Bridwell v. Steven Bd.

THOMPSON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE ANGELA J. JOHNSON, JUDGE
ACTION NO. 15-CI-500887 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

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BEFORE: ACREE, D. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Tara Bridwell appeals from an order of the Jefferson Family Court determining issues concerning child support for a son she shares with Steven Board. Bridwell presents the following arguments: (1) the family court erred when it suspended Board's child support during the three months he has custody of son; (2) the family court erred when it deducted from Board's gross income amounts paid for child support for a prior-born child; (3) the family court erred when it did not allocate the costs of health insurance and extraordinary medical expenses between the parties; (4) the family court erred when it did not allocate child care expenses between the parties; and (5) the family court erred when it did not award a judgment for child support arrearages. We conclude that as to the first issue, the family court did not abuse its discretion and affirm. As to the remaining issues, we reverse and remand.

Bridwell and Board never married but cohabitated during the first three and one-half years of son's life. When the relationship ended in 2015, Bridwell sought custody of son and child support. In a temporary order, the family court awarded joint custody and ordered Board to pay $73.49 per week in child support. Mediation of a permanent arrangement was unsuccessful.

On February 27, 2010, the family court issued an order awarding joint custody but reserving ruling on several issues. Bridwell filed a motion to alter, amend, or vacate that order pursuant to Kentucky Rules of Civil Procedure (CR) 59.05, alleging that the family court failed to address a litany of issues including child support, responsibility for health insurance coverage and extraordinary medical expenses, child care costs, a judgment for child support arrearages and which parent was to claim the tax exemption for child. Board also filed a motion to modify child support based on his income.

Following a hearing, the family court issued its order awarding joint custody to the parties with Bridwell having custody during the school year and Board having custody of son three months during the summer. The family court also awarded child support based on its finding that Bridwell earned 65.4 percent of the parties' combined adjusted gross income and Board earned 34.6 percent. For purposes of calculating child support, the family court reduced Board's gross income by $300, the child support amount he pays for a prior-born child. The family court also suspended Board's child support for son during the time he has custody of son during the summer months. Additionally, each parent was ordered to pay their own costs for health insurance and child care. The federal tax exemption was awarded to Bridwell. The family court did not allocate unreimbursed extraordinary medical expenses. Although requested, the family court declined to grant Bridwell a judgment for $11,150.45 in arrearages owed by Board concluding that it "cannot order [Board] to pay such an exorbitant amount that would render compliance impossible." However, the family court ordered Board to pay an additional $100 per month until the arrearage was satisfied. Bridwell appealed.

The Kentucky Child Support Guidelines create a rebuttable presumption for the establishment of child support. Kentucky Revised Statutes (KRS) 403.211(2). Bridwell argues that deviation from those guidelines is not permitted based on the amount of time a child resides with a parent. We conclude that the family court acted within its discretion.

The family court has discretion to deviate from the guidelines "where their application would be unjust or inappropriate." Id. This Court has previously held that whether a deviation from the child support guidelines based on the time a child spends in the custody and care of a parent obligated for support is a matter within the family court's discretion. In Downey v. Rogers, 847 S.W.2d 63, 64 (Ky.App. 1993), we noted that the guidelines provide "sufficient flexibility to allow our [family] courts to fashion appropriate orders." That flexibility permits the family court to "take into consideration the period of time the children reside with each parent in fixing support[.]" Id. at 65.

In Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky.App. 2007), this Court reaffirmed Downey and concluded that a family court's decision to deviate from the guidelines and suspend child support during the period of time a child resides with the parent obligated to pay support was not an abuse of discretion. This Court noted that a family court "may deviate from the child support guidelines when it finds that their application would be unjust or inappropriate[,]" and held that "[t]he period of time during which the children reside with each parent may be considered in determining child support[.]" Id.

"The test for abuse of discretion in reviewing the trial court's decision is whether the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Clary v. Clary, 54 S.W.3d 568, 570 (Ky.App. 2001). While the family court was not required to suspend Board's child support payments during the summer months, we cannot say it abused its discretion. As found by the family court, Board's income is substantially less per month than Bridwell's. During the three continuous months son resides with him, he must provide shelter and food and will incur other expenses to care for son. Although Bridwell argues that when son resides with Board, she will be required to maintain a household suitable for son, the same can be said for Board who must maintain a suitable household when son is with Bridwell. Under our standard of review, this Court will not disturb the family court's decision.

The family court gave Board credit for child support he pays for a prior-born child. Bridwell argues that Board's testimony that he has a prior-born child and pays $300 per month in child support for that child is insufficient evidence upon which the family court could credit Board with that amount.

For purpose of calculating child support, under KRS 403.212(2)(g)(2), "combined monthly adjusted parental gross income" is the combined monthly gross incomes of both parents, less the "amount of pre-existing orders of current child support for prior-born children to the extent payment is actually made under those orders[.]" (Emphasis added.)

The family court relied solely on Board's testimony that he has a prior-born child and that he pays $300 per month in support for that child. While the family court may have discretion as the fact-finder to believe or disbelieve Board's testimony, the statute requires that the family court find the amount previously ordered to be paid and that it is actually paid. Board's testimony alone simply cannot establish the existence of a court order. Moreover, Board's testimony that he complies with that order without any supporting documentation is of little probative value. The fact that Board admitted he is in arrears as to son belies his testimony that he pays the support payments for his other child. The child support guidelines reductions of gross income require much more than self-serving testimony. The family court's reduction of Board's gross income based solely on Board's testimony was not in conformity with KRS 403.212(2)(g)(2) and, therefore, an abuse of discretion.

Bridwell argues that the family court erred in failing to apportion the costs of the child's health insurance coverage between the parents as required by KRS 403.211(7), or providing adequate reasoning, pursuant to KRS 403.211(3), for that failure. Bridwell offered proof during the June 2016 hearing that she provides private health insurance for the child, through her employer, at a cost to her of $160.29 per month. Board testified that he receives his health insurance from the state of Indiana at no cost to himself, and that during the months that the child resides with him, coverage would be provided under the same terms. The family court ordered both parents to pay their own health insurance costs, which Bridwell contends places an undue burden on her to solely provide for the child's healthcare needs.

In the recent legislative session, amendments were made to KRS 403.211(7) but those amendments do not change our reasoning. --------

KRS 403.211(7)(a) provides that if health care coverage is both available and reasonable in cost, the court shall order a parent to maintain such coverage and allocate the cost between the parents in proportion to their share of the combined monthly adjusted gross income, regardless of which parent has physical custody. KRS 403.211(7)(c). Although a family court may deviate from the guidelines, it must provide adequate written findings justifying why the decision is just or appropriate. KRS 403.211(3).

The family court offered no specific findings relating to health coverage aside from the costs. It offered no reason as to why the child would need a second health insurance policy in addition to that provided by Bridwell. Given that the statute specifically requires a parent to provide health coverage if available and affordable, and that the family court had no authority to bind the state of Indiana to bear the cost of covering a Kentucky citizen, we must conclude the family court abused its discretion in failing to comply with KRS 403.211(7)(a) and allocate the costs of the private health coverage between the parents.

The same reasoning applies to the allocation of extraordinary medical costs pursuant to KRS 403.211(9). The family court failed to address this issue entirely and, thus, made no specific findings regarding deviation from the statutory requirement that any extraordinary medical expenses be allocated between the parents.

We also agree with Bridwell that the family court erred when it did not allocate child care costs. KRS 403.211(6) provides:

The court shall allocate between the parents, in proportion to their combined monthly adjusted parental gross income, reasonable and necessary child care costs incurred due to employment, job search, or education leading to employment, in addition to the amount ordered under the child support guidelines.

During the nine months son lives with Bridwell, she will pay $300 per month for child care. When son lives with Board, he expects to pay approximately $240 for similar services. The family court ordered the parties to bear their own costs. Bridwell argues that the failure to allocate these costs places a disproportionate burden on her, and the family court's failure to make appropriate findings justifying this deviation from the statute amounts to an abuse of discretion.

The family court's decision requires Bridwell to pay an annual total of $2,700 in child care costs, and Board to pay $720. If these costs were allocated according to the parties' relative proportion of adjusted gross income as required by the statute, Bridwell would pay $2,236.68, and Board would pay $1,183.32. The family court's finding that Bridwell earns significantly more money than Board does not justify this disparity in imposing child care costs. The family court, in failing to make findings justifying its deviation from the statute, abused its discretion.

Finally, we conclude the family court erred when it did not award a judgment for the child support arrearage. Although the family court acknowledged the significant arrearage Board had accumulated, it declined to enter a judgment against Board for that outstanding sum. Rather than entering the judgment, the family court ordered Board to pay an additional $100 per month toward the arrearage above the monthly payments for child support it ordered.

Given the family court's acknowledgment of Board's history of non-payment, this refusal is troubling. Moreover, by declining to enter a judgment, the family court has precluded Bridwell from seeking enforcement of its child support order through garnishment. See KRS 425.501.

For the reasons stated, the judgment of the Jefferson Family Court is affirmed regarding the suspension of child support owed by Board during the summer months when son resides with him. The judgment is reversed and remanded with directions that Board's gross income not be reduced by $300. The family court is directed to allocate health insurance, extraordinary medical expenses and child care costs in accordance with KRS 403.211 or to make written findings to support any deviation from that statute. Finally, the family court is directed to enter a judgment in Bridwell's favor for any child support arrearage.

ACREE, JUDGE, CONCURS IN PART AND DISSENTS IN PART.

LAMBERT, D., JUDGE, CONCURS IN PART AND DISSENTS IN PART.

ACREE, JUDGE, CONCURRING, IN PART, AND DISSENTING, IN PART: Respectfully, I dissent, in part, from the majority opinion.

The majority applies an abuse of discretion standard to reverse the factfinding of the family court that Board pays child support pursuant to a pre-existing court order. This ignores the proper standard of review required by CR 52.01 - the clearly erroneous standard. That standard should have been applied but was not.

More significantly, the only evidence bearing on the question of fact was Board's testimony. It was certainly within the scope of the family court's authority to believe Board's testimony and rely on that evidence. The majority opinion usurps the role of the family court as factfinder and reweighs the evidence, ruling that Board's testimony was not to be believed. This is not the reviewing court's role.

Board's sworn "testimony is evidence[.]" Bob Hook Chevrolet Isuzu, Inc. v. Commonwealth Transp. Cabinet, 983 S.W.2d 488, 492 (Ky. 1998) (emphasis added); see also Evidence, BLACK'S LAW DICTIONARY (10th ed. 2014) ("evidence n. (14c) 1. Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact . . . ." (emphasis added)). Based on that evidence, the family court made two findings of fact: (1) "[t]he Respondent [Board] has a prior born child" and (2) "he pays $300 in child support" for that prior born child. On appellate review, those "[f]indings 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." CR 52.01. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." U.S. v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948) (recognized by Petter v. Jackson, 298 S.W.2d 289, 290 (Ky. 1957)). Although the majority speculates that Board's testimony cannot be supported, the "entire evidence" actually in the record does not reasonably lead one to such a conviction.

The best Bridwell presents to challenge these findings is Board's paystub which she notes shows no deduction for child support. The paystub is evidence Board did not pay child support by payroll deduction and perhaps even that no wage garnishment was in effect for that pay period, but it cannot fairly be said that such evidence refutes Board's testimony or is countervailing proof that he did not pay prior child support at all.

We might have expected Bridwell to base her argument on evidence that contradicted Board's testimony. For example, we might have expected to see testimony of the prior child's mother as proof Board was not paying child support to her, but Bridwell did not present such evidence. Nor did she present an order indicating non-payment from the court that established the prior born child support obligation. On the record before us, Board's testimony is "the entire evidence" as U.S. Gypsum calls it and his testimony is all there is for us to consider. When the only competent evidence in a case is one party's sworn testimony, that is a sufficient quantum of evidence upon which a court may base a factual finding. That was the basis of this family court's findings and such "findings of the trial court will not be disturbed unless there exists no substantial evidence in the record to support its findings." W.A. v. Cabinet for Health and Family Services, Commonwealth, 275 S.W.3d 214, 220 (Ky. App. 2008) (emphasis added). Board's testimony is "substantial evidence, that is, evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Kimbler v. Arms, 102 S.W.3d 517, 522 (Ky. App. 2003) (internal quotation marks and citation omitted).

Undaunted by the lack of countervailing evidence, Bridwell effectively asks this Court to substitute its judgment for that of the family court and find Board's substantial evidence insufficient because it was not bolstered by documentary proof. We cannot reweigh this evidence because even "[w]hen the evidence is conflicting, . . . we cannot and will not substitute our decision for the judgment" of the family court. Wells v. Wells, 412 S.W.2d 568, 571 (Ky. 1967). It was the prerogative of the family court to demand corroborative evidence if it doubted Board's testimony. But if the family court did not doubt it, as it obviously did not, it is not the prerogative of this Court to compel bolstering evidence.

The majority ignores the only competent, substantial evidence on this question and reverses the family court based on faulty logic that, because Board failed to pay child support to Bridwell, there is reason to believe he failed to pay child support for the prior child. That is pure speculation and speculation is not enough to justify setting aside the family court's findings as clearly erroneous.

For these reasons, I dissent as to that portion of the majority opinion. As to the remainder of the opinion, I concur.

LAMBERT, D., JUDGE, CONCURRING IN PART, AND DISSENTING IN PART: I concur with my colleagues in the majority, in all respects, except the trial court's "pausing" of Board's child support responsibilities during the summer months. As to that issue, I must respectfully dissent. KRS 403.211(2) does not allow for a "pause" in a parent's continuing responsibility to support their own children when doing so would impair the ability of the other parent to meet the child's needs. For that reason, I would hold that the trial court abused its discretion in deviating from the statutory guidelines.

The provisions of KRS 403.211(3) govern when a court may deviate from the guidelines. The statute requires a "written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate[.]" Id. The statute also provides a list of circumstances in which deviation is appropriate, including: the child's extraordinary medical, dental, or educational needs, extraordinary needs of either parent, any independent financial resources of the child, combined parental income exceeding that contemplated in the guidelines, the parents agree to the deviation, or any similar factor of extraordinary nature. KRS 403.211(3)(a)-(g).

The trial court justified the deviation from the guidelines based on the disparity in the parents' incomes and the fact that the child will live with Board for three months out of the year. However, the child support calculation formula incorporates each parent's income and its relative percentage to the combined parental income. The trial court's justifications have no explicit basis in the provisions of KRS 403.211(3). More importantly, the ruling fails to account for the child's needs that Bridwell bears responsibility for on a year-round basis. While KRS 403.211(4) permits the trial court to exercise its discretion in determining what factors are "extraordinary," a court must still give appropriate written justification for doing so. McIntosh v. Landrum, 377 S.W.3d 574, 577 (Ky. App. 2012) (quoting Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396 (Ky. App. 2000)).

The trial court's justification for the deviation did not consider the recurring expenses related to the child which Bridwell bears even during the time Board would have custody. Because the trial court's order fails to consider those needs of the child, it does not conform with the legislative intent behind KRS 403.211(3).

Further, the majority relies on Downey v. Rogers, 847 S.W.2d 63 (Ky. App. 1993), and Plattner v. Plattner, 228 S.W.3d 577 (Ky. App. 2007), which are factually distinguishable from the instant appeal. In both cases, the parents were awarded equal parenting time with their children throughout the entire year.

In Plattner, this Court held that the trial court's deviation from the guidelines was appropriate in deciding the father's motion to modify because neither party had primary legal custody, because the child-related expenses were equal, and because the mother's income had substantially increased since the entry of the order establishing child support. Plattner, 228 S.W.3d at 579.

In Downey, both parties appealed the trial court's decision to modify the father's child support obligation. The mother contended that the trial court had erred in reducing the father's obligation, and the father argued that the reduction, which conformed with the statutory guidelines, was not enough. Though this Court ultimately reversed the modification due to an erroneous finding of a material change in the father's circumstances, we also noted that the trial court's adherence to the child support guidelines was appropriate. The trial court had "considered various alternatives but decided to utilize the guidelines without deviating therefrom[,]" and this Court found "no abuse of discretion in this regard, particularly in light of the evidence showing [the father]'s greater ability to pay and the fact that all expenses are not equally shared by the parties." Downey, 847 S.W.2d at 65. This Court opined that the trial court could account for the time the children spent with their father, and deviate from the guidelines in doing so if the father proved the applications of the guidelines "would be unjust." Id. The burden is thus placed on the party seeking the deviation to prove the inequity of their application.

Here, however, the parents have a more traditional schedule and do not split time equally. Therefore, the equal timeshare between the parents throughout the year that justified the deviation from the guidelines in both Plattner and Downey does not apply here. The visitation schedule simply places the child primarily with one parent during the school year, and much of the summer break with the other, out of state, parent.

Accordingly, I would hold that the trial court abused its discretion in "pausing" Board's obligation during the summer months. BRIEF FOR APPELLANT: Bryan Gowin
Louisville, Kentucky BRIEF FOR APPELLEE: No brief filed