Opinion
NO. 2015-CA-001881-ME
02-10-2017
CLAUDE JOHNSON APPELLANT v. LORELEI JOHNSON (NOW KEETON) APPELLEE
BRIEF FOR APPELLANT: Brandon M. Music Grayson, Kentucky BRIEF FOR APPELLEE: Gordon B. Long Grayson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MORGAN FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 08-CI-00016 OPINION
AFFIRMING
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BEFORE: ACREE, CLAYTON, AND J. LAMBERT; JUDGES. LAMBERT, J., JUDGE: Claude Johnson has appealed from the orders of the Morgan Family Court denying his motion to modify timesharing and other issues. Finding no error or abuse of discretion, we affirm.
Claude and his former wife, Lorelei Johnson (now Keeton), were married in 2006 and separated in 2007. One child, a daughter, was born of the marriage on January 25, 2007. Lorelei filed a petition to dissolve the marriage one year later, on January 22, 2008. The same day, the parties entered into a separation agreement setting forth their agreements as to custody, visitation, child support, and the division of marital assets and debts. Pursuant to this agreement, the parties were to share joint custody of the child with Lorelei designated as the primary residential parent. Claude's visitation was set for overnight on Tuesday to Wednesday and Sunday afternoons. He was to pay Lorelei $350.00 per month in child support via wage assignment as well as half of the expenses associated with sports and extra-curricular activities. In his response, Claude did not object and indicated the matter was ready to be submitted for a final decree. On March 31, 2008, the family court entered its findings of fact, conclusions of law, and decree of dissolution of marriage, in which it made the necessary statutory findings and adopted the parties' separation agreement.
More than six years later, on October 15, 2014, Lorelei filed a motion seeking the court's assistance in matters related to her agreement with Claude concerning the child. She wanted the court to change the pickup and drop off location for visitation and to require Claude to take the child to dance class when he had her, pay half of the expenses for the child's activities including dance classes, not have indoor pets due to the child's eczema, and pay half of the child's medical and dental expenses not covered by insurance (this last item had not been addressed in the separation agreement). On June 19, 2015, Claude filed a response to Lorelei's motion and moved for sole custody of the child and child support. Claude asserted that he was "the fit and proper person to have the sole custody, care and control of the minor child" and that Lorelei should pay child support to him based upon the Child Support Guidelines. Furthermore, Claude wanted to add the child to his health insurance policy because it was more comprehensive, and he requested a credit for paying for this insurance. He also requested that any extracurricular activities for the child be agreed upon, noting that her current level of activities required her to be out late on school nights and caused her to be exhausted on weekend visitations. Lorelei moved to strike Claude's motion for sole custody, noting that he had not submitted an affidavit along with his motion setting forth the facts supporting the motion. This motion was later denied because Claude filed a supplement to his motion to include his affidavit. The court set the matter for a hearing on August 25, 2015.
At the beginning of the hearing, his attorney identified Claude's concerns as custody, visitation, and child support. Lorelei objected to any testimony concerning visitation, noting that Claude had not filed a motion to change visitation. The court responded that once a change in custody motion is filed, all issues are open to be argued.
In her testimony, Lorelei testified that Claude had been receiving more visitation than set forth in the separation agreement. The parties had changed some of the days, presumably by agreement, but Claude had later refused to change his visitation days due to the child's activities. The child participated in dance class, a dance team, bible study, piano classes, and gymnastics. Lorelei had remarried, and they lived in a five-bedroom home in which the child had her own room and bathroom. The child suffered from eczema, and Lorelei monitored her weight and diet. The child was also in counseling. Lorelei went on to recount an incident when the child injured her head while with Claude during a visitation. Claude called Lorelei because he did not know what to do. Lorelei picked the child up, took her to get treatment, and then returned her to Claude. Lorelei testified that she did not believe it was in the child's best interest for Claude to have sole custody.
Lorelei had claimed the child as a tax exemption for the last seven years and noted that Claude had asked to do so. Her income as a guidance counselor at Morgan County High School was $65,000.00. She did not know what Claude's income was. Claude had paid about $500.00 over the past seven years for the child's expenses.
Prior to calling Claude, his attorney argued that he was a good father, paid more child support than he was required to, and got less visitation than the standard amount in the county. He ultimately wanted more time with the child, noting that many of her activities were scheduled during his time with her, and he thought he should be rewarded with more time because he had been doing more than his fair share. Lorelei's attorney argued that none of those statements supported a change in custody. In reply, Claude's attorney argued that custody, visitation, and support were always modifiable.
Claude testified that he was employed at Eastern Kentucky Correctional Complex, where he had worked for ten years and earned $26,900.00 per year. He worked Monday through Friday, from 8:00 a.m. to 4:00 p.m. Like Lorelei, Claude had remarried, and he reported that his wife and the child got along very well. Claude stated that he agreed to pay more in child support in his settlement agreement with Lorelei because he thought he was getting more than standard visitation. He now knew that he was receiving less than standard visitation. He believed he was a good father and wanted to spend more time with the child.
Claude went on to testify about his insurance plan, his payment of the child's medical expenses, and his ability to claim her as a tax credit. He also testified about the child's activities. The child had dance class two days per week in Prestonsburg and bible study one night per week. Over the summer, she took tennis lessons and had basketball camp. He paid for half of the child's tennis classes and piano lessons. He did not agree to her dance classes, so he did not pay for any of those classes. The arrangement, as he believed it, was that Lorelei was to pay for all of the dance class costs. The child's dance classes were on Tuesdays and Thursdays, the nights of his visitation, until about 8:00. He expressed concern that the child was kept out too late on school nights due to her and Lorelei's activities. If he had custody, he would ensure she would go to bed at an appropriate time. He said he often got short notice if Lorelei planned an outing for the child during his visitation time. He wanted to discuss extracurricular activities with Lorelei before they were decided upon and discussed with the child. Claude asked the court for sole custody and said he thought it was the only way he could get more visitation with the child.
At the conclusion of the hearing, the court made its ruling on the record. The court stated it had heard nothing to statutorily warrant a change in custody, and the amount Claude paid in child support did not support an award of the tax exemption to him. Claude's attorney sought clarification of the court's ruling as to his amount of visitation. Lorelei's attorney objected, stating that Claude had never filed a motion to modify visitation and that this was the arrangement they had agreed upon. The court indicated that it would address this issue in the written order. There was also some discussion about insurance, and the court noted that if the child were to be added to the new insurance policy, the amount of child support Lorelei was receiving would change.
On September 1, 2015, the family court entered a written order ruling on the pending motions in accordance with its oral ruling. The court denied Claude's motion for a change in custody, noting that it "heard absolutely no evidence which would warrant a change in the current custody arrangement that has been previously Ordered by the Court." The court also addressed the exchange location, extracurricular activities, indoor pets, medical and dental expenses, and tax credits. The court then addressed visitation:
The Court has heard testimony that [Claude] wants to increase his visitation time with the child. The parties' visitation time was set out in the Separation Agreement and became part of the Divorce Decree. [Claude] complained that he does not get as much time as the visitation schedule for Morgan County would allow. It is obvious to this Court that the only reason that [Claude] filed a motion for sole custody was to try to increase the amount of time with the child. The Court heard no evidence as to whether or not it would be in the best interest of the child to increase the time with the father of the child. It is therefore, the ORDER of this Court that [Claude] shall continue to receive his time with the child as the parties are currently exercising.Claude filed a notice of appeal from this order on September 29, 2015 (appeal No. 2015-CA-001496-ME). Claude's attorney withdrew from representing him in the appeal, and he failed to file a pro se brief. This Court dismissed the appeal on August 8, 2016, after Claude failed to respond to a show cause order. That decision became final on October 4, 2016.
On October 4, 2015, while the above appeal was still pending, Claude, represented by a new attorney, filed a motion to modify child support and timesharing pursuant to Kentucky Revised Statutes (KRS) 403.213 and KRS 403.320. Claude indicated that he and Lorelei had agreed to a restricted timesharing arrangement based upon the young age of the child at the time of the settlement agreement. The child was by that time eight years old, and Claude stated that she "would benefit greatly from an improved and enhanced relationship with her father, with the relationship improved in both quality and quantity, as a result of increased timesharing spent with her father." He believed his good relationship with the child could "only be improved substantially by increased time with ... one another while allowing [Lorelei] to still be the primary, physical possessor of the child." This would be "in her best interest as it will lead to an improvement in the long term in her physical, mental, moral and emotional health." In addition, Claude requested a modification of child support, noting the increase in Lorelei's income since 2008. His own gross income was less than Lorelei's. Claude noticed his motion to be heard at motion hour on November 4, 2015.
On November 2, 2015, prior to the noticed hearing date and without receiving a response from Lorelei, the family court entered an order denying Claude's motion. The court stated:
[Claude] fails to point out that this Court entered an Order after the hearing on August 25, 2015 that addressed the issues set forth in the present motion. This Court will not re-litigate those same issues at this time. This Court can only conclude that [Claude], after separating from his previous attorney, failed to notify his current attorney of the last Order.At motion hour on November 4, 2015, the court again indicated that it had denied Claude's motion because it had held a hearing in August covering the issues raised in the newer motion.
Claude moved the court to alter, amend, or vacate its order, arguing that he was entitled to a hearing on his motion to modify timesharing and child support; that more than 60 days had passed since the August 25, 2015, hearing; that he was asking for a change in timesharing, which was a separate issue from a change in custody; "a great, measurable, separate and distinct impact occurred on the child necessitating a modification in timesharing"[;] and he had not asked for a modification of child support previously. In response, Lorelei pointed out that Claude had orally requested a modification of timesharing at the August 25, 2015, hearing, and the court heard testimony on this issue. She went on to note that all of the issues, with the exception of child support, were addressed in the court's September 1, 2015, order, which at that time was pending on appeal. The court denied Claude's motion on November 23, 2015, and this appeal now follows.
On appeal, Claude argues that the family court erred in failing to grant his motion or to hold an evidentiary hearing on his motion to modify timesharing and other issues he requested in his motion. In addition, he argues that issue or claim preclusion should not bar the court from addressing his modification motion. Lorelei, on the other hand, argues that the family court had already heard the issues raised in Claude's motion and was not required to hear additional testimony on the same issues.
Claude asserts that the court erred as a matter of law in failing to grant his request for modification of visitation "and all other issues requested[.]" At the outset, we note that in the argument section of his brief, Claude has only specifically addressed the modification of timesharing or visitation. He has not made any type of argument specifically related to the modification of child support.
We agree with Lorelei that the court did not abuse its discretion in declining to revisit issues it had already considered two months previously. At the August 25, 2015, hearing, the court heard close to two hours of testimony from the parties ranging from custody, extracurricular activities, Claude's visitation schedule, payment of the child's expenses, the parties' current income levels, the child's medical and physical conditions, insurance, and tax exemptions. Lorelei had objected to any testimony Claude sought to elicit at the hearing concerning visitation or anything other than issues raised in the motions. Nevertheless, the court permitted such testimony to be introduced, reasoning that because custody modification had been sought, all issues related to that were subject to review, which would include visitation and child support. Additionally, the court specifically addressed the issue of visitation in its September 1, 2015, order, and Claude appealed that order to this Court. Claude chose not to file a brief in support of his appeal, leading to its dismissal in August 2016, thereby foregoing his ability to seek review of all issues addressed in that ruling.
Claude argues that his later motion to modify visitation was made under "separate and distinct grounds," and he noted that time had passed and that the child had started a new school year. We disagree with Claude's assertion, and we therefore reject his apparent claim that his second motion was not an attempt to relitigate the previously raised issues. Claude cites to KRS 403.320(3) in support of his right to file his motion to modify. The statute provides that "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]" While we agree that this is correct, the circumstances of this case do not weigh in Claude's favor due to the close time between the filing of his motions seeking basically the same relief and the fact that he was able to introduce testimony related to visitation and other issues during the earlier hearing.
Regarding the issue of child support, which we have already determined was only generally raised in his brief, we note that Claude certainly addressed this issue during the hearing, stating multiple times that he paid more than he was required and introducing current income testimony. As the court and Lorelei noted, the amount of child support was set in the settlement agreement, meaning that they had agreed to this amount.
While the court did not address child support in the September 1, 2015, order, we must hold that Claude failed to meet the statutory requirements to seek modification. KRS 403.213(2) provides, in relevant part, that a party must establish a 15% change in the amount of child support due in order to seek a modification:
And Claude did not seek a ruling on this issue via motion, but we presume he would have sought review of this on appeal had it not been dismissed. --------
Application of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support due per month shall be rebuttably presumed to be a material change in circumstances. Application which results in less than a fifteen percent (15%) change in the amount of
support due per month shall be rebuttably presumed not to be a material change in circumstances.Claude elicited testimony at the August 25th hearing concerning his and Lorelei's respective current income levels. He did not introduce any testimony as to their levels of income at the time they entered into the settlement agreement in order to determine whether he had established the requisite 15% threshold to show a material change in circumstances. In his October 26, 2015, motion, Claude simply stated that it was his "understanding" that Lorelei had been earning $40,000.00 per year in 2008. However, there is no evidence to support that belief, such as a child support worksheet or other documentary evidence.
Therefore, the court did not abuse its discretion or err as a matter of law in denying Claude's motion for modification without an evidentiary hearing.
For the foregoing reasons, the orders of the Morgan Family Court are affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Brandon M. Music
Grayson, Kentucky BRIEF FOR APPELLEE: Gordon B. Long
Grayson, Kentucky