for the Citizens Guaranty debt. It also ordered that the equity in the marital home be divided equally between the parties, each receiving $13,500.00. Then, considering the $11,048.97 Phillip owes Brittany for her credit card debt and the $13,500.00 in marital equity Phillip owes Brittany, totaling $24,548.97, minus the $7,876.47 Brittany owes Phillip for his credit card debt, the circuit court ordered Phillip to pay Brittany $16,672.50 as an equalization payment within 36 months from the date of the judgment. From this order, Phillip appealed.
On appeal, Phillip challenges the circuit court's rulings granting Brittany sole custody, classifying and dividing marital debt, and imputing to him income.
CHILD CUSTODY
Phillip first argues that the circuit court abused its discretion when it awarded Brittany sole custody of the parties' two children. He submits the circuit court did not properly consider or apply KRS 403.270 and abused its discretion by denying him joint custody due to his alleged inability to communicate.
Kentucky Revised Statutes.
The standard of review regarding child custody issues is whether the circuit court's decision was clearly erroneous and constituted an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974). We will only reverse a circuit court's custody decision if its findings of fact are clearly erroneous or its decision reflects a clear abuse of the wide discretion granted to circuit courts in custody matters. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). A factual finding supported by substantial evidence is not clearly erroneous. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted). Substantial evidence is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion[.]" Id. In that regard, "[m]ere doubt as to the correctness of a finding will not justify its reversal[.]" Id.
Kentucky Rules of Civil Procedure.
KRS 403.270 is the statutory authority on point. Frances v. Frances, 266 S.W.3d 754, 756 (Ky. 2008). When determining an award of child custody, KRS 403.270(2) instructs the circuit court to give equal consideration to both parents and to award custody in accordance with the best interests of the children involved. KRS 403.270(2). The statute further permits an award of joint custody if it is in the children's best interests. KRS 403.270(5). However, there is no statutory preference for an award of joint custody, an arrangement which entails joint decision-making and significant participation by both parents in the upbringing of their children. Squires v. Squires, 854 S.W.2d 765, 769 (Ky. 1993).
KRS 403.270 does "not include a definition of the best interests of the child standard[.]" Frances, 266 S.W.3d at 756. Instead, the statute denotes a non-exclusive list of factors to be considered when making a best-interest determination. The factors relevant to this matter include:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;KRS 403.270(2).
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720[.]
We are mindful that the circuit court, in its capacity as the finder of fact, "is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses" and, in its discretion, "may choose to believe or disbelieve any part of" the testimony presented. Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007). The circuit court's credibility assessments are significant to our review and we see no just cause for disturbing them. See Frances, 266 S.W.3d at 756.
Phillip argues the circuit court failed to adequately consider the statutory factors, considered evidence that did not affect his relationship with the children in direct violation of KRS 403.270(3), and erroneously based its custody decision on his alleged inability to communicate with Brittany. We disagree.
KRS 403.270(3) directs, in part, that "[t]he court shall not consider conduct of a proposed custodian that does not affect his relationship to the child."
While the circuit court did not explicitly analyze each statutory factor, its order and discussion as a whole reveals it adequately considered those factors. The court took into account the individual wishes of Brittany and Phillip, the children's interactions with each parent, and the children's overall adjustment. No evidence of the children's wishes or domestic violence was offered. Brittany submitted evidence of Phillip's mental health, particularly that he regularly took depression and bi-polar medication, but she also admitted she had no concerns about Phillip's abilities to care for the children. As applied to this particular case, the statutory factors offered the circuit court little guidance in making its custody determination. For that reason, the circuit court, as KRS 403.270(2) required it to do, looked beyond those specifically numerated and considered all factors it deemed relevant. Frances, 266 S.W.3d at 756.
The circuit court gave equal consideration to Brittany and Phillip as custodians before determining that it was in the children's best interests that sole custody be awarded to Brittany. It found, in essence, that Phillip was not capable of co-parenting alongside Brittany. Phillip argues the circuit court erroneously relied on his alleged inability to communicate in making its custody decision. He asserts that Squires, supra, counsels against relying on actions that were undertaken during the divorce when making a decision as to whether the parties can move forward and properly co-parent children post-litigation. Phillip notes that Squires specifically declined to require a cooperative spirit as a prerequisite for granting joint custody and holding that to do so "would permit a party who opposes joint custody to dictate the result by his or her own belligerence[.]" Squires, 854 S.W.2d at 768.
How then do courts justify a joint custody award to parents who, in the midst of divorce, display antagonism one to the other? In Squires, the Kentucky Supreme Court directed courts to "look beyond the present and assess the likelihood of future cooperation between the parents. . . . By cooperation we mean willingness to rationally participate in decisions affecting the upbringing of the child." Squires, 854 S.W.2d at 769. The circuit court followed this admonition. It explained at the close of the final hearing that, based on the evidence presented, it was gravely concerned about Phillip's future ability to adequately co-parent if it ordered joint custody. It described in its written order Phillip's manipulative and controlling behaviors during the marriage, including prohibiting Brittany from visiting her parents and attending medical school, along with Phillip's lackadaisical parenting attitude, as revealed by the testimony. Based on Brittany's testimony, which the court found credible, Phillip: refused to allow Brittany to see the children outside his home for a time subsequent to his initiation of divorce proceedings; turned timesharing exchanges into unnecessarily long events; and routinely made degrading comments about Brittany in front of the children. Phillip admitted to the latter. Brittany testified repeatedly that Phillip does not want to co-parent but does want to dictate and control all aspects of her life and the children's lives.
The circuit court was entitled to rely on the evidence described above and, contrary to Phillip's argument, Brittany's testimony does constitute substantial evidence to support the circuit court's decision. The circuit court was convinced Phillip's controlling behaviors would endure post-decree if joint custody was awarded, negating any likelihood that Phillip could effectively co-parent alongside Brittany in the future. The court was also convinced that, during the marriage, Phillip was unwilling to rationally participate in decisions affecting the upbringing of the children. It was not convinced Phillip's parenting style would improve in the future.
When reviewing the propriety of a custody award, the test is not whether some other court may have reached a different decision but, rather, whether the circuit court abused its discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982). To prove abuse of discretion, a party must show that the circuit court that decided the case acted arbitrarily, unreasonably, or unfairly. Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994). Phillip has not shown that the award of sole custody to Brittany was arbitrary, unreasonable, or unfair.
Therefore, we affirm the circuit court's ruling regarding child custody and visitation.
MARITAL DEBTS
Phillip next argues that the circuit court's marital debt classification and division constitutes an abuse of discretion. He contends the circuit court abused its discretion by classifying as marital all of Brittany's credit card debts, by failing to recognize his post-separation increase in credit card debt, and by failing to include in its marital debt division the Citizens Guaranty debt. Again, we are unpersuaded.
"Questions of whether property or debt is marital or nonmarital are left to the sound discretion of the trial court, as is the equitable division of any marital" debt. Rice v. Rice, 336 S.W.3d 66, 68 (Ky. 2011). Just as with a ruling on custody, an abuse of discretion occurs regarding debt assignment when the circuit court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (footnote omitted).
Unlike property, there is no presumption that debt acquired during the marriage is marital or that debt must be divided equally between the parties. Rice, 336 S.W.3d at 68. Principles of equity guide the circuit court's debt-division decision. Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001). "The burden of proving that a debt is marital is upon the party that incurred it and now claims it is marital." Rice, 336 S.W.3d at 68. In Neidlinger, our Supreme Court identified four factors that bear upon the marital versus non-marital character of a debt:
(1) Was the debt incurred for the purchase of marital property? (2) Was the debt necessary to maintain and support the family? (3) What was the extent and participation of each party in incurring or benefitting from the debt? and (4) What are the economic circumstances of the parties after divorce to allow for payment of the debt?Rice, 336 S.W.3d at 69 (citing Neidlinger, 52 S.W.3d at 523). We do not view these factors as decisive, and rarely will their strict application provide a clear, immutable result. They are simply factors to guide courts in equitably classifying debt as marital or non-marital, and equitably dividing all debt.
In this case, Brittany submitted to the circuit court a list of twenty-two debts incurred in her name alone. Phillip claims he was not aware she had these debts, faults Brittany for failing to produce documentary evidence supporting each debt, and questions the marital purpose of the clothing store credit card debts.
Again, the circuit court found four of those debts - education loans, Merrick, T.D. Retail, and a Traditional Bank loan - to be Brittany's non-marital debts. These debts are not at issue.
Brittany's testimony at the final hearing revealed the credit cards were used to purchase clothing for the parties and the children, to pay utilities and other expenses for the marital residence, and for purchases to support the family and marital home. With respect to the Victoria's Secret credit card in particular, Brittany testified Phillip made purchases for her on that card and gave her items from Victoria's Secret as gifts. She testified Phillip was aware of all her credit cards debts, and testified that all the debts were incurred during the marriage for marital purposes. The circuit court found Brittany's testimony believable and credible. The court was entitled to rely on that testimony in making its decision. It was not unreasonable for the circuit court to conclude Brittany incurred these debts, with Phillip's knowledge, for the purchase of marital property to maintain and support the parties and their children. We are not persuaded the circuit court abused its discretion in declaring these marital debts.
Phillip also claims the circuit court failed to recognize his post-separation increase in marital debts. Phillip submitted evidence that his credit card debt at the time of separation was $15,752.95. He incurred post-separation debts in the amount of $8,690.66.
The circuit court classified only those debts as they existed at the time of separation as marital debt. It did not recognize Phillip's $8,690.66 increase in debt post-separation as marital. We cannot say it abused its discretion. It is unclear why Phillip incurred this debt except for his own personal living expenses. He submitted no credible evidence that the post-separation debt incurred was for a marital purpose, was necessary to support and maintain the family (as opposed to supporting himself alone), or that Brittany had any knowledge of his post-separation debt. It was Phillip's burden to convince the circuit court that his post-separation debts were indeed marital debts. He failed in that regard, and the record does not compel any different finding.
Phillip also argues the circuit court improperly excluded the Citizens Guaranty debt from its calculation. The circuit court held Phillip solely responsible for this debt; in practical application, it found this to be Phillip's non-marital debt. While Phillip testified the debt was incurred to purchase vehicles for the parties during the marriage, Brittany disputed his testimony. She claimed the parties used funds they received from previous tax returns to purchase the vehicles, and Phillip incurred the Citizens Guaranty debt prior to the marriage when he purchased a truck and a boat. While the circuit court did not discuss this debt in any detail, the ultimate holding is based on its implicit finding that Brittany's testimony on this point, as with other issues, was the more credible. It did not err, then, in declaring Phillip solely responsible for this non-marital debt.
IMPUTATION OF INCOME
Finally, Phillip argues the circuit court's decision to impute income to him amounts to an abuse of discretion and is clearly erroneous because it is not supported by substantial evidence. Again, we disagree.
KRS 403.212(2)(d) permits the circuit court to base child support on a parent's potential income if it determines that the parent is voluntarily unemployed or underemployed. Whether a party is voluntarily underemployed is a question of fact for the circuit court to resolve considering the totality of the circumstances. Gossett v. Gossett, 32 S.W.3d 109, 111 (Ky. App. 2000); Polley v. Allen, 132 S.W.3d 223, 227 (Ky. App. 2004).
In this case, while the circuit court did not order child support at this time, it indicated it would in the future, based on Phillip's imputed income, should the parties' circumstances change. It also ordered the parties to split medical expenses not covered by insurance and health insurance premiums pursuant to the parties' percentage of income, with $50,000.00 per annum being imputed to Phillip. --------
The statute further provides that "[p]otential 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." KRS 403.212(2)(d). "[I]f the court finds that earnings are reduced as a matter of choice and not for reasonable cause," KRS 403.212(2)(d) authorizes the circuit court to "attribute income to a parent up to his or her earning capacity." Snow v. Snow, 24 S.W.3d 668, 673 (Ky. App. 2000) (citation omitted).
Here, the circuit court found Phillip voluntarily underemployed within the meaning of KRS 403.212(2)(d). Phillip currently works part-time for PepsiCo earning $190.00 every two weeks, or approximately $5,000.00 per year. But he is a well-educated person. He is a certified teacher and school administrator, holding certificates as a teacher, K-12 Supervisor of Instruction, and K-12 Principal. He is a few hours short of earning his Superintendent certification. Phillip has fourteen years' experience as an educator, and has served four times as a principal or assistant principal with different school districts. In his last principal position, he earned $48,000.00 per year. Phillip's most recent education-related employment was with Gear Up Kentucky, where he earned $60,000.00 per year. He voluntarily resigned from that position.
Phillip is certainly capable of earning more than $5,000.00 per year. Phillip testified he is struggling to obtain employment in the education field due to two prior suspensions of his teaching certificate. But there is no evidence Phillip has made diligent efforts to obtain more lucrative employment in any field, including education. Given Phillip's employment history and education, we agree with the circuit court that Phillip is underemployed. Its decision to impute $50,000.00 to Phillip is supported by the evidence submitted during the final hearing, including Phillip's prior salaries and the parties' testimony at that hearing, and does not amount to an abuse of discretion.
CONCLUSION
We affirm the Montgomery Circuit Court's June 2, 2017 Findings of Fact, Conclusions of Law, and Decree of Dissolution of Marriage.
ALL CONCUR. BRIEFS FOR APPELLANT: Leah Hawkins
Mt. Sterling, Kentucky BRIEF FOR APPELLEE: Ira S. Kilburn
Salt Lick, Kentucky