Opinion
NO. 2018-CA-000513-MR
03-06-2020
DANIEL DEKALB APPELLANT v. KELLY DEKALB APPELLEE
BRIEF FOR APPELLANT: Justin R. Key Jeffersonville, Indiana BRIEF FOR APPELLEE: Melanie Straw-Boone Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 15-CI-00498 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; CALDWELL AND COMBS, JUDGES. COMBS, JUDGE: Daniel Dekalb appeals from the findings of fact, conclusions of law and judgment of the Oldham Family Court in an action dissolving his marriage to Kelly Dekalb. Dan argues that the family court failed to make findings of fact sufficient to justify the amount of his child support obligation and that it failed to consider relevant factors before it awarded maintenance to Kelly. He also contends that the court abused its discretion by concluding that it was in the children's best interests to relocate with Kelly to Colorado. Finally, Dan argues that the court erred by failing to designate the children as dependents to him for federal income tax purposes. After our review, we affirm.
Kelly and Daniel Dekalb married in Colorado in 2006. In 2010, they moved to Columbus, Ohio, where their first child was born. At the end of 2013, they moved to Louisville, where their second child was born. The parties separated in September 2015, and Kelly filed a petition for dissolution of the marriage. Dan's contact with the children was limited both before and during the separation.
Near the end of 2016, Kelly filed a motion requesting the court's permission to relocate with the children (then 3 and 5 years of age) to Colorado. The family court ordered a professional assessment of the proposed move. In a report submitted to the court in April 2017, Dr. Sally Brenzel, a licensed clinical psychologist, concluded that the children's interests would be better served if Dan were to become a more active father. However, if Dan were to fail to increase significantly his time and involvement with the children by the end of July 2017, Dr. Brenzel indicated that she would firmly support the children's relocation with Kelly to Colorado in early August 2017.
A trial was conducted on April 17, 2017. In an order entered on June 22, 2017, the family court concluded that it was in the best interests of the children to permit their relocation to Colorado. Kelly and the children moved to Colorado.
In a subsequent order entered on December 4, 2017, the family court provided its detailed findings of fact and conclusions of law. It assigned the parties' non-marital property and equitably divided their marital property. It awarded Kelly maintenance in the amount of $3,500.00 per month for a period of 42 months.
For the purpose of establishing the parties' child support obligations, the court imputed monthly income to Kelly in the amount of $2,500.00 for a total monthly gross of $6,000.00. It found that Dan's gross monthly income (including an annual bonus) amounted to $22,394.00 per month, minus his maintenance obligation, for a total of $18,894.00. The family court rejected Kelly's calculation of the children's monthly expenses as excessive and duplicative. However, it found that a deviation from the maximum monthly child support set forth in the statutory guidelines was warranted under the circumstances; it set Dan's child support obligation at $2,100.00 per month.
By an order entered on December 19, 2017, the family court dissolved the marriage. Both parties filed motions to alter, amend, or vacate.
In its order entered March 2, 2018, the family court denied each of Dan's substantive requests to amend. The family court designated its order as final and appealable. This appeal followed.
Dan argues that the family court erred in computing his child support obligation and by denying his motion to alter, amend, or vacate with respect to this issue. He contends that the court failed to make findings of fact sufficient to justify an award that exceeded our statutory child support guidelines.
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 (footnote omitted).
The calculation of child support awards is governed by the provisions of KRS 403.211. Additionally, KRS 403.212 provides a table to assist the family court in determining the proper amount of child support based upon the monthly income of the parties. The child support guidelines contained in KRS 403.212 serve as a rebuttable presumption for the calculation of the amount of child support. KRS 403.211(2). Nonetheless, the family court has discretion to deviate from the guidelines "where their application would be unjust or inappropriate." Id. By statute, a written finding that application of the guidelines would be unjust or inappropriate in a particular case is sufficient to allow for an appropriate adjustment of the guideline award where the combined monthly adjusted gross income of the children's parents exceeds the child support guidelines. KRS 403.211(3).
Kentucky Revised Statutes. --------
Implicit in the child support guidelines is recognition that a child's standard of living should be altered as little as possible by the dissolution of his parents' marriage. In setting the child support obligation, the family court necessarily takes into account the standard of living which the children enjoyed during the marriage.
In this case, the family court found that the parties' combined monthly income exceeds the guideline table by nearly $10,000.00 per month. It observed that the children had been involved in an abundance of extracurricular activities, classes, travel, and camps. After discounting some of the alleged costs associated with these experiences and considering the travel expenses that Dan could expect to incur for his visitation, the family court settled on a monthly cost of $871.00 for the children's education and entertainment.
In its order denying Dan's motion to alter, amend, or vacate, the family court stated that it found Dan's allegation that he could not afford the travel expenses necessary to facilitate visitation to be disingenuous in light of his income. It noted that Dan had not taken exception to the children's continuing to participate in the kinds of activities, travel, and hobbies that they had enjoyed in Louisville, reiterating that there were obviously substantial costs associated with the children's lifestyle. Finally, the family court agreed to take under submission some allocation of Dan's travel expenses to Kelly upon Dan's affidavit of the expenses he had incurred.
The family court carefully considered the children's elevated standard of living and the parties' ability to finance. Thus, it found specifically that a deviation from our child support guidelines was appropriate. This finding is sufficient for our review, and it is amply supported by the record. The family court was well within its discretion to deviate from the guidelines, and we find no error.
Next, Dan contends that the amount and duration of maintenance awarded to Kelly was excessive. He argues that the family court erred by failing to consider factors relevant to a proper determination of the issue. We disagree.
In determining whether a spouse is entitled to maintenance, a trial court must find that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and that she is unable to support herself through appropriate employment. KRS 403.200(1)(a)-(b). In setting the appropriate amount and duration of maintenance under KRS 403.200(2), the court must consider several factors, including: a spouse's financial resources, her ability to find appropriate employment, and the standard of living enjoyed during the marriage. Moreover, the amount and duration of the maintenance award are matters within the sound discretion of the trial court. Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990). We may not disturb a trial court's decision where the court did not abuse its discretion or base its decision on findings of fact that are clearly erroneous. Powell v. Powell, 107 S.W.3d 222 (Ky. 2003).
In the case before us, the family court took into account each party's estimated expenses and Kelly's ability to meet her financial needs independently. It considered Kelly's work history and education and the fact that she had been out of the workforce for a number of years. Additionally, it considered Kelly's testimony indicating that she expected to be able to find a position in Colorado in the field of financial services or physical therapy with a starting salary of $30,000.00 to $40,000.00. It was clear to the court that the parties and their children had enjoyed a comfortable lifestyle during the marriage and that Dan could be expected to continue to earn substantially more than Kelly -- at least for the near future. Thus, the court concluded that a period of 42 months was a reasonable period for Kelly to receive an amount of maintenance which, when coupled with the monthly income imputed to her, would very nearly cover her reasonable expenses. We find no basis to disturb the decisions of the family court with respect to these issues.
We next address Dan's contention that the family court abused its discretion by concluding that it was in the children's best interests to relocate with Kelly to Colorado. He argues that the court "never made a proper interpretation of the [expert's] report with appropriate findings in its orders." We disagree.
In its order entered June 22, 2017, the family court addressed independently Kelly's request to relocate with the children. The court reviewed the testimony of both parties as well as the report of Dr. Brenzel. In her report, Dr. Brenzel concluded that the most significant factors to be weighed with respect to the children's possible relocation were "Kelly's needs and adjustment post-divorce as the primary parent, the quality and extent of Dan's involvement with the children to date and the opportunities for maintaining and growing those relationships. . . ." Dr. Brenzel observed as follows:
Dan's involvement with and caregiving of the children has been significantly less than Kelly's due to his career and personal choices during the marriage and post-separation. His explanation of why he hasn't exercised the minimal standard visitation schedule of every other weekend and one evening a week they agreed to for over 1½ years nor pursued additional holiday and vacation time available, doesn't ring genuine to this evaluator. When combined with the other information obtained, it is questionable whether he actually wants and will follow through with expanding his parenting post-divorce or is utilizing the relocation as a bargaining chip. It is in the boys' best interests that he become a more active father, but if he doesn't it is possible to maintain his current level of involvement with the boys in Colorado through monthly visitation, vacations, holidays, and
videoconferencing that the boys can become more acclimated to over time. In that case, their quality of life could be enhanced there by the extended family support and involvement available to them and their mother.
The family court noted that it shared Dr. Brenzel's concerns regarding Dan's post-separation efforts to expand his parenting role, and it disagreed with Dan that the report could only be taken as a recommendation against the relocation. The family court found that Dan had failed to show "his earnestness with respect to his expressed desire to play a larger role in parenting and caregiving regarding the boys" during a critical time in their lives and that it was in their best interests to relocate with Kelly to Colorado. There is nothing to indicate that the family court misinterpreted Dr. Brenzel's report or that its findings were insufficient or unsupported by the evidence. There was no error.
Finally, Dan argues that the family court erred by failing to allocate the children to him as dependents for federal income tax purposes. However, we decline to review the claim of error because he has not cited where he preserved the alleged error in the family court. Baker v. Weinberg, 266 S.W.3d 827 (Ky. App. 2008). "It is well-settled that a [family] court must be given the opportunity to rule in order for an issue to be considered on appeal, and the failure of a litigant to bring an alleged error to the [family] court's attention is fatal to that argument on appeal." Id. at 835.
We AFFIRM the judgment of the Oldham Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Justin R. Key
Jeffersonville, Indiana BRIEF FOR APPELLEE: Melanie Straw-Boone
Louisville, Kentucky