Opinion
NO. 2013-CA-001337-ME
03-21-2014
DAVID ALAN LEA APPELLANT v. JANICE MARIE LEA, N/K/A FLECK APPELLEE
BRIEF FOR APPELLANT: David Alan Lea, Pro se LaGrange, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE CHRISTOPHER J. MEHLING, JUDGE
ACTION NO. 07-CI-01877
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; TAYLOR AND VANMETER, JUDGES. VANMETER, JUDGE: David Alan Lea appeals the Kenton Family Court's order overruling his motion to modify child support paid to his former spouse. For the following reasons, we affirm.
Lea and his ex-wife, Janice Marie Lea, have one minor child, who currently resides with her mother. The Kenton Circuit Court ordered Lea to pay child support of $195.00 each month in December 2007. Lea is currently incarcerated, serving a ten-year sentence that began in August 2007. Lea filed a motion for modification of child support pursuant to KRS 403.213, and a hearing was held on May 14, 2013. At the hearing, Lea argued his child support payments should be reduced because he is unable to earn a wage due to his incarceration. On June 12, 2013, the trial court entered an order denying Lea's motion to modify child support. This appeal follows.
Janice Marie Lea has not filed a brief with this court. Under these circumstances, the provisions of Kentucky Rules of Civil Procedure (CR) 76.12(8)(c) permit the panel to reverse the trial court's order if the appellant's brief reasonably appears to support such a result. We do not believe Lea's brief justifies the reversal he seeks.
Kentucky Revised Statutes.
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On appeal, Lea argues that his handicap, not just his incarceration, prevents him from earning a wage. Lea is confined to a wheelchair. He also argues that because his incarceration was involuntary, he should not be denied modification of his child support obligations.
The court in Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009), stated the standard of review as follows:
Our review of child support awards is governed by the abuse of discretion standard. 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. Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). We will disturb a trial court's findings
of fact only if they are clearly erroneous. Wilhoit v. Wilhoit, 521 S.W.2d 512, 513 (Ky. 1975).
Lea's main argument is that his child support payments should have been reduced due to his handicap. Lea claims that the trial court failed to recognize that his handicap prevents him from earning a wage, and thus prevents him from being able to afford more than the statutory minimum of $60 per month in child support. Unfortunately, Lea did not raise this argument in front of the trial court, and the trial court did not rule upon the issue. "The Court of Appeals is without authority to review issues not raised in or decided by the trial court." Reg'l Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989). We therefore decline to rule upon this argument.
Lea also argues because his incarceration was involuntary, the court should have reduced his child support obligation. However, as the trial court noted, this court decided in Marshall v. Marshall, 15 S.W.3d 396, 401 (Ky. App. 2000), to "equate incarceration with voluntary unemployment." The court stated, "[t]he policy consideration most frequently articulated to deny modification in these cases is that equitable relief should not be available to one who voluntarily commits a crime, since incarceration and the concomitant loss of income, are foreseeable results of such activity." Id. at 399-400. Lea should have foreseen at the time of his crime that incarceration could result and subsequently prevent him from earning a wage that would enable him to meet his child support obligations.
Further, KRS 403.212(d) was amended in 1994, eliminating the need for a trial court to find that the parent acted in bad faith before imputing income to that voluntarily unemployed parent. Id. at 401. Thus, whether Lea committed his crime in order to avoid paying child support is irrelevant. Since income is imputed to Lea while he is incarcerated, the trial court properly denied Lea's motion to modify his child support obligation.
The judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: David Alan Lea, Pro se
LaGrange, Kentucky
NO BRIEF FOR APPELLEE