Opinion
NO. 2011-CA-001864-ME NO. 2011-CA-002252-ME
10-05-2012
REX VANHOOSE APPELLANT v. COMMONWEALTH OF KENTUCKY, EX REL., CABINIET FOR HEALTH AND FAMILY SERVICES, AND KEISHA THORNSBERRY APPELLEES
BRIEFS FOR APPELLANT: Robert G. Miller, Jr. Paintsville, Kentucky BRIEF FOR APPELLEES: Michael S. Endicott Paintsville, Kentucky
NOT TO BE PUBLISHED
APPEALS FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 00-J-00124
OPINION
REVERSING AND REMANDING
BEFORE: CAPERTON, COMBS, AND NICKELL, JUDGES. CAPERTON, JUDGE: Rex Vanhoose appeals from two orders of the family court which denied his motions for a reduction of child support due to his termination from his employment and recalculation of child support based on unemployment benefits; said denial of Vanhoose's motions were based on the court's finding that Vanhoose was voluntarily underemployed. On appeal, Vanhoose argues that the court's finding of voluntary underemployment was in error, as was the denial to change his child support payments. After a thorough review of the parties' arguments, the record, and the applicable law, we conclude that the court's finding of voluntary underemployment was not supported by substantial evidence of the record because it is unclear whether the court undertook the requisite statutory considerations prior to finding Vanhoose voluntarily underemployed. Thus, we reverse and remand this matter to the family court for further proceedings.
The facts of this appeal are not in dispute. Vanhoose was employed by Mountain Comprehensive Care making $12.01 per hour. He left this job after two weeks to take a higher paying job with G.W. Construction Company at $25.91 per hour. On July 9, 2011, Vanhoose was laid off from G.W. Construction Company. Vanhoose alleges that at the time he quit his position with Mountain Comprehensive Care, there was no evidence that he knew that he would be laid off at G.W. Construction Company. On July 25, 2011, Vanhoose moved the trial court to reduce his child support obligation.
The trial court denied Vanhoose's motion on August 19, 2011, finding that Vanhoose had voluntarily quit his employment with Mountain Comprehensive Care to seek other employment from which he was subsequently laid off; thus, the trial court concluded that Vanhoose was voluntarily underemployed. The court noted there was no allegation that Vanhoose intentionally left his employment to avoid paying child support. The court denied Vanhoose's subsequent motion to alter, amend, or vacate the August 19, 2011, order.
Thereafter, Vanhoose filed a motion to reestablish child support on October 7, 2011, since he began to receive unemployment benefits and requested the court to recalculate child support based thereon. The court overruled Vanhoose's motion on November 3, 2011, again reiterating that it had previously found Vanhoose to be voluntarily underemployed and that the prior order of March 8, 2011, setting the amount of child support to be paid was to remain in effect. The court denied Vanhoose's subsequent motion to alter, amend, or vacate the October 7, 2011, order. It is from these orders that Vanhoose appeals.
On appeal, Vanhoose argues that the court erred in finding him voluntarily underemployed and consequently erred in refusing to reestablish child support payments in light of his unemployment benefits. While a trial court retains broad discretion in ruling on motions to modify child support, this discretion is not unfettered. See Wilhoit v. Wilhoit, 521 S.W.2d 512, 513 (Ky. 1975). This Court will not disturb the trial court's findings of fact unless clearly erroneous. "Findings of fact are not clearly erroneous if supported by substantial evidence." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky.App. 1999). Substantial evidence is that evidence, when taken alone or in the light of all the evidence, has sufficient probative value to induce conviction in the minds of reasonable people. Id., citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
KRS 403.212(d) permits the trial court to impute potential income to a parent found to be voluntarily unemployed or underemployed. Whether a child support obligor is voluntarily unemployed or underemployed under KRS 403.212(2)(d) is a factual determination for the trial court. This Court shall not disturb the findings of the trial court, provided that they are supported by substantial evidence. Gossett v. Gossett, 32 S.W.3d 109, 111 (Ky.App. 2000). The trial court is vested with broad discretion in the establishment, enforcement, and modification of child support. Accordingly, this Court reviews child support matters under an abuse of discretion standard, i.e., whether the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky.App. 2008).
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is physically or mentally incapacitated or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.
In the case sub judice, the trial court found that Vanhoose was voluntarily underemployed. KRS 403.212(2)(d) requires that, before a court may find voluntary unemployment or underemployment, a court shall consider "employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community." The court's order does not reflect these statutory considerations; moreover, the parties have not cited to the record where such considerations were undertaken. Thus, it is unclear that the trial court made the explicit findings as required by statute.
Without the court's assessment of the required statutory considerations, we agree with Vanhoose that the court erred in finding him voluntarily underemployed. As stated in Gripshover v. Gripshover, 246 S.W.3d 460, 469 (Ky. 2008), "[i]ncome should not be imputed to Darlene without due consideration of all of the statutory factors." Under these circumstances, the family court's decision to find Vanhoose voluntarily underemployed was not supported by substantial evidence.
We note that prior to finding Vanhoose voluntarily underemployed, the Appellees bore the burden of presenting evidence to the court to support such findings. This court has held that the party who wants the family court to use a different income level in applying the child support guidelines bears the burden of presenting evidence which would support the requested finding. Keplinger v. Keplinger, 839 S.W.2d 566, 569 (Ky.App. 1992). Consequently, on remand, the family court is to consider employment potential and probable earnings based on Vanhoose's recent work history and occupational qualifications, and also in light of the prevailing job opportunities and earnings in the community for persons similarly qualified. KRS 403.212(2)(d). Furthermore, Gossett, supra, requires explicit findings concerning the circumstances surrounding any reduction in Vanhoose's income, which is the necessary basis for determining whether he is voluntarily underemployed. See also McKinney at 135 (a contrary rule "necessarily deprives litigants of an understanding of the order or judgment, as well as inhibits any type of meaningful appellate review.").
Because we conclude for the reasons set forth supra, that the court's finding of voluntary underemployment was not supported by substantial evidence of the record, we decline to address Vanhoose's argument concerning whether the court erred in refusing to reestablish child support payments in light of his unemployment benefits; such issues may be properly addressed upon remand.
In light of the aforementioned, we reverse and remand this matter for further proceedings not inconsistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Robert G. Miller, Jr.
Paintsville, Kentucky
BRIEF FOR APPELLEES: Michael S. Endicott
Paintsville, Kentucky