Opinion
NO. 2017-CA-000330-ME
03-02-2018
DARLA DIGGS (N.K.A. MANN) APPELLANT v. CHRISTOPHER DIGGS APPELLEE
BRIEF FOR APPELLANT: Hugh Will Barrow Louisville, Kentucky BRIEF FOR APPELLEE: Armand I. Judah Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DEANA C. MCDONALD, JUDGE
ACTION NO. 11-CI-503781 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, COMBS, AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: This is an appeal from an order awarding child support. The Jefferson Family Court determined Darla Diggs was voluntarily underemployed and imputed an income that reflected a higher earning potential. After review, the family court based its findings on evidence that was excluded, by the family court, from the underlying child support hearing. We therefore vacate and remand.
I. BACKGROUND
Darla and Christopher Diggs dissolved their marriage in March 2012. When they divorced, they originally agreed to share custody of their minor daughter without either party paying child support. Alleging changed circumstances, Christopher filed a motion for child support in February 2016.
The family court held a hearing on Christopher's child support motion in August 2016. During that hearing, Darla testified that her yearly income was $85,000 per year. She submitted her 2015 Federal Income Tax Returns, which confirmed that she earned $82,529 in 2015. She also informed the family court that she had changed jobs in November 2015, but earned similar total compensation at her new position.
Following the hearing, Darla filed a motion to re-open the hearing and supplement the record. Darla's annual salary had been reduced to $60,000, and she sought to introduce this changed condition into evidence. In response, Christopher took the opportunity to clarify for the record that Darla earned between $90,000 and $92,000 per year at her former job, rather than $85,000. Christopher cited an October 2015 deposition, where Darla claimed the higher earnings. He also argued that the $60,000 figure only referred to salary and did not account for bonuses. The family court denied Darla's motion to re-open the proof in October 2016.
Two months later, the family court entered an order in which it found Darla voluntarily underemployed. It accordingly set her child support obligation based on an imputed annual income of $90,000. The family court wrote that it had "received evidence that [Darla] was previously employed where she earned approximately $90,000 per year. Evidence is that she earns approximately $60,000 in her current employment." The family court anchored its finding of voluntary underemployment with the following explanation: "[Darla] left a relatively long employment for a position that required her to take a pay cut. She has significant experience and has historically earned a handsome income with her previous employer." Overall, Darla's child support obligation was set at $843.83 per month.
The family court added a $56.17 surcharge to address an arrearage. With the surcharge, the child support obligation was $900 per month.
Post-judgment, Darla timely filed a motion to alter, amend or vacate pursuant to CR 59.05. In it, she argued the family court incorrectly determined she was voluntarily underemployed. Darla specifically claimed that the family court improperly relied on evidence contained in her motion to re-open proof—a motion the family court denied. Darla also added a claim that "no evidence of a $90,000 income was ever presented at the hearing." These arguments did not sway the family court, which ultimately denied Darla's CR 59.05 motion. This appeal followed.
Kentucky Rules of Civil Procedure. --------
II. STANDARD OF REVIEW
A trial court enjoys broad discretion when evaluating a parent's taxable income and setting appropriate child support based on that evaluation. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008). During its analysis, the trial court may find that a party is voluntarily underemployed and impute income to him. Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 449 (Ky. App. 2012). Such a factual finding will not be set aside on appeal if supported by substantial evidence. CR 52.01.
III. DISCUSSION
On appeal, Darla challenges the portion of the family court's order finding her voluntarily underemployed. Darla contends the family court abused its discretion by relying on the information contained in the motion to re-open proof filed after the August 2016 hearing—namely, that Darla's salary was reduced to $60,000. Darla also contends that the record is devoid of any evidence that she earned $90,000 per year. For the following reasons, we agree.
The appellate record may only consist of matters which were properly considered by the trial court. See Fortney v. Elliott's Adm'r, 273 S.W.2d 51, 52 (Ky. 1954). And here, the family court did not properly decide the voluntary underemployment issue. All evidence related to Darla's reduced $60,000 salary, and her potentially higher income of roughly $90,000, was excluded from evidence when Darla's motion to supplement the record was denied. Nevertheless, the family court cited Darla's $60,000 salary in its December 2016 order to show Darla was voluntarily underemployed and capable of earning $90,000 per year. Accordingly, the family court found Darla voluntarily underemployed based on incompetent evidence and then compounded the error by imputing a higher income based on the improper finding. This was an abuse of discretion. Hence, we vacate the Jefferson Family Court's judgment and remand with instructions that any substantive changes to child support and any voluntary underemployment, must be addressed after a proper hearing.
ALL CONCUR. BRIEF FOR APPELLANT: Hugh Will Barrow
Louisville, Kentucky BRIEF FOR APPELLEE: Armand I. Judah
Louisville, Kentucky