Opinion
NO. 2014-CA-000113-ME
05-01-2015
KENNETH FARIED APPELLANT v. REBEKAH MCCARTY APPELLEE
BRIEFS FOR APPELLANT: Mary Janice Lintner Louisville, Kentucky BRIEF FOR APPELLEE: Eileen M. O'Brien Lisa Hart Morgan Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BATH CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 12-CI-00123
OPINION
VACATING AND REMANDING
BEFORE: COMBS, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: This appeal addresses a matter of first impression—the initial setting of child support when the combined parents' gross income greatly exceeds child support guidelines. In this case, 99% of the income is earned by the father, Kenneth Faried, a professional basketball player. This appeal arises from two Bath Circuit Court orders finding deviation from the guidelines to be appropriate and ultimately directing Faried to pay $4,250.00 in monthly support for a child who has just celebrated her fifth birthday and has lived the bulk of her young life in an economically depressed area of Kentucky.
Kentucky Revised Statutes (KRS) 403.212.
Faried argues the court's award is excessive and intended to support not only Kyra, his daughter—which he admits is his responsibility—but to also support Kyra's mother, her boyfriend, and the young son she has with her boyfriend. Another major point of contention is the amount of child support ordered being wholly unrelated to the actual amount being spent on Kyra—which would appear to be a good barometer of Kyra's "reasonable needs." Rebekah McCarty, Kyra's mother, has custody of Kyra most of the time. During the final hearing, McCarty estimated her total monthly expenses to be just $1,547.00. Adding potential, but as yet unincurred, monthly housing costs of $1,300.00 for rent and utilities, McCarty's total expenses for the entire four-person household would be just $2,847.00 per month, making the trial court's monthly award of $4,250.00 a curiosity.
Soon after Kyra's birth, and before child support was formally ordered, Faried began sending McCarty $500.00 a month to care for his child. Faried's monthly voluntary contribution increased to $1,000.00 when he began receiving a salary. In the petition for child support, McCarty requested $7,500.00 in monthly child support. The trial court ordered temporary child support in the amount of $2,000.00 monthly plus health insurance and work-related childcare costs. During the final hearing, McCarty sought $5,000.00 in monthly child support.
The case is further complicated by McCarty living rent-free with her own parents and not having established a documentable standard of living for herself and Kyra. McCarty testified to only guesstimates—if I paid rent for my own home, I'd pay $900.00 a month plus another $300.00 to $400.00 for utilities; and, if I bought clothes for Kyra I would probably spend $200.00 to $300.00 every three months. In other words, her case was built on rank speculation with no documentation of Kyra's actual expenses for the court to consider.
To further trouble the waters, the trial court made its order retroactive—something the trial court had said it would do from entry of the temporary child support order. Faried did not object along the way, and McCarty maintains any complaint was, therefore, waived. Retroactivity, however, has created an untenable result of reimbursing McCarty for expenses she has never incurred.
Downing v. Downing, 45 S.W.3d 449, 456 (Ky. App. 2001), directs "[a]t a minimum, any decision to set child support above the guidelines must be based primarily on the child's needs, as set out in supporting findings." In Downing, we specifically rejected the "share the wealth" approach under which a "trial court may determine the reasonable needs of the children by mathematically calculating child support over and above the maximum guidelines without entering specific findings as to the needs of the children and their standard of living." Id. at 455 (footnote omitted). Instead, Kentucky follows the "Three Pony Rule" which recognizes a child should share in each parent's standard of living to a degree, but still requires child support to "be set in an amount which is reasonably and rationally related to the realistic needs of the [child]." Id. at 456 (footnote omitted).
The rule is defined as, "no child, no matter how wealthy the parents, needs to be provided more than three ponies." Downing, 45 S.W.3d at 456. In its order entered October 31, 2013, the Bath Circuit Court stated "Kentucky courts disfavor the 'Three Ponies' or 'Share the Wealth' rule." This is a misstatement of current Kentucky law. The "Three Pony Rule" and the "Share the Wealth" Rule are two distinct concepts. While Kentucky courts explicitly rejected the "Share the Wealth" Rule in Downing, prohibiting a trial court from exclusively calculating child support by mathematically projecting the guidelines beyond the set income figures without making findings of the child's needs and standard of living, Kentucky courts do apply the "Three Pony Rule." Downing, 45 S.W.3d at 455-56.
In Downing, a child support order was vacated in part and remanded because the trial court abused its discretion by giving too much weight to a mathematical extrapolation of the guidelines and failing to make sufficient findings regarding relevant factors. The Bath Circuit Court was well aware of Downing before entering its order in this case—discussing the case from the bench and citing it in its opinion. Still, the trial court computed the prohibited mathematical projection—figuring Faried would pay just shy of $9,000 each month—but did not award that amount in an attempt to avoid reversal on appeal. Under Downing, it matters not "the lifestyle which the parents could afford to provide the child, but rather it is the standard of living which satisfies the child's reasonable and realistic needs under the circumstances." Id. at 457.
Bell v. Cartwright, 277 S.W.3d 631 (Ky. App. 2009), is another example of a trial court abusing its discretion by arbitrarily increasing a professional athlete's child support obligation due solely to a near doubling of his income without any evidence of a concomitant increase in his son's needs. Bell was cited to the trial court before it entered its award.
Both Downing and Bell deal with modifications of child support, a distinction from this case as recognized by the trial court. Here, we deal not with a modification, but with an initial setting of child support. However, we see no reason to chart a new course based on that distinction. For the reasons that follow, we adopt and apply Downing and Bell to the initial setting of child support where the combined parental gross income exceeds the highest level reflected in the child support guidelines. Because the amount of child support awarded by the trial court in this case was not based in fact, was speculative, and was wholly unrelated to the child's "reasonable needs," we vacate and remand for further proceedings and findings.
FACTS
While students at Morehead State University, Faried and McCarty became good friends. A daughter, Kyra, was born of their friendship on March 12, 2010. McCarty and Faried never married and never cohabitated.
At the final hearing, McCarty testified she dropped out of college after giving birth and returned to her parent's four-bedroom home in Owingsville, Kentucky, where she now shares a bedroom with Kyra; her later-born son, Malachi; and occasionally, Malachi's father. Five other people—for a total of nine—live in McCarty's parent's home.
Malachi's father is Kahlil Owens. Like Faried, Owens played basketball at Morehead State University. According to McCarty, Owens hopes to play professional basketball in Europe, but did not have a contract at the time of the hearing. McCarty estimated she had received only $300.00 in child support for Malachi from Owens and his parents. She testified she is in a committed relationship with Owens.
At the time of the final hearing on June 27, 2013, McCarty was working at a gas station thirty to thirty-five hours a week and earning about $1,050.00 a month. She testified she would like to have her own home, which she estimated would cost about $900.00 a month to rent, with monthly utilities running an additional $300.00 to $400.00. In describing the type of home she would like, McCarty stated she wants Kyra to have a bedroom of her own and a backyard; she wants a safe place for Kyra. McCarty's attorney had found some homes on the internet that might be suitable and McCarty testified to their listed prices. McCarty testified she had spoken with a carpenter who was building a home in Morehead that would rent for about $900.00 a month and he told her he would hold the home for her.
Currently, McCarty's parents provide some of the food she and Kyra eat, but she estimated if she were buying the food herself it could run between $200.00 and $500.00 each month. McCarty has some fixed monthly expenses including $239.00 to her grandmother for use of a 2007 Chevy Equinox; $58.00 for car insurance; $400.00 to $500.00 to fill the car with gas; $200 for personal expenses; and $150.00 for cell phone service. McCarty's family home does not have internet access and her computer has a virus so it is unusable. McCarty testified she pays nothing for health care because she qualifies for coverage under her parent's policy.
She also stated she pays nothing for Kyra's clothing because Faried has twice sent two large boxes of Adidas brand clothing—part of his endorsement deal—that Kyra is just now able to wear. About a year earlier, McCarty had asked Faried for $200.00 to buy clothes for Kyra; whether that request was fulfilled is unclear. McCarty testified she would shop for Kyra at Wal-Mart or JCPenney, but freely admitted she has no money or space for more clothes for Kyra. In fact, she told Faried to stop sending clothes to Kyra. She estimated, if she had the money, she might spend $200.00 to $300.00 every three months for Kyra's clothes. McCarty seemed content to continue living in her native Bath County or neighboring Rowan County.
Due to Kyra's young age, McCarty has not lavished much on her daughter in the way of trips or activities. As Kyra gets older, McCarty might like to take her daughter to the zoo. Unfortunately, there is no zoo nearby. She might like Kyra to participate in gymnastics, but McCarty has not explored the cost or availability of gymnastics training.
Faried, a basketball standout, graduated from Morehead State and moved west after being drafted by the National Basketball Association's (NBA) Denver Nuggets in 2011. He now lives in Denver, Colorado, where he earns $1,434,656.00 a year, plus another $197,240.00 from endorsements. His take home pay is reduced by several business expenses including an NBA escrow of $132,000.00 annually, management fees, agent fees, trainer fees, employee salaries, dues, fines, a cell phone and substantial income taxes. A certified public accountant, testifying as an expert witness, calculated Faried's net monthly income as $53,182.00. This same witness testified the annual per capita income for an individual in Bath County is $15,630.00 and in neighboring Rowan County it is $16,889.00.
Drafted during a lockout, Faried did not begin drawing a salary until 2012. To tide him over, he took out a sizeable loan, between $100,000.00 and $300,000.00—which he is still repaying.
Faried drives a 2012 Dodge Durango. He rents a three-bedroom apartment in Denver at a monthly cost of $4,100.00 where he and his brother live. He pays his brother's college tuition of $4,517.00 per semester. Faried rents a four-bedroom home in New Jersey for his mother at a cost of $2,300.00 each month—providing for his mother was one of his first priorities upon being drafted into the NBA. He pays his father's rent of $1,300.00 a month for a studio apartment in Denver. Faried pays utilities and cell phone bills for both of his parents.
Kyra is with Faried often. Either he or a family member—at Faried's expense—flies to Kentucky to accompany Kyra on the flights to and from Denver for visits. Faried has taken Kyra to Walt Disney World. He has also taken her to movies and bowling and gives her access to an iPad at his home.
He testified he believes Kyra, McCarty and Malachi could live comfortably on $2,000.00 a month, but he is willing to set aside another $500.00 for Kyra each month. The trial court predicted Kyra will grow close to Malachi, her half-brother, and want to do activities with him. Faried responded that he has accepted he will be part of Malachi's life because of Kyra. Stating Salt Lick, Kentucky, is not a good place to rear a child due to its poor economy and rampant illegal drug trade, the trial court suggested Faried consider purchasing a home and giving Kyra a remainder interest in the home so she would have a better place to live. The trial court also gave Faried financial advice from the bench.
After setting Faried's temporary monthly child support obligation at $2,000.00 in November 2012—plus requiring him to pay Kyra's health insurance, out-of-pocket medical expenses, and work-related child care—in January 2014, the Bath Circuit Court increased his monthly obligation to $4,250.00 plus an additional sum to be paid each month for educational expenses. Faried now challenges the Findings of Fact, Conclusions of Law and Judgment of Child Support entered by the trial court on October 31, 2013, and an amended order entered on January 10, 2014. He argues the orders are not based on Kyra's reasonable needs, but rather on a fanciful "wish list" McCarty submitted and the trial court further embellished. Upon review of the briefs, the law and the record, we vacate and remand for further findings and proceedings consistent with this Opinion.
PROCEDURAL HISTORY
In July 2012, McCarty petitioned for custody of then two-year-old Kyra and an award of child support in the amount of $7,500.00 per month—an amount clearly in excess of Kentucky's child support guidelines which stop at $1,125.00 a month for a single child whose parents have a combined monthly adjusted gross income of $15,000.00. McCarty did not demonstrate how Kyra personally generated monthly expenses of $7,500.00.
At the time of filing, McCarty had just returned to work, earning $7.25 per hour for 25 or fewer hours per week. In contrast, she maintained Faried was earning an annual salary of $1,254,720.00 and receiving more income through endorsements. The petition stated in part:
[McCarty] would request that the Court establish child support based on reasonable needs for the minor child considering the circumstances which include the significant earnings of [Faried], the fact that [McCarty] has 100% of the care giving (sic) responsibilities for the minor child and that the minor child should be permitted to reside in a home appropriate in view of the lifestyle enjoyed by [Faried] currently, subject to proof of the cost of the minor child's reasonable needs and expenses under these circumstances.Faried responded to the petition, noting both he and McCarty have physically and emotionally cared for Kyra since birth, both he and McCarty are fit and proper parents who should have joint custody with shared parenting, and a two-year-old child cannot reasonably need $7,500.00 per month in support.
In a subsequent motion for child support filed on September 27, 2012, McCarty submitted proof her current gross income was about $698.00 per month. In contrast, she listed Faried's gross monthly income as about $111,865.00. Citing the "huge disparity" in incomes—a recurring theme throughout the motion—McCarty, in reliance on Dudgeon v. Dudgeon, 318 S.W.3d 106 (Ky. App. 2010), asked the trial court to deviate from the guidelines. McCarty then cited Schoenbachler v. Minyard, 110 S.W.3d 776, 784 (Ky. 2003), arguing under the "income shares model"—the basis of Kentucky's child support guidelines—a "child should receive the same proportion of parental income that would have been received if the parents lived together." Schoenbachler's applicability to this case is debatable since its main focus was whether undocumented money earned through ticket scalping and betting should be included in a parent's gross income—an issue wholly unrelated to this case. Furthermore, having never lived together, we cannot predict what McCarty and Faried would have spent as a two-parent family such that Kyra's standard of living could continue at that level. McCarty argues Kyra's standard of living should not be a sole reflection of McCarty's meager lifestyle, but must also reflect Faried's wealth and lifestyle.
Paternity was established by DNA testing, was acknowledged by Faried in writing and is uncontested. McCarty and Faried appear to be amicable and agreed to joint custody with Faried having extended periods of visitation commensurate with his athletic schedule. There being no debate about custody, the trial court awarded joint custody with McCarty having Kyra in Kentucky much of the time.
After a hearing, the trial court entered an order on October 31, 2013, directing Faried to pay $4,250.00 in monthly child support and, beginning November 1, 2013, to set aside an additional $500.00 each month in a "separate educational opportunities for Kyra" account which the parents would spend jointly. Later in the opinion, the trial court ordered Faried to set aside another $500.00 for Kyra each month to cover "summer camps and future educational opportunities."
The $4,250.00 award was made retroactive to October 1, 2012, meaning after giving Faried credit for $5,150.00 paid for childcare and over-the-counter medical expenses, he owed $24,100.00 in back child support. Faried was also ordered to arrange for McCarty to receive financial, nutrition and exercise counseling, and to pay McCarty's attorneys' fees and expenses of $13,234.46. The trial court made McCarty responsible for paying child care from the child support she receives—Faried had been paying $75.00 directly to the child care provider. Faried was directed to continue carrying Kyra on his health insurance policy.
After commenting on the "extreme differences" in lifestyle resulting from the disparate incomes of McCarty and Faried, the trial court found Kyra's "reasonable needs" to be as follows:
a. Housing - $1200.00 per monthThe trial court then stated its view that when encountering parents with disparate incomes, Kentucky courts prefer children to live in two extremes such that they either resent one parent for having money and not sharing it with the other parent, or resent the other parent for not being as wealthy—thereby creating a lose-lose situation for all concerned. Our view of the law differs from that of the trial court. As we read Kentucky law, a child support determination that deviates from the guidelines must be based on the child's reasonable, documented needs. Downing, 45 S.W.3d at 456. To further support our view, we direct the trial court to the following explanation from Downing.
b. Day care - $500.00 per month
c. Dependable vehicle - $500.00 per month
d. Vehicle maintenance - $150.00 per month
e. Gas for car - $350.00 per month
f. Proper insurance for car - $200.00 per month
g. Nutritious food - $400.00 per month
h. Utilities including internet - $350.00 per month
i. Gifts (birthday parties/outings for/with other children)-$50.00 per month
j. Activities - gymnastics and educational - $400.00 per month
k. Clothing - $100.00 per month
l. Over the counter medical expenses - $50.00
Total: $4,250.00
Any assessment of the child's reasonable needs should also be based upon the parents' financial ability to meet those needs. Factors which should be considered when setting child support include the financial circumstances of the parties, their station in life, their age and physical condition, and expenses in educating the children. The focus of this inquiry does not concern the lifestyle which the parents could afford to provide the child, but rather it is the standard of living which satisfies the child's reasonable and realistic needs under the circumstances. Thus, while a trial court may take a parent's additional resources into account, a large income does not require a noncustodial parent to support a lifestyle for his children of which he does not approve.Downing, 45 S.W.3d at 457 (internal citations omitted).
Faried moved to alter, amend or vacate the October 31, 2013 order, identifying several flaws requiring additional findings: (1) the trial court's finding of reasonable needs was a finding of needs for McCarty's household of four, not for Kyra's needs alone; (2) twice the trial court ordered $500.00 a month to be set aside in a separate account—once for "future educational opportunities" and later in an "educational fund" to be used for "summer camps and future educational opportunities;" (3) the trial court failed to identify any special need that could not be provided by public schools; and, (4) without explaining McCarty's lack of knowledge of nutrition, exercise and finance, the trial court ordered Faried to arrange for her to receive counseling on these topics. In seeking relief, Faried argued the trial court was directing him to support not only his child, but McCarty, her son, and her son's father; there had been no showing local public schools were inadequate, thus making the mandatory setting aside of an additional $500.00 a month for educational opportunities to be improper; and absent a showing of need for McCarty to receive nutrition, exercise and financial counseling, there were no legal grounds to require Faried to arrange and pay for such counseling.
McCarty filed a response asking that Faried's motion be denied and that the order be enforced. She alleged Faried was noncompliant with the order and had stopped paying the daycare provider. She requested prompt payment of her attorneys' fees and alleged Faried could not argue for the first time under CR 59.05 that the trial court should divide household expenses by one-quarter to reach Kyra's actual needs; McCarty argued Kyra's needs would be the same no matter how many people lived with her under the same roof. McCarty further argued the separate education fund was needed because Faried's athletic career could be short-lived. Finally, McCarty did not oppose eliminating the required nutrition and financial counseling.
Faried filed proof of timely mailing of checks directly to the child care provider and negotiation of those checks. He further argued so long as motions filed pursuant to Kentucky Rules of Civil Procedure (CR) 59 and 52 were pending, the October 2013 order was not final and thus, no payments were due under it.
On January 10, 2014, the circuit court entered an amended order directing Faried to pay the same amount of child support—$4,250.00 a month, and finding the same "reasonable needs" for Kyra. The trial court rejected Faried's request that it distinguish between the needs for McCarty's four-person household and Kyra's personal needs because "blended families pool resources to survive." The trial court further noted, enabling McCarty to move from her parent's home "requires money."
Despite maintaining some of its original findings and conclusions, the amended order did make some changes. Regarding the directive that Faried establish a separate educational account for Kyra at a rate of $500.00 a month, the trial court explained it intended "this money to be used for tutoring, educational activities, camps, or future educational opportunities, including private school." After reading Young v. Holmes, 295 S.W.3d 144 (Ky. App. 2009), the trial court concluded Miller v. Miller, 459 S.W.2d 81 (Ky. 1970) (parent may be required to pay private school tuition only upon trial court finding public schools are inadequate for educational purposes), was outdated and no longer good law.
We have read Young and Miller, as well as other cases on the topic, and hereby confirm Miller remains good law in Kentucky. Absent a showing of inadequacy of public schools, an award of child support that includes private school tuition is erroneous. Id. at 83. Miller was not controlling in Young because the trial court in Young did not impose the cost of private school on the father; in Young, the father freely undertook to pay private school tuition on his own. Young, 295 S.W.3d at 147.
Similarly, Faried may offer to pay for Kyra to attend a private school—that is his choice. However, the trial court cannot order him to do so without first determining public schools are inadequate.
Ultimately, the trial court vacated the requirement of a separate education account, instead doing an end run around current law by requiring Faried to pay 99% of Kyra's educational expenses (to include, but "not be limited to: supplies, field trips, tutoring, camps and electronics necessary for studying") with McCarty paying the remaining 1%. The way the order is written, it appears McCarty can unilaterally enroll Kyra or make purchases and send Faried a bill which he must pay within fifteen days of receiving notice. The category listed as $400.00 a month for "Activities and Gymnastics" was expanded to read "Activities-gymnastics, sports or other extracurricular activities" and remains at $400.00 per month.
The trial court explained the required nutrition counseling was an attempt to involve Faried in helping Kyra develop healthy eating habits in light of his extraordinary athletic prowess and physique and in contrast to the frequent fast food meals McCarty was providing their daughter. The trial court replaced the original provision with a requirement that McCarty receive fitness/nutrition counseling from a provider of her choice. In doing so, the trial court vacated the requirement that Faried "be involved" in nutrition and exercise counseling, but did not specify whether Faried is still responsible for paying for that counseling. The court also deleted the requirement that Faried provide financial counseling for McCarty, requiring instead that McCarty attend such counseling and learn to maximize for Kyra the funds provided by Faried. The trial court specifically eliminated from Faried "any responsibility"—which we would read to include footing the bill—for McCarty's financial counseling.
Faried filed a timely notice of appeal on January 17, 2014. Seven days later, he moved the trial court to stay enforcement of the arrearage judgment resulting from the court having made the child support order retroactive. The trial court entered an order allowing Faried to supersede enforcement of the judgment and the appropriate sum was deposited with the Bath Circuit Court Clerk. This appeal follows.
ANALYSIS
Within statutory parameters, the establishment, modification, and enforcement of child support obligations are left to the sound discretion of the trial court. Van Meter v. Smith, 14 S.W.3d 569 (Ky. App. 2000). However, this discretion is not unlimited. Keplinger v. Keplinger, 839 S.W.2d 566 (Ky. App. 1992). It must be fair, reasonable, and supported by sound legal principles. Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001).Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007). "Discretion is abused only when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009) (internal citation omitted). "We will disturb a trial court's findings of fact only if they are clearly erroneous." Id. (internal citation omitted). With these parameters in mind, we dissect the order and amended order entered in this case.
The factual similarities between this case and Bell are undeniable. The context and precise figures may be different, but otherwise, the cases are practically twins. In Bell, a hearing was held on the mother's (Tiffany's) motion for an increase in child support at which
Tiffany requested that the monthly child support obligation be increased to $5,000.00 a month. She testified that there were several reasons for her request to modify including: her wish to purchase a home; her expectation to send Brayden to private school at some point; her hope to take him on two vacations a year; and her desire to send him to sports camps in the future. Tiffany offered no documentation regarding the expected costs for private school, vacations, or sports camps. She did speculate that it would cost her about $800.00 a month to purchase a home. Furthermore, she stated that she needed $440.00 per month for daycare expenses for Brayden, which Yeremiah had already agreed to pay and begun paying by the time of the hearing. Additionally, Tiffany asserted that she needed approximately $500.00 per month to clothe Brayden in brand-named clothes as desired by Yeremiah. She further testified that Brayden's food costs were approximately $200.00 per month.Bell, 277 S.W.3d at 632. In this case, McCarty testified her monthly expenses (car payment, car insurance, cell phone, fuel for car, some food and personal expenses) amounted to $1,547.00. She then testified to a variety of potential expenses—amounting to about $2,703.00—she has never incurred and may never incur, such as renting a four-bedroom home; utilities for that home; food; clothes for Kyra; private school for Kyra—even though there is no private school in Bath County—gymnastics training for Kyra; and trips for Kyra. McCarty also testified she plans on switching Kyra from daycare to preschool.
In Bell, it was determined deviation from the guidelines was appropriate because the "combined adjusted parental gross income exceeds the uppermost level of the guidelines table." 277 S.W.3d at 632. The same is true in the case under review, and deviation is likewise appropriate. Bell goes on to quote Downing, 45 S.W.3d at 456, however, which requires "any decision to set child support above the guidelines must be based primarily on the child's needs, as set out in specific supporting findings." Bell, 277 S.W.3d at 632 (emphasis in original). We cannot say that happened in this case. Just as Tiffany's alleged expenses were deemed to be too "speculative" in Bell, so too are McCarty's. If and when McCarty rents or purchases a home, she may request a modification of the child support award. The same is true if and when Kyra enrolls in gymnastics.
However, to base the initial award on events that may never come to fruition is a course we are unwilling to chart. As an example, the trial court suggested during the final hearing that Kyra may become a basketball player. Does that mean Faried should build his daughter a training facility today to develop her skills because he may have the financial ability to do so? We think not. That is just too slippery a slope to descend, but that is the illogical result McCarty is pursuing and asking us to approve.
Although cited by neither party, Ciampa v. Ciampa, 415 S.W.3d 97 (Ky. App. 2013), approved a future expense—a car for a divorced couple's youngest of three daughters in the context of a request for a modification of child support. We deem Ciampa to be factually distinguishable but still instructional. The Ciampa's divorced after seventeen years of marriage, whereas McCarty and Faried never married, never lived together, and never established a joint standard of living or a pattern of spending. Cars had been purchased for the Ciampa's two oldest daughters upon their sixteenth birthdays—thus, it was reasonable for the youngest daughter to expect a car for her sixteenth birthday. While the Ciampa court found sufficient reason to affirm the trial court's award of a future car payment, we do not see sufficient similarity, nor sufficient proof in the record to follow suit.
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Additionally, this particular case arose in the context of a professional athlete, but it could just as easily have arisen in the context of a coal baron, music mogul or dot-com executive earning a grand salary soon after graduating from college. Furthermore, barring some intervening factor, we are aware McCarty and Faried apparently have different futures. Finding common ground between the two natural parents beyond their child is a monumental task for the trial court, but the resulting child support order must be rooted in reality and bear a reasonable relationship to the evidence—hopes, dreams and plans simply are not evidence of actual expenses and reasonable needs. Because the initial child support award may not adequately cover every eventuality, Kentucky has created a procedure for seeking modification of the original award. Here, the trial court has set an unreasonably high child support award with the apparent intent of obviating any future need for modification.
CONCLUSION
Because the combined parental gross income in this case exceeds the child support guidelines, we agree that deviation from the guidelines was appropriate. However, we cannot endorse the way the Bath Circuit Court calculated Faried's child support obligation. Rather than basing its decision on McCarty's testimony that her monthly expenses amounted to $1,547.00, the trial court figured Kyra's monthly reasonable needs as $4,250.00—a figure seemingly born of whole cloth because it does not comport with McCarty's testimony, and some of the items identified by the court were not requested by McCarty. It appears the trial court has attempted to micromanage the rearing of Kyra by using its own estimate of costs and needs—supplanting the way McCarty and Faried would raise their daughter with the way the trial court would raise Kyra.
While Kyra needs a safe and comfortable place to live, we are unaware of any requirement that her father be her sole provider just because he has the means to do so. Kyra is fortunate to have two parents and both should contribute to her upbringing. One must keep in mind the trial court's task in this case is to establish a proper amount of child support not family support. Thus, it is critical that only a reasonable share of the costs for housing, food, utilities and other household expenses be apportioned to Kyra and ultimately included in Faried's child support obligation.
Hence, on the strength of Bell, we hold the trial court abused its discretion by arbitrarily increasing Faried's child support obligation to an amount more reflective of his ability to pay rather than his daughter's reasonable needs as established at trial. Hence, we vacate and remand the trial court's order and amended order and direct the trial court to recalculate the initial child support award in conformity with Downing. Any discrepancy in the proof of Kyra's reasonable needs and the amount awarded for those needs must be explained in the final order. Additionally, the trial court has discretion over the effective date of any increase, Giacalone v. Giacalone, 876 S.W.2d 616, 620 (Ky. App. 1994) (citing Ullman v. Ullman, 302 S.W.2d 849, 851 (Ky. 1957)), but it would be inappropriate to make retroactive an as yet unincurred expense.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
COMBS, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION.
COMBS, JUDGE, CONCURRING: I agree that based on the case law cited in the majority opinion, a remand is warranted for recalculation of the amount of child support. However, it is abundantly apparent to me that the trial court was well intentioned in endeavoring to elevate the standard of living of this child in a manner that the father is financially able - though perhaps not legally required - to provide.
I would hope that the better angels of his nature will recognize the lesson that the trial court sought to teach. He remains free to be as generous as his conscience dictates and his means would allow - regardless of the figure that is ultimately ordered on remand. BRIEFS FOR APPELLANT: Mary Janice Lintner
Louisville, Kentucky
BRIEF FOR APPELLEE: Eileen M. O'Brien
Lisa Hart Morgan
Lexington, Kentucky