Opinion
NO. 2017-CA-001382-ME
07-27-2018
PHILIP KIPER APPELLANT v. JAIME LYNN KIPER APPELLEE
BRIEF FOR APPELLANT: Adam G. Zeroogian Nicholasville, Kentucky BRIEF FOR APPELLEE: Janet Lou Humphrey Nicholasville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE DOUGLAS BRUCE PETRIE, JUDGE
ACTION NO. 12-CI-01070 OPINION
AFFIRMING IN PART AND VACATING AND REMANDING IN PART
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BEFORE: COMBS, JOHNSON AND J. LAMBERT, JUDGES. COMBS, JUDGE: Philip Kiper appeals from the July 18, 2017, order of the Jessamine Family Court denying his motion to alter, amend, or vacate the court's order which granted his motion to modify the parties' parenting schedule with respect to the parties' son, A.K., and denied the motion of his former wife (Jaime) to withdraw A.K. from Lexington Christian Academy. The order also denied Philip's motion to modify the parenting schedule with respect to the parties' other son, G.K., and concluded that he (Philip) would bear the cost of A.K.'s tuition without contribution from Jaime. After our review, we affirm in part and vacate and remand in part.
Philip and Jaime married in June 2004 in Garrard County; one child, A.K., was born during the marriage. Philip and Jaime were divorced by decree of the Jessamine Family Court in January 2013. Their settlement agreement was incorporated into the court's decree of dissolution. The agreement provided that Philip "agrees to pay the child's tuition at Lexington Christian Academy for so long as same is practical or until [Jaime] graduates from college in approximately 1½ years." It also provided that Philip and Jaime would share legal custody of A.K. During the school year, A.K. was to spend every Friday afternoon until Monday morning with Philip; he was to spend every Monday afternoon through Friday morning with Jaime. The summer parenting schedule was modified only slightly to permit A.K. to spend Monday afternoon and evening with Philip. Both Philip and Jaime lived in Jessamine County. Jaime did not complete her college education.
After their divorce, another child, G.K., was born to Philip and Jaime on May 1, 2014. In February 2015, Philip filed a motion requesting an award of joint custody of G.K. and an equal parenting schedule. In April, Jaime filed a motion for child support. On May 26, she filed with the court a notice of her intention to relocate with the children to Garrard County; to withdraw A.K. from Lexington Christian Academy; and to enroll A.K. in the public school system in Garrard County.
On May 29, 2015, the family court entered an order awarding joint custody of G.K. to the parties. Philip was awarded parenting time every Saturday and Sunday from 10:00 a.m. until 6:00 p.m. However, the issue of child support remained unresolved.
On June 1, 2015, Philip filed a motion to modify the parenting schedule. He alleged that it was in the best interest of G.K. that the parenting schedule arrangement be modified to "an equal co-parenting schedule, commensurate with the parties' older child [A.K.]." On June 10, Philip filed his objection to Jaime's notice to relocate to Garrard County with the children. He requested the court to award primary care of the children to him. In the summer of 2015, the court ordered that A.K. would attend Lexington Christian Academy for the 2015-2016 school year. Both children began residing with Jaime in Garrard County Monday through Friday each week; they spent weekends with Philip in Jessamine County.
Following a hearing conducted in January 2017, the family court concluded that it would be in A.K.'s best interest to continue to attend school at Lexington Christian Academy. However, taking heed of geography as a factor, the family court flipped the parties' parenting schedule. It ordered that A.K. spend Monday through Friday and one weekend per month with Philip in Jessamine County and that he spend the remaining weekends with Jaime in Garrard County. Summer timesharing was to remain as the parties had initially agreed in their settlement agreement. Phillip was ordered to continue paying tuition at Lexington Christian Academy without contribution from Jaime. Because of his age, the court declined to issue an order with respect to G.K.'s education. Both parties filed motions to alter, amend, or vacate. Jaime's motion was granted in part to alter slightly the parenting schedule, but Philip's was denied. This appeal followed.
On appeal, Philip argues that the family court erred by ordering him to pay the cost of A.K.'s tuition without contribution from Jaime. He also contends that the family court abused its discretion by failing to alter the parties' parenting schedule with respect to G.K. to correspond with the schedule that it had set for A.K.
Initially, we note that Jaime elected not to file a brief with this court. When a party fails to file an appellate brief within the time allowed, the court may: "(i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case." CR 76.12(8)(c). Whether or not to exercise these options is wholly within our discretion.
Kentucky Rules of Civil Procedure.
With respect to the payment of tuition, we elect to treat Jaime's failure to file a brief as a confession of error and reverse the order of the family court on that issue. However, with respect to the parenting schedule, we elect to review the record. Based upon this review, we have determined that Philip's brief does not reasonably warrant a reversal of the family court's order.
Pursuant to the provisions of KRS 403.320(3), the family court may modify a parenting schedule whenever modification would serve the child's best interest. In determining whether to modify a parenting schedule, a family court enjoys considerable deference in acting within its sound discretion. Meekin v. Hurst, 352 S.W.3d 924 (Ky. App. 2011). In its order, the Jessamine Family Court observed that during the evidentiary hearing and throughout the proceedings, the parties focused upon whether A.K. would continue to attend Lexington Christian Academy and not upon a parenting schedule for G.K. The court noted that it "cannot enter orders without taking proof on an issue and specific to the current inquiry the Court cannot infer that siblings should have the same timesharing schedule without proof regarding same."
Kentucky Revised Statutes. --------
In his brief, Philip concedes that "both parties introduced relatively little about [G.K.] because both expected him to go along with his brother." Nevertheless, Philip contends that sufficient evidence was presented to justify a modification of the parties' parenting schedule with respect to G.K.
An appellate court may reverse a family court's determination as to parenting time only where the decision constitutes a manifest abuse of discretion. Hudson v. Cole, 463 S.W.3d 346 (Ky. App. 2015). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Id. at 350 (citing Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). Under the facts and circumstances of this case, specifically in light of G.K.'s tender age, we cannot say that the family court clearly erred by refusing to alter Philip's weekend timesharing schedule.
We affirm the order of the Jessamine Family Court on the issue of the parenting schedule for G.K.; we vacate and remand for entry of an appropriate order on the issue of A.K.'s tuition.
ALL CONCUR. BRIEF FOR APPELLANT: Adam G. Zeroogian
Nicholasville, Kentucky BRIEF FOR APPELLEE: Janet Lou Humphrey
Nicholasville, Kentucky