Opinion
NO. 2013-CA-002162-MR NO. 2014-CA-000924-ME
05-22-2015
ROBERT C. MOBLEY APPELLANT v. ANGELA R. MOBLEY (NOW DAVIS) APPELLEE
BRIEFS FOR APPELLANT: Katie M. Brophy Louisville, Kentucky BRIEFS FOR APPELLEE: Julia B. Barry Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 12-CI-501886
OPINION
AFFIRMING
BEFORE: COMBS, J. LAMBERT AND STUMBO, JUDGES. STUMBO, JUDGE: Robert Mobley brings these consolidated appeals seeking to reverse orders of the trial court which concern child support and two financial issues. We find no error and affirm.
Mr. Mobley and Angela Mobley were married on August 5, 2005. A petition for dissolution was filed on May 11, 2012. The parties attended mediation on August 23, 2012, and entered into an agreement. The agreement, among other things, gave both parties joint custody of their two minor children, set out a parenting schedule which consisted of equal parenting time, and Mr. Mobley agreed to pay Ms. Mobley $686.83 per month in child support. The agreement specifically stated that Mr. Mobley would begin paying Ms. Mobley child support on September 1, 2012. The child support figure is based on the parties' income and was consistent with the Kentucky Child Support Guidelines. The parties attended another mediation on February 5, 2013, where other issues were resolved. A trial was set for April 5, 2013, to resolve any remaining issues.
After the first mediation, Mr. Mobley retained new counsel. Mr. Mobley's new counsel believed the child support amount should have been lower because the parties had equal parenting time. Mr. Mobley, through his new counsel, moved the trial court to consider the appropriate child support obligation and whether the amount was unconscionable due to the shared parenting schedule. The motion also alleged that Ms. Mobley had taken a second job; therefore, Mr. Mobley wished the issue of child support to be reviewed due to this new fact. The court entered an order stating that it would consider the child support issue at the April trial.
After the trial, on April 9, 2013, the trial court entered a decree of dissolution which incorporated the two mediated agreements, but also stated that the issue of Mr. Mobley's child support obligation was reserved. On October 29, 2013, the trial court entered an order resolving all reserved issues. In that order, the trial court stated that it had previously determined that the agreed to child support amount was not unconscionable and that the child support obligation had been incorporated into the decree of dissolution entered on April 9. The court further stated that the only issue regarding child support that had been reserved concerned the change in circumstances, i.e., Ms. Mobley's alleged new job. The court further reiterated that the child support amount was not unconscionable and denied the motion to recalculate the amount.
Mr. Mobley then moved to alter or amend. Mr. Mobley argued that he was never ordered to pay child support in the April 9 decree of dissolution and that the trial court reserved all child support issues for trial, not just the change in circumstances. The trial court overruled the motion. Mr. Mobley then filed his first appeal.
During the pendency of the first appeal, Ms. Mobley filed numerous motions for contempt because Mr. Mobley had not paid child support from May, 2013, to December, 2013. Mr. Mobley responded to these contempt motions by arguing that there was no existing child support order from the court.
Because Mr. Mobley continued to claim that no child support order was ever entered, the trial court entered an order on April 16, 2014. That order stated:
It was and has been this Court's intention that child support orders, consistent with the terms of the parties' August 23, 2012 written mediated agreement which were filed of record in this action on September 18, 2012, be made orders of this court. . . .
In attempt to make this Court's position on Mr. Mobley's obligation to provide financial support for his children perfectly clear, the Court will issue the following Order. . . .
1. The terms of the parties' written Mediated Agreement, dated August 23, 2012 and filed of record in this action on September 18, 2012, are hereby incorporated into this Order and made orders of this Court.
2. The effective dates of said individual issue provisions contained in the parties' written Mediated Agreement, dated August 23, 2012 and filed of record in this action on September 18, 2012, shall retroactively be effective dates of this Court's orders with regard to each individual issue contained therein.
3. Consistent with provision number 7 of the parties' written Mediated Agreement, dated August 23, 2012 and filed of record in this action on September 18, 2012, effective "September 1, 2012 Chance (Mr. Mobley) shall pay Angie (Ms. Davis, formerly Mobley) the sum of $686.83 (Six Hundred Eight Six [sic] Dollars and Eighty Three [sic] (cents) per month (%158.50 [sic] per week) as child support." (Emphasis in original).
Mr. Mobley then made a motion to vacate that order arguing that the trial court lost jurisdiction over the child support issue and could not modify previous orders. The trial court overruled the motion. Mr. Mobley then brought his second appeal.
The main issue on appeal is regarding child support. Mr. Mobley argues that the trial court erred in not determining whether the child support obligation was unconscionable. He also argues that the amount is in fact unconscionable.
"As are most other aspects of domestic relations law, the establishment, modification, and enforcement of child support are prescribed in their general contours by statute and are largely left, within the statutory parameters, to the sound discretion of the trial court." Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000)(citations omitted). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001)(citation omitted).
In its October 29, 2013 order, the trial court stated that the April 9 decree of dissolution incorporated the agreed upon child support obligation and was therefore a child support order. We believe that the April 9 decree might have been inartfully drafted, but find no reason to doubt the trial court's contention. Even if we were to assume all issues of child support were reserved, the October 29 order also ordered Mr. Mobley to pay child support. The October order also found the amount to be conscionable. Mr. Mobley was ordered to pay child support on October 29, 2013, at the latest.
Also, we agree with the trial court that Mr. Mobley's child support obligation is conscionable. "The terms of a settlement agreement set forth in a decree of dissolution of marriage are enforceable as contract terms." Money v. Money, 297 S.W.3d 69, 71 (Ky. App. 2009). For a separation agreement, or its terms, to be set aside for being unconscionable it must be "manifestly unfair or inequitable." Wilhoit v. Wilhoit, 506 S.W.2d 511, 513 (Ky. 1974).
The $686.83 amount was determined by the child support guidelines. The child support guidelines are presumptively correct. KRS 403.211(2).
KRS 403.211 provides that a trial court may deviate from the guidelines, in a written finding, based on several factors such as agreement of the parties, extraordinary needs of the child, a parent's extraordinary needs, the child's own financial resources, income beyond the guidelines, or other things of an extraordinary nature that would make applying the guidelines inappropriate. But the trial court must apply the presumptive guideline amount unless it makes a written finding to explain a deviation because of an extraordinary reason that would make the guidelines unjust or inappropriate.McFelia v. McFelia, 406 S.W.3d 838, 840 (Ky. 2013).
The bottom line is that the legislature has provided child support guidelines that are presumptively appropriate, and if there is to be a deviation, the moving party must convince the trial court that the guidelines amount is unjust or inappropriate, either initially or on modification. The trial court must weigh the evidence in support of this claim, and exercise sound discretion in granting or denying a requested deviation. If there is a deviation, the trial court must make written findings as to why the guidelines amount is unjust or inappropriate. Unless there is a preponderance of the evidence to support the trial court's deviation, the guidelines amount controls as a matter of law.Id. at 841.
In the case at hand, Mr. Mobley was represented by counsel and freely entered into the mediated agreement. In fact, it was Mr. Mobley's counsel who examined the guidelines and determined the appropriate amount of child support. We do not believe that the $686.83 amount Mr. Mobley agreed to pay is manifestly unfair or inequitable. The trial court did not abuse its discretion in ordering Mr. Mobley to pay this amount in child support.
Seeing as we have found that Mr. Mobley was ordered to pay child support, at the latest, on October 29, 2013, his appeal concerning the additional child support order entered on April 16, 2014, is moot. That order in no way changed his child support obligation. It was entered for his benefit and merely reiterated the fact that he is required to pay child support.
Mr. Mobley's other argument on appeal concerns marital debt. He claims that the trial court erred in its assignments of the medical debt for the children and in not reimbursing him for his payment of a tax debt.
As to the medical debt, the trial court ordered that Mr. Mobley be responsible for 60% of all uncovered medical expenses incurred on behalf of the children and Ms. Mobley be responsible for the other 40%. Mr. Mobley does not set forth his belief as to what this debt assignment should have been apportioned as, he merely claims the trial court made erroneous findings. Seeing as the debt was apportioned according to the terms of the mediated agreement and that "[t]he terms of a settlement agreement set forth in a decree of dissolution of marriage are enforceable as contract terms[,]" Money, supra, we find no error.
Mr. Mobley also claims that the court erred in not ordering Ms. Mobley to reimburse him for her share of a $122.71 tax payment. As to this debt, the trial court stated: "Given the inconsistencies and unreliability between Mr. Mobley's claims, testimony, and documentary evidence the Court finds the evidence not credible and will decline to grant Mr. Mobley's request for reimbursement."
[F]indings of fact will "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses." A family court operating as finder of fact has extremely broad discretion with respect to testimony presented, and may choose to believe or disbelieve any part of it. A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous.Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).
As to this issue, Mr. Mobley argues the trial court interpreted one of his exhibits incorrectly. His exhibit 16 is a letter detailing the existing debt owed to the Kentucky Department of Revenue (hereinafter referred to as Department). Mr. Mobley had also introduced checks from his employer which showed that his wages had been garnished by the Department in the amount of $122.71. The trial court stated that exhibit 16 did not reflect the payment of the garnished funds. Mr. Mobley claims that the letter only shows tax liabilities owed, not payments made.
It is worth noting that the checks introduced into evidence were not cancelled checks, but photocopies of the original checks. The photocopies did not show if the checks had been endorsed or deposited by the Department.
We believe that the trial court's findings regarding this reimbursement were not clearly erroneous. Exhibit 16 does list the liabilities owed, but it also shows payments made toward the liabilities in a column called "CREDIT AMOUNT". The letter from the Department was dated January 28, 2013. The checks showing the garnished wages were dated July, September, and October of 2012. If the Department had received the checks totaling $122.71, that amount should have been listed in the "CREDIT AMOUNT" column. The trial court did not abuse its discretion in believing Mr. Mobley's evidence to be unreliable and its findings regarding this issue are not clearly erroneous.
Based on the foregoing reasons, we affirm the judgment of the trial court.
ALL CONCUR. BRIEFS FOR APPELLANT: Katie M. Brophy
Louisville, Kentucky
BRIEFS FOR APPELLEE: Julia B. Barry
Louisville, Kentucky