Opinion
NO. 2018-CA-000372-ME
05-31-2019
JOHN PARKER COX APPELLANT v. SARA CATHERINE COX APPELLEE
BRIEFS FOR APPELLANT: Louis P. Winner Louisville, Kentucky BRIEF FOR APPELLEE: Robert E. Norfleet Somerset, Kentucky
NOT TO BE PUBLISHED APPEAL FROM PULASKI CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 16-CI-00099 OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE: JONES, MAZE, AND TAYLOR, JUDGES. TAYLOR, JUDGE: John Parker Cox brings this appeal from January 23, 2018, Findings of Fact, Conclusions of Law, and Decree of Dissolution of the Pulaski Circuit Court, Family Court Division, modifying the award of child support and awarding maintenance. We affirm in part, reverse in part, and remand.
John and Sara Catherine Cox were married on September 23, 1995. Two children were born of the marriage. The parties separated in January 2016, and on January 20, 2016, a Domestic Violence Order (DVO) was entered against John. The DVO restrained John from committing further acts of abuse or threats of abuse against Sara and ordered, inter alia, that John submit to a substance abuse assessment. Pursuant to the DVO, Sara was granted temporary custody of both children.
The family court's judgment states that the parties were married in 2005, which appears to be an error.
On February 9, 2016, John filed a petition for dissolution of marriage in the family court. When the petition was filed, John was employed by United Parcel Service (UPS), but he was not working due to an injury. At that time, he was receiving short-term disability. Sara was self-employed as a hairdresser. The parties entered into an agreed order that John would pay child support of $557.96 per month and that child support would be recalculated upon John's return to work.
After John's return to work, Sara filed a motion to recalculate child support. The parties engaged in mediation, and by agreed order entered July 13, 2016, the parties agreed to share joint custody of their two children. Sara was designated the primary residential parent, and a timesharing plan was established for the parties' six-year-old son. Timesharing for their seventeen-year-old daughter was to be at her discretion. John was also ordered to pay child support of $1,136 per month for the two minor children.
A motion to modify John's support obligation was filed by the Commonwealth of Kentucky, Cabinet for Health and Family Services, on May 25, 2017. Therein, it was asserted that as the parties' oldest child was emancipated modification of child support was warranted. A hearing upon the motion to modify was scheduled for June 23, 2017. John did not appear for the hearing nor did he supply the necessary documents to support a motion to modify pursuant to Family Court Rules of Procedure and Practice (FCRPP) 9. The family court ordered John to provide the documents required by FCRPP 9(4) and rescheduled the hearing. John still did not provide the documents. Sara then filed a motion to require John to show cause why he should not be held in contempt for failure to provide the documents as ordered. Shortly thereafter, counsel for John filed a motion to withdraw, which the family court granted.
Family Court Rules of Procedure and Practice 9(4) provides:
(a) A motion to establish or modify child support shall be accompanied by the following:
(i) A completed child support guidelines worksheet with movant's portion completed.
(ii) Copies of the movant's last three pay stubs or, if movant is self-employed, proof of the movant's current income.
(iii) The most recently filed federal and state income tax returns.
(iv) Verification of the cost of health insurance for the child(ren) only.
A final hearing was conducted in the family court on October 30, 2017, upon all unresolved issues related to the petition for dissolution. John proceeded pro se. By Findings of Fact, Conclusions of Law, and Decree of Dissolution entered January 23, 2018, the parties' marriage was dissolved. Relevant to this appeal, the family court determined that John was entitled to modification of child support as the parties' oldest child was emancipated. John's child support was modified from $1,136 per month to $687.81 per month. However, the family court ordered that child support would not be modified retroactively to the date of the filing of the motion for modification. Additionally, the family court ordered John to pay Sara $1,200 per month in maintenance until their seven-year-old son was emancipated or until John retired, became disabled, or died. This appeal follows.
We address first John's argument that the family court erred as to the amount and duration of the maintenance awarded to Sara. More specifically, John asserts the family court erred by awarding Sara maintenance of $1,200 per month until the parties' seven-year-old son is emancipated or until John retired, became disabled, or died.
It is axiomatic that the amount and duration of a maintenance award are within the sound discretion of the family court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990). The amount and duration of a maintenance award is governed by KRS 403.200(2). It provides that the court must consider the following factors in awarding maintenance: (a) financial resources of the parties, (b) time needed to acquire education or training to enable party to obtain employment, (c) standard of living established during the marriage, (d) duration of the marriage, (e) age, physical condition, and emotional condition, and (f) ability of payor spouse to pay maintenance while meeting his needs. KRS 403.200(2).
Relevant to the factors set forth in KRS 403.200(2), the family court made several findings of fact. As to the financial resources of the parties, the family court found that Sara had net income of approximately $1,600 per month and reasonable expenses of $3,600. John, on the other hand, had net income of approximately $5,336 per month and had reasonable expenses of $3,100. Although Sara worked during the marriage, John was the primary financial supporter. The family court also considered that the parties had been married for twenty-three years and both were forty-two years of age. Based upon the parties' income and reasonable expenses, the family court determined John could contribute $1,200 per month to Sara's needs while still meeting his own needs. The family court also limited the duration of the maintenance award by providing that John would pay maintenance to Sara until their son was emancipated or until John retired, became disabled, or died. In sum, the family court properly considered the factors set forth in KRS 403.200(2) and did not abuse its discretion regarding the amount and duration of the maintenance awarded to Sara.
John's next argument is that the family court erred in the calculation of child support. More specifically, John asserts the court erred by failing to consider the amount of maintenance Sara receives from John when calculating the amount of child support. In response, Sara asserts that in calculating child support, the family court failed to include in John's income his overtime pay, holiday pay, and bonuses that John regularly receives from his employer as well as the expenses Sara incurs for child care expenses.
It is well established that in calculating the amount of child support awarded, maintenance received by one party in a dissolution action and maintenance paid by another shall be considered. KRS 403.212. KRS 403.212(2)(b) clearly defines gross income for purposes of calculating child support to include "maintenance received" by one party from the other party. And, for purposes of calculating child support, the parties combined monthly adjusted gross income is determined by subtracting the amount of any "current maintenance ordered paid in the proceeding[.]" 16 Louise E. Graham and James E. Keller, Kentucky Practice Domestic Relations Law § 24:24 (Dec. 2017). Thus, a maintenance obligor is permitted to deduct current maintenance payments from his gross income when arriving at the combined monthly adjusted parental gross income for purposes of calculating child support. Id. Likewise, maintenance received is included as income to the recipient parent. Id. In other words, the maintenance obligation "is deducted from the obligor's gross income but added to the recipient's gross income." Id. As the family court failed to consider the amount of maintenance Sara receives and the amount of maintenance John pays, we believe the family court erred as a matter of law in calculating child support. Thus, we vacate the child support award and remand with directions that the family court recalculate child support consistent with KRS 403.212.
John's final argument is that the family court erred by refusing to order that child support be modified retroactively to the date of the filing of the motion for modification due to the oldest child's emancipation in May 2017. We agree.
It is well-settled that most areas of domestic relations law, including "the establishment, modification, and enforcement of child support [are] generally prescribed by statute and largely left, within the statutory parameters, to the sound discretion of the [family] court." Moskovitz v. Moskovitz, 459 S.W.3d 886, 888 (Ky. App. 2015) (quoting McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008)). And, the statutory parameters for the termination of child support based upon emancipation of a child are found in Kentucky Revised Statutes (KRS) 403.213(3), which provides, in relevant part:
Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18). In cases where the child becomes emancipated because of age . . . while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years. . . . Emancipation of the child shall not terminate the obligation of child support arrearages that accrued while the child was an unemancipated minor.KRS 403.213(3).
The statutory language of KRS 403.213(3) was previously interpreted by this Court in Seay v. Seay, 404 S.W.3d 215, 218 (Ky. App. 2013). The Seay Court determined that KRS 403.213(3) "expresses an unequivocal intent by the legislature that child support be terminated upon emancipation of a child absent the statutory exception. Therefore, . . . the emancipation of a child is a singular event that triggers a review of the current child support obligation of a party pursuant to our statutes, caselaw and guidelines based on the facts and circumstances post emancipation." Id. at 218. And, where emancipation has occurred, it is axiomatic that child support may be modified without demonstrating a 15 percent change in the amount of support due pursuant to KRS 403.213(2). Dickens v. Dickens, 401 S.W.3d 489, 491 (Ky. App. 2013).
In the case sub judice, a motion to modify child support based upon emancipation was filed on May 25, 2017. The motion was scheduled for a hearing on June 23, 2017, and again on July 14, 2017. John failed to timely supply the documents necessary to calculate child support pursuant to FCRPP 9(4). On January 23, 2018, Findings of Fact, Conclusions of Law, and Decree of Dissolution were entered. Therein, the family court granted the motion to modify John's child support due to emancipation of one minor child and reduced John's child support obligation for the remaining child to $687.81 per month. The family court declined to modify the award of child support retroactively stating:
This motion was filed by the Cabinet for Health and Family Services and states that the modification be effective June 1, 2017. We agree that this is the proper modification effective date. --------
[T]he provisions of any decree respecting child support may be modified only as to the installments accruing subsequent to the filing of a motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing. KRS § 403.212(1). Therefore, it cannot be modified prior to this decree.We believe this was an error of law.
It appears that the family court either overlooked the May 25, 2017, motion to modify child support due to emancipation or did not consider the motion as John failed to timely supply the necessary documents pursuant to FCRPP 9 as ordered. As emancipation triggers a review of child support and a motion to modify had been filed, we believe the family court was legally bound to retroactively modify child support. See Seay, 404 S.W.3d 215, 218; Snow v. Snow, 24 S.W.3d 668, 671 (Ky. App. 2000). While we are sympathetic to the family court's likely frustration with John's failure to timely supply documentation per FCRPP 9 as ordered, there are procedural remedies available to the court to address this issue. The modification here was triggered as a matter of law as was the effective date. Therefore, we reverse that portion of the January 23, 2018, Findings of Fact, Conclusions of Law and Decree of Dissolution that denied retroactive modification of John's child support due to emancipation of one of the parties' minor children. Upon remand, the family court shall apply the modification of child support retroactively from June 1, 2017, as set out in the emancipation motion.
For the foregoing reasons, the Findings of Fact, Conclusions of Law, and Decree of Dissolution of the Pulaski Circuit Court, Family Court Division, is affirmed in part, reversed in part, and remanded for proceedings consistent with this Opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Louis P. Winner
Louisville, Kentucky BRIEF FOR APPELLEE: Robert E. Norfleet
Somerset, Kentucky