Opinion
NO. 2016-CA-000960-ME
03-24-2017
JENNY LYNN WILSON APPELLANT v. ROGER DAYLON RENICK APPELLEE
BRIEF FOR APPELLANT: Casey A. Hixson Bowling Green, Kentucky BRIEF FOR APPELLEE: No brief filed.
NOT TO BE PUBLISHED APPEAL FROM WARREN FAMILY COURT
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
ACTION NO. 14-CI-01422 OPINION
AFFIRMING
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BEFORE: ACREE, DIXON AND TAYLOR, JUDGES. ACREE, JUDGE: Jenny Wilson takes issue with the Warren Circuit Court's joint custody determination of her minor child with Roger Renick as well as the court's decision to order an alternating income tax dependency exemption. For the following reasons, we affirm.
I. Factual and Procedural Background
Jenny and Roger have one child together who was born in 2010. The couple was never married, but resided together as a family for approximately two years following the birth of their child. After their relationship ended, the child lived primarily with Jenny and Roger had sporadic, very limited contact with the child. Roger has had no contact with the child since February 2015. There was never a custody order in place between the parties.
In December 2014, Roger filed a petition for custody and visitation and to establish child support in Warren Circuit Court. In his petition, Roger sought joint custody, and additionally, standard visitation as provided in the Warren County visitation guideline schedule. Roger was agreeable to Jenny as the primary residential parent as long as he was granted reasonable co-parenting time. Jenny responded requesting the court to grant her sole custody and award Roger visitation with the child.
The circuit court held hearings on the matter in October and December of 2015. After considering the relevant factors of KRS 403.270 in light of the testimony heard and evidence presented, the court determined the best interests of the child to be served by a joint custody arrangement between Jenny and Roger. Jenny was designated as the primary residential parent. Roger's co-parenting time was to be implemented on a gradual basis, detailed by the circuit court in its order. Additionally, the court ordered Roger to have a mental health re-evaluation and directed Roger to attend parenting classes at the Family Enrichment Center.
Kentucky Revised Statutes.
The court's custody decree provided:
"[Roger] shall be granted co-parenting time with the minor child gradually as a result of his little interaction with the minor child over the past few years, and none since February of 2015. For the first visit, [Roger] shall have two hours of supervised visitation at a public place on the first weekend after entry of this decree when he does not have a visit with this child's half-sibling, with either [Jenny], [Jenny's] mother, or other mutually agreed upon supervisor present. No one shall accompany [Roger] to this visit. For the next two visits, taking place on alternating weekends, beginning with the next weekend following entry of this decree when [Roger] does have his other son [...] with him for his regular weekend co-parenting time, [Roger] shall be granted two hours of co-parenting time with the minor child in a public place, such as the Greenwood Mall, a restaurant, etc., with [Jenny], [Jenny's] mother, or other mutually agreed upon supervisor present. The next two visits shall each be for four hours on alternating weekends, and these visits do not need to take place in public, nor with a supervisor. After that, the next two visits shall each be for six hours on alternating weekends, and the two visits after that shall each be for eight hours on alternating weekends. Same shall continue to occur on alternating weekends until further orders of the Court." (R. at 83-4).
Further, the court determined Roger's child support obligation as his petition requested. The court conducted the relevant analysis of the parties' incomes and the Kentucky Child Support Guidelines. Roger was also ordered to continue to maintain health insurance for the child as long as it was available through his employment. Lastly, the court ordered the income tax dependency exemption to alternate between Jenny and Roger each year with Jenny claiming the child for the 2015 tax year and Roger for the 2016 tax year, and so forth.
All of the above was included in the circuit court's order entered March 8, 2016. Both Roger and Jenny filed timely motions to alter, amend, or vacate the circuit court's decision pursuant to CR 59.05.
Kentucky Rules of Civil Procedure.
Roger's motion argued that the child support issue was precluded from being heard because his financial circumstances have not changed since his child support obligation was calculated in a separate case involving another child of his; and the circuit court erred in imputing income to him in calculating his support obligation. The court denied Roger's motion concluding that the calculation of child support has never been decided between these two parties as to this particular child, and therefore, is not barred from a decision by issue preclusion. Additionally, the court imputed income to Roger based upon a 40 hour work week even though he only works a 20-25 hour work week because testimony was heard that in the past Roger had worked two or three jobs at the same time. There was no evidence that Roger was not capable of working 40 hours per week. As a result, the court determined Roger to be voluntarily underemployed.
Jenny's motion argued: (1) Roger's child support obligation should be effective from the date of the filing of the motion to set the support (December 3, 2014); (2) the circuit court erred in ordering the tax exemption for the child to alternate between the parties; and (3) the court should have ordered both parties to refrain from alcohol, drug or other intoxicating substance usage while the child is in their care.
The circuit court granted Jenny's motion in part and denied it in part. The court agreed with Jenny that the child support award should be made retroactive to December 3, 2014. The court also agreed with Jenny that the court's order should have included language prohibiting either party from using alcoholic beverages or other intoxicating substances prior to or when the minor child is in his or her care. And finally, the court denied Jenny's motion with regard to the tax exemption. The court recognized that Jenny and Roger have similar incomes and both have court-ordered parenting time. Alternating the tax exemption between the two benefits both parties financially, especially Roger due to his child support obligation and assessed arrearage, and ultimately, the child. Following the court's decision on Jenny's and Roger's CR 59.05 motions, this appeal followed.
II. Standard of Review
This Court's standard of review for child custody determinations is whether the circuit court's factual findings are supported by substantial evidence and whether the ultimate decision regarding custody constitutes an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153, 153 (Ky. 1974). "A finding of fact is clearly erroneous if it is not supported by substantial evidence, which is evidence sufficient to induce conviction in the mind of a reasonable person." B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005). The circuit court has broad discretion in evaluating what is in the best interest of the child within the factors listed in KRS 403.270(2), but it must not abuse that discretion in applying the law. Frances v. Frances, 266 S.W.3d 754, 757 (Ky. 2008). "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).
III. Analysis
As an initial matter, we note that Roger failed to file an appellee brief in this case. CR 76.12(8)(c) "provides the range of penalties that may be levied against an appellee for failing to file a timely brief." St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 732 (Ky. 2014). At our discretion, we may "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). While a party's failure to file a brief may be taken as a confession of error, such a sanction is usually inappropriate in appeals involving child custody, support or visitation. Ellis v. Ellis, 420 S.W.3d 528, 529 (Ky. App. 2014). Furthermore, we conclude that neither Jenny's brief nor the circuit court's findings justify reversal.
Jenny first argues to this Court that the circuit court erred in its decision that joint custody was in the best interest of her and Roger's child. Jenny primarily relies on various facts and items of evidence in the record which she believes are incompatible with the joint custody determination and the child's best interests under each of the relevant factors listed in KRS 403.270. She claims: Roger has had limited unsupervised time with the child because of anger issues and aggressive behavior and has been generally disinterested in caring for the child; he suffers from untreated bi-polar disorder; he abuses substances; he has been aggressive and offensive to Jenny in the presence of the child; Jenny is not comfortable with their child in the presence of Roger's current paramour.
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 child or children involved. KRS 403.270(2). The "best interest" factors listed in KRS 403.270(2) include: the wishes of the parents and the child; the interaction of the child with the parents; the child's adjustment to home, school and community; the mental and emotional states of the proposed custodians; and evidence of domestic violence. KRS 403.270(2). The statute 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 child. Squires v. Squires, 854 S.W.2d 765, 769 (Ky. 1993).
Here, the circuit court's order discloses that it fully considered all of the relevant best interest factors of KRS 403.270(2), and while Jenny disagrees with the court's decision, this Court cannot depart from it unless the factual findings are clearly erroneous or the circuit court abused its discretion in applying the law. Frances v. Frances, 266 S.W.3d 754, 757 (Ky. 2008).
The circuit court "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 court's credibility determinations are significant and shall remain undisturbed.
The circuit court was fully informed of Roger's recent limited contact with the child, mental health issues, and past incidents of domestic violence with his other child's mother as the court expressed concern over these topics. As a result, the court ordered that Roger and the child become reacquainted through gradual supervised visitations to establish a positive relationship; the court further ordered Roger to have a full mental health re-evaluation by a doctor before any overnight stays are to occur as well as attend parenting classes; the court also recognized that Roger had completed domestic violence counseling classes in 2015. The court noted that the negative and inappropriate incidents between Jenny and Roger occurred more than one year ago, and their relationship appeared to be greatly improved since then at the time of the hearings. The court believed Roger when he indicated a willingness to communicate and behave appropriately with Jenny concerning the upbringing of their child.
The circuit court further indicated in its order that if the joint custody arrangement were to become unworkable due to the conduct of either parent, modification of the custody situation may be available. All of Jenny's objections to the circuit court's decision relate to the credibility of testimony and weighing evidence. "Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding ... appellate courts should not disturb trial court findings that are supported by substantial evidence." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Jenny has not shown that the circuit court was clearly erroneous in finding Roger capable of co-parenting with her, nor has she shown the joint custody award was an abuse of the circuit court's considerable discretion. Therefore, we affirm the circuit court's custody decision.
Next, Jenny argues that the circuit court's decision to alternate the dependency tax exemption between herself and Roger was an abuse of discretion. We disagree.
In Jenny's CR 59.05 motion, she argued that the alternating tax dependency exemption was an abuse of discretion because the circuit court failed to articulate rationale for its decision. She relied on Adams-Smyrichinsky v. Smyrichinsky, 467 S.W.3d 767 (Ky. 2015). The court found that the parties each had similar incomes and each had co-parenting time through the joint custody arrangement, and thus, each should enjoy the tax benefits associated with having a dependent child. The court also found that the tax exemption may better enable Roger to pay his full child support obligation, which is beneficial to the minor child. Jenny again relies on Smyrichinsky by arguing to this Court that the rationale the circuit court provided was rejected by the Supreme Court in Smyrichinsky. We conclude that Jenny's reliance on Smyrichinsky is misplaced.
In Smyrichinsky, the court action originated in Indiana with the Indiana court issuing several orders awarding dependency tax exemptions to one party or the other. When the case came to Kentucky, the issue became what action was appropriate for the Kentucky court to take in assigning a dependency tax exemption when modifying a child support order of the issuing state (Indiana). Smyrichinsky, 467 S.W.3d at 772. The Supreme Court provided that in awarding a tax exemption as a part of a support order, a trial court is required to articulate sound reasoning why the award of the exemption actually benefits the child when the exemption is awarded to a party who does not qualify for it under the Internal Revenue Code. Id. at 784. We find Smyrichinsky to be inapplicable to this case for the simple fact that Roger qualifies under the Internal Revenue Code as a custodial parent due to the joint custody arrangement.
Kentucky follows the majority rule that state courts may enter an order requiring the "custodial" parent to sign a written waiver declining to claim the dependency tax exemption, as a matter of equity in considering support awards. See 26 U.S.C. § 152(e); Hart v. Hart, 774 S.W.2d 455, 457 (Ky. App. 1989). In making such a determination, "[a] trial court has broad discretion to allocate tax exemptions between the parties." Marksberry v. Riley, 889 S.W.2d 47, 48 (Ky. App. 1994). Nevertheless, a trial court should "be guided in the exercise of its discretion by making an allocation which will best maximize the benefit of the exemption and the 'amount available for the care of the child[].'" Pegler v. Pegler, 895 S.W.2d 580, 581 (Ky. App. 1995) (citation omitted). Moreover, the federal tax guidelines create a presumption in favor of awarding the exemption to the custodial parent. See 26 U.S.C. § 152(e) (assigning exemption to "custodial" parent).
In the case of joint custody, both parents are custodial parents, though one will be the "primary residential parent." Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). --------
In this case, the circuit court, through its findings, essentially followed the presumption found in the tax code. We cannot say this is unreasonable under these circumstances. Each parent would have the opportunity to use the exemption for the benefit of the child. Accordingly, we discern no abuse of discretion by the circuit court regarding the alternating dependency tax exemption.
IV. Conclusion
For the foregoing reasons, the Family Court's decision is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Casey A. Hixson
Bowling Green, Kentucky BRIEF FOR APPELLEE: No brief filed.