Opinion
NO. 2012-CA-001515-ME
06-28-2013
WILLIAM E. WEST APPELLAN v. CORISSA LYNN KINSELLA APPELLEE
BRIEF FOR APPELLANT: Wendi Swinson Wagner Louisville, Kentucky BRIEF FOR APPELLEE: Troy DeMuth Prospect, Kentucky Allison S. Russell Prospect, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 11-CI-504289
OPINION
AFFIRMING
BEFORE: COMBS, MAZE AND NICKELL, JUDGES. MAZE, JUDGE: William E. West appeals from the July 3, 2012, findings of fact, conclusions of law, and judgment of the Jefferson Circuit Court, which determined custody, timesharing, and child support for William and Corissa Lynn Kinsella's two minor children. William also appeals from the trial court's August 7, 2012, order which denied his motion to alter, amend, or vacate. We conclude that the trial court's factual findings were sufficient to justify a deviation from the Child Support Guidelines, and that the trial court did not abuse its discretion when it ordered William to pay private school tuition for the couple's youngest child. Hence, we affirm.
The parties, who were never married, have two children: Lexi, age fifteen; and Riley, age ten. By agreement of the parties, Lexi attended St. Edward's School from kindergarten through eighth grade. Riley, who is currently in the third grade, continues to attend St. Edward's.
In December of 2011, William filed a petition asking the trial court to award joint custody to the parties and determine timesharing and child support. Following a final hearing, the trial court issued its findings of fact, conclusions of law, and judgment, entered on July 3, 2012. Therein, William was ordered to pay $738.00 per month in child support, pursuant to the child support guidelines; half of the children's extraordinary medical expenses; and half of Riley's cost of attending private school. William filed a motion to alter, amend, or vacate the July 3, 2012, judgment. In an order entered on August 7, 2012, William's motion was denied. This appeal followed.
William's sole argument on appeal is that the trial court erred when it ordered him to pay Riley's private school tuition, and by denying his motion to alter, amend or vacate on this issue. We review a trial court's determination of child support for an abuse of discretion. Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 454.
The establishment of child support awards is governed, in large part, by Kentucky Revised Statutes (KRS) 403.211. Additionally, KRS 403.212 provides a set of Guidelines to assist the trial court in determining the proper amount of child support, based upon the income of the parties. "The child support guidelines set out in KRS 403.212 shall serve as a rebuttable presumption for the establishment or modification of the amount of child support." KRS 403.211(2). "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." Id.
In relevant part, the statute permits a deviation from the Guidelines for "[a] child's extraordinary educational, job training, or special needs." KRS 403.211(3)(b). There is no refuting that the imposition of private school tuition is an additional form of child support that results in a deviation from the Guidelines. This Court has previously clarified that "'extraordinary educational needs' refers to those things not ordinarily necessary to the acquisition of a common school education but which become necessary because of the special needs of a particular student. Smith v. Smith, 845 S.W.2d 25, 26 (Ky. App. 1992). More precisely, it has been held that a judgment awarding funds to provide a private school education was error absent proof that the child suffers a handicap making public school unsuitable. Miller v. Miller, 459 S.W.2d 81, 83-84 (Ky. 1970).
However, parents may agree to pay more support than provided under the guidelines. Pursley v. Pursley, 144 S.W.3d 820, 826 (Ky. 2004). The trial court may enforce the terms of the parties' agreement regarding payment of private school tuition. The existence of such an agreement may be proven either expressly or implied by prior conduct of the parties.
In this case, the trial court found that the parties "have a long-standing agreement regarding parochial education...." William does not dispute the evidence supporting this finding, but he maintains that prospective enforcement of this prior understanding is no longer appropriate because he cannot afford the additional expenses.
The fundamental premise of the Child Support Guidelines is that a child's standard of living should be altered as little as possible by the dissolution of the family. Thus, the trial court should also take into consideration the standard of living which the children enjoyed during and after the relationship. When setting child support above the Guidelines, this assessment should also be based upon the parents' financial ability to maintain that standard of living. Downing, 45 S.W.3d at 456-57. Similarly, where there is a long-standing agreement or understanding to provide for private school education, the trial court must consider the parties' current financial ability to maintain that expense.
We also must point out that, unlike in Downey v. Rogers, 847 S.W.2d 63 (Ky. App. 1993), this case involves an original determination of permanent child support and not a modification of an existing support award. Consequently, William was not required to show a material change in circumstances as required by KRS 403.213. Rather, the appropriateness of any deviation from the Child Support Guidelines must be determined under the standards in KRS 403.211(3).
Under most circumstances, the trial court's finding that the parties had a long-standing agreement to pay for the children's parochial school education would be sufficient to justify the court's deviation from the child support guidelines. Furthermore, William's mere unwillingness to continue his contribution toward Riley's parochial school education or unsupported claims of inability to pay would not be sufficient to abrogate the parties' long-standing agreement. But in support of his motion to alter, amend or vacate, William argued that he currently lacks sufficient financial resources to meet his reasonable needs while also paying child support and the additional cost for his share of Riley's tuition and school expenses.
In its original findings of fact, the trial court found that William has an average gross monthly income of $4,691. William, however, notes that this income is not always consistent and he has recently undergone several periods of furlough. He currently claims income averaging $3,157 per month, with living expenses (including child support) of $2,977. William's share of Riley's tuition is $470 per month, and the court also ordered him to pay half of any additional school expenses such as for books, fees and uniforms. William asserts that these additional expenses significantly exceed his available monthly income.
In its order denying William's motion to alter, amend or vacate, the trial court stated that it had factored these fluctuations into its calculation of his income and his child support obligation. The trial court also noted that William voluntarily reduced his hours in order to accept a position in Louisville and spend more time with the children and any periods of voluntary underemployment could not be considered to adjust his child support obligation. Finally, the trial court pointed out that William could seek a modification of his support obligation if he could show that his income had been substantially reduced for a significant period of time.
The trial court's factual findings will not be set aside unless clearly erroneous, with due regard for the opportunity of the trial judge to view the credibility of witnesses. Kentucky Rules of Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). As noted above, William does not contest the trial court's finding that the parties had a long-standing agreement or understanding regarding parochial school education. While William contends that prospective enforcement of that agreement is no longer appropriate due to the reduction in his income, the trial court found that he had failed to substantiate his claim of inability to make the additional payments. Although there was conflicting evidence on this point, we must conclude that there was substantial evidence to support the trial court's finding. Therefore, the trial court did not abuse its discretion by enforcing the parties' agreement and ordering William to pay the additional costs for his share of Riley's private school tuition and expenses.
For the foregoing reasons, the July 3, 2012, judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Wendi Swinson Wagner
Louisville, Kentucky
BRIEF FOR APPELLEE: Troy DeMuth
Prospect, Kentucky
Allison S. Russell
Prospect, Kentucky