Opinion
NO. 2016-CA-001236-ME
05-19-2017
BRIAN M. GOFFINET APPELLANT v. ERIN L. BESHEAR APPELLEE
BRIEF FOR APPELLANT: William G. Deatherage, Jr. Benjamin R. Talley Hopkinsville, Kentucky BRIEF FOR APPELLEE: Jennifer Sacharnoski Nelson Princeton, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE CLARENCE A. WOODALL III, JUDGE
ACTION NO. 13-CI-00026 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. MAZE, JUDGE: Brian Goffinet appeals from an order of the Caldwell Circuit Court modifying his child support obligation. He argues that the custodial parent, Erin L. Beshear, failed to adequately document the child's or the household's expenses, and that the trial court improperly included certain amounts which were not properly attributable to the child. We conclude that the trial court properly considered Beshear's testimony about expenses without supporting documentation, but erred by including amounts which were attributable solely to an unrelated adult member of the household. However, we disagree with Goffinet that the trial court abused its discretion by designating the modification of support as prospective from the date of the order. Hence, we affirm in part, reverse in part, and remand for additional findings and entry of a new support order.
The relevant facts of this case are not in dispute. In 2007, Goffinet and Beshear were divorced by a decree of the Warrick County (Indiana) Superior Court. The Indiana decree contained provisions for custody and support of their one child, L.G.G. Beshear was designated as L.G.G.'s custodial parent, and Goffinet was required to pay $67 per week in child support.
By 2013, both parents and the child were residents of Kentucky. Beshear filed motions in the Caldwell Circuit Court to register the Indiana decree, and to modify child support. The trial court granted the motion to register the foreign decree and held a hearing on the motion to modify child support. Thereafter, on September 25, 2013, the trial court entered findings of fact, conclusions of law and an order granting the motion to modify child support. The trial court increased Goffinet's child support to $970.15 per month, effective retroactively to March 8, 2013.
Subsequently, in 2015, Goffinet left his employment as a pharmaceutical sales representative in Louisville. He relocated to the Columbus, Ohio area, and began working at a "start-up" company. However, the new position did not generate the income which Goffinet had expected, and he earned only $50,000 in gross income in 2015. In January 2016, Goffinet took a new position as a pharmaceutical sales representative with a different company in the Columbus area. His base pay is approximately $85,000 per year, and he is eligible for bonuses and incentive pay of up to $20,000 per year. This amount is still less than Goffinet earned while in Louisville.
Based on his reduction in income, Goffinet moved to modify his child support obligation. After conducting an evidentiary hearing on the motion, the trial court entered findings of fact, conclusions of law and an order granting the motion. The trial court first found that Goffinet was voluntarily underemployed. Based on his average income for the prior four years (but excluding 2015), the court calculated his earning capacity to be $9,601.12 per month. Goffinet does not appeal from these findings.
The court also noted that the parents' combined adjusted gross income was in excess of the Child Support Guidelines of KRS 402.212. Consequently, the court took evidence concerning L.G.G.'s reasonable needs. Based on Beshear's testimony, the trial court found that the child had reasonable monthly expenses of $747.50 per month. The trial court also found that Beshear's total reasonable household expenses were $6,820, of which 1/7, or $974.28, were attributable to L.G.G. Accordingly, the court determined that L.G.G.'s average monthly reasonable needs are $1,721.78.
Kentucky Revised Statutes.
Since Goffinet's imputed income represents 48% of the combined parental income, the trial court found that his child support obligation should be $826.45. Although the new amount was slightly less than a 15% change in his monthly support obligation, the court concluded that it constituted a material change that was substantial and continuing. KRS 403.213. However, the court found that it would not be equitable to begin the new support obligation earlier than August 1, 2016. Goffinet now appeals from this order.
The child support guidelines set out in KRS 403.212 serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines only upon making a specific finding that application of the guidelines would be unjust or inappropriate. KRS 403.211(2). However, any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation. Id. KRS 403.211(3)(e) specifically designates that "combined monthly adjusted parental gross income in excess of the Kentucky child support guidelines" is a valid basis for deviating from the child support table. See also KRS 403.212(5).
In the current case, the parties' combined adjusted parental gross income exceeds the uppermost level of the guidelines table, so the trial court properly deviated from the Guidelines. Under these circumstances, the trial court's decision to set child support above the guidelines must be based primarily on the child's needs, as set out in specific supporting findings. Downing v. Downing, 45 S.W.3d 449, 456 (Ky. App. 2001). The concept of "reasonable needs" is flexible and may vary depending upon the standard of living to which they have become accustomed. Id. at 457.
Any assessment of the child's reasonable needs should also be based upon the parents' financial ability to meet those needs. Factors which should be considered when setting child support include the financial circumstances of the parties, their station in life, their age and physical condition, and expenses in educating the children. The focus of this inquiry does not concern the lifestyle which the parents could afford to provide the child, but rather it is the standard of living which satisfies the child's reasonable and realistic needs under the circumstances. Thus, while a trial court may take a parent's additional resources into account, a large income does not require a noncustodial parent to support a lifestyle for his children of which he does not approve.Id.
Goffinet primarily argues that Beshear failed to adequately document the child's and the household's expenses, and that the trial court erred by accepting her testimony without such documentation. We disagree. A trial court's 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. CR 52.01. Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002), overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008). "A factual finding is not clearly erroneous if it is supported by substantial evidence." Sherfey, 74 S.W.3d at 782. "Substantial evidence" is "evidence of substance and relevant consequence sufficient to induce conviction in the minds of reasonable people." Id.
Kentucky Rules of Civil Procedure. --------
The Kentucky Supreme Court has interpreted KRS 403.212(2)(f) as a requirement that the parties file fully-documented income statements in dissolution cases that present child custody issues. Schoenbachler v. Minyard, 110 S.W.3d 776, 784 (Ky. 2003). However, there is no similar requirement for documentation of expenses. In this case, Beshear testified extensively about the child's and the household's expenses. The trial court recognized that the figures given were estimates, but nevertheless found her testimony to be credible.
Furthermore, in calculating a child's needs, the trial court may consider expenses which are reasonable and necessary given the parents' income, even if the expenses have yet to be incurred. McCarty v. Faried, 499 S.W.3d 266, 274 (Ky. 2016). Thus, while documentation is usually a more reliable method of proving expenses, we cannot say that the trial court clearly erred by accepting Beshear's testimony without such documentation. Id.
However, we agree with Goffinet that the trial court erred in its calculation of Beshear's household expenses. In her list of expenses, Beshear included $1,000 per month in college expenses for Makenzie Beshear, the adult daughter of Beshear's husband. Beshear conceded that Goffinet is not responsible for this expense, and we agree that the trial court should not have considered the expense in apportioning the total household expenses attributable to L.G.G.
Beshear responds that any error in this regard is harmless. Even if the trial court improperly included Makenzie's college expenses, Beshear notes that the trial court also divided the total household expenses by seven, which included Makenzie as a member of the household. She argues that if Makenzie's expenses are removed from the household, then the remaining household expenses should only be divided by six, and Goffinet's monthly support obligation would be reduced only by $2.04 per month.
However, the calculation of Beshear's household expenses and L.G.G.'s share of those expenses are factual matters for the trial court to decide. In the proceedings below, the trial court included Makenzie as a member of the household and divided the total household expenses accordingly. While Makenzie's college expenses should not have been included as part of the household expenses, the trial court must determine whether she should be included as a member of the household for purposes of determining the other household expenses. Under the circumstances, we must remand this matter for additional findings.
Finally, Goffinet argues that the trial court abused its discretion by declining to make the modification of his child support obligation retroactive to the date of his motion. We disagree. It is undisputed that the effective date of any increase in child support is within the sound discretion of the trial court. McCarty, 499 S.W.3d at 275, citing Giacalone v. Giacalone, 876 S.W.2d 616, 620 (Ky. App. 1994). Goffinet points out that the trial court made the prior increase in his child support retroactive to the date of Beshear's motion, but declined to do the same on his motion to decrease child support. Goffinet maintains that it was unfair to hold his motion to a different standard than Beshear's.
However, the trial court found that Goffinet voluntarily reduced his income (albeit in good faith), and that his child support obligation should be based upon an average of his incomes both before and after 2015. We conclude this was a reasonable basis to make the new support obligation prospective only. Consequently, the trial court did not abuse its discretion in so finding.
Accordingly, the July 15, 2016 order of the Caldwell Circuit Court is affirmed in part, reversed in part, and remanded for additional findings and entry of a new support order as set forth in this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: William G. Deatherage, Jr.
Benjamin R. Talley
Hopkinsville, Kentucky BRIEF FOR APPELLEE: Jennifer Sacharnoski Nelson
Princeton, Kentucky