Opinion
NO. 2012-CA-001431-ME
03-29-2013
MATTHEW MOSSER APPELLANT v. MEREDITH MOSSER APPELLEE
BRIEF FOR APPELLANT: Matthew C. Mosser, Pro se Ft. Mitchell, Kentucky BRIEF FOR APPELLEE: Meredith Mosser, Pro se Villa Hills, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM KENTON FAMILY COURT
HONORABLE LISA O. BUSHELMAN, JUDGE
ACTION NO. 07-CI-03738
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES. ACREE, CHIEF JUDGE: Appellant Matthew Mosser moved post-decree to modify child support on the ground that payment from a non-marital annuity resulted in a substantial increase in Appellee Meredith Mosser's income, thereby warranting modification. By order entered July 20, 2012, the Kenton Family Court extinguished Matthew's existing child support obligation, but otherwise declined to compel Meredith to pay child support. Matthew argues the family court's order manifests an abuse of its discretion. Finding no abuse, we affirm.
Matthew and Meredith married in 2001. Two children were born of the marriage. The parties separated in 2007. Meredith petitioned for dissolution of the marriage. The decree of dissolution, which reserved matters concerning child support, was entered September 3, 2008.
The decree also reserved other matters not pertinent to this appeal.
Following a contentious period riddled with acrimony, the parties entered into a separation and settlement agreement on March 17, 2009. Under its terms, the parties agreed to share joint custody of their children, to amicably approve a parenting schedule, and to split equally the children's medical and school expenses. Matthew also agreed to pay Meredith child support in the amount of $136.44 per month, beginning April 1, 2009. While the exact determination is not entirely clear from the record, Matthew's monthly income was approximately $7,000.00, while Meredith's monthly income was approximately $5,987.00.
While not demonstrated clearly in the record, the parties represent, and the family court's July 20, 2012 order substantiates that, whether by agreement or court order, at some point Matthew's monthly child support increased to $173.00. Determining the exact amount paid by Matthew is not necessary for resolution of the issues on appeal.
In an order entered September 24, 2008, the family court found Meredith's monthly gross income to be $3,076.00: $2,000.00 resulted from a monthly annuity payment and $1,076.00 appears to have resulted from part-time employment. The family court ultimately found Meredith to be voluntarily underemployed and imputed income to Meredith based on full-time employment, resulting in a gross monthly income of $5,987.00.
Four months later, the parties agreed to a comprehensive parenting schedule. Pursuant to that schedule, Meredith cares for the children on Mondays and Tuesdays, Matthew cares for the children on Wednesdays and Thursdays, and the parents alternate weekends. A fairly peaceful interlude ensued.
In May 2011, Matthew sought to eliminate his child support obligation and, in turn, requested child support from Meredith. A non-marital annuity for Meredith's benefit was the basis for Matthew's modification motion.
The annuity was compensation for the death of her father, who died in a plane crash leading to a $2.4 million dollar settlement with the pilot's insurance company.
According to the terms of the annuity, Meredith receives $2,000.00 per month coupled with seven lump sum payments of varying amounts. The first lump sum payment came due in 1989; the last is payable in 2019. At the time of Matthew's modification motion, only two lump sum payments remained: $287,000.00 payable on July 10, 2014, and $750,000.00 payable on July 10, 2019. The record indicates the July 2014 payment was originally to be $500,000.00. For reasons not revealed by the record, Meredith received advanced payment in early 2011 in the amount of $213,000.00, thereby reducing the 2014 payment to $287,000.00.
In support of his modification motion, Matthew pointed out that, over the past eighteen months, Meredith's average monthly income had substantially increased due to the advanced lump sum annuity payment. Matthew also argued that Meredith's two remaining lump sum annuity payments, for purposes of determining Meredith's income, should be imputed as being prorated over a period of years so that future income must be considered now, as opposed to in the year it will actually be disbursed. Based on this argument, Matthew sought to abolish his child support obligation and asked the court to order Meredith to pay child support.
By order entered July 20, 2012, the family court extinguished Matthew's child support obligation, but otherwise refused to require either party to pay child support. Relying on Clary v. Clary, 54 S.W.3d 568 (Ky. App. 2001), the family court found the remaining lump sum annuity payments certainly to be income for child support purposes, but concluded such payments were nonrecurring and, as a result, should only be counted as income in the year Meredith received the disbursement. The family court also found Meredith's average monthly income had increased to $21,210.00 while Matthew's monthly income remained $7,000.00. However, because the parties' combined incomes exceeded the uppermost bounds of the child support guidelines, the family court justified deviating from those guidelines. Invoking the so-called "three pony rule" first advanced in Downing v. Downing, 45 S.W.3d 449 (Ky. App. 2001), the family court concluded the payment of child support by either party was unwarranted, and ordered the parties to share equally the expenses of the children. From this order, Matthew promptly appealed.
The family court also afforded Matthew leave to file a motion to modify child support in the specific years Meredith was to receive the lump sum payments.
The "Three Pony Rule" states that "no child, no matter how wealthy the parents, needs to be provided more than three ponies." Downing, 45 S.W.3d at 456.
On appeal, Matthew claims the family court erred in three ways: (1) by characterizing Meredith's lump sum annuity income as nonrecurring; (2) by declining to set child support; and (3) by ordering the parties to split equally the children's expenses. We detect no error.
We review an order modifying child support to discern if the family court abused its broad discretion. Commonwealth, Cabinet for Health and Family Services v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011). Likewise, a family court's decision to deviate from the codified child support guidelines is also reviewed for an abuse of discretion. Clary, 54 S.W.3d at 570. "An abuse of discretion occurs when a 'trial judge's decision [is] arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Baptist Healthcare Systems, Inc. v. Miller, 177 S.W.3d 676, 684 (Ky. 2005) (citation omitted).
Matthew first contends the family court mischaracterized Meredith's lump sum annuity payments as nonrecurring. Matthew argues that Meredith was due to receive a $500,000.00 lump sum annuity payment in 2014, but she prematurely siphoned money from the annuity, resulting in a substantially lower lump sum payment of $287,000.00. In Matthew's view, Meredith's ability to draw from the pending lump sum payments at her discretion militates against considering such payments as nonrecurring, and the circuit court erroneously concluded otherwise. Matthew further avers that Meredith can prevent consideration of the lump sum annuity payments for child support purposes by simply continuing to draw early advances, thereby substantially reducing or exhausting the lump sum payment in the year it is due.
In Clary, this Court held "that when a parent receives income from a nonrecurring event, the trial court should include that amount in the year received and then apply the guidelines pursuant to the table in [Kentucky Revised Statute (KRS)] 403.212 to determine the child support obligation." 54 S.W.3d at 574. Examples of nonrecurring events include a one-time lump sum capital gain from the sale of realty, id., a state government authorized tobacco buyout lump sum payment, Gillum v. Fannin, 2007-CA-001890-ME, 2008 WL 1119647, at*2 (Ky. App. Apr. 11, 2008), a lump sum award of workers' compensation benefits, Collier v. Collier, 2008-CA-000293-ME, 2008 WL 7438781, at *1-2 (Ky. App. Oct. 3, 2008), and three consecutive, annual payments from the sale of real estate, Knochelmann v. Bjelland, 2003-CA-002258-MR, 2005 WL 3487955, at *2 (Ky. App. Dec. 22, 2005). Without question, for purposes of calculating child support, monies received from a nonrecurring event constitute income. See Clary, 54 S.W.3d at 574; KRS 403.212(2)(b) ("gross income" is "income from any source").
We cite Gillum, Collier, and Knochelmann not for their precedential value but by way of illustration.
Here, we find the scheduled, but intermittent, lump sum annuity payments to be nonrecurring. Meredith intermittently received the lump sum payments over a period of twenty years and in assorted amounts. Subject to the rule in Clary, the family court correctly concluded that each of Meredith's lump sum annuity payments should be counted as income only in the year of disbursement and child support adjusted accordingly, if so requested by one or both of the parties. To the extent Meredith received advance payment of her upcoming 2014 lump sum annuity payment, this also appears to be a onetime, nonrecurring event, and the circuit court undoubtedly took the prior year's receipt of income into consideration when making its child-support modification determination, as discussed below. On this issue, we find no error.
Matthew next contends the circuit court abused its discretion when it declined to award Matthew child support, and continued to require the parties to split equally the expenses of the children. Matthew asserts that Meredith's substantial income dictates an imposition of child support and requires that Meredith bear a greater portion of the children's expenses. Matthew cites no legal authority in support of his claims of error. While we are certainly permitted to disregard Matthew's legally unsupported arguments, see Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005), we will entertain them briefly.
Kentucky's child support guidelines, codified in KRS 403.212(7), serve as a rebuttable presumption for the establishment or modification of child support. Downing, 45 S.W.3d at 454. Where, as here, the parents' combined gross monthly income exceeds $15,000, the upper limit of the guidelines table, application of the guidelines may be unjust or inappropriate, necessitating a fitting deviation therefrom. KRS 403.211(3)(e). Any such deviation, where appropriate, rests within the family court's sound discretion. Clary, 54 S.W.3d at 570.
The parties combined gross monthly income is currently $28,210.00.
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A child is entitled to "receive as child support the same proportion of parental income that the child would have received had the parents lived together as an intact, two-parent family." Id. Accordingly, when making its deviation determination, the family court should consider, at a minimum, "the reasonable and realistic needs of the child, the standard of living the child enjoyed during the marriage, and the financial circumstances of the parents." Id. at 574. Child support, however, is not limitless. In Downing, this Court cautioned that child support exceeding the children's reasonable needs "serves no purpose but to provide extravagance and an unwarranted transfer of wealth[,]" benefiting not the children but the obligee parent. Downing, 45 S.W.3d at 455. When deviating from the child support guidelines, particularly when the parents' combined monthly gross income is in excess of the guidelines, careful analysis and cautious deliberation is needed. See Dudgeon v. Dudgeon, 318 S.W.3d 106, 111 (Ky. App. 2010) ("[O]ur courts must be fully cognizant of and give credence to the[] myriad and unique familial circumstances when considering child support.").
Here, the parties enjoy equal parenting time with the children. Each parent is financially secure. While little is contained in the record concerning the needs of the children, there is no allegation the children's standard of living has altered appreciably, or that the children's reasonable and realistic needs are not being met. Likewise, Matthew has levied no claim that his portion of the children's expenses result in undue hardship, or that he lacks the financial means to sustain his share of those expenses. Exercising its considerable discretion, the family court found the payment of child support by either party was unwarranted, and the equal sharing of the children's expenses justified. These decisions are entirely reasonable and do not constitute an abuse of the family court's discretion.
For the foregoing reasons, the Kenton Family Court's July 20, 2012 Opinion and Order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Matthew C. Mosser, Pro se
Ft. Mitchell, Kentucky
BRIEF FOR APPELLEE: Meredith Mosser, Pro se
Villa Hills, Kentucky