Opinion
NO. 2019-CA-000646-ME
02-14-2020
ROBERT L. SHRADER APPELLANT v. CHRISTIE L. SHRADER APPELLEE
BRIEFS FOR APPELLANT: Marcia A. Smith Corbin, Kentucky BRIEF FOR APPELLEE: Bryan K. Sergent London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL FAMILY COURT
HONORABLE STEPHEN M. JONES, JUDGE
CASE NO. 11-CI-00976 OPINION
VACATING AND REMANDING
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BEFORE: GOODWINE, KRAMER, AND MAZE, JUDGES. KRAMER, JUDGE: Robert Shrader ("Father") appeals the order of the Laurel Family Court denying his motion to modify child support and imputing him an annual income of $93,000.00. Upon careful review, we vacate and remand for proceedings not inconsistent with this opinion.
Christie Shrader ("Mother") filed for divorce in 2011. The parties have two minor children. During the marriage, Father worked full time as a minister in London, Kentucky. Upon the parties' separation, Father moved to Campbellsburg, Kentucky, where he found part-time employment as a minister and part-time employment at Olive Garden restaurant. The parties attended mediation in 2011. Father agreed to pay $1,000.00 per month in child support, which was a slight upward deviation from the amount calculated on the child support worksheet. Father continued to pay $1,000.00 per month in child support until November 2016, when Mother filed a motion to modify based on changes in Father's income. The parties entered an agreed order in January 2017, indicating that Father would pay $1,215.00 per month in child support. At the time, Father was still working part time as a minister in Campbellsburg, Kentucky, but was no longer working at Olive Garden and had obtained a sales position with Genex Services. Father's gross yearly income was $93,000.00, of which approximately $30,000.00 was from his employment as a part-time minister. The remaining $63,000.00 was from his full-time sales position.
In October 2018, Father filed motions to modify child support and timesharing with the children. Father had accepted a full-time position as a youth minister at Beargrass Christian Church in Louisville, Kentucky. As a result, he could not continue as a part-time minister in his former position, nor could he continue to hold his full-time sales position. The family court held a hearing and subsequently entered an order denying Father's motion to modify child support, finding that Father was voluntarily underemployed and imputing income to him at $93,000.00 per year. This appeal followed. Further facts will be developed as necessary.
The family court also modified Father's timesharing with the children. That order was not appealed by either party.
On appeal, Father argues that the family court erred in concluding that he was underemployed and imputing income from his prior two jobs. We agree.
Whether a child support obligor is voluntarily underemployed is a factual question. Gossett v. Gossett, 32 S.W.3d 109, 111 (Ky. App. 2000). Findings of fact shall only be set aside if clearly erroneous, i.e., not supported by substantial evidence. See CR 52.01. "[S]ubstantial evidence is [e]vidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (internal quotation marks and footnotes omitted). Thus, we reverse a family court's decision only if its findings are unreasonable in light of all of the evidence.
Kentucky Rule of Civil Procedure.
The family court's findings of fact read as follows:
1. The Respondent, Robert L. Shrader, has changed employment and is currently working as a youth minister at the Bluegrass [sic] Christian Church with a gross salary of $65,790.00. The Respondent also receives $2,000.00 for expense reimbursement which is income to Mr. Shrader.
2. During the hearing, Mr. Shrader testified that he made a voluntary decision to change his employment.
3. Mr. Shrader testified that he was aware of his obligation to pay child support and was aware of that obligation when he made the decision to change positions.
4. Mr. Shrader indicated that he was aware of the continuing need to support his children when he voluntarily left his prior employment to become a youth minister.
5. Mr. Shrader is aware that the needs of the children have not changed.
6. Mr. Shrader has been employed steadily and was earning $7761.00 per month for an annual yearly wage of $93,000.00 at the time he voluntarily changed his job.
7. The Court believes that Mr. Shrader has the earning capacity $93,000.00 as he has traditionally made that amount of money for multiple years.
8. The Respondent will be imputed income of $93,000.00 per year.
Regarding the family court's first finding of fact, KRS 403.212(2)(c) states, in relevant part, as follows,
Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business or personal use of business property or payments of expenses by a business, shall be counted as income if they are significant and reduce
personal living expenses such as a company or business car, free housing, reimbursed meals, or club dues.
There was no evidence presented at the hearing regarding Father's $2,000.00 expense reimbursement from his current employment, other than the fact that he receives it. Roughly half of Father's current salary is for housing, and this was uncontested as income. However, the scant evidence offered at the hearing does not support the family court's conclusion that the $2,000.00 expense reimbursement Father receives shall all count as income. This finding is therefore clearly erroneous.
We now turn to the remainder of the family court's findings of fact. "Both our statutory scheme and our case law demand that whenever possible the children of a marriage should be supported in such a way as to maintain the standard of living they would have enjoyed had the marriage not been dissolved." Stewart v. Madera, 744 S.W.2d 437, 439 (Ky. App. 1988) (citations omitted). The evidence and record shows that Father was employed as a full-time minister during the parties' marriage. His income was approximately $70,000.00 per year. When the parties' mediation agreement was filed in 2011, the parties agreed that Father's income was $3,400.00 per month ($40,800.00 per year). He agreed to pay $1,000.00 per month in child support. At that time, Mother did not assert that Father was voluntarily underemployed even though he was making significantly less working two part-time jobs as compared to his one full-time position as a minister during the marriage. There was no evidence presented at the February 5, 2019 hearing that Father has not supported the children or provided for their reasonable needs. There was no evidence presented that modification of Father's child support obligation pursuant to the statutory guidelines would mean the children's standard of living would be less than what it was during the marriage. There was also no evidence to suggest that Father took his current position to reduce his child support obligation.
In her brief to this Court, Mother argues that Father "testified he had no intention to help with dance or the cost of extracurricular activities of the minor children." This is, at best, disingenuous, if not a misrepresentation of the record to this Court. Father testified that he would have to make a judgment call on whether to let his children attend a school dance if it occurred during his visitation time. Father lives over two hours away from the children. He did not testify that he would never let the children attend a school dance (which, we note, is decidedly different from dance lessons or recitals as Mother's assertion implied) or that he would not help with extracurricular activities.
"The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing." KRS 403.213(1). As noted by this Court in Gossett, a "change in circumstances" does not include voluntary changes meant to reduce a party's child support obligation. Gossett, 32 S.W.3d at 113.
KRS 403.212(2)(a) defines income as "actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed." KRS 403.212(2)(d) states:
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a
parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential 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. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.
We look to Gossett for further clarification. Therein, this Court looked to caselaw from Virginia and held:
[A]s a general rule a court should not impute to a person income from more than one job. However, this is not a rule to be applied in all cases as a matter of law. Depending upon the circumstances peculiar to each case, particularly where there is a history of a spouse having had two jobs, the trial court may find it appropriate to consider imputing to a spouse income from more than one job. The court should consider the previous history of employment, the occupational qualifications, the extent to which the parent may be under employed in the primary job, the health of the individual, the needs of the family, the rigors of the primary job and the second job, and all other circumstances.Gossett, 32 S.W.3d at 112.
Cochran v. Cochran, 14 Va. App. 827, 419 S.E.2d 419 (1992). --------
In Gossett, the father sought modification for a voluntary reduction in income; however, the case at bar is distinguishable. In Gossett, the father worked two jobs and considerable overtime during the marriage. Here, Father worked one job as a minister during the marriage and started working two jobs only after the parties separated and he moved away from London, Kentucky. He testified he worked part time as a minister because he was unable to find a full-time position. In Gossett, the father "justified quitting his part-time job in order to have more time with his family, although he acknowledged, and the record clearly demonstrates, that he was not having regular visitation with his children." Id. at 110. In the instant action, Father has regular visitation with his children.
Father testified he gave up his two prior jobs to once again pursue a full-time position as a minister because he always intended to be a full-time minister. He testified that ministry was not only his "calling," but what he was trained and educated to do. He does not have any specialized education or training in sales. Father testified that his sales position required him to drive throughout the state and that the change to a full-time ministry position was, in part, to achieve "a better quality of life." He also testified that he could no longer work his other jobs due to the commitment required in his new full-time position as youth minister.
The family court did not consider all of the circumstances surrounding Father's change in employment. Rather, it looked only at the fact that he went from making $93,000.00 per year to approximately $66,000.00 per year, which, we note, is roughly what his income was during the marriage. The family court's findings are clearly erroneous. Accordingly, we VACATE and REMAND for proceedings not inconsistent with this opinion. The family court must make explicit findings regarding all circumstances surrounding Father's reduction in income.
ALL CONCUR. BRIEFS FOR APPELLANT: Marcia A. Smith
Corbin, Kentucky BRIEF FOR APPELLEE: Bryan K. Sergent
London, Kentucky