Opinion
NO. 2017-CA-000634-ME
06-08-2018
JULIE ROBINSON APPELLANT v. WALTER ROBINSON and CHARLES RICKETTS, JR. APPELLEES
BRIEFS FOR APPELLANT: Troy D. DeMuth, Esq. Prospect, Kentucky BRIEF FOR APPELLEE: Charles E. Ricketts, Jr. Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE DENISE BROWN, JUDGE
ACTION NO. 13-CI-502582 OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, COMBS, AND MAZE, JUDGES. COMBS, JUDGE: Julie Robinson appeals from the order of March 27, 2017, of the Jefferson Family Court denying her motion to alter, amend, or vacate and her motion for attorney's fees. After our review of the record and the applicable law, we vacate and remand for additional proceedings.
Julie and Walter divorced in 2014; they have three children together: H.S.R. (19 years of age), B.H.R. (18 years of age), and E.E.R. (13 years of age). Based on the property settlement agreement, Julie and Walter were to have equal joint custody with a "week on, week off" schedule, and Walter's child support obligation was set at $534.00 every two weeks in accordance with the statutory child support guidelines. H.S.R. turned eighteen years of age in February 2016 and graduated from high school in June 2016, rendering him emancipated as a matter of law. B.H.R. is eighteen years of age and graduated from high school on May 24, 2017.
At the time of the trial court's order, B.H.R. had not yet graduated from high school.
Rather than filing a motion to modify child support, Walter, sua sponte, began paying the reduced amount of $452.00 every two weeks after H.S.R.'s emancipation. Evidence presented at the hearing indicated that Walter's counsel attempted to communicate with Julie's counsel in order to come to an agreement for a decreased child support obligation. However, there was never a confirmation, and a court order would have been necessary regardless. Several months later, Julie, pro se, filed a motion to modify child support. A hearing was scheduled at which Julie was represented by counsel.
At the hearing, evidence of the parties' incomes, along with Julie's insurance obligations, was presented to the court. Julie testified that she earned $21,618.00 based on her 2015 tax return and $26,321.95 based on her 2016 year-end wage statement. She testified as to the following monthly insurance premiums owed for her and the three children: $202.98 for health insurance; $15.28 for vision insurance; and $46.40 for dental insurance. She also informed the court that her oldest son, who is in college, remains covered under all three policies. The family court took notice that Walter's income is $63,285.36 based upon the child support worksheet submitted by counsel.
Following the hearing, the family court entered the order of March 27, 2017, granting Julie's motion to modify child support. The court concluded that the emancipation of the oldest child was a change in circumstances warranting a modification of child support. The court's order made three modifications to the child support arrangement. First, based on the division of parenting time, the court ordered that Walter's child support obligation would be $515.00 per month (rather than every two weeks) effective November 29, 2016 (the date on which Julie filed her motion) and that his child support obligation would decrease to $378.00 per month after B.H.R. (the second eldest child) became emancipated by law. Second, based on the discrepancies between their salaries, the court ordered that Walter must pay 71% and that Julie must pay 29% of the children's extraordinary medical expenses. Last, the court ordered that Walter had thirty days in which to pay any arrearages arising from his unilateral decision to change his child support obligation without a court order.
Julie moved to alter, amend, or vacate this order and also moved for attorney's fees. The family court summarily denied those motions. This appeal has followed.
On appeal, Julie argues: (1) that the trial court abused its discretion when it deviated from the child support guidelines and (2) that the trial court abused its discretion when it denied Julie's motion for an award of attorney's fees. We shall address each issue in turn.
A family court "enjoys broad discretion in the establishment, enforcement, and modification of child support." Com., Cabinet for Health and Family Svcs. v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011) (internal quotation marks omitted). Thus, we review the family court's child support decision for abuse of discretion. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001).
KRS 403.212, or the child support guidelines statute, is widely relied upon in determining a parent's child support obligation. Carver v. Carver, 488 S.W.3d 585, 590 (Ky. 2016). The guidelines "serve as a rebuttable presumption for the establishment or modification of the amount of child support." KRS 403.211(2). Courts are permitted to deviate from the guidelines "where their application would be unjust or inappropriate" as long as the court provides a specific reason to support the deviation. KRS 403.211(2). "[C]ourts have broad discretion to deviate from the presumptive guidelines, limited only by reasonableness and actually making a record of the reason for deviation." Carver, 488 S.W.3d at 590.
Kentucky Revised Statutes.
In order to modify a parent's child support obligation, there must be a material change in circumstances. KRS 403.213(1). A fifteen percent (15%) change in the amount of support due per month is rebuttably presumed to be a material change in circumstances. KRS 403.213(2). However, the emancipation of a child has also been held to constitute a material change in circumstances. Dickens v. Dickens, 401 S.W.3d 489, 492 (Ky. App. 2013).
As noted above, the original property settlement agreement required Walter to pay $534.00 every two weeks in child support, amounting to $1,068.00 per month. After the oldest child became emancipated, Walter decided to pay $452.00 every two weeks—or $904.00 per month. However, the court ordered that Walter's child support obligation would be reduced to $515.00 per month and later to $378.00 per month after the second child became emancipated. This order represents a significant decrease and is clearly a deviation from the child support guidelines. The court apparently based the deviation on the fact that the parties enjoy equal parenting time. However, neither party requested a deviation.
In her motion to alter, amend, or vacate, Julie specifically claimed that the amount of the child support obligation in the order of the family court was a clerical error and that the amount should have been listed as $515.00 every two weeks for two children and $378.00 every two weeks for one child. The worksheets filed in the record indicate that for two children, the bi-weekly child support obligation should be $514.82. No evidence presented during the hearing suggested that the family court was going to consider the equal parenting time in determining the child support obligation or to deviate significantly from the child support worksheets as submitted to the court.
It appears to this Court that it very likely was an oversight to designate the child support obligation as monthly as distinguished from bi-weekly. However, that oversight was not corrected or clarified upon Julie's motion to alter, amend, or vacate for clerical error. Pursuant to CR 60.01, a court can correct a clerical mistake arising from oversight or omission at any time. If this discrepancy was indeed a clerical error, we instruct the family court to correct its order to reflect that Walter's specified payment obligation is bi-weekly rather than monthly.
Kentucky Rules of Civil Procedure. --------
However, in the event that it was not a clerical error and the family court intended to set Walter's child support obligation at approximately one-half the amount that both parties requested, the family court's determination would have to be characterized as arbitrary. Once again, neither the parties nor the court made reference to the equal parenting time, to whether utilizing the child support guidelines was "unjust or inappropriate," or to whether a deviation from the guidelines was necessary. Both parties were willing to continue utilizing the child support guidelines just as they had done in the original property settlement agreement; they were merely seeking a court order to mandate the necessary change in the child support obligation based on the children's emancipation by operation of law. Thus, in the event that there was no clerical error or oversight, we must find that the court abused its discretion in deviating from the child support guidelines when neither party asked for a deviation or raised it during the hearing. Therefore, we vacate the court's order regarding the child support obligation and remand the matter for additional proceedings consistent with this opinion.
Julie also contends that the family court abused its discretion in denying her motion for attorney's fees. She argues that there is an imbalance of financial resources between the parties and that this dispute only arose because Walter unilaterally decreased his child support obligation without a court order. Walter argues that the decrease in payments was not undertaken in bad faith because he attempted to communicate with her regarding the change in child support. However, she failed to respond.
As noted earlier in this opinion, a family court has "broad discretion in awarding attorney fees to either party in a dissolution proceeding." Jones v. Jones, 245 S.W.3d 815, 821 (Ky. App. 2008). In making such a decision, the court "must consider the financial resources of both parties and may award attorney fees only where an imbalance of such resources exists." Id.; KRS 403.220. In the case before us, the family court decided not to award Julie her attorney's fees regardless of the imbalance of financial resources. We cannot conclude that this decision was erroneous or that it was an improper exercise of the court's broad discretion in this area.
To recapitulate, we vacate the order of the Jefferson Family Court setting Walter's child support obligation at $515.00 per month for two children and $378.00 per month for one child. We remand this matter to amend and to clarify the order if it contained a clerical error or for additional proceedings to determine whether a deviation from the child support guidelines would be warranted.
ALL CONCUR. BRIEFS FOR APPELLANT: Troy D. DeMuth, Esq.
Prospect, Kentucky BRIEF FOR APPELLEE: Charles E. Ricketts, Jr.
Louisville, Kentucky