Opinion
NO. 2018-CA-001540-ME
06-07-2019
RICHARD LEE BOHANON, JR. APPELLANT v. ASHLEY LAYMAN APPELLEE
BRIEF FOR APPELLANT: Tracy D. Frye Russell, Kentucky BRIEF FOR APPELLEE: Paul Craft Greenup, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 16-CI-00255 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: ACREE, NICKELL AND L. THOMPSON, JUDGES. ACREE, JUDGE: Richard Bohanon, Jr. (Father) appeals the Boyd Circuit Court's order modifying his timesharing and child support. We must determine if the circuit court abused its discretion when it: (1) named Ashley Layman (Mother) the primary residential custodian of the children and thereby reducing Father's timeshare; (2) implemented a new holiday and summer schedule; and (3) increased Father's child support obligation. We conclude the circuit court erred in its (1) reduction of Father's timeshare by failing to adhere to the requirements in KRS 403.320(3); and (2) calculation of child support by failing to consider Mother's gift income. Therefore, we affirm, in part, and reverse in part, and remand, for subsequent proceedings to determine appropriate timeshare and child support obligation.
Kentucky Revised Statutes.
BACKGROUND
The parties divorced on June 14, 2016. In accordance with their settlement agreement, they shared joint custody and equal time with their two children, aged 6 and 10. The parties utilized a week-on-week-off schedule with no designation of "Primary Residential Custodian." However, due to a change in Father's work schedule, the timesharing arrangement slightly changed. Instead of exchanges occurring every Sunday, the schedule required an exchange on either Tuesday or Wednesday of alternating weeks, with Father receiving the children every other weekend. This still resulted in an equal time arrangement. Father testified that the schedule was complicated but became routine. The settlement agreement also set child support at $400 per month, which was a deviation from the guidelines. Following the parties' divorce, Father remarried and he is stepfather to his wife's two children. He lives a mere three minutes from Mother.
Father works at the Ashland Police Department. At the time of the separation agreement, he worked as a detective from 8:00 a.m. to 4:00 p.m. However, only two months after the parties divorced, he had a shift change, which changed his hours when he took a job "on the streets." Father also works some of his days off as a security officer for McDonalds.
Due to the alternating weekends, Father would receive the children on Week One from Wednesday to Sunday; and Week Two on Tuesday through Thursday.
Because of the change in the exchanges, Father filed a motion in 2018, to memorialize the timeshare schedule the parties implemented for the past two years. In addition to this memorialization, Father also asked for a modification in child support and the holiday schedule. He desired the circuit court to recalculate the child support because Mother had an income change. According to Father, after the settlement agreement was signed Mother voluntarily quit her job at Ashland Fabricating & Welding and since then has received "gift income" from her parents.
Additionally, Father was unhappy with the holiday schedule, stating Mother had the children practically every holiday, including Fathers' Day. He wants the children to spend holiday and summer time with their half-siblings, with whom they have a loving relationship. Mother, on the other hand, has worries about Father's stepchildren. She claims the children do not get along with their stepsiblings. Mother objected to the entirety of Father's motion.
The circuit court held a hearing over two days, on August 22, 2018, and September 12, 2018. On the first day, Mother brought up, for the first time, a request to modify timesharing, by limiting Father's timeshare to every other weekend and a few hours during the week. She alleged the children have no consistency and Father does not help her transport the children to their extracurricular activities.
Because of Mother's unanticipated stance on timesharing, the circuit court continued the hearing to September. After the hearing, the circuit court entered an order designating Mother as primary residential custodian and reducing Father's timesharing.
The circuit court also adopted the holiday schedule proposed by Mother, stating it was consistent with the parties' testimony. With respect to child support, the circuit court found Father made $62,000 a year and Mother made $25,657. The court therefore concluded Father's child support should be $925 per month, more than doubling his original payment. However, it eliminated his obligation to pay for extracurricular activities or academic expenses.
After entry of the order, Father filed a motion to alter, amend, or vacate. The circuit court overruled, in part, and amended, in part. In its order, the circuit court acknowledged it made a mistake in its designation of timeshare and amended the schedule to every other weekend, and two days per week for three hours. However, this again decreased Father's time. The circuit court's reasoning was that it would ease Mother's concerns regarding homework, school activities, academics, and ensuring the children were sleeping in the same locale during the school week. This appeal followed.
Circuit court stated that it inadvertently referenced the previous schedule of the parties and not the schedule going forward.
STANDARD OF REVIEW
KRS 403.320(3) governs modification of visitation. The statute allows a family court to modify visitation "whenever modification would serve the best interests of the child." Id. However, the court "shall not restrict a parent's visitation rights" unless allowing visitation would seriously endanger "the child's physical, mental, moral, or emotional health." Id. "Every case will present its own unique facts," and the modification of visitation "must be decided in the sound discretion of the trial court." Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). "Since 'serious endangerment' or 'best interests' is not defined, it is left to the sound discretion of the trial court whether the party" seeking modification has met his or her burden. Id. "[T]his Court will only reverse a [family] court's determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case." Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000).
On the other hand, "modification, and enforcement of child support obligations" is within the circuit court's discretion. Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007). When reviewing orders modifying child support, this Court applies the abuse of discretion standard. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009). Abuse of discretion occurs when the circuit court's decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
ANALYSIS
Timesharing
Before we dive into the myriad of arguments Father presents, we first address an apparently confusing issue. Our Supreme Court often has found it necessary to distinguish custody from timesharing. Still, these topics are often blurred. Pennington makes clear the term "custody" refers to "physical possession of the child." 266 S.W.3d at 764. However, the term "timesharing" means "how much time a child spends with each parent." Id. at 767. Here, Father argues throughout his brief issues involving changes in custody determination. Yet it is clear, he takes issue with timesharing. Both parents retained their decision-making authority. It is only the time each parent spends with the children the circuit court changed.
We note that the terms "timesharing" and "visitation" are often used interchangeably throughout legislation and case law. These two terms have the same legal meaning.
That being said, we address Father's preliminary argument that the circuit court never should have modified timesharing without a motion. The fact is that Father opened this door with the motion he filed on April 13, 2018. The motion was entitled, "Verified Motion to Modify Timesharing; Motion to Recalculate Child Support and Other Relief." (Record (R.) at 29) (emphasis added). While he may have desired to memorialize the current arrangement, he effectively requested a modification of the originally set timeshare arrangement. Mother's response supported her stance that she did not approve of the timeshare schedule. Timesharing, then, was properly before the circuit court and that could not have been a surprise to Father.
Mother's response simply stated, "she objects to the relief sought and requests a hearing before the Court concerning all issues."
We now turn to the substance of Father's argument. He maintains the circuit court erred by substantially depriving him of his parenting time. We agree. The change in timesharing was dramatic and extreme. It goes beyond a modification and constitutes a restriction on Father's visitation rights under KRS 403.320(3). The circuit court abused its discretion in significantly decreasing Father's timeshare for the following reasons.
"Parents have a fundamental, basic, and constitutional right to raise, care for, and control their own children." Davis v. Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989). But when not together, each parent is entitled to reasonable visitation. KRS 403.320(1). Our courts define reasonable visitation as,
[a] matter that must be decided based upon the circumstances of each parent and the children, rather than any set formula. When the trial court decides to award joint custody, an individualized determination of reasonable visitation is even more important. A joint custody award envisions shared decision-making and extensive parental involvement in the child's upbringing, and in general serves the child's best interest . . . A visitation schedule should be crafted to allow both parents as much involvement in their children's lives as is possible under the circumstances.Drury v. Drury, 32 S.W.3d at 524 (emphasis added). Therefore, when modifying visitation, there is a heightened standard, which is found in KRS 403.320(3). It provides, "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." Id. (emphasis added). Furthermore, the legislature recently revised KRS 403.270 to include language demonstrating that equal time with each parent is in the child's best interest. The aim was to maximize the amount of time the children spend in the company and influence of each parent.
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. Subject to KRS 403.315, there shall be a presumption, rebuttable by a preponderance of evidence, that joint custody and equally shared parenting time is in the best interest of the child. If a deviation from equal parenting time is warranted, the court shall construct a parenting time schedule which maximizes the time each parent or de facto custodian has with the child and is consistent with ensuring the child's welfare.KRS 403.270(2) (emphasis added). Reading KRS 403.320(3) in context with the newly applicable language of KRS 403.270(2), we find there is a rebuttable presumption that equal parenting time is in the child's best interest. Consequently, to modify the current visitation schedule, the court must find visitation would "endanger seriously the child's physical, mental, moral, or emotional health." See KRS 403.320(3). Without that specific finding, visitation shall not be restricted. Id. If it is found that the child's best interest is not served because of serious endangerment, the court shall construct a parenting time schedule which maximizes the time each parent has with children. See KRS 403.270(2).
In this case, the circuit court failed to find the children suffered from any serious endangerment. No findings were made regarding the risk of the children's physical, mental, moral, or emotional health. The findings addressed nothing but consistency, homework completion, and extracurricular activities. Father's time was reduced to less time than is enjoyed by typical visitation orders. Nothing in the record demonstrated the children would be seriously endangered with Father. In fact, these parties co-parented successfully for two years, until Father filed a motion to memorialize the agreement the parties implemented for two years and to modify child support. Mother did not express an interest in modifying the timeshare schedule until the filing of the motion and did not express her preferred timeshare schedule until the first day of the hearing.
Both children excel in school, receiving straight "A's" in all classes. (R. 40). The eldest child is on an academic team and successfully participates in the CATS state-wide scholastic testing program. (Transcript Heating (TR) Vol. 2, p. 30). Mother testified that the children "are doing well" and are successful in their educational development. Id. at 31. Yet, Mother argues the children do not finish their homework when with their Father, and some projects felt "rushed." Mother also expressed a concern over transportation to certain extracurricular activities, specifically tennis on Mondays, youth group, and summer camp. However, Mother fails to communicate with Father when enrolling the children in certain extracurricular activities. She testified she did not "realize [she] had to ask permission" to enroll the children in activities. Id. at 28.
Mother is concerned with Father's participation in the transportation to activities, and yet the parties live three minutes apart. Mother testified, "Mondays has worked out to be a good replacement for us [for exchanges], because I can go through the backpack as soon as I get them and kind of flesh out what needs to be done for the rest of the week and what our obligations are." (TR Vol. 1, p. 88). She, essentially, said her transporting the children to tennis was accommodated by the schedule Father preferred, not burdensome.
While a finding of best interest is not applicable in this case, it seems the circuit court did not even attempt to rule consistent with any statutory standard to justify its ruling, including that one. See Hornback v. Hornback, 636 S.W.2d 24, 26 (Ky. App. 1982) (reiterating a "parent has absolute entitlement to visitation unless there is a finding of serious endangerment to the child. No 'best interest' standard is to be applied[.]"). The circuit court failed to analyze any factors to support its decision. In fact, even under the best interest standard, we still could not find it was a proper ruling. The circuit court failed to consider the relationships with the half-siblings, the relationship with their parents, the proximity of the children to their home, school, and community, or the mental and physical health of all parties. See KRS 403.270(2).
Instead, the circuit court found, in a perfunctory manner without analysis, the drastic reduction in Father's timesharing was in the children's best interest. This is insufficient reason to restrict Father's time. The circuit court must utilize a timeshare schedule, which maximizes the amount of time with each parent. Restricting Father to six hours a week and every other weekend is too extreme a restriction from equal time, without satisfying the statutory finding of serious endangerment.
The circuit court failed to determine how the everyday, run-of-the-mill issues of childrearing seriously endanger the children. Therefore, we reverse the court's reduction of Father's timesharing and remand to the circuit court for a determination of a new timeshare schedule consistent with this opinion. Holiday/Summer Schedule
Father also appeals the circuit court's determination of the holiday and summer timeshare schedule. Specifically, Father believes the circuit court erred by not following the Boyd County visitation guidelines, which was "completely unreasonable." The circuit court implemented a schedule to satisfy both parents. We may only reverse this determination if there is an abuse of discretion or clearly erroneous findings. Drury, 32 S.W.3d at 525. We find no error here.
Father receives the children for some amount of time, every major holiday. He has the children on Christmas Eve until 5:00 p.m. and then again at 11:00 p.m. through Christmas morning until noon. Furthermore, Father has the children on Thanksgiving evening starting at 6:00 p.m. There is even time split on Easter, Halloween, and the children's birthdays. As for summer, each party has exactly two weeks. While Father may not be happy with what he received, we cannot find the circuit court abused its discretion in any way in the determination of the holiday and summer schedule. Child Support
Both children have birthdays in the summer, which allows the day to be split between the parties.
Under the parties' original settlement agreement, Father paid $400 a month in child support. As stated in the settlement agreement, this was a deviation from the guidelines, due to parties sharing joint custody and equal time with their children. (TR Vol. 1, p. 19). The circuit court increased Father's child support obligation to $925 a month, more than doubling the originally agreed upon child support amount. Father believes the circuit court erred for several reasons.
First, he claims the circuit court did not consider Mother's voluntary underemployment. We acknowledge that whether a party is voluntarily underemployed is a factual question for the circuit court. Gossett v. Gossett 32 S.W.3d 109, 111 (Ky App. 2000). Accordingly, we defer to the family court's factual findings, unless they are clearly erroneous - that is, not supported by substantial evidence. CR 52.01.
Kentucky Rules of Civil Procedure.
In establishing or modifying child support, the family court "may impute income to a party it finds to be voluntarily unemployed or underemployed." McKinney v. McKinney, 257 S.W.3d 130, 134 (Ky. App. 2008). The applicable statute provides that:
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income. . . . 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.KRS 403.212(2)(d). "[I]f the court finds that earnings are reduced as a matter of choice and not for reasonable cause," KRS 403.212(2)(d) authorizes the family court to "attribute income to a parent up to his or her earning capacity." Snow v. Snow, 24 S.W.3d 668, 673 (Ky. App. 2000). In so doing, however, the family court "must consider the totality of the circumstances in deciding whether to impute income to a parent." Polley v. Allen, 132 S.W.3d 223, 227 (Ky. App. 2004).
Absent a ruling on imputed income, we are left to conclude the circuit court found Mother was not voluntarily underemployed within the meaning of KRS 403.212(2)(d). Instead, it found she took less money at her family's business to take care of her father who has a brain injury. Mother worked for her family's business for the last ten years. Prior to her father's injury, she worked as a purchasing manager for the business. However, her father, who is part owner of the business, fell and suffered a traumatic brain injury. After this incident, her role within the company changed. In fact, it was not even her choice. Mother testified she was asked to care for her father by the company. (TR Vol. 2, p. 49). Thus, she contends her change in employment was not voluntary.
The circuit court agreed by finding Mother made $25,657 per year. Father contends this is unreasonable because Mother has a college degree in International Economics and Spanish, and she normally makes $39,000 per year. However, we cannot say that the family court's factual determination that Mother is not voluntarily underemployed is unsupported by substantial evidence. Based on this, the family court concluded Mother's earnings reduced for reasonable cause. See KRS 403.212(2)(d). Accordingly, we cannot say the family court abused its discretion in refusing to impute income to Mother.
Father's second argument is the circuit court failed to include the $2,000 Mother receives every month from her parents, and the new Cadillac Escalade her parents bought her. In her testimony, she stated "her children" received the money. She contends the money is a "gift" to the children, not to her directly. Therefore, it should not be included in her income. We disagree.
KRS 403.212(2)(b), specifically, includes "gifts" in the definition of "gross income." Mother testified the company pays for her cell phone and her parents paid for the family's trip to Daytona Beach, Florida, her new Escalade, and gives her $2,000 a month. She testified she receives the money in exchange for what she does for the business. That is not for the direct benefit of the children, but to supplement Mother's income. There is no proof that Mother used this $2,000 solely for her children. This is the exact financial enrichment the legislature meant by including "gifts" in the definition of gross income.
As for the new Cadillac Escalade, we find that the circuit court erred by not considering this in Mother's income, as well. In Penner v. Penner, this Court found the trial court erred by not including the car payments made on behalf of the mother. This Court stated,
[i]t was an abuse of discretion for the trial court not to impute this income to [mother] for purposes of child support and maintenance. Thus, we vacate the portions of the trial court's orders regarding maintenance and child support and remand with instructions that the trial court attribute [mother]'s full gift income to her for purposes of calculating both.411 S.W.3d 775, 782 (Ky. App. 2013). This is a significant source of income for Mother and should be included in the child support calculation.
Father's third, and last, argument regarding child support is that the circuit court failed to consider the timeshare of the parties. Because we are remanding the timeshare issue, we advise the circuit court to be cognizant of the timeshare schedule when setting child support. The parties have a history of allowing a deviation for equal time as demonstrated by their original separation agreement.
CONCLUSION
For the foregoing reasons, we affirm in part and reverse in part the Boyd Circuit Court's order entered October 3, 2018, and remand for findings consistent with this ruling. Nothing herein prevents subsequent proceedings to modify timesharing, provided that such modification, in the absence of a finding of endangerment, affords Father with reasonable parenting time with the children.
ALL CONCUR. BRIEF FOR APPELLANT: Tracy D. Frye
Russell, Kentucky BRIEF FOR APPELLEE: Paul Craft
Greenup, Kentucky