Opinion
NO. 2019-CA-001340-ME
06-19-2020
CHARLES HENRY WITSCHEY APPELLANT v. LORI ANN WITSCHEY (now MILLER) APPELLEE
BRIEF FOR APPELLANT: Charles Henry Witschey, pro se Scottsville, Kentucky BRIEF FOR APPELLEE: Lori Ann Miller, pro se Scottsville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ALLEN FAMILY COURT
HONORABLE G. SIDNOR BRODERSON, JUDGE
ACTION NO. 15-CI-00177 OPINION
AFFIRMING and REMANDING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES. CALDWELL, JUDGE: Charles Henry Witschey appeals from an order of the Allen Family Court resolving motions to modify custody and child support. We affirm, but remand to the family court to correct clerical errors in the Uniform Child Support Order.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2016, the Allen Family Court entered a decree dissolving Witschey's marriage and restoring Witschey's former wife to her maiden name of Lori Ann Miller. This decree was submitted as an agreed order signed by both parties and their respective attorneys. The parties' separation agreement was incorporated by reference and made part of the decree. Relevant portions of the separation agreement provided that: Miller was awarded sole custody of the minor children; "except for good cause" the younger child would continue to attend a specified private school; Witschey would pay the younger child's tuition and other school costs "in lieu of child support"; and the parties "recognize and acknowledge that this is a deviation from the child support guidelines."
Witschey and Miller had been married in 1996 and had two minor children at the time of their divorce. Their older child turned eighteen (18) years old and graduated high school in 2017. Their younger child (Child) was a senior in high school during the 2019-2020 school year and will turn eighteen (18) years old in August 2020. Child ceased attending the private school and began attending public school in January 2017, a few months after the divorce.
This appeal stems from litigation occurring over the summer of 2019, in which the parties represented themselves in court on motions to modify custody and child support.
The family court entered an order on August 28, 2019 denying Witschey's motion to modify custody and ruling on other motions, including a motion to obtain child support back to January 2017 filed by Miller in June 2019. It denied Miller's request to obtain retroactive child support as an "award of child support cannot be effective prior to the date of the filing of the motion to establish child support." But it ordered Witschey to pay $255.16 per month in child support effective June 17, 2019 (the date Miller's motion was filed). The family court also issued a Uniform Child Support Order on August 28, 2019. However, this appeared to set an effective date of January 1, 2017, for the child support obligation and to state that it was by agreement of the parties.
In this same order, the family court also denied Witschey's motion to set aside the separation agreement and granted Miller's motion to have Witschey held in contempt for failure to reimburse her for the children's health insurance.
Witschey appealed and both parties filed pro se appellate briefs. "While pro se litigants are sometimes held to less stringent standards than lawyers in drafting formal pleadings, Kentucky courts still require pro se litigants to follow the Kentucky Rules of Civil Procedure." Watkins v. Fannin, 278 S.W.3d 637, 643 (Ky. App. 2009) (citation omitted). Keeping this in mind, we identify and address the issues on appeal.
For the benefit of the pro se litigants we note: The Kentucky Rules of Civil Procedure may be accessed on the Kentucky Court of Justice website (https://kycourts.gov), which also provides a Basic Appellate Practice Handbook and Checklists for Briefs in the Court of Appeals. Kentucky Revised Statutes (KRS) may be accessed on the Kentucky General Assembly website, legislature.ky.gov.
Identification of Issues on Appeal and Requested Relief
Witschey's notice of appeal states that he appeals from the "decision" entered by the family court on August 28, 2019. He attaches the family court's written order of August 28, 2019 ruling on various motions under the "Order Under Review" tab accompanying his brief. Under a separate "Appendix C" tab accompanying his brief, he attaches the Uniform Child Support Order entered on August 28, 2019.
The introduction to Witschey's brief states "the trial judge has misstated the facts presented in court, subverted the intent of legislation and altered the balance of the Separation Agreement entered by the parties." Witschey's brief contains discussion under the headings of "Argument Regarding Custody Order" and "Argument Regarding Retroactive Child Support Order." In the conclusion of his brief, he states that he "seeks that Custody be modified per the intent of KRS 403.315 and total relief in the form of a Reversal of Order entered August 28, 2019 Allen County Action No. 15-CI-00177." He clearly seeks reversal of the denial of his request to modify child custody so that he could obtain joint custody. However, it is unclear what, if any, other relief he requests so we also examine his prehearing statement.
When asked to briefly state facts and issues litigated, he responded "Ruling Contrary to Intent of Law, Simultaneous Contradictory Orders." When asked to briefly state the issues proposed to be raised on appeal, he responded "Legislative Intent is for Sharing Custody Unless Specific Reasons, Judge Acted in Manner Favoring other Party, Retroactive Child Support Order." We note that under Kentucky Rules of Civil Procedure (CR) 76.03(8), "A party shall be limited on appeal to issues in the prehearing statement except that when good cause is shown the appellate court may permit additional issues to be submitted upon timely motion." No motion has been filed to submit additional issues on appeal which were not listed in the prehearing statement.
Based on his prehearing statement and brief, we construe Witschey's appeal as requesting: 1) reversal of the denial of his request to modify custody—so that he be granted joint custody, 2) reversal of the family court's order for him to make a monthly child support payment, and 3) correction of the Uniform Child Support Order to remove inconsistencies with the child support portion of the general August 28, 2019 order ruling on matters from the mid-August hearing.
STANDARD OF REVIEW AND ANALYSIS
Denial of Motion to Modify Custody Not Reversible Error
In reviewing the family court's denial of Witschey's motion to modify custody, we apply a deferential standard of review:
Our standard of review is set forth in Kentucky Rule of Civil Procedure (CR) 52.01, and findings of fact shall not be set aside unless clearly erroneous. 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. The question before this Court is not whether we would have reached a different decision, but rather, whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion.Berzansky v. Parrish, 583 S.W.3d 6, 7 (Ky. App. 2019) (citations omitted); see also Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008).
Witschey filed a motion for change of custody on May 15, 2019. In his motion, he acknowledged that Miller currently had sole custody of Child under the separation agreement but requested a change to joint custody. The motion was set for a hearing on June 13, 2019, and the family court entered an order on June 13, 2019, stating that both parties had appeared without counsel to present evidence and summarizing the substance of the hearing as follows:
A motion to modify custody must be accompanied by an affidavit setting forth facts supporting the modification under KRS 403.350. Witschey's motion was not accompanied by such an affidavit, but there is no indication Miller objected so we decline to further address that deficiency.
We note that his written motion also requested equal timesharing. However, Witschey later clarified that he was not seeking a change in visitation or timesharing, but simply requested joint custody to have authority to make decisions regarding Child.
Unfortunately, the video recording of the June 13, 2019 hearing is not contained in the trial DVDs sent to us for our review, despite Witschey's listing the June 13, 2019 hearing among the "List of Proceedings for Clerk of Circuit Court" to be included in the record on appeal. (Record (R.) p. 406). Witschey apparently filed this list with the Allen County Circuit Clerk's office in accordance with an October 22, 2019 Order of the Court of Appeals mandating that he file a Designation of Evidence within ten days.
The Respondent [Witschey] is seeking joint custody of the parties' minor son, who is now 16 but will be 17 in August, 2019. The child was expressing suicidal thoughts and spent 5 days at Rivendell [psychiatric hospital] earlier this year. After his discharge from Rivendell, he was involved with follow-up outpatient counseling or therapy with Marilyn Carter. The Petitioner [Miller] testified that this follow-up counseling was discontinued when the child decided he didn't want it or need it any longer. The Respondent is seeking joint custody, so he can be involved in decision making regarding his son in major areas such as health care, education and religion. The Respondent testified that the Petitioner did not follow-up with counseling for the parties' oldest child, now 20 years of age, as was required by the terms of the Decree herein. The Petitioner blamed this failure on the Respondent. It does appear that the Petitioner made efforts to arrange for counseling for the oldest child with Kim Wilson, but the counselor was unable to make contact with the Petitioner.The family court concluded the order by continuing the hearing until August 16, 2019, as it stated that it required "further evidence in order to decide this matter" and ordered each party to arrange for specified witnesses (mental health professionals) to testify at the August 16, 2019 hearing. However, none of these named witnesses attended the August 16 hearing. From our review of the record, the evidence about custody at the August 16 hearing consisted primarily (if not entirely) of the parties' testimony. Neither party argues that the family court improperly excluded any evidence which they sought to present.
Any issue with the timing of the continuance appears to be unpreserved. Witschey complains about being "made to wait now 93 days to be heard" in his brief. He asserts that "[t]he Court did not schedule in a timely manner contrary to Respondent's [Witschey's] rights and the child's best interest. Petitioner [Miller] did not seek the continuance." But he does not state whether he asked the family court for an earlier date to continue the hearing nor cite to the record to show where this specific issue (timeliness of date to continue hearing) was raised to the family court so that it would have been preserved for our review. See CR 76.12(4)(c)(v) (requiring that Argument section of brief "shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner"). Especially since Witschey has not shown that he raised an issue about the timeliness of the continued hearing date to the family court, we cannot fault the family court's scheduling of hearings as the initial hearing was set for a date within 30 days of the filing of the motion and the hearing was continued for about 60 more days to allow time to make arrangements for witnesses to testify.
The family court denied the motion to modify custody in an order entered August 28, 2019. In doing so, it made findings of fact including that: Child (now age 17) had expressed suicidal thoughts, spent a few days in Rivendell, and was involved in counseling or therapy after his discharge for some time but that Miller testified this was discontinued as Child decided he did not want or need that anymore; in an email to Miller, Witschey expressed an objection to Child being treated at Rivendell; Witschey sought joint custody and Miller preferred sole custody; the parties have a long history of conflict and it does not appear that they would be able to work together and make joint decisions; although the family court had not interviewed Child about Child's wishes recently, Child "expressed a strong preference for [Miller] and wanted only supervised visitation with [Witschey]" in "prior interviews when he was younger"; Child currently visits Witschey when Child chooses, and both parties are comfortable with the arrangement; Child "appears to have a stable and loving relationship" with Miller; the status of Child's relationship with Witschey was "unclear" but apparently their relationship had "improved somewhat over time"; both Witschey and Miller were "properly motivated" and want "what is in the best interest of [Child]"; Child appeared to be "well adjusted" in Miller's home; Miller is in good health; Witschey claimed to be disabled at the August 16 hearing, but testified he was self employed at the June 13 hearing; and Child's mental or emotional health appeared stable at present.
The family court also noted that Witschey "relies on the recent amendment to KRS 403.270 creating a presumption in favor of joint custody" and stated that it "has reviewed the factors relating to the vest [sic] interests of the child contained in KRS 403.270(2)." It concluded that Child's best interest "will be served by him remaining in the sole custody of [Miller]" and denied Witschey's motion to modify custody.
Presumption in Favor of Joint Custody Not Applicable Unless Family
Court Concluded that Standard to Modify Custody Was Met
Witschey argued in his motion for change of custody: "Subject to KRS 403.315, there shall be a presumption that joint custody and equally shared parenting time isin [sic] the best interest of the child." Witschey argues in his brief that "[i]n the June 13 hearing, the Judge correctly stated that the Petitioner [Miller] had the burden of proof in compliance with KRS 403.315." Perhaps Witschey confuses presumption with burden of proof. Regardless of what the family court judge may or may not have said at a hearing, the burden of proof is clearly on the party seeking modification of custody, in this case, Witschey. Wilcher v. Wilcher, 566 S.W.2d 173, 175 (Ky. App. 1978).
Witschey seems to argue that the family court should have applied a presumption in favor of joint custody. He cites to KRS 403.315 which states that in proceedings to establish or modify custody, if a domestic violence order has been entered against a party, "the presumption that joint custody and equally shared parenting time is in the best interest of the child shall not apply as to the party against whom the domestic violence order is being or has been entered." Perhaps Witschey intends to argue that since a prior domestic violence order against him had been vacated, that the family court should have applied a presumption that joint custody was in Child's best interests.
Witschey notes in his brief that a domestic violence order entered against him in June 2016 had been vacated in February 2017.
KRS 403.315 Does Not Create a Presumption in Favor of Joint Custody
KRS 403.315 states that a presumption that joint custody is in the child's best interests in custody proceedings is inapplicable where a domestic violence order is being or has been entered against a party. KRS 403.315 does not, however, establish when such a presumption is applicable, so we must look to other statutes which establish such presumptions. And we note that there are substantial differences under the statutes for initial custody determinations versus proceedings involving requests to modify custody.
KRS 403.270(2) establishes the standard governing a trial court's initial determination of custody: "The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian." And in making this determination, KRS 403.270(2) further requires that: "Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child."
KRS 403.340 Establishes Standard for Modifying Custody
KRS 403.340 governs motions to modify custody decrees such as Witschey's motion to change custody from sole custody (pursuant to the divorce decree incorporating the parties' separation agreement) to joint custody. See KRS 403.340(1) ("As used in this section, 'custody' means sole or joint custody, whether ordered by a court or agreed to by the parties."). KRS 403.340(3) requires:
The initial custody decree was entered in September 2016, and Witschey's motion was filed in May 2019. Since more than two years had passed between the custody decree and the motion to modify custody, KRS 403.340(2)'s requirements about motions to modify custody filed less than two years after the initial decree are not applicable here.
the court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child.In short, the family court could not modify the custody decree unless it found both a change of circumstances and that modification is necessary for Child's best interests.
Rebuttable Presumption in Favor of Joint Custody Only Applies if
Court Has Determined that Standard for Granting Modification Is Met
A rebuttable presumption in favor of joint custody then arises only if the court finds that the standard for granting modification is met as KRS 403.340(6) states in pertinent part:
Subject to KRS 403.315, if the court orders a modification of a child custody decree, there shall be a presumption, rebuttable by a preponderance of evidence, that it is in the best interest of the child for the parents to have joint custody and share equally in parenting time.
This Court recently construed KRS 403.340 and agreed with a party's argument therein that "the plain and unambiguous language of the statute creates a rebuttable presumption only after the court determines that a modification of an existing custody decree is in the child's best interest." Berzansky, 583 S.W.3d at 8. Thus, we concluded that the family court therein properly rejected the other party's argument "that it should have presumed joint custody pursuant to KRS 403.340(6) before it determined if a custody modification was proper and in the best interest of Child under KRS 403.340(3)." Id.
The family court's written order states that Witschey "relies on the recent amendment to KRS 403.270 creating a presumption in favor of joint custody" and does not explicitly mention KRS 403.340. Nonetheless, KRS 403.340 establishes the standard for whether to modify custody and governs when a presumption in favor of joint custody applies in modification proceedings. Under KRS 403.340(3), the family court was required to determine whether there had been a change in circumstances since the initial custody decree of September 2016, and whether modification would serve Child's best interests. Although the family court seemingly recognized some change in Child's circumstances since the initial decree as it discussed Child's recent suicidal thoughts and mental health treatment, the family court reviewed the factors, pursuant to KRS 403.270(2), relating to the best interests of the child and determined that Child's best interest "will be served by him remaining in the sole custody of" Miller. As the family court determined it was not in Child's best interest to modify custody, it was not required to apply a presumption that joint custody was in Child's best interests. Berzansky, supra, at 8.
KRS 403.340(3) lists factors to consider in determining whether a change in circumstances has occurred and whether modification is in the child's best circumstances, including "(c) The factors set forth in KRS 403.270(2) to determine the best interests of the child; (d) Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health[.]" KRS 403.340(4) lists factors to consider in determining whether the present environment seriously endangers the child's health including: the child's interactions with both parents and the mental and physical health of all parties.
No Reversible Error in Family Court Considering Parties' Long
History of Conflict in Denying Motion to Modify Custody
Witschey contends that the family court erroneously relied on Miller's preference for sole custody and the parties' "long history of conflict" and apparent inability to make decisions together, quoting Squires v. Squires, 854 S.W.2d 765, 768 (Ky. 1993):
While we have no doubt of the greater likelihood of successful joint custody when a cooperative spirit prevails, we do not regard it as a condition precedent. To so hold would permit a party who opposes joint custody to dictate the result by his or her own belligerence . . . .Witschey also quotes from other cases citing Squires and we do not dispute that Squires' holding, that "a cooperative spirit" is not a "condition precedent" for an award of joint custody, has not been overruled. However, we have also recently recognized that Squires involved a trial court's initial custody determination and that a long-standing history of conflict and inability to cooperate for years after a divorce may be an appropriate factor to consider in ruling on a request to modify custody from sole custody to joint custody in Berzansky, 583 S.W.3d at 10-11. Similarly, in this case, it was appropriate for the family court to consider the parties' long history of conflict and inability to make decisions together following their divorce among other factors in determining whether modification was in Child's best interests.
Witschey's brief contains a list of cases "[a]dditionally citing Squires: . . . .in Scheer v. Zeigler, 2000 and 5 similar citations; . . . .in Drury v. Drury, 2000 and 7 similar citations; . . . .in McBAEN v. McBAEN, 2017 and 4 similar citations." Although the other "similar citations" are not identified by name or year or any other identifying characteristics, it appears that he quotes from Scheer v. Zeigler, 21 S.W.3d 807, 810 (Ky. App. 2000); Drury v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000); and McBaen v. McBaen, No. 2016-CA-001812-ME, 2017 WL 3129980, at *5 (Ky. App. Jul. 21, 2017). We note that McBaen is an unpublished case and that Witschey did not comply with the requirements of CR 76.28(4)(c) regarding citation of unpublished opinions.
No Reversible Error in Family Court's Denial of Motion to
Modify Custody Based on Evidence Presented
Witschey's brief also contains the following discussion of the family court's written order regarding his request to modify custody:
The Order states "The Court did not interview the child concerning his wishes at this time". The
Respondent's Motion sought legal and not physical custody as the child's preferences are agreeable for timesharing. The Order cites "prior interviews" where child expressed "preference for the petitioner". First, this statement is incorrect as there was one interview and not interviews. Second, the interview was several years ago. Third, this was a very short interview, where the Judge asked limited questions and refused to ask questions provided by the Petitioner.We construe this as a general argument that the family court erred in denying his motion to modify custody, and not an argument that the family court erred in not interviewing Child. We note that Witschey takes issue with the family court's discussion of prior interviews with Child but does not provide any citations to the record where any interviews may be located for our review (nor does Miller, who claims that the family court interviewed Child more than once).
Then, the order states "[Child] appears to have a stable and loving relationship with the Petitioner". There is no testimony, no exhibits, and no input from [Child], this is simply conjecture from the Judge.
We note that Witschey does not cite to the record to show if he ever requested that Child be interviewed for the hearing on his motion to modify custody. Furthermore, although a family court "may interview the child in chambers to ascertain the child's wishes as to his custodian" pursuant to KRS 403.290(1) (emphasis added), Witschey cites no authority requiring a family court to interview a child to resolve a motion to modify custody. --------
Neither party appears to argue that the family court improperly excluded any evidence they wished to present at the hearing. The evidence presented consisted primarily (if not entirely) of the parties' testimony and we must give "due regard" to "the opportunity of the trial court to judge the credibility of the witnesses" under CR 52.01. The family court appears to have substantively applied the correct standards for ruling on a motion to modify custody despite not explicitly discussing KRS 403.340. It concluded that Child's best interests were served by remaining in Miller's sole custody, specifically stating that it had reviewed the best interest factors contained in KRS 403.270(2). It set forth findings regarding recent changes in circumstances (including Child's recent mental health treatment), the parties' relationship with Child and with each other, Child's adjustment, visitation with Witschey, the health of the Child and the parties, and the parties' different custody preferences but both wanting the best for Child—relevant to factors set forth for consideration in KRS 403.340(3) and (4).
Given the limited proof presented and Witschey bearing the burden of proof, we cannot say that the family court abused its discretion or misapplied the law in denying his motion to modify custody. And its findings of fact are not clearly erroneous. Thus, we are not at liberty to disturb the family court's ruling under the deferential standard of review recognized in Berzansky, 583 S.W.3d at 7.
No Reversible Error in Ordering Child Support Payment Despite
Agreed-Upon Provision in Divorce Decree that Witschey
Pay Private School Costs in Lieu of Child Support
We review the family court's child support order under an abuse of discretion standard of review as "[t]he trial court is vested with broad discretion in the establishment, enforcement, and modification of child support." Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010).
Witschey argues that the family court "altered the balance of the Separation Agreement" and argues for enforcement of its provisions about child support. He asserts that he arranged to have Child's private school tuition and costs "paid for from a designated education trust fund" and that Miller's agreement to him paying these school costs in lieu of child support "is an indication that monies were not needed or desired as child support per the guidelines." He also argues that modifying this agreement "implies that the intent of the child support statute is either punitive or designed to benefit someone other than the child."
Family Court Had Authority to Consider Child Support Modification
Despite Child Support Decree Being Based on Parties' Agreement
Despite Witschey's arguments that the family court should not disturb the parties' agreement about child support, the family court retained control over child support and was not bound by the parties' agreement on child support. Nelson v. Ecklar, 588 S.W.3d 872, 876 (Ky. App. 2019) (citing Tilley v. Tilley, 947 S.W.2d 63, 65 (Ky. App. 1997)). Thus, it had the authority to modify child support obligations under the divorce decree despite these obligations being based upon the parties' agreement if statutory standards for granting modification were met. See id. at 876-77 (affirming trial court's ordering party to pay child support under guidelines despite earlier agreed child support order providing for expense- sharing but no child support payments, as standard for modifying child support decree in KRS 403.213 was met); Tilley, 947 S.W.2d at 66 (affirming trial court's granting motion to increase child support despite separation agreement provisions to deviate from child support guidelines with lower child support payment, as the KRS 403.213 standard for modification was met). In short, there was nothing improper in the family court revisiting child support to determine if modification was appropriate despite the parties having agreed to the child support provisions of the decree.
Family Court's Findings Concerning Whether Witschey Agreed to
School Change Were Neither Clearly Erroneous nor Determinative
The family court found that Child began attending public school in January 2017, that Miller "testified credibly" that Witschey had agreed to the change in schools, and that Witschey "denied that he agreed to it." Witschey argues in his brief that Miller did not consult or inform him when Child changed schools and that there was no "good cause" for the change and that she must have never intended to comply with the agreement. Miller asserts that Child chose to change schools and that the change has benefitted him in many important ways, and she asserts that Witschey did not object to the change until recently and suggests that his objection is motivated by wanting to avoid being ordered to pay anything.
Witschey argues that the family court's finding that Miller testified credibly is contrary to the testimony, and he contends that Miller committed perjury in testifying that he agreed to the change in schools. He contends that Miller's claims that he agreed to the change could not have occurred, because a domestic violence order prohibiting him from any contact with her was in place when Child changed schools in January 2017. Therefore, any agreement would have had to have occurred in writing and through counsel and he asserts there is no record of that. From our review of the video recording of the hearing, the family court reviewed records about the DVO and orally concluded that the DVO was in place when Child changed schools in January 2017 and the DVO did not contain an exception for communications about Child. Miller concedes that her "memory may have been faulty on the dates because it was years ago," but she asserts that she made no deliberate false statements to the trial.
We note that the family court did not discuss the DVO in its written findings on the child support motion. It only briefly discussed the proof about whether Witschey had agreed to the change in schools, instead focusing most of its discussion on the parties' present financial circumstances. It found only that Witschey denied agreeing to the change in schools and that Miller "testified credibly" that he did agree to the change without specifically finding when or how any agreement was expressed. We must give due regard to the family court's opportunity to judge the credibility of witnesses and cannot set aside its findings of fact unless they are clearly erroneous. CR 52.01.
Based on our review of the testimony, the family court's findings that Witschey denied agreeing to the change and that Miller testified to him agreeing to the change are not clearly erroneous. Even with the DVO in place in January 2017, the family court's finding that Miller's testimony was "credible" is entitled to due regard due to the family court's opportunity to judge the credibility of witnesses. Perhaps the parties could have communicated despite the existence of the DVO or Witschey could have communicated agreement at some other point or in some other way such as not challenging the change after becoming aware of it.
Not only are these findings not clearly erroneous, but they are not determinative of the family court's resolution of Miller's child support motion as the family court clearly focused on present financial circumstances—including the parties' income or earning capacity and costs of supporting Child—rather than on past circumstances such as whether Witschey agreed to the school change particularly as Miller had sole custody. Thus, any error in these findings would be harmless. CR 61.01 ("The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.").
Actual Ruling on Motion Did Not Permit Retroactive
Child Support Modification
The family court's written findings acknowledged that under the parties' agreement, Witschey was required to pay the costs of Child attending private school in lieu of child support. It noted that Child's older sibling had already turned 18 and graduated high school in 2017 and it did not award child support for the older child. It also noted that the motion to establish child support was not filed until June 17, 2019, and it ruled that any award of child support could not be effective prior to that date. Although the family court did not explicitly mention KRS 403.213(1), its ruling was consistent with KRS 403.213(1)'s requirement that "[t]he provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification . . . ."
Having considered proof of Miller' s income and imputing minimum wage to Witschey, the family court determined that Witschey should pay $255.16 per month child support under the guidelines effective June 17, 2019. Neither party has alleged any error in the family court's calculation of the monthly child support obligation under the Kentucky Child Support Guidelines. See generally KRS 403.211, KRS 403.212, and KRS 403.213. Furthermore, other than Witschey's unsupported assertions, there is no indication that the family court's resolution of Miller's child support motion was for Miller's personal benefit or to punish Witschey in any way.
In short, the family court did not abuse its discretion in resolving Miller's child support motion.
Clerical Errors in Uniform Child Support Order
to Be Corrected on Remand
As both parties recognize in their briefs, the Uniform Child Support Order form was filled out in a way that was inconsistent with the family court's ruling on Miller's child support motion. The form as filled out incorrectly states that the effective date of the child support obligation was January 1, 2017, and that the ordered child support was by agreement of the parties. We agree with Miller that these appear to be clerical errors. Under CR 60.01,
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court.
In the interest of judicial economy, we remand to the family court to correct clerical errors in the Uniform Child Support Order by stating the correct effective date of June 17, 2019, and checking the box for the child support being "as determined by the KY Child Support Guidelines[.]"
CONCLUSION
For the foregoing reasons, we affirm the judgment of the Allen Family Court but remand to correct clerical errors in the Uniform Child Support Order to properly reflect an effective date of June 17, 2019, and to check the box for "as determined by the KY Child Support Guidelines[.]"
THOMPSON, L., JUDGE, CONCURS.
DIXON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Charles Henry Witschey, pro se
Scottsville, Kentucky BRIEF FOR APPELLEE: Lori Ann Miller, pro se
Scottsville, Kentucky