Opinion
NO. 2013-CA-002167-ME
07-11-2014
MARK EDWARD STINNETT APPELLANT v. BARBARA ANN STINNETT APPELLEE
BRIEFS FOR APPELLANT: Richard M. Guarnieri Frankfort, Kentucky BRIEF FOR APPELLEE: Ricky Pope Midway, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN FAMILY COURT
HONORABLE SQUIRE N. WILLIAMS III, JUDGE
ACTION NO. 07-CI-00748
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND THOMPSON, JUDGES. THOMPSON, JUDGE: Mark Edward Stinnett appeals from the order denying his motion to modify child support.
Mark and Barbara Ann Stinnett divorced in 2007. At that time, Mark's monthly income was $5,110 and Barbara's monthly income was $4,166. As part of their settlement agreement, they agreed to joint custody with equal timesharing. The agreement stated Mark would pay $823 a month in child support and specifically provided "[t]he parties are aware that said amount is a deviation from the Kentucky Child Support Guidelines but agree that said amount is fair and reasonable under the present circumstances[.]" This amount was an upward deviation from Mark's guideline amount.
In 2013, Mark sought to have his child support obligation reduced based on the following changes: Barbara was no longer paying child care costs, Mark's health insurance premium cost had doubled, Mark now had the child on Sunday evenings, Mark moved to Lexington and did most of the transporting of the child to and from timesharing, Mark remarried, Barbara remarried or is cohabitating and changes in both parties' incomes. The change in the parties' incomes was that Mark's monthly income increased by 22%, to $6,253 and Barbara's monthly income increased by 6%, to $4,436.
The family court denied the motion to modify determining these changes were not sufficient for modification and it would enforce the parties' settlement agreement. Mark appealed.
Mark argues the family court abused its discretion by finding he was bound by the settlement agreement and there was no change in circumstances justifying modification, where he established the rebuttable presumption of a change of circumstances because $823 a month is more than 15% above what he is obligated to pay under the guidelines and Barbara did not rebut this presumption.
We will defer to a family court's discretion in reviewing orders regarding modification of child support "as long as the [family] court gives due consideration to the parties' financial circumstances and the child's needs, and either conforms to the statutory prescriptions or adequately justifies deviating therefrom[.]" Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.App. 2000). However, the family court abuses its discretion to the extent its "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App. 2001).
[I]n any proceeding to modify a support order, the child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support. Courts may deviate from the guidelines where their application would be unjust or inappropriate. Any deviation shall be accompanied by a written finding or specific finding on the record by the court, specifying the reason for the deviation.KRS 403.211(2).
A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:KRS 403.211(3).
. . .
(f) The parents of the child, having demonstrated knowledge of the amount of child support established by the Kentucky child support guidelines, have agreed to child support different from the guideline amount. . . .
KRS 403.213(1) provides child support may be modified "only upon a showing of a material change in circumstances that is substantial and continuing."
Application of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances.KRS 403.213(2).
Courts will enforce knowing agreements to pay child support in excess of the guideline amounts or a child's reasonable needs. Pursley v. Pursley, 144 S.W.3d 820, 824-826 (Ky. 2004). While courts are not bound to enforce a settlement agreement on child support, an upward deviation from the guideline amount is permissive; "no one can convincingly argue that the best interests of the children are not served when their parents agree to support in excess of the amount established by the Guidelines." Id. at 825. However, the family court still retains control to modify child support from any agreed amount. Tilley v. Tilley, 947 S.W.2d 63, 65 (Ky.App. 1997). When considering a motion to modify child support that was set by agreement, the family court applies the KRS 403.213(2) presumption even where the parties' income has not changed substantially since child support was originally established. Id. at 65-66.
Where a parent's current income level is considerably higher than when the amount of child support was set, there is no basis for decreasing that level of child support below the previous amount. Downing, 45 S.W.3d at 454. Voluntary actions that increase the cost of exercising timesharing or create additional obligations on a parent's salary do not constitute material changes in circumstances requiring departure from a previously negotiated child support amount in excess of guideline requirements. See Downey v. Rogers, 847 S.W.2d 63, 65 (Ky.App. 1993).
The family court acted properly within its discretion in making findings that Mark's increase in salary, when combined with other changes, did not warrant decreasing his child support obligations where he had agreed to pay above the guideline amount. The settlement agreement provided a proper basis to deny modification and continue an upward deviation from the guideline amount.
Accordingly, we affirm the Franklin Family Court's order denying the motion to modify.
ALL CONCUR. BRIEFS FOR APPELLANT: Richard M. Guarnieri
Frankfort, Kentucky
BRIEF FOR APPELLEE: Ricky Pope
Midway, Kentucky