Opinion
NO. 2016-CA-000374-ME
03-10-2017
TERRI LYNN POOL APPELLANT v. DONALD WAYNE HUNDLEY; WILLIAM EDWARD HUNDLEY; AND MARY LESLEY HUNDLEY APPELLEES
BRIEFS FOR APPELLANT: Gerald M. Burns Madisonville, Kentucky BRIEF FOR APPELLEES: Joe A. Evans, III Madisonville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HOPKINS CIRCUIT COURT
HONORABLE SUSAN WESLEY MCCLURE, JUDGE
ACTION NO. 01-CI-00363 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: COMBS, DIXON, AND NICKELL, JUDGES. DIXON, JUDGE: Terri Lynn Pool appeals from an order of the Hopkins Circuit Court that resolved post-decree issues relating to child support and property division in favor of her former husband, Donald Wayne Hundley. We affirm in part, reverse in part, and remand.
Terri and Donald divorced in 2002. They have three children, William (emancipated June 2007), Mary Lesley (emancipated September 2013), and David (a wholly disabled adult). A property settlement agreement incorporated into the divorce decree awarded the parties joint custody of the children and designated Terri as the primary residential parent. Donald agreed to pay Terri child support of $942 per month. Shortly after the divorce, William moved into Donald's home; however, Donald continued to pay the full amount of child support to Terri. When William emancipated in June 2007, Donald asked his attorney to recalculate the child support obligation for two children. Donald advised Terri of the recalculation and began paying her $735 per month.
At Donald's request, the new amount was calculated using the parties' 2002 financial information; however, it was undisputed that Donald's income had decreased in 2007, while Terri's income had increased.
In October 2012, Mary Lesley moved into Donald's home. Donald continued paying Terri $735 per month until August 2014, when he filed a motion to modify child support because of Mary Lesley's emancipation the previous year. In response, Terri filed a motion for a judgment of child support arrearage that accrued between 2007 and 2014. Shortly thereafter, the parties mediated the issue of current support, and Donald agreed to pay Terri $624 per month in ongoing child support for David. The agreement reserved several issues for an evidentiary hearing, including Terri's arrearage claim, Donald's receipt of life insurance proceeds, and the allocation of a dependent tax exemption. Prior to the hearing, William and Mary Lesley each filed intervening complaints seeking recovery of any arrearage judgment Terri obtained for child support during the time they lived with their father.
Following the hearing, the court made thorough written findings, concluding there was no arrearage because the evidence established Terri and Donald had agreed to modify the amount of child support after William emancipated in June 2007. The court further declined to include life insurance proceeds as Donald's income for the current support obligation and concluded that it could not modify the allocation of the tax exemption pursuant to the parties' separation agreement. Terri now appeals.
I. Agreement to Modify Child Support
In Whicker v. Whicker, 711 S.W.2d 857, 859 (Ky. App. 1986), this Court explained that an agreement to modify child support is enforceable where 1) its existence is established with reasonable certainty, 2) it is fair and equitable under the circumstances, and 3) the modification would have likely been granted if presented to the court. We are mindful we cannot disturb the trial court's factual findings as to the existence of an agreement unless they are clearly erroneous. Id. at 860. Further, the "[v]eracity of a witness is judged by the trier of fact, and we cannot substitute our view as to credibility." Mauk v. Mauk, 873 S.W.2d 213, 216 (Ky. App. 1994).
Terri specifically challenges the sufficiency of the evidence supporting the existence of an agreement. In Terri's view, Donald unilaterally reduced his child support payments after William's emancipation in 2007.
Terri also argues the court's determination was erroneous because the settlement agreement required any modification of its terms to be in writing and signed by the parties. In her brief, Terri did not cite the location in the record where this issue was preserved for appellate review. CR 76.12(4)(c)(v). "It goes without saying that errors to be considered for appellate review must be precisely preserved and identified in the lower court." Skaggs v. Assad, 712 S.W.2d 947, 950 (Ky. 1986). We decline to address this issue on appeal.
The evidence showed, in June 2007, Donald sent Terri the child support worksheet prepared by his attorney and a letter explaining the calculation was for the support of two children due to William's emancipation. Pursuant to the calculation, Donald paid Terri $735 per month from July 2007 until August 2014. Further, it was undisputed Terri received the correspondence regarding modification and that she did not seek to enforce the original obligation during the seven years Donald paid the modified amount. The trial court concluded the parties' actions in abiding by the arrangement confirmed the existence of an agreement to modify support based on William's emancipation in June 2007. Our review of the record indicates the trial court's finding that an agreement existed was supported by substantial evidence; accordingly, we find no error in the court's decision denying Terri's motion for judgment of child support arrearage.
II. Calculation of Donald's Income
Donald filed a motion to modify child support in August 2014 to address the emancipation of Mary Lesley and determine the continuing support obligation for David. Thereafter, Terri learned Donald had received life insurance proceeds of $291,836.00 on September 25, 2013, following the death of his mother. At the evidentiary hearing, Terri argued the life insurance proceeds should be included in the calculation of Donald's gross income to determine his child support obligation for David. After considering the evidence presented on this issue, the trial court denied Terri's motion pursuant to Clary v. Clary, 54 S.W.3d 568 (Ky. App. 2001).
In Clary, this Court explained, "when a parent receives income from a nonrecurring event, the trial court should include that amount in the year received and then apply the guidelines pursuant to the table in KRS 403.212 to determine the child support obligation." Id. at 574. Here, the trial court acknowledged Donald received a lump sum payment of life insurance proceeds in 2013, which could be considered as income for the year received. However, the court concluded, for the purpose of calculating child support as of September 1, 2014, it could only consider Donald's 2014 income, which did not include any insurance proceeds.
On appeal, Terri argues the trial court's decision was unfair, contending Donald avoided his duty to pay an increased amount of child support based on his 2013 income. We note, however, Terri failed to cite any legal authority to support this argument. "Our courts have established that an alleged error may be deemed waived where an appellant fails to cite any authority in support of the issues and arguments advanced on appeal." Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005). Accordingly, we decline to address this argument on appeal.
Terri's argument also implies Donald fraudulently concealed the life insurance proceeds to avoid an increase in his child support obligation. Terri failed to indicate how this issue was preserved, and the trial court's judgment did not address this allegation. An issue "not raised or adjudicated in the court below cannot be considered when raised for the first time in this court." Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940). --------
III. Dependent Adult Income Tax Exemption
The parties' settlement agreement allocated to Donald "the tax exemption for all three (3) of the parties' minor children every year." The agreement also stated the terms were non-modifiable "unless reduced to writing and subscribed by the party to be charged." The trial court reviewed the language of the parties' agreement and determined it was precluded from modifying the terms of the tax exemption allocation.
Terri argues the court erred because the settlement agreement did not address the tax exemption allocation for David as a disabled adult dependent (rather than a dependent "minor child"); consequently, Terri contends the court was obligated to allocate the adult dependent tax exemption between the parties.
The terms of a marital settlement agreement are enforceable as contract terms. KRS 403.180(5). In Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381 (Ky. App. 2002), this Court explained:
Where a contract is ambiguous or silent on a vital matter, a court may consider parol and extrinsic evidence involving the circumstances surrounding execution of the contract, the subject matter of the contract, the objects to be accomplished, and the conduct of the parties. Absent an ambiguity in the contract, the parties' intentions must
be discerned from the four corners of the instrument without resort to extrinsic evidence. A contract is ambiguous if a reasonable person would find it susceptible to different or inconsistent interpretations.Id. at 385 (internal citations omitted).
The parties' settlement agreement addresses tax exemptions for the children during minority; however, it is silent regarding the allocation of an adult dependent tax exemption. We believe an ambiguity exists regarding the parties' intent for allocating a tax exemption when David became a dependent adult. We reverse the court's determination on this issue and remand for further proceedings.
For the reasons stated we affirm in part, reverse in part, and remand the judgment of the Hopkins Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: Gerald M. Burns
Madisonville, Kentucky BRIEF FOR APPELLEES: Joe A. Evans, III
Madisonville, Kentucky