Opinion
NO. 2019-CA-000828-ME
04-24-2020
OWEN POWELL APPELLANT v. LACY M. POWELL (now RAN) APPELLEE
BRIEF FOR APPELLANT: David Mour Louisville, Kentucky BRIEF FOR APPELLEE: Sarah Huyck Justin Key Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 13-CI-501735 OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. JONES, JUDGE: The Appellant, Owen Powell, appeals the Jefferson Family Court's orders denying his motions to modify parenting time and child support. Having reviewed the record and being otherwise sufficiently advised, we affirm in part, vacate in part, and remand.
I. BACKGROUND
The Appellant, Owen Powell, and the Appellee, Lacy M. Powell, were previously married to one another during which time they had two children, both of whom are still minors. The parties entered into a marital settlement agreement ("MSA") on December 20, 2013. The family court incorporated the parties' MSA into its final decree of dissolution ("Decree") entered February 25, 2014. Pursuant to the decree, the parties were awarded joint legal custody of the children, and Owen was given timesharing with the children every other weekend from Friday to Sunday, and in the evenings on Tuesdays and Thursdays with Lacy having timesharing the rest of the time. At the time of the dissolution, both parties lived in Jefferson County. Shortly thereafter, Owen moved to Bullitt County, which adjoins Jefferson County. The timesharing schedule has been modified periodically by agreement. Under the most recent agreement, Owen receives timesharing with the children every other weekend from Friday to Sunday and overnights on Wednesdays.
Owen filed a motion on May 15, 2017, to modify the parenting schedule so as to afford the parties equal parenting time with the children. On October 23, 2017, Owen filed an additional motion to modify his child support obligation based on changes in the cost of the children's work-related childcare. He filed a second motion to modify child support on February 1, 2018, based on his becoming unemployed. Owen's three motions in addition to some other issues were referred to mediation pursuant to the family court's local rules. While the parties submitted an agreed order on some issues, they did not resolve Owen's motions to modify the parties' parenting time schedule or his motion to modify child support. Additionally, on May 8, 2018, Lacy filed a motion seeking to have the family court hold Owen in contempt after he unilaterally stopped paying child support after he was laid off from his job and for his failure to pay his pro rata share of the children's medical expenses.
On January 3, 2019, the pending motions came before the family court for a hearing. Owen testified that he believed a 2-2-5-5 parenting schedule, or a similar variation, which afforded both parties an equal amount of parenting time would be in the children's best interests. Lacy testified that she objected to Owen's proposed modification. She explained that because Owen lives in Bullitt County, it takes approximately an hour to an hour and fifteen minutes to transport the children from his home to their schools. She testified the children are exhausted from the long commute, and the new proposed schedule would mean potentially two and a half hours in the car each day. Lacy also testified that the children are involved in various extracurricular activities that would require additional transportation. Owen testified that he was not willing to transport the children to their extracurricular activities as part of his time.
One parent would receive the children on Monday and Tuesday, the other parent would receive the children on Wednesday and Thursday, and respective alternating weekends.
The parties also testified about the children's various medical and psychological issues, which are rather significant. Lacy testified that she follows the treatment recommendations of the children's psychological and medical providers. Owen indicated that he believed some of the treatment was not necessary and was exaggerated. While Lacy was well-informed regarding the children's providers and their recommendations, Owen's testimony indicated that he was not very knowledgeable of the specifics of such. Lacy testified that while Owen has been provided with all details and contact information of the children's providers and the dates of appointments, he has never participated in any appointments or tried to contact the providers. Owen testified he is unable to make the appointments because he is at work during the day.
C.J.P. ("Child 1") suffers from ADD, anxiety, OCD, sensory processing disorder, and at the time of the motion hearings, was about to undergo surgery to remove a cholesteatoma. C.M.P. ("Child 2") suffers from asthma, respiratory issues, and has a tendency to behave in a defiant manner. The family court ultimately ordered Child 2 to be tested for learning disorders and behavioral disorders since the parties shared joint legal custody but were not able to reach an agreement on the testing.
Lacy testified she earns approximately $22,000 each year as a work-from-home bookkeeper. Each year she has been in operation, her income has incrementally increased. Lacy utilizes paid childcare for times when her work requires her full attention. Owen questioned the reasonableness of the cost of this childcare citing the fact that the children are in school. After the hearing, Owen secured new employment at a salary less than he was previously making and Lacy indicated that she was incurring additional childcare costs. As a result, the family court agreed to take the new figures into account before ruling on Owen's motion to modify child support.
On April 23, 2019, the family court entered a written order with respect to Owen's motions. Therein, the family court denied Owen's motion to modify/equalize the parenting schedule based on its conclusion that modification was not in the children's best interest. With respect to child support and related costs, the family court declined to impute additional income to Lacy, determined that the submitted childcare costs were reasonable, and then adjusted Owen's child support based on his current income from his new job. However, after finding that Owen's new income did not represent at least a 15% reduction from his prior income, the family court declined to make his new, slightly-reduced child support obligation retroactive to the date of Owen's motion. The family court also refused to abate Owen's child support obligation during his period of unemployment after finding that Owen received severance pay and unemployment benefits during the relatively short period of time he was unemployed. This appeal followed.
II. STANDARD OF REVIEW
Owen argues the family court abused its discretion and misapplied the law when it: (1) denied his motion for equal parenting time; (2) refused to abate or reduce his child support obligation during his period of unemployment; (3) did not impute additional income to Lacy in calculating the parties' child support obligations; and (4) found Lacy's submitted childcare costs to be reasonable.
We must note that Owen's preservation of error statement is deficient. Owen states that his arguments were "automatically" preserved and that "the preservations of errors were properly brought before this Court by virtue of the filing of the Notice of Appeal." Owen misunderstands the requirements and purposes of a preservation statement. Kentucky Rule of Civil Procedure ("CR") 76.12(4)(c)(v) requires each brief to contain: "An "ARGUMENT' . . . which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." "By citing us to the specific location of the item in the record, we can confirm the document was presented to the trial court and is properly before us." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). It is improper to simply state that an argument was "automatically" preserved. The litigant must state the location by page number in the record below where the argument appears. In this case, we will excuse counsel's failure because it appears he misunderstood the rule and attempted some minimal compliance. Additionally, we have been able to locate his motions in the record. In the future, however, counsel is reminded that it is incumbent to be more precise with respect to the identifying in the record below where each argument was raised. An omnibus, generic statement like the one in Owen's brief is not substantial compliance with CR 76.12. The failure to comply in the future may result in this Court striking the offending brief or reviewing for manifest injustice only.
Our standard of review with respect to the modification of timesharing and child support is the same. We review both for abuse of discretion.
For the purposes of the standard of review, in reviewing family court cases, we acknowledge that a family court judge has extremely broad discretion in ascertaining the reliability of the evidence presented. Moreover, a reviewing Court is not permitted to substitute its judgment for that of the family court unless its findings are clearly erroneous. Sherfey v. Sherfey, 74 S.W.3d 777,
782 (Ky. App. 2002). Factual findings are not clearly erroneous if they are supported by substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964). "The test for substantiality of evidence is whether when taken alone, or in the light of all the evidence, it has sufficient probative value to induce conviction in the minds of reasonable men." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999). Furthermore, due regard shall be given to the family court judge's opportunity to judge the credibility of the witnesses. Kentucky Rules of Civil Procedure (CR) 52.01. Lastly, we review questions of law de novo. Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743 (Ky. App. 2003).Jones v. Hammond, 329 S.W.3d 331, 334-35 (Ky. App. 2010).
III. ANALYSIS
A. Modification of Timesharing
"A modification of timesharing maintains the basic custodial framework agreed upon by the parties but changes the amount of time that each parent spends with the child within that framework." Humphrey v. Humphrey, 326 S.W.3d 460, 464 (Ky. App. 2010). "[M]otions to modify visitation/timesharing are brought under KRS 403.320(3), which permits modification when it 'would serve the best interests of the child.'" Id.
Kentucky Revised Statutes.
Owen argues that the family court erred because it did not properly apply the presumption that equal parenting time is in the best interest of the children as set forth in KRS 403.270(2). However, the Kentucky Supreme Court recently addressed whether the presumption in favor of equal parenting time applies when only modification of timesharing is sought. Ultimately, the Court held that while the presumption applies in initial custody/timesharing decisions, it does not apply when only modification of timesharing is sought. Layman v. Bohanon, ___ S.W.3d ___, 2020 WL 1847091 (Ky. Mar. 26, 2020).
Although Layman is not yet final, we find its statutory analysis on the issue of whether the presumption applies to be well-reasoned and persuasive. We would reach the same result regardless and, therefore, believe our citation to the opinion to be appropriate notwithstanding its lack of finality at this time. --------
[W]e hold that a modification of visitation or timesharing is governed by KRS 403.320, rather than the standard for an initial custody determination as set forth in KRS 403.270. Accordingly, the recently added presumption of joint custody and equal parenting time in KRS 403 .270 applies to custody determinations, but it does not apply to modifications of visitation or timesharing.
In the present case, the parties sought and the family court ordered a modification of timesharing. As a result, KRS 403.320(3) should have applied. Under that statute, the family court could modify the timesharing arrangement if it first found that the modification was in the best interests of the children, or it could restrict timesharing (i.e., order a "less than reasonable" timesharing) if it first found that the children's physical, mental, moral or emotional health was seriously endangered. Thus, the Court of Appeals should have considered whether the modified timesharing arrangement was "less than reasonable." Under our case law, less than reasonable does not necessarily mean less than fifty percent parenting time. See, e.g., French, 581 S.W.3d at 50. Nevertheless, the Court of Appeals
referred to the standard for custody determinations in KRS 403.270 and concluded that any reduction in a fifty-fifty timesharing arrangement was less than reasonable or, in other words, a restriction. Stated another way, the Court of Appeals concluded that any change in the parties' equal timesharing arrangement required a finding that visitation would seriously endanger the children's physical, mental, moral, or emotional health. We believe that this was an improper conflation of the standards for custody determination under KRS 403.270 and timesharing modification under KRS 403.320. As noted above, these statutes set forth separate standards for distinct stages of a custody proceeding.Id. at *5 (emphasis added).
The basis for a modification decision is fact-driven rather than law-driven, because the legal standard is whether modification is in the best interests of the children. Anderson v. Johnson, 350 S.W.3d 453, 455 (Ky. 2011).
In determining the best interests of the child, the court must consider all relevant factors, including the wishes of the child's parents; the wishes of the child as to his custodian; the interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests; the child's adjustment to his home, school, and community; the mental and physical health of all individuals involved.A.G. v. T.B., 452 S.W.3d 141, 144 (Ky. App. 2014).
The family court's order listed the various factors at issue. It then turned to the facts of the case, finding:
At the hearing, [Owen] testified that he resides between Shepherdsville and Bardstown, Kentucky. He stated that
it takes him approximately one (1) hour to one (1) hour and fifteen (15) minutes to commute from his residence to [Child 1's] school on Thursday mornings, with an additional fifteen (15) minutes to commute to [Child 2's] school. He contended that it was in the children's best interest to spend equal time with their father, and he proposed a 2-2-5-5 schedule. If awarded equal parenting time, however, [Owen] refused to commit to transporting the children to their karate lessons and other extracurricular activities, during his parenting time. Due to his work schedule, he plans to enroll the children in afterschool care on the days he exercises parenting time, at their respective schools.
[Owen] testified that he is capable of providing for all of the children's needs, while they are in his care. He acknowledged that the children have medical issues, and that he did not agree with all the doctors' diagnoses. He contended that [Child 1] still saw Abby Brown for occupational therapy, even though the parties had previously agreed to use another occupational therapist. During cross-examination, [Owen] was surprised to learn that [Child 1] ceased seeing Abby Brown over a year ago. [Owen] stated that he and [Lacy] regularly disagree on the children's medical treatment, and he wanted the opportunity to fix the children's issues on his own at home. His ultimate goal was to withdraw [Child 1] from occupational therapy and his therapy sessions. He acknowledged that he has not involved himself with the children's medical providers. [Owen] claimed that he could not attend the children's appointments because they occurred during the work day, but he could not explain why he failed to attend any of their appointments during his unemployment, from February 2018 through August 2018.
[Owen] acknowledged that [Child 1] had some behavioral issues while he was in kindergarten and first grade, but claimed that these issues have since resolved. He also stated that [Child 2] may have had issues last
school year, and that [Child 2] was kicked out of summer camp last year, but [Owen] contended that [Child 2] has not had any behavioral problems this year. He could not recall the last time he attended a meeting with the children's teachers.
In response, [Lacy testified] that she does not believe that an equal parenting schedule is in the children's best interest. She was concerned about [Owen's] refusal to support the children's medical treatments, especially due to his history of failing to communicate with the children's medical providers. [Lacy] testified that [Child 1] has been diagnosed with ADD, anxiety, oppositional defiance disorder, and sensory processing disorder, but that [Owen] will not grant permission for [Child 2] to be tested for learning and behavioral disabilities. She maintained that all of the children's treatments are recommended by the children's medical providers. She also stated [Child 1] is not socially adept, and that it is important for [Child 1] to engage in structured extracurricular activities, such as karate. Consequently, [Lacy] expressed concern over [Owen's] unwillingness to commit to taking the children to their activities during his time.
[Lacy] testified [Child 1] is currently seeing Cindy Morgan for his occupational therapy. Contrary to [Owen's] claims that [Lacy] has not yet contacted Ms. Morgan, [Lacy] stated that she communicates with Ms. Morgan on a weekly basis. [Lacy] stated that she has provided [Owen] with all of the dates and times of the children's medical appointments and parent-teacher conferences, but that he has never appeared. She also provided his email address to the children's teachers, so that he can communicate with the teachers directly. Additionally, [Lacy] contended that an equal parenting schedule would not be in the children's best interest due to the distance between [Owen's] residence and the children's schools. She testified that the children are exhausted every Thursday morning when they arrive at
school, because the lengthy commute requires the children to awaken at an extremely early hour. Ultimately, [Lacy] requested that the current schedule remain in place.
After consideration of all the evidence presented, the Court believes that it is not in the children's best interest to modify the parenting schedule, that [Lacy] presented sufficient evidence to overcome the presumption of an equal parenting schedule. The evidence revealed that both children are close with both parents. However, the distance between [Owen's] residence and the children's schools alone makes an equal schedule untenable, especially given [Owen's] refusal to commit to transporting the children to their extracurricular activities. Furthermore, the Court is notably concerned with [Owen's] failure to involve himself in the children's treatments, as well as his lack of communication with the children's teachers. Specifically, the Court was especially bothered that [Owen] was completely unaware that [Child 1] switched occupational therapists over a year ago. Additionally, the Court finds [Owen's] refusal to allow [Child 2] to be tested for learning and behavioral disabilities troubling. Consequently, considering all of these factors, the Court cannot find that it is in the children's best interest to modify the parenting schedule.
Owen, the party seeking modification, bore the burden of proving to the family court's satisfaction that modification of the timesharing schedule was in the children's best interest. The family court carefully reviewed the evidence and made a reasoned and well-supported determination that modification of the schedule was not in these children's best interest. The family court determined that the current schedule had allowed the children to develop good relationships with both parents; the children had various medical issues Owen was reluctant to accept; Owen did not have good communication with the children's teachers and medical providers; Owen was unwilling to transport the children to their extracurricular activities when he was exercising his parenting time; and the long commute from Owen's home to the children's schools would be difficult on the children during the weekdays. While Owen may disagree with the family court's findings, he has failed to convince us that they are insufficient, legally unsound, or unsupported by the evidence of record. Accordingly, we must affirm the family court's denial of Owen's motion for modification of the timesharing schedule.
B. Modification of Child Support
"The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification and only upon a showing of a material change in circumstances that is substantial and continuing." KRS 403.213(1). Owen makes two separate arguments with respect to the family court's decision on his motion to modify his child support obligation: 1) the family court erred in refusing to abate or reduce Owen's child support obligation during his period of unemployment; and 2) the family court erred by not giving him a larger prospective reduction in light of his arguments that Lacy was voluntarily underemployed and that her childcare costs while working from home were unreasonable. Each is addressed below.
Owen was terminated from his long-time employment with AmeriGas around the beginning of February 2018. He secured new employment with Aeromark as a district manager at the beginning of August 2018. Thus, his period of unemployment was approximately six months. At the time of his termination, Owen received a severance check from AmeriGas in the amount of $15,825.00, and further received unemployment benefits of $448.00 per week during almost all of his period of unemployment. After considering the evidence, the family court concluded that Owen's temporary unemployment was neither substantial or continuing in terms of his income. We must agree. The severance payment Owen received in combination with his unemployment benefits prevented Owen from having any substantial reduction in his income and the period of his unemployment was not so prolonged as to represent a change of a continuing nature. We cannot appreciate any abuse of discretion by the family court in refusing to abate Owen's child support obligation during his six months of unemployment.
The family court determined that some modification of child support was necessary based on Owen's new, lower-paying job. Owen argues that in figuring the new child support amount, the family court should have imputed additional gross income to Lacy. Owen explains that Lacy is voluntarily underemployed and could earn more as a bookkeeper through outside, private employment than she is currently earning working for herself out of her home.
KRS 403.212(2)(d) provides:
If a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of potential income, except that a determination of potential income shall not be made for a parent who is incarcerated, physically or mentally incapacitated, or is caring for a very young child, age three (3) or younger, for whom the parents owe a joint legal responsibility. Potential income shall be determined based upon employment potential and probable earnings level based on the obligor's or obligee's recent work history, occupational qualifications, and prevailing job opportunities and earnings levels in the community. A court may find a parent to be voluntarily unemployed or underemployed without finding that the parent intended to avoid or reduce the child support obligation.
"[W]hether a child support obligor is voluntarily underemployed is a factual question for the trial court to resolve." Gossett v. Gossett, 32 S.W.3d 109, 111 (Ky. App. 2000). "The court may consider the totality of the circumstances in determining whether a parent is voluntarily unemployed or underemployed." Maclean v. Middleton, 419 S.W.3d 755, 775 (Ky. App. 2014) (citation omitted). Relevant factors include, but are not limited to, previous history of employment, occupational qualifications, the health of the individual, the needs of the family and the rigors of the jobs at issue. Gossett, 32 S.W.3d at 112 (citation omitted).
With respect to Lacy's employment, the family court found as follows:
[Lacy] is a self-employed bookkeeper, and her 2017 tax returns indicate that she made a total of $22,404.00 over the entirety of 2017. This equates to an average monthly gross income of $1,867.00. Her profit and loss statement for 2018 indicates that she earned a similar income to 2017. At the January 3, 2019 Hearing, [Owen] argued that many of the expenses [Lacy] deducted from her gross revenue should be included in her gross income. After careful consideration of [Lacy's] tax returns, as well as her testimony at the Hearing, the Court finds that these expenses are reasonable and shall not be included in her gross income.
While the family court made findings with respect to Lacy's current income, expenses, and childcare costs, it did not address Owen's argument that Lacy was voluntarily underemployed insomuch as she could be making more money if she were employed by an outside person or entity. The family court failed to address this argument before it readjusted Owen's child support based on his new employment. This was an abuse of discretion in light of Owen's arguments. While the family court is free to reject Owen's contention, we believe it is necessary for the family court to make some findings on the issue of whether Lacy is voluntarily underemployed. Because the family court failed to do so, we must remand on this issue for findings of fact and conclusions of law. Depending on the outcome, the family court may need to readjust its order of support.
Finally, we briefly address Owen's argument regarding childcare costs. Owen argues that Lacy's submitted childcare expenses are unreasonable in light of the fact that the children are in school and Lacy is currently working from home. Even school-age children require some afterschool and summertime care. And, regardless of the fact that Lacy works out of her home, the evidence indicated that she generally works at least a forty-hour work week. It would be unreasonable to assume that Lacy does not have some childcare expenses insomuch as both she and Owen are working full-time. Owen did not produce any evidence that shows Lacy's tendered expenses are beyond the bounds of reason. Accordingly, we cannot agree with Owen that the family court abused its discretion with respect to the parties' childcare expenses.
IV. CONCLUSION
For the foregoing reasons, we affirm in part, vacate in part, and remand for further proceedings consistent with this opinion. On remand, the family court should make specific findings and conclusions of law regarding whether Lacy is voluntarily underemployed. Should the family court determine that Lacy is voluntarily underemployed, it must determine the appropriate amount of income to impute to her and recalculate the parties' child support obligations accordingly.
ALL CONCUR. BRIEF FOR APPELLANT: David Mour
Louisville, Kentucky BRIEF FOR APPELLEE: Sarah Huyck
Justin Key
Louisville, Kentucky