Opinion
NO. 2012-CA-002132-ME
2013-09-13
DONALD HUGH JENKINS APPELLANT v. DEIDRE MICHELLE BOWEN APPELLEE
Kenneth A. Meredith, II Bowling Green, Kentucky BRIEF FOR APPELLEE: Wesley V. Milliken Bowling Green, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE MARGARET RYAN HUDDLESTON, JUDGE
ACTION NO. 11-CI-00870
OPINION
AFFIRMING AND REMANDING
BEFORE: CLAYTON, MAZE, AND NICKELL, JUDGES. NICKELL, JUDGE: Donald Hugh Jenkins challenges the findings of fact, conclusions of law, and decree of custody entered by the Family Court Division of the Warren Circuit Court on July 13, 2012, giving sole custody of his then two-year-old son, P.T.J., to the child's mother, Deidre Michelle Bowen. He also challenges an amended version of that judgment entered by the same court on November 8, 2012.
Pursuant to Court policy, children are identified by initials only.
The crux of this appeal is whether there was sufficient proof of Jenkins's substance abuse to justify the court's award of sole custody to Bowen and its requirement that any visitation with the child be supervised until Jenkins "seeks help for his substance abuse issues and affirmatively demonstrates to the Court that he is no longer a danger to the child." Jenkins maintains he does not drink to excess, has never been diagnosed with a substance abuse problem, and has never been treated for substance abuse. Additional questions to be addressed are the impact voluntary unemployment has on one's ability to parent; whether Jenkins verbally and emotionally abused Bowen; whether Jenkins's untreated alcohol issues endanger his son's physical, mental, moral or emotional health; whether the non-cash gift of a home, free of rent, from Jenkins's father was properly imputed to Jenkins for calculation of child support; and, the proper procedure for recouping extraordinary medical expenses. Upon careful review of the record, the briefs and the law, we affirm the trial court but remand for entry of a child support worksheet.
BACKGROUND AND PROCEDURAL HISTORY
In April of 2012, Jenkins was a 41-year-old high school graduate who, by choice, had not worked in a decade. He had attended college, but had no degree. He was living alone, without paying rent, in a $100,000.00 home owned by his father. Jenkins had been claimed as a dependent until 2011. Sometime between 1999 and 2001, he worked a couple of years for a textbook company earning $8.00 an hour. He also worked for a country club golf course for about a year. He was currently remodeling a home with his father. He testified he had no income and his parents paid all of his expenses. His father gives him about $900.00 every month and his mother pays his remaining expenses which average about $770.00 each month.
In contrast, Bowen was a 32-year-old attorney who had been employed by the Department of Public Advocacy for nearly seven years. She was earning $3,774.00 per month and owned her home.
Jenkins and Bowen conceived a child prior to October 5, 2009. They were unmarried and maintained separate residences although Jenkins had brought some of his possessions to Bowen's home. On October 5, 2009, Bowen began recording her impressions of Jenkins's drinking activities and sleep patterns on her work calendar. Bowen gave birth to P.T.J. on May 23, 2010. According to Bowen, before their son's birth, Jenkins often drank excessively with his friends and then slept for long periods of time to recover from his carousing; his drinking intensified after P.T.J.'s arrival. Bowen does not doubt Jenkins loves his son; she simply does not trust him to remain sober and awake when the child is in his care. While not a medical professional, Bowen believes Jenkins needs help. She described him as not being in his right mind.
On May 19, 2011, Jenkins initiated this action by filing a petition to establish paternity and joint custody. That same day, Bowen asked Jenkins to vacate her home. On May 23, 2011, Bowen answered the petition admitting paternity and stating Jenkins lives "a transient lifestyle" and exhibits a "pattern of substance abuse which renders him incapable of adequately caring for [P.T.J.] and ensuring the child's safety." Bowen went on to state "she has served as [P.T.J.'s] primary caregiver since birth and provides for all of the child's daily needs." She requested sole custody, supervised visitation for Jenkins, and child support.
Through informal mediation, the parties agreed upon terms reflected in an agreed order entered October 4, 2011. The parties agreed: Bowen would have temporary custody of P.T.J.; Jenkins would have visitation with P.T.J. at specified times; visitation would be supervised by Jenkins's father or mother; Jenkins was to neither possess nor use alcohol, illegal drugs or tobacco while in P.T.J.'s presence; and Jenkins was to pay $500.00 a month in child support.
On at least 18 occasions, Bowen permitted Jenkins to have unsupervised visitation with P.T.J., mostly when she was away from her home for brief periods of time to shower or shop. These visits occurred without incident. Bowen could not bathe herself or her child in her own home for several months because Jenkins had destroyed the bathroom with a sledgehammer. Without being asked, Jenkins began a remodeling project but never made any progress and ultimately Bowen paid someone to repair the room. Between February and June, Bowen showered at the homes of friends, neighbors and family.
Trial on the custody and child support issues began on January 19, 2012, when the court heard testimony from Jenkins, two of his friends, his mother, and Bowen. Witnesses called by Jenkins portrayed him as a doting father deserving of joint custody who never drinks to excess. After a full day of testimony, the proceeding was adjourned and Jenkins was directed to undergo an immediate hair follicle drug screen.
Test results were negative for amphetamines, barbiturates, benzodiazepines, cocaine, opiates, PCP, and cannabinoids. The results did not indicate Jenkins had been tested for the presence of alcohol.
Trial resumed on April 25, 2012, when the court heard testimony from Bowen's sister and brother-in-law. Witnesses called by Bowen portrayed Jenkins as a drunk who is often asleep or passed out, is prone to becoming belligerent when drunk, and cannot work because of his drinking. In rebuttal, Jenkins retook the stand, tried to explain away the alarming conduct described by Bowen and her witnesses, confirmed he was still unemployed but would begin work in June, and offered proof from another friend. There was no testimony at trial from any medical or other professional witness.
When Bowen's attorney tried to elicit details about the job, an objection was sustained because it was not a proper topic for rebuttal. However, the trial court noted it might be relevant in the contempt hearing on unpaid child support that would follow the trial.
At the conclusion of the trial testimony, the court took the issues of custody, child support and reimbursement of extraordinary medical expenses under submission, and immediately convened a show cause hearing to determine whether Jenkins should be held in contempt for failing to make timely child support payments. At the time of the hearing, Jenkins was $3,000.00 in arrears. When asked why he was chronically late in paying child support, Jenkins responded he had no money. When asked about prospective employment, Jenkins admitted he had not submitted any job applications, but stated he had a job opportunity with an uncle in Nashville, although he had not truly pursued it. He also testified he had completed a real estate class and had sent resumes to some insurance companies through blind ads. He acknowledged his parents were paying his child support obligation and stated he did not think his lack of a job negatively impacted P.T.J. Upon finding Jenkins to be in willful contempt of the agreed order of October 4, 2011, requiring payment of $500.00 in child support by the first day of each month, the court sentenced Jenkins to serve thirty days in jail, but in lieu of the sentence referred him to the "Turning It Around" program.
A twelve-week court-ordered program designed to increase child support collection, reduce contempt cases, and promote cooperative parenting.
On July 13, 2012, the court awarded sole custody of P.T.J. to Bowen and awarded supervised visitation to Jenkins. Jenkins was also ordered to pay $552.80 in monthly child support and to reimburse Bowen $1,080.48 for extraordinary medical expenses and forty percent (40%) of any of the child's future extraordinary medical expenses. We quote the trial court's findings in relevant part:
[Jenkins] has requested a joint custody arrangement with no designation as to the primary residential parent of the child. [Bowen] has requested a sole custody arrangement with [Bowen] being designated as sole custodian of the child. The child, being only two years old, does not have the ability to express his wishes to the Court.
The Court finds that [Jenkins] exhibits a pattern of substance abuse and related behavior which, at this time, renders him incapable of adequately caring for the child and ensuring the child's safety. [Jenkins] has a history of alcohol related arrests and incidents, he denies having a problem with alcohol abuse, and he denies having received treatment for alcohol abuse. [Jenkins's] denials are not credible in light of the overwhelming evidence put forth at trial. The child remains at risk of harm when in [Jenkins's] unsupervised care due to his continuing, untreated alcohol abuse issues.
[Jenkins] remains voluntarily unemployed and has not yet demonstrated the ability or motivation to adequately parent his child. The Court finds that [Jenkins] was verbally and emotionally abusive to [Bowen] during their relationship and as a result, the parties are unable to effectively cooperate or communicate in the child's best interests. The Court finds that the child's development and adjustment to home will risk serious delay and harm from [Jenkins's] current lifestyle and related substance abuse issues. In contrast, [Bowen] has maintained steady employment, has provided for the child's needs, and has adequately ensured the safety of the child.
The Court having considered the parties' respective wishes as to custody, the mental and physical health of the parties, [Jenkins's] substance abuse issues, the evidence of domestic violence between the parties, and all other relevant circumstances of the case at bar, finds that it is in the best interests of the child to be in the sole custody of [Bowen]. A parent not granted custody of a child is entitled to reasonable visitation unless the Court finds that visitation would seriously endanger the child's physical, mental, moral or emotional health. KRS[] 403.320(1). [Jenkins's] visitation with the child should remain supervised as set forth in the Agreed Order, entered October 4, 2011, until such time as [Jenkins] seeks helps [sic] for his substance abuse issues and affirmatively demonstrates to the Court that he is no longer a danger to the child.
V.
The Court will now consider the issue of child support. If a parent is voluntarily unemployed, child support shall be calculated based on a determination of potential income through consideration of the non-custodial parent's recent work history, occupational qualifications, and prevailing job opportunities in the community. KRS 403.212(2)(d). The Court may also impute income for consequential or recurring gifts such as the gratuitous
payment of living or vehicle expenses by a third party. Stewart v. Burton, 108 S.W.3d 647, 648-649 (Ky. App. 2003).
The Court finds [Jenkins] to be voluntarily unemployed. [Jenkins] last held a steady job for a book company, earning $8.00 per hour, over ten (10) years ago. [Jenkins] has a high school degree and was last enrolled in college in 1997 at Southern Union State Community College in Alabama. [Jenkins] provided no evidence of any physical or mental disabilities precluding him from obtaining employment at this time.
During the past ten years and presently, [Jenkins] has consistently received approximately $1,670.00 in gift income from his parents each month. [Jenkins] receives $900.00 per month from his father for living expenses and a variable amount of money from his mother each month to offset the remainder of his expenses. [Jenkins] testified that the variable amount averages approximately $770.00 per month. The Court finds that [Jenkins] currently receives approximately $1,670.00 per month in gift income from his parents, he lives rent free at a home owned by his parents located at 939 Covington Street, Bowling Green, Kentucky, and he was also given a 2004 Ford Expedition in a transaction well below fair market value. The benefits derived from [Jenkins's] lack of a monthly rent and vehicle payment are difficult to precisely value, however, the Court finds that by having these expenses paid for him, it frees [Jenkins's] sources of income for payment to his child.
The Court, having judicially noticed monthly rent payments within close proximity to [Jenkins's] residence for comparable houses, finds that a reasonable approximation of the benefit derived by [Jenkins] is $800.00 per month. As such, said benefit should properly be considered in the imputation of income for child support purposes. The Court finds it appropriate to impute a total gross monthly income of $2,470.00.
The Court finds [Bowen's] gross monthly income to be $3,774.00 per month. The combined parental income is $6,244.00 per month of which the Child Support Guidelines would call for a base child support obligation of $791.00 per month. [Bowen] provides health insurance at a cost of $62.00 per month. The child is enrolled at the First Baptist Church Daycare at an approximate cost of $529.00 per month. As such, [Jenkins's] child support obligation should be $552.80 per month, effective upon entry of this Findings of Fact, Conclusions of Law, and Decree of Custody. The Child Support Worksheet is attached hereto and incorporated as if fully set out herein.Jenkins moved the trial court to amend the judgment pursuant to CR 52.02 due to errors regarding custody, child support, extraordinary medical expenses and lack of unsupervised visits. Alternatively, he urged the trial court to amend or vacate the judgment and enter a new judgment or grant a new trial.
Additionally, [Bowen] has provided receipts for unreimbursed medical expenses incurred on behalf of the child in the amount of $2,701.19. [Jenkins] should reimburse [Bowen] for forty percent (40%) of said unreimbursed medical expenses of the child, an amount which totals approximately $1,080.48. [Jenkins] should pay forty percent (40%) of any unreimbursed medical expenses incurred on behalf of the child in the future.
Kentucky Revised Statutes. (Footnote added).
Judicial notice was taken of local newspaper classified advertisements for homes located in [Jenkins's] immediate neighborhood. (Footnote in original).
Kentucky Rules of Civil Procedure.
An amended judgment, partially granting Jenkins's motion to alter, amend or vacate, was entered on November 8, 2012. In it, the trial court reaffirmed its finding that Jenkins was exhibiting a pattern of substance abuse that made him incapable of caring for P.T.J. and ensuring his safety; found testimony from Bowen and her witnesses to be credible in establishing Jenkins's "late hours, his unresponsiveness to the child's needs, his excessive drinking, and his pattern of alcohol related substance abuse in the home"; deemed testimony from Jenkins's social friends to be less credible regarding his alcohol consumption and parenting skills; vacated a finding that Jenkins had a "history of alcohol related arrests" and stated it would consider only his "arrest history after the birth of the child"; placed particular value on testimony about times Jenkins "was passed out or incoherent" around P.T.J.; stated Jenkins "should seek alcohol related substance abuse treatment" and show he is no longer a danger to his son's health; stated Jenkins's "continued voluntary unemployment is a characteristic of his substance abuse behavior and when considered in conjunction with the testimony that he routinely stayed up all night with no meaningful purpose and slept in during the day, demonstrates a risk of delay and harm from [Jenkins's] current lifestyle to [P.T.J.'s] development and adjustment to [Jenkins's] home"; found Bowen's testimony of Jenkins's verbal and emotional abuse since P.T.J.'s birth to be credible; made an additional finding that no mental or physical infirmity kept Jenkins from working; stated $800.00 a month was imputed to Jenkins as the value of the home his father provides to him free of rent—in the absence of any proof of the value of Jenkins's room and board and the lack of a car payment, the court took judicial notice of a current newspaper advertisement for rent of a comparable home in Bowling Green at $875.00 per month; and finally, clarified that pursuant to KRS 403.211, Bowen would be responsible for the first $100.00 in extraordinary medical expenses annually and thereafter, those costs would be borne by the parties "in proportion to their percentage used in the attached child support worksheet." However, the only child support worksheet entered into the record by the trial court is attached to the original judgment and it allocated sixty percent (60%) of the financial responsibility to Bowen and the remaining forty percent (40%) to Jenkins.
Jenkins filed a timely notice of appeal challenging both the original judgment and the amended version. He now raises eight issues on appeal.
ANALYSIS
In reviewing an award of child custody, we look not at "whether we would have decided differently but whether the findings of the trial judge were clearly erroneous or he abused his discretion." Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974) (citing Hamilton v. Hamilton, 458 S.W.2d 451 (Ky. 1970)). The trial court's goal is to determine what is in the child's best interests under KRS 403.270. Specifically, the court must consider "all relevant factors" including nine specific items; consider only conduct affecting the proposed custodian's relationship to the child; and, if alleged, to determine whether and to what extent "domestic violence and abuse has affected the child and the child's relationship to both parents."
Only five of the nine items are pertinent to this case: parental wishes; "interaction and interrelationship" between child and parents; "child's adjustment to his home, school, and community;" "mental and physical health of all" involved; and, "information, records, and evidence of domestic violence as defined in KRS 403.270." The other enumerated items pertain to de facto custodians and the child's wishes. When judgment was entered, P.T.J. was just two years old—too young to express his wishes.
In asking us to review the court's award of sole custody to Bowen, Jenkins begins with a series of attacks on the trial court's findings of fact. Most of these complaints are based on his belief that the trial court overlooked testimony or found certain witnesses to be credible or incredible. When a case is marked by conflicting evidence, as is the case at bar, we must remember judging witness credibility and weighing evidence are tasks within the exclusive province of the trial court. Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003). Thus, Jenkins's disagreement with the trial court's view of the evidence does not mean the trial court erred.
Intertwined in Jenkins's argument is a claim that the trial court failed to specify the proof supporting its findings. CR 52.01 requires a trial court to "find the facts specifically and state separately its conclusion of law thereon and render an appropriate judgment[,]" but it does not require a detailed recitation of the facts on which its findings are based. Jenkins cites no legal authority requiring a trial court to make references to the record or to recount specific testimony in its findings. While certainly helpful to appellate review, such a requirement could make judgments unduly lengthy. Nevertheless, the amended judgment incorporated more facts and bolstered the trial court's original ruling.
Specific findings of fact are required to give the appellate court the "trial court's view of the controversy" and to explain why the trial court ruled as it did. Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Here, the findings of fact fully apprised us of the trial court's view and reasoning and were, therefore, sufficient.
Our review of the record is consistent with the trial court's resolution of the case. Bowen testified Jenkins repeatedly engaged in all-night drinking sprees followed by a day or more of sleep to recover; he was either asleep or passed out drunk anytime he was in her home; he had driven drunk, including taking her to the hospital to deliver their baby and then passed out while she was in labor; upon returning home with the baby, Jenkins became upset when his friends did not ask him to go out to celebrate the birth of his son; his drinking intensified after P.T.J.'s birth; Bowen occasionally returned home to find Jenkins passed out and their son strapped in a swing; without Bowen's knowledge, Jenkins consumed Lortabs prescribed for Bowen and P.T.J.; and, when confronted, Jenkins did not deny taking Bowen's Lortabs.
Additionally, Bowen testified that without being asked to remodel her bathroom, Jenkins demolished the room with a sledgehammer, causing her and P.T.J. to bathe in the homes of neighbors, friends and relatives from February until June. While she bought thousands of dollars in supplies for Jenkins to fix the bathroom, she never saw him make any progress and ultimately hired someone else to complete the task. She suspected Jenkins had returned for cash the items she had purchased for the repairs. Bowen testified she enrolled her son in daycare because Jenkins did not wake up. She also testified the child's sleep pattern improved dramatically when Jenkins vacated her home. Finally, Bowen testified she never discussed Jenkins's drinking with his mother, Judy Myers, but Myers had to be aware of his actions because she witnessed it.
Bowen's sister, Megan Holzknecht, testified she had seen Jenkins under the influence while his son was asleep. Megan testified she visited Bowen monthly and had probably seen Jenkins drunk five times. She explained that he hid his drinking at first, but then he would become really loud—so loud that it awakened her. She described an occasion on which she was awakened during the night to find Jenkins with a beer in his hand; when she told him to go to sleep, he never acknowledged her comments but became belligerent. The next morning, she saw lots of beer bottles in the trash can. She admitted she and her husband would have a beer or two with Jenkins, but the vast majority of the bottles were his alone. She noticed Jenkins slept a lot and she cancelled a joint camping trip with Jenkins and Bowen because she did not want her child to be around Jenkins. When Bowen gave birth, Megan thought Jenkins smelled of alcohol and his face appeared puffy.
Bowen's brother-in-law, David Holzknecht, echoed much of the testimony from Bowen and Megan. He testified he had seen Jenkins drunk around P.T.J. and during every other visit, Jenkins's drinking was beyond normal. In the early morning hours of Thanksgiving Day 2010, David was awakened twice; at 3:00 a.m., he heard Jenkins talking loudly on the phone. David told Jenkins it was probably time for bed, but Jenkins ignored him. David admitting drinking beer, but not to excess. On Thanksgiving morning, David noticed many beer bottles in the trash. Jenkins did not get up until noon or 1:00 p.m. on Thanksgiving Day. David testified he rarely saw Bowen drink.
Jenkins emphasizes there were none of the usual social service agency reports, no arrest records, and no medical or other professional testimony at trial establishing he abuses alcohol or other substances. However, that type of evidence is not critical for a trial court to reach a particular outcome. As explained in Krug v. Krug, 647 S.W.2d 790, 793 (Ky. 1983),
Without objection, John David Cole, Jr., a friend of Jenkins's, testified Jenkins had been charged with driving under the influence (DUI) before P.T.J. was born. Jenkins himself testified he had been convicted of DUI in 2004, but an objection was sustained because it was outside the relevant timeframe. Jenkins points out that he has not been arrested since P.T.J.'s birth, but in the amended judgment, the court wrote it "will only consider [Jenkins's] arrest history after the birth of the child so as to properly consider the conduct of the proposed custodian as it affects the child." The trial court correctly stated the directive of KRS 403.270(3) and because no post-birth arrest history was introduced at trial, we can only assume none was considered.
[a] trial judge has a broad discretion in determining what is in the best interests of children when he makes a determination as to custody. In many instances he will be able to draw upon his own common sense, his experience in life, and the common experience of mankind and be able to reach a reasoned judgment concerning the likelihood that certain conduct or environment will adversely affect children. It does not take a child psychologist or a social worker to recognize that exposure of children to neglect or abuse in many forms is likely to affect them adversely. Many kinds of neglect or abuse or exposure to unwholesome environment speak for themselves, and the proof of the neglect or abuse or exposure is in itself sufficient to permit a conclusion that its continuation would adversely affect children.
We also think the trial court is not precluded from consideration of circumstances where the neglect, abuse, or environment has not yet adversely affected the children but which, in his discretion, will adversely affect
them if permitted to continue. In other words, a judge is not required to wait until the children have already been harmed before he can give consideration to the conduct causing the harm. S. v. S., Ky.App., 608 S.W.2d 64 (1980); K.R.S. 403.340(1).
In summary, when the misconduct of a proposed custodian is advanced as a factor in the determination of custody, evidence of such misconduct may be heard and received, but before giving any consideration to such misconduct, the court must conclude, in his reasonable discretion, that such misconduct has affected, or is likely to affect, the child adversely. If such a determination is made, the trial court may then consider the potential adverse effect of such misconduct as it relates to the best interests of the child.
Jenkins argues his conduct on Thanksgiving Eve and Day was inconsequential because there were other adults in the home and P.T.J. was asleep so his son was not in danger. He also testified he did not drink excessively that night and did not awaken the house with his boisterous telephone conversation. He further testified no one asked him to be quiet; according to him, Megan and David each came into the kitchen and prepared a snack. It is this minimization of detrimental conduct by Jenkins that the trial court found to be too risky to inflict upon P.T.J. and, therefore, found an award of sole custody to Bowen to be in the boy's best interests.
The foregoing testimony was sufficient basis for the trial court to find Jenkins has a substance abuse problem and is unable to adequately parent P.T.J. due to excessive drinking, being drunk at the wheel, and lengthy periods of sleep during which a parent needs to be alert and available. There was no abuse of discretion.
Jenkins's second allegation of error is that the trial court equated being voluntarily unemployed with being unable to parent. Jenkins argues none of the factors listed in KRS 403.270 weigh against an unemployed parent having custody. We agree, but Jenkins misconstrues the trial court's words. For Jenkins, being unemployed is a symptom of a larger problem—his lack of a job is not a matter of having tried to find a job or hold a job and failing, nor is it a matter of being physically or mentally unable to work, it is a result of alcohol-related issues that Jenkins denies exist.
At trial, Jenkins testified having a child had made him want to be more responsible. Yet, he took no significant steps towards becoming responsible. Instead, he drank more. He testified his drinking had not adversely impacted P.T.J., but his drinking and sleeping were the reasons Bowen enrolled the child in daycare. Bowen testified the child's sleep pattern improved dramatically upon Jenkins vacating her home and she could now sleep. At the contempt hearing, Jenkins testified he was chronically late in paying his child support because he had no funds; his parents paid his child support obligation. A job could enable Jenkins to provide for his own child rather than just being a conduit through which his parents pay yet another bill. The trial court found Jenkins is not motivated to parent P.T.J. and provide what is best for his son. Jenkins's own testimony supports that finding.
Contrary to Jenkins's suggestion, there is no indication the trial court did not afford equal consideration to both he and Bowen as required by KRS 403.270(2) and Squires v. Squires, 854 S.W.2d 765, 770 (Ky. 1993). We discern no abuse of discretion.
Jenkins's next complaint is there was no credible evidence of domestic violence since no domestic violence order was ever filed or entered and Bowen is a knowledgeable attorney who works in the courthouse and knows how to file charges and motions. He argues there was no specific finding of domestic violence and no explanation of how the alleged acts of verbal and emotional abuse affected P.T.J. as required by KRS 403.270(2)(f) and (3).
At trial, Bowen chose not to reveal her new address because she finally feels safe and can sleep at night. She testified Jenkins had broken into her prior home and left a note on the day he filed the custody petition. Bowen testified he threatened her while they were together and repeatedly called her names. She testified she was in a "cloud of abuse" during her time with Jenkins. Bowen stated she never filed charges against Jenkins because it was humiliating and she works in the courthouse. There was sufficient proof from Bowen upon which the trial court found Jenkins had verbally and emotionally abused Bowen since the birth of their son and that Bowen's sole custody was in the child's best interests. We see no error.
Jenkins's fourth allegation of error is that the trial court wrongly found his untreated alcohol issues endangered P.T.J.'s physical, mental, moral or emotional health and Jenkins needed to complete counseling before seeking unsupervised visits. While Jenkins focuses on proof that was not offered, the trial court focused on the evidence that was presented. Based upon the testimony of Bowen, Megan and David, which the trial court found to be credible, it did not err in requiring visitation to be supervised until Jenkins changes his lifestyle and demonstrates he can safely care for his son.
Jenkins's fifth complaint is that it is not in P.T.J.'s best interest for his mother to have sole custody. We disagree. Bowen explained she asked for restrictions on visitation so a responsible adult would be available to ensure her son's safety because she feared Jenkins would drive while drunk or fall asleep when her helpless two-year-old needed immediate attention. Because of Jenkins's repeated habit of getting drunk at night and sleeping through the next day, she could not rely on him to attend to P.T.J. if he encountered some sort of distress while in his father's sole care. Contrary to Jenkins's suggestion, he has not been reduced to an insignificant figure in his son's life. Upon receiving counseling or therapy, the trial court stated it would entertain a motion to modify visitation. Again, we see no abuse of discretion.
Jenkins's sixth claim is that the trial court erred in finding unsupervised visits would seriously endanger his son's health since Jenkins's mother testified she had never seen Jenkins under the influence during any of the visits she supervised. As stated previously, the trial court saw the proof differently, and we cannot say its view was wrong, and certainly not clear error. Moore. Therefore, we have no basis for reversal.
Jenkins's seventh claim is that the trial court wrongly imputed to him a non-cash gift from his father of a free home. Jenkins bases this claim on a belief that the trial court misapplied Stewart. We disagree. Stewart, 108 S.W.3d at 648, was based on Petrini v. Petrini, 336 Md. 453, 460, 648 A.2d 1016, 1019 (1994), in which a parent ordered to pay child support was provided rent-free housing, health supplies and health insurance premiums by his mother. Maryland's child support statute and definitions are similar to the language adopted by Kentucky. As explained in Petrini,
[n]either the legislature in the statute, nor the courts in existing case law, have specifically defined what the word "gifts" means in the context of the guidelines. Thus, we must undertake to extrapolate its meaning from its general usage. Webster's Third New International Dictionary 956 (1981) defines a "gift" as "something that is voluntarily transferred by one to another without compensation." Black's Law Dictionary 688 (6th ed. 1990) defines a "gift" as "a voluntary transfer of property to another made gratuitously or without consideration." The benefits conferred upon John by his mother fit within both of these definitions.
As we see it, the General Assembly purposely did not define with pin-point precision what it intended the term "gifts" to encompass under the guidelines; rather it afforded trial courts the latitude to consider all the relevant circumstances in a particular case before making any determination about what should be considered in calculating a parent's support obligation. Some of the considerations that might be made by a trial judge include: a parent's actual ability to pay the specified child support award, any lack of liquidity or
marketability of a party's assets, the fact that a parent's take-home income is not an accurate reflection of his or her actual standard of living, and whether either party is voluntarily impoverished. All of these factors came into play in this case and were considered by the trial court in making its award.Petrini, 648 A.2d at 1019. (Footnotes omitted). Like John Petrini, Jenkins lives in a home free of rent due to the generosity of his parent, in this case his father. He also bought a 2004 Ford Expedition from his father for just $100.00, which was well below its value. He has a cell phone but he does not pay the bill. He has been ordered to pay child support, but his father is funding the automatic pay bank account. When the court asked Jenkins's mother how her son lived without a job, she testified she enjoys spending money on her children and grandchildren and when Jenkins needs something, she gets it for him. The similarities in this case and Petrini are too great to ignore. For that reason, we hold the trial court properly exercised its discretion in imputing the value of an $800.00 monthly rental payment to Jenkins's gross income for purposes of calculating his child support obligation.
Our limited task is to determine whether the trial court abused its discretion in deciding that the gifts conferred upon John constitute actual income under § 12-201(c)(4). The trial court, in its opinion, stated that "the guidelines tell us, that if you get [gifts], they're to be considered as income, cause (sic) it's something you don't have to spend for." We agree that when the Child Support Guidelines were formulated the drafters took into consideration the fact that everyone has certain basic living expenses, such as room and board, which must be paid out of their take-home income. Thus, if a parent is relieved of some of these expenses through outside contributions, it may be appropriate under certain circumstances to increase the parent's actual income to account for such contributions. Manifestly, these benefits may have the effect of freeing up other income that may not have otherwise been available to pay a child support award. In considering the circumstances surrounding John's financial situation, the court decided that the most equitable resolution required inclusion of the subject benefits conferred upon John as part of his actual income. The evidence presented at trial supported this conclusion by the court. It established that John has never needed to engage in full-time employment because his mother in addition to providing him with rent-free lodging, paying health insurance premiums, and covering the cost of his illeostomy bag, also paid some of his daily living expenses-such as food, gas, and clothing-as well as giving him large cash payments to do with as he wished. Essentially, John's mother paid for things that he would otherwise have been responsible for paying for himself out of his take-home salary.
Jenkins's final claim pertains to that portion of the original judgment in which the trial court ordered him to reimburse Bowen $1,080.48 for P.T.J.'s extraordinary medical expenses. KRS 403.211(9) states:
[t]he cost of extraordinary medical expenses shall be allocated between the parties in proportion to their combined monthly adjusted parental gross incomes. "Extraordinary medical expenses" means uninsured expenses in excess of one hundred dollars ($100) per child per calendar year.Bowen produced receipts for extraordinary medical expenses totaling $2,701.19. Importantly, Jenkins does not challenge the amount of expenses awarded.
In the original judgment, the trial court ordered Jenkins to pay forty percent (40%) of the total or $1,080.48. This figure was erroneous in that it did not deduct the first $100.00 of expenses as required by KRS 403.211(9) such that Jenkins would have owed by our calculation only $1,040.48. The amended judgment attempted to correct this flaw by ordering:
[Bowen] shall be responsible for the first one hundred dollars ($100.00) per calendar year. Thereafter, the cost of the extraordinary medical expenses shall be allocated between the parties in proportion to their percentage used in the attached child support worksheet.Unfortunately, no worksheet was attached. Thus, we must remand for the limited purpose of preparing and entering an appropriate child support worksheet which may or may not allocate financial responsibility according to the same percentage applied in the original judgment.
Jenkins argues his allocation should be reduced to just twenty-seven percent (27%) based on imputed income of $8.00 per hour for a forty (40) hour work week due to a job he had with a textbook company sometime between 1999 and 2001. His calculation includes neither the $900.00 he receives monthly from his father, nor the $770.00 he receives monthly from his mother. It also assigns no value to the housing he receives free of rent from his father.
We reject Jenkins's argument that reversal for a hearing on the issue of extraordinary medical expenses is required. Jenkins cites KRS 406.021(3) and KRS 403.211(9) for this proposition but neither statute mentions a hearing. On the first day of trial, January 19, 2012, Bowen testified generally about expenses related to the birthing, P.T.J.'s subsequent surgery, co-pays and drugs. She had prepared a summary based on her checkbook register in which she calculated unreimbursed medical expenses of $670.54 for 2011 and $2,575.95 for 2010. Jenkins's attorney objected, claiming he had not received advance notice of the claim for reimbursement. The trial court stated the claim had not been waived, but reserved ruling on the issue until receipt of documentation of the amounts claimed.
This statute pertains to paternity which was not contested in this case. Paternity was admitted by Jenkins in his petition and by Bowen in her answer.
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On May 3, 2012, after trial had been concluded, counsel for Bowen filed a Notice of Tender stating,
Comes Counsel for [Bowen] and, consistent with the Court's directive hereby gives Notice of his tender of the attached receipts representing uncovered medical expenses for the child that is the subject matter of this action.By submitting the receipts, Bowen simply did as directed.
Jenkins argues he received late notice of the claim, but in reality, uncovered medical costs were mentioned as early as September 11, 2012, when Bowen answered Jenkins's first set of interrogatories and requests for production of documents. In answering Question 19 which requested all health care providers, dates of service, nature of treatment, medicine prescribed, and any medical restrictions resulting from each visit, Bowen responded by listing names of health care providers with contact information, a list of dates on which the providers were seen and the following statement:
To date, [Bowen] has paid for all of the child's uncovered medical costs totaling $3,130.64. This number is current through the end of August, 2011.The foregoing passage put Jenkins on notice that Bowen was seeking reimbursement for uncovered medical costs incurred from birth through August 2011. As a father, Jenkins should have expected to pay a portion of these costs, especially since KRS 403.211(9) requires the court to allocate them between the parents. In light of the foregoing, we discern no error in the calculation of child support or the order for reimbursement of extraordinary medical expenses.
Wherefore, the findings of fact, conclusions of law, and decree of custody entered by the Warren Circuit Court on July 13, 2012, as well as the amended version entered on November 8, 2012, are affirmed. However, the case is remanded to the trial court for the limited purpose of preparing and entering the child support worksheet referenced in the amended judgment but not included in the record.
ALL CONCUR. BRIEFS FOR APPELLANT: Kenneth A. Meredith, II
Bowling Green, Kentucky
BRIEF FOR APPELLEE: Wesley V. Milliken
Bowling Green, Kentucky