Opinion
NO. 2017-CA-000536-ME
04-13-2018
GARY BRIAN WHITTINGTON APPELLANT v. TANNYA ANN WHITTINGTON APPELLEE
BRIEF FOR APPELLANT: Natalie M. White Eddyville, Kentucky BRIEF FOR APPELLEE: Tannya A. Whittington (Kilmer) Pro Se Eddyville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LYON CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL, III, JUDGE
ACTION NO. 16-CI-00014 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; J. LAMBERT AND TAYLOR, JUDGES. LAMBERT, J., JUDGE: Gary Brian Whittington appeals from a post-dissolution order establishing child support from Tannya Ann Whittington (now Kilmer) in the amount of $60.00 per month. We affirm.
The Whittingtons were married in 2007 and had two children, Child One born in 2009 and Child Two born in 2014. They separated in February 2016. Gary filed the petition for dissolution of marriage within five days of the parties' separation. A bench trial was held in June 2016, and the Lyon Circuit Court entered its Findings of Fact, Conclusions of Law, and Final Order on September 19, 2016. In that order the circuit court held that the parties should enjoy joint custody of the children, with Gary designated as the primary residential custodian. In the dissolution settlement, Gary also received the marital home.
On February 27, 2017, Gary filed a motion asking the circuit court to establish child support, a matter which the court had reserved in its final order. The court held a hearing on March 6, 2017. Tannya did not attend, although she sent a letter. At the hearing the circuit court indicated it would grant Gary's motion. On March 13, 2017, the circuit court entered its order establishing child support from Tannya to Gary in the sum of $60.00 per month, the minimum amount.
On appeal, Gary argues that the circuit court erred in failing to impute minimum wage earnings to Tannya. Had it done so, he says the appropriate child support award would be $249.05 per month. This was the sum Gary had requested in his motion and had included in his attached worksheet.
We begin by reciting the applicable standards of review and statutory language. Kentucky Rule of Civil Procedure (CR) 52.01 provides the general framework for the family court as well as review in the Court of Appeals:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An appellate court may set aside a lower court's findings made pursuant to CR 52.01 "only if those findings are clearly erroneous."). The Asente Court went on to address substantial evidence:
"[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." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted).
Moreover:
A reviewing court should defer to the lower court's discretion in child support matters whenever possible. As long as the trial court's discretion comports with the guidelines, or any deviation is adequately justified in
writing, this Court will not disturb the trial court's ruling in this regard. However, a trial court's discretion is not unlimited. 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, 454 (Ky. App. 2001).
Kentucky Revised Statute (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 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.(Emphasis ours.) And KRS 403.212(4) states: "The child support obligation shall be the appropriate amount for the number of children in the table for whom the parents share a joint legal responsibility. The minimum amount of child support shall be sixty dollars ($60) per month."
There is no question that Child Two was three years of age at the time of the circuit court's ruling. Gary insists, though, that KRS 403.212(2)(d) should be construed in such a way as to apply only to the primary custodian of the children and that "[t]o hold otherwise would set the precedent that every parent who is the parent of a child under three who is not the caregiver would never be responsible for child support." Yet he offers no statutory or case law to support this argument.
Although Tannya does not bear primary custodianship of the children at this time, she remains the joint custodian and thus bears the cost of caring for the children when they are with her. At the time of the circuit court's ruling, Tannya's sole source of income was the maintenance she received from Gary, a sum which, during the same hearing as the one held for the motion at issue here, the circuit court indicated it would order reduced by approximately $300.00 per month. The statute does not include language regarding primary custodianship, and we decline to introduce it here.
Nothing, however, prohibits Gary from filing a motion to modify child support now that Child Two has reached the age of four. This opinion solely addresses the order based on the record before it at the time its ruling was made. --------
Child support determinations are based on the combined gross income of both parents. In calculating child support obligations, income may only be imputed to parents when the parent is voluntarily unemployed or underemployed, and such a calculation is to be based upon the parent's potential income.
KRS 403.212(2)(d); Howard v. Howard, 336 S.W.3d 433, 439 (Ky. 2011).
. . . .
[The mother] is currently caring for her two youngest children, both of whom are under the age of three. We therefore find that the circuit court abused its discretion by imputing minimum wage to [the mother]. On remand, the circuit court must note [the mother's] income as zero and order the minimum $60 monthly child support obligation.Lambert v. Lambert, 475 S.W.3d 646, 653-54 (Ky. App. 2015).
The order of the Lyon Circuit Court is affirmed.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
KRAMER, CHIEF JUDGE, DISSENTS AND FILES SEPARATE OPINION:
Respectfully, I dissent and would reverse and remand. At issue in this case is what the phrase "is caring for" means in KRS 403.212(2)(d). While I concur with the majority opinion that we cannot add words to the statute, we have an obligation to review the language in KRS 403.212(2)(d) to determine the legislative intent. See Lichtenstein v. Barbanel, 322 S.W.3d 27, 34-35 (Ky. 2010). In my view, the phrase "is caring for" is ambiguous under the facts of this case. I agree with the rationale set forth by Gary in his brief.
The majority opinion cites Lambert v. Lambert, 475 S.W.3d 646 (Ky. App. 2015), as support for its decision. But, my view is that Lambert is not applicable to the facts of this case and that it does not add any clarity to the case before us as to what the phrase "is caring for" means. In Lambert, the mother was the sole custodian for two children under the age of three. Therefore, in Lambert, it was undisputed the mother "[was] caring for" children age three and under. Unlike the mother in Lambert, who was the sole custodian of two children under the age of three, Tannya is not the sole custodian of her children. She is not even the primary residential custodian and does not even timeshare on a 50-50 basis. (Regarding timesharing, the circuit court in this case held that "[w]hile a 50-50 timeshare arrangement might eventually work, the [circuit] Court believes that at this juncture, that would necessitate too many transitions for the children and too much contact between the parents while the parents learn to be adult parents.").
While not entirely on point, this case is more akin to the unpublished case of Wilson v. Nelson, No. 2009-CA-000446-ME, 2010 WL 392334 (Ky. App. Feb. 5, 2010), which I cite only as persuasive authority under CR 76.28(4)(c). In Wilson, the father was named the primary residential custodian, and the parties shared joint custody of the parties' two children under the age of five. Mother was unemployed and lived with her parents. The court imputed a minimum wage income to the mother for child support purposes. Mother argued that income should not be imputed to her because one of the parties' children was under the age of three at the time, citing to KRS 403.212(2)(d).
To follow the majority opinion's and the circuit court's line of reasoning in the present case, would mean that the analysis in Wilson would have ended upon a finding that the parties had a child under the age of three, despite the fact that the mother was not the person who cared for her young child. However, in Wilson, this Court agreed with the circuit court the mother did not provide care for the children, although she was a joint-legal custodian with timesharing. Rather, the mother's parents were the ones who took care of the children when mother was afforded timesharing because the mother was in and out of rehabilitation. The Court in Wilson evaluated the facts of the case and concluded that to be relieved from her obligation to pay child support for her children, it was not enough simply to be a parent of a child age of three or under. Herein, the circuit court--unlike the Court in Wilson--did not engage in an analysis of what "is caring for" a young child means.
While the present case is not as extreme as the Wilson case, it nonetheless persuades me that the court should evaluate what the legislature intended with the phrase "is caring for" in light of the particular facts of the case. Simply being a parent of a child age three or under is not enough on its face to relieve a parent of her statutory obligation to support her child. Accordingly, I would reverse and remand to the circuit court on this issue.
I would also reverse and remand on other bases too. Regarding whether Tannya was voluntarily unemployed, such "'is a factual question for the circuit court to resolve.'" Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 448 (Ky. App. 2012) (quoting Gossett v. Gossett, 32 S.W.3d 109, 111 (Ky. App. 2000)). The circuit court found that Tannya "has no monthly income, but she should be employable for at least a minimum wage position, so the Court imputes $1,257.00 as her gross pay." While this section of the findings was in regard to whether to award maintenance, I find no functional distinction on this factual finding as to whether it was made for purposes of maintenance or child support. Later in the findings, however, the circuit court concluded that Tannya "is unable to support herself through full-time employment, at the current time," yet fails to set forth the factual basis for this. The circuit court did note problems Tannya had, but those findings are in regard to its determination regarding custody--wherein despite her problems--the court determined favorably that joint custody was in the best interest of the children.
Further, the circuit court awarded Tannya $900 per month for maintenance for a thirty-six-month period. Yet, the court did not include this amount in the child support calculations. Pursuant to KRS 403.212(2)(b), "'Gross income' includes income from any source, except as excluded in this subsection, and includes but is not limited to income from ... alimony or maintenance received." Accordingly, I believe this was in error.
Based on the foregoing, I conclude that the circuit court abused its discretion in this matter and that Tannya should have been ordered to pay child support. Accordingly, I would reverse and remand this case. BRIEF FOR APPELLANT: Natalie M. White
Eddyville, Kentucky BRIEF FOR APPELLEE: Tannya A. Whittington (Kilmer)
Pro Se
Eddyville, Kentucky