Opinion
NO. 2012-CA-000474-ME
08-03-2012
MATTHEW RIDDELL APPELLANT v. KENDRA ROSE APPELLEE
BRIEF FOR APPELLANT: Kimberly D. Osborne-Webb Paintsville, Kentucky BRIEF FOR APPELLEE: Robert G. Miller, Jr. Paintsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 11-CI-00090
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
BEFORE: ACREE, CHIEF JUDGE; MOORE AND THOMPSON, JUDGES. ACREE, CHIEF JUDGE: Matthew Riddell (Father) appeals an order of the Johnson Family Court denying his motions to establish his child support obligation, denying him permission to claim the children as income tax exemptions, and declining to order the children's mother, Kendra Rose (Mother), to submit information regarding her student financial aid. The order also required that the parties exchange possession of the children at the Johnson County Sheriff's Department in the event that Father did not comply with a previous order governing that exchange. We affirm in part, reverse in part, and remand for additional proceedings.
Our understanding of the factual and procedural history of this case was gleaned through a thorough review of the record rather than from the parties' briefs, which provided practically no assistance in educating the Court on the sequence of events sub judice.
Two children were born as the result of Mother and Father's relationship, the first in 2008 and the second in 2010. Mother and Father ended their relationship after the birth of their second child.
The parties were never married.
For all dates pertinent to our inquiry, Mother resided in Johnson County, Kentucky. She was a student at Eastern Kentucky University and worked occasionally as a housekeeper and babysitter. According to her tax returns, her adjusted gross income in 2011 was $1,583. Mother received financial aid to attend college and participated in the Kentucky Medical Assistance Program, by which the Cabinet for Health and Family Services provided medical benefits for the children.
Father has resided in Nelson County, Kentucky, for all times relevant to his appeal. He works as a highway engineer in a private engineering firm and earns approximately $90,000 per year. He has an older child from a previous relationship who resides primarily with her mother and for whom he pays child support monthly.
Mother filed a custody petition on February 24, 2011. Shortly thereafter, the family court sustained her motion to proceed in forma pauperis. Because Mother was receiving health care assistance from the Cabinet for Health and Family Services, the Johnson County Attorney moved to intervene on behalf of the Cabinet. Mother's motion entitled "Motion for temporary custody and child support" was filed on March 25, 2011.
Between April 12, 2011 and April 14, 2011, the family court entered a series of orders which, in pertinent part, required Father to pay child support in the amount he had proposed, $1,324; ordered Father to provide health insurance for the children as he had offered; awarded temporary custody to Mother and visitation to Father; and permitted the Cabinet to intervene in the matter.
Mother was awarded temporary custody of the children, pending final resolution of the outstanding matters. Ultimately, the parents reached an agreement on December 8, 2011, which granted the parties joint custody of the children, named Mother the primary residential parent, granted Father visitation, and provided:
[t]he parties shall exchange the minor child[ren] in Winchester at the BP gas station at Exit 96 off Interstate 64 on Fridays [for visitation with Father in Nelson County]. [The children's paternal grandfather] shall bring the children back to [Mother] on Sunday at 7:00 p.m. when he comes to Eastern Kentucky for work.The family court approved the agreement and entered an order confirming it.
Almost immediately, the parties began disputing the terms of the agreement. Father believed the children would be returned to Mother by their paternal grandfather only on those Sundays when he happened to be in eastern Kentucky for work; otherwise, he expected the parties to meet in Winchester on Sundays. Mother claimed Father had misrepresented the frequency with which the children's paternal grandfather traveled to eastern Kentucky, stating she had been led to believe it happened every Sunday. Mother believed she was not required to travel to Winchester on Sundays, but that Father was required to arrange for their return to eastern Kentucky by the terms of the agreement. They returned to the family court for resolution of the dispute.
Father then raised a number of additional matters for the family court's consideration. The first was a request that the family court grant him permission to claim the children as dependents for purposes of income tax returns. Father also filed a motion to establish child support permanently, apparently believing the previous order of child support had been only temporary. Finally, he filed a motion to compel production of Mother's financial aid information, data he believed necessary for proper calculation of his child support obligation.
The family court, treating its child support order of April 12, 2011, as permanent, refused to modify the award because Father's newly proposed amount of child support was not a fifteen-percent change from the original amount awarded to Mother. Kentucky Revised Statutes (KRS) 403.213(2). In response to Father's other various motions, the family court denied his request for Mother's financial aid information; awarded the tax exemption to Mother; and ordered that in the event Father could not arrange for the children to be returned to their mother on Sundays by their paternal grandfather, the point of exchange would become the Johnson County Sherriff's Department. Father appealed this order in its entirety.
II. Notice of appeal
Before turning to the merits of this appeal, we must address Mother's motion to dismiss the claim for want of jurisdiction. This Court cannot hear Father's appeal, she argues, because he failed to name an indispensible party in his Notice of Appeal, namely the Cabinet for Health and Family Services.
An appellant's failure to name an indispensible party in his Notice of Appeal deprives us of jurisdiction and requires dismissal. Kentucky Rules of Civil Procedure (CR) 73.03(1); City of Devondale v. Stallings, 795 S.W.2d 954, 957 (Ky. 1990). Our Supreme Court has offered the following guidance in determining whether a party is indispensible:
Frequently, parties who were necessary at trial are not necessary on appeal. The question, then, is who is necessary to pursue the claim and who has a right to the proceeds. If the party's participation in the appeal is unnecessary to grant relief, and requiring its participation would force unnecessary expense on the party, then, . . . such a party is not indispensible. . . . CR 73.03 . . . presents no bar to the appeal continuing if an unjoined party from below is not indispensible.Nelson County Board of Education v. Forte, 227 S.W.3d 617, 625 (Ky. 2011).
The Cabinet's participation in the action before the circuit court was minimal. The County Attorney filed a motion to intervene and an intervening complaint on behalf of the Cabinet, but filed nothing further.
The primary purpose of the Cabinet's participation in child support actions is to secure payment of child support to a primary residential parent who also receives state assistance; the Cabinet in this case also sought repayment from Father for public benefits the children had received while Father was not paying child support.
This interest is not sufficient to make the Cabinet an indispensible party to the matters Father has raised on appeal. The benefit of child support will be received by Mother, and she is the party who has a right to the proceeds. Furthermore, Father has not appealed any order of the family court requiring him to reimburse the Cabinet, so our ability to grant the relief Father has requested is not affected by the Cabinet's absence.
The Cabinet is not an indispensible party to this appeal, and we enjoy jurisdiction over the merits.
III. Establishment of child support
Matters of child support may be reversed only for an abuse of discretion. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009).
To ascertain whether the family court abused its discretion in denying Father's February 2, 2012 motion for the establishment of child support, we must first determine whether the family court's order of April 12, 2011, was a temporary order of child support or a permanent one. Our determination of that matter will dictate whether the order of February 16, 2012, was a refusal to establish a permanent order of child support, governed by KRS 403.211, or a refusal to modify an existing permanent order, governed by KRS 403.213.
The problem with this task is that Father has not addressed that fundamental matter in his brief; instead, he presumes it is apparent and uncontestable that the April 2011 order was temporary and skips straight to his argument that his permanent child support obligation should be set at $1,267. Father asserts this amount takes into account various factors not considered in the April 2011 order, including Mother's income, Father's prior-born child, and Father's provision of the children's health insurance premiums, in accordance with the guidelines established in KRS 403.211 and KRS 403.212.
Following thorough review of the record, we must conclude that the order of April 12, 2011, was a permanent order of child support, rather than temporary; because Father's proposed reduction of his monthly obligation was only a four-percent reduction, KRS 403.213 prevented modification. The family court did not abuse its discretion in so ruling.
We reach this conclusion for two reasons. First, our decision-making is controlled by the oft-repeated maxim that a court speaks only through its orders. Bax v. Fletcher, 261 S.W.2d 662, 663 (Ky. 1953) ("It is elementary, of course, that a court speaks only through its orders, and it is of the utmost importance that the court's order book accurately reflect steps taken and the court's rulings."). There is nothing in the April 2011 order to indicate that it is temporary, and we can find nothing in the record which suggests it was anything other than permanent. If the family court intended that the order be temporary, we can find no evidence of that intent. Furthermore, the parties' behavior, as evinced by the record, suggests that they believed the April 2011 order was permanent, at least initially. The order was in place for nearly ten months before Father filed his "Motion to set child support" on February 2, 2012. He apparently did not think this was an outstanding matter in December 2011, when the issues of permanent custody and timesharing were set for a final hearing.
It appears to this reviewing Court that Father's February 2012 characterization of the April 2011 order as temporary was novel and incorrect. Furthermore, Father's proposed reduction of child support was too small to warrant modification, and the family court did not abuse its discretion in so holding. We affirm the family court's order denying Father's motion for modification of his child support obligation.
IV. Tax exemption
Father next asserts the family court erred by permitting Mother to claim the two children as dependents for tax purposes. The family court ordered as follows: "the party who has physical custody of the minor child[ren] more than fifty percent of the time [Mother] and has income upon which a deduction may be taken[] shall be awarded the deduction . . . [.]" (Record on appeal, p. 122).
This matter, too, is reviewed for abuse of discretion. Brausch v. Brausch, 265 S.W.3d 837, 842 (Ky.App. 2008).
"The trial court is to be guided in the exercise of its discretion by making an allocation which will best maximize the benefit of the exemption and the amount available for the care of the children." Pegler v. Pegler, 895 S.W.2d 580, 581 (Ky.App. 1995) (internal citations and quotations omitted). This requires "a balancing of the equities between the parties, including their respective incomes." Brausch, 265 S.W.3d at 842.
Father contends the circuit court abused its discretion in awarding the exemption to Mother because he stands to receive a greater tax benefit than she does. More specifically, he represents that were he to receive the exemption, it would result in a $4,800 benefit to him; for Mother, he claims, the tax benefit would be only $632. On this basis alone, he asserts it is "apparent" the circuit court should have awarded the exemption to him. He does not describe how he arrived at the $4,800 figure.
$632 is the amount Mother actually received for 2011.
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We are not persuaded that the award of the tax exemption to Mother was an abuse of discretion. It is true the amount of the payment she received by claiming the children as dependents was significantly less than that which Father expected to receive; however, the test is not who stands to receive more money. Given her very small annual income and his comparatively large income, it was not unreasonable for the family court to conclude receipt of $632 was more significant to Mother than $4,800 would be to Father. Furthermore, because the children resided primarily with Mother, awarding her the exemption would make that money more readily available for their care.
We affirm the portion of the family court's order concerning assignment of the tax exemption.
V. Financial aid information
Father next contends the family court erred in denying his motion to compel the production of Mother's financial aid information. The basis of the court's decision to overrule the motion is that, "these amounts are not included in the . . . Child Support calculations." It is possible, however, that they should be.
In calculating a parent's income for purposes of establishing child support, a family court is obligated to consider the following:
"Gross income" includes income from any source, except as excluded in this subsection, and includes but is not limited to income from salaries, wages, retirement and pension funds, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits, workers' compensation benefits, unemployment insurance benefits, disability insurance benefits, Supplemental Security Income (SSI), gifts, prizes, and alimony or maintenance received. Specifically excluded are benefits received from means-tested public assistance programs, including but not limited to public assistance as defined under Title IV-A of the Federal Social Security Act, and food stamps.KRS 403.212(2)(b). Also excluded from the calculation of gross income is financial aid received by a parent that is a loan and must be repaid. Stewart v. Burton, 108 S.W.3d 647, 649 (Ky. App. 2003). Gifts, on the other hand, may be assessed as income, but a family court may exercise discretion not to do so when they are "inconsequential, nonrecurring[,] or unlikely to provide sufficient funds to pay [an] increased child support obligation." Id. at 649. Educational financial aid in the form of scholarships might well be considered gifts of the type that should be included in the parent's income.
Because the family court did not require production of records concerning the financial aid Mother receives, it could not have determined whether that aid should be included in its computation of Mother's gross income. That was error. Depending upon the nature and amount of financial aid received, it could make a substantial difference in Father's monthly obligation, perhaps as much as the fifteen percent contemplated by KRS 403.213. We reverse that portion of the family court's order which denies Father's request for Mother's financial aid information. The matter is remanded so the family court may assess the aid Mother receives and determine if it constitutes gross income and, if so, whether it is sufficient to warrant modification of the current child support order.
VI. Exchange of children at the sheriff's office
As discussed above, the parties agreed in December 2011 that on Sundays following visitation in Nelson County, Father would see that the children's paternal grandfather, who worked in eastern Kentucky, would return the children to Mother. Father changed his view on the issue almost immediately after the agreement was formalized by the family court. In response, the family court ruled that if Father could not maintain his obligation under the agreement, then the point of exchange would become the Johnson County Sheriff's Department.
Father has presented two arguments in support of his request that we reverse this portion of the order. First, he argues that the circuit court is not permitted to modify the parties' agreed order of December 2011. In support of this position, he relies solely upon the general principle that a contract may be judicially modified only upon a showing of mutual mistake; he cites no law pertaining specifically to child custody or visitation. Father's second argument is essentially that the new arrangement is so burdensome as to be unreasonable. He has cited no authority whatsoever in support of the latter argument, and so we will not consider it. See Hadley v. Citizen Deposit Bank, 186 S.W.3d 754, 759 (Ky. App. 2005).
A family court may modify an order of visitation and related matters at any time, and it is therefore simply not correct that a finding of mutual mistake was a prerequisite to modification of the agreement. See KRS 403.320; see also Pennington v. Marcum, 266 S.W.3d 759, 767 (Ky. 2008). Father has identified no facts upon which we may conclude the court abused its discretion. To the contrary, given the parties' disparity in income and Mother's representation that her only transportation is an old and unreliable vehicle, it was not unreasonable to require Father to do more traveling.
VI. Conclusion
The only basis upon which we can conclude the family court erred is its denial of Father's request for access to information regarding Mother's student financial aid. On that matter we reverse and remand for further findings. In all other respects, we affirm the order of the Johnson Family Court.
ALL CONCUR. BRIEF FOR APPELLANT: Kimberly D. Osborne-Webb
Paintsville, Kentucky
BRIEF FOR APPELLEE: Robert G. Miller, Jr.
Paintsville, Kentucky