Opinion
NO. 2019-CA-000916-ME
05-29-2020
ROBERT ANDREW SHARP, JR. APPELLANT v. CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY; AND HEATHER ANNE GREEN SHARP APPELLEES
BRIEF FOR APPELLANT Kenneth A. Meredith, II Bowling Green, Kentucky BRIEF FOR APPELLEE CABINET FOR HEALTH AND FAMILY SERVICES, COMMONWEALTH OF KENTUCKY: Vaughn Wallace Amy Hale Milliken Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE CATHERINE RICE HOLDERFIELD, JUDGE
ACTION NO. 14-CI-00704 OPINION
AFFIRMING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES. DIXON, JUDGE: Robert Andrew Sharp, Jr. appeals the February 14, 2019, order of the Warren Circuit Court, Family Division, modifying his child support obligation. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Robert Andrew Sharp, Jr. and Heather Anne Green Sharp were married in 2009, and two children were born of the marriage. The marriage was dissolved by decree on July 20, 2015. In a separate custody action, the paternal grandmother was granted custody of the minor children. Because neither party had custody of the children when they divorced, the parties agreed that neither would pay child support to the other. However, on March 21, 2017, Heather was granted temporary custody of the children and sought child support from Robert. On October 31, 2017, the Cabinet for Health and Family Services filed a motion to intervene, which the court granted, and a motion to establish child support.
On January 10, 2018, the family court held a hearing on the Commonwealth's motion, at which Robert appeared pro se. The court first heard Heather's testimony regarding her income. Then, before testifying, Robert requested a continuance to allow him to retain new counsel. The court denied this request, and the hearing proceeded. Robert testified that he earned $50,000.00 in 2017. At the close of evidence, based upon the testimony of the parties regarding their incomes, the court ordered Robert to pay $940.00 per month in child support, with an additional $60.00 per month toward his $1,880.00 arrearage, for a total of $1,000.00 per month, which the court orally advised would be temporary. However, Robert's obligation was thereafter memorialized in a written order in which the court did not include the "temporary" language.
Robert timely filed a motion to vacate this order pursuant to CR 59.05, arguing, in part, that the family court erred in denying his request for a continuance. The court denied Robert's motion but, upon Robert's request and the Commonwealth's agreement, amended the order to make it temporary.
Kentucky Rules of Civil Procedure.
On December 14, 2018, through counsel, Robert filed a motion to modify his child support obligation. At the hearing, Robert testified at length about his earnings for 2017. He stated he was now self-employed and claimed substantial expenses related to his self-employment, including fuel costs, vehicle maintenance, and vehicle repairs. With deductions for these expenses, Robert claimed that his 2017 adjusted gross income actually reflected a loss.
Robert then testified as to his 2018 income. At the beginning of the year, Robert worked as a contractor for AA Repo West, LLC, though he produced no paystubs or tax documents relating to this employment. Instead, he presented what appeared to be his own notes, allegedly reflecting his income and expenses. Robert claimed substantial expenses for automotive repairs, including replacement of his truck's transmission. Using his notes, Robert testified to earning $3,757.00 in 2018, after expenses, from AA Repo West, LLC.
Furthermore, from September 2018 until January 2019, Robert testified he worked as the service manager at America's Auto Auction. In this position, he earned $20.00 per hour and worked 40 hours per week. He also testified that he paid $200.00 per week for tools. Although he provided some receipts, allegedly showing the purchase of these tools, he did not testify to what tools he purchased or whether they were necessary for his employment. Robert was terminated from his employment with America's Auto Auction in January 2019 due to a disagreement with his supervisor.
Robert then testified that, since his termination from his prior employment, he had applied for approximately 30 jobs. Despite holding a bachelor's degree in criminal justice, as well as numerous certifications in automotive mechanics, Robert claimed that no employer would hire him because of an active domestic violence order (DVO) against him. According to testimony, Heather obtained the DVO against Robert approximately five years prior to the hearing. Upon cross-examination, Robert provided no documentation that he had been rejected by potential employers on the basis of the DVO.
The family court then heard Heather's testimony regarding her income and child care expenses. She testified she earned $12.00 per hour and worked 40 hours per week.
At the close of evidence, the court disallowed Robert's deductions for the cost of tools and vehicle maintenance and repairs because there was insufficient evidence to substantiate these expenses. The court found Robert capable of earning $20.00 per hour and working 40 hours per week, based upon his most recent employment with America's Auto Auction. On this basis, the court modified Robert's child support obligation to $975.00 per month, with an additional $60.00 per month to be paid toward his arrearage.
Robert, again, timely filed a motion to vacate the order under CR 59.05 arguing, in part, that the court erred by failing to find he was unemployed at the time of the hearing and incorrectly imputing him with income absent any consideration of his employment-related expenses.
After hearing arguments from counsel, the family court made additional findings of fact. First, the court found Robert was unemployed due to his being fired by America's Auto Auction. Next, the court found that Robert's testimony regarding his self-employment expenses was not credible, including the large vehicle repair expense. The court also found Robert's testimony regarding his inability to find employment due to the DVO against him was not credible, stating:
The Court finds it was appropriate to impute income to the Petitioner of $20.00 per hour. That was his hourly rate at the Auto Auction per his testimony prior to his termination, and he did not incur any business-related
expenses or mileage expenses. He was earning this income even in light of the active Domestic Violence Order. The Court believes the Petitioner is very capable of earning at least $20.00 per hour.This appeal followed.
STANDARD OF REVIEW
"[T]he establishment, modification, and enforcement of child support obligations are left to the sound discretion of the trial court." Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky. App. 2007) (citation omitted). "Discretion is abused only when a trial court's decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009) (citation omitted). "We will disturb a trial court's findings of fact only if they are clearly erroneous." Id. (citation omitted).
On appeal, Robert first argues the court erred in refusing to grant a continuance of the January 10, 2018, hearing. Second, Robert argues the court abused its discretion in imputing him income of $20.00 per hour for 40 hours per week without first finding him voluntarily unemployed.
MOTION FOR CONTINUANCE
First, Robert requests the court's final order modifying his child support obligation be vacated on the basis that the court erred in denying his request for a continuance during the hearing that preceded entry of the temporary child support order. Robert argues that the family court failed to make any findings of fact in denying his request, as required by Deleo v. Deleo, 533 S.W.3d 211 (Ky. App. 2017). The Commonwealth argues we should not consider this argument because Robert is raising an issue regarding a non-final order or, in the alternative, he did not timely appeal from either the February 2, 2018, or April 2, 2018, order.
We cannot set aside a final order of the family court because of errors in the temporary phase of litigation. Gladish v. Gladish, 741 S.W.2d 658, 662 (Ky. App. 1987). Where a party feels he was aggrieved by a temporary order of the family court, the proper mechanism for relief is filing a petition for a writ of prohibition. Id. at 661. Robert filed no such petition. As the temporary child support order has now been replaced by a final order, we can afford Robert no relief. Id. at 661-62. Therefore, we need not examine this issue on appeal.
IMPUTED INCOME
Next, we consider Robert's argument that the family court erroneously imputed him income without first finding he was voluntarily unemployed. The court in the February 14, 2019, order found that Robert had been terminated from his employment and set his child support obligation based upon his capability of earning $20.00 per hour for 40 hours per week. The court did not address the voluntariness of Robert's unemployment.
In the absence of a finding that he was voluntarily unemployed, Robert did not move the court for this additional finding of fact under CR 52.02. Instead, in his post-judgment motion, Robert argued only that the court failed to reference Robert's termination from America's Auto Auction at the time of the hearing on his motion to modify child support. Furthermore, at the hearing on his CR 59.05 motion, Robert requested the court amend its order only to find he was unemployed; he did not ask the court to address the voluntariness of his unemployment. The court granted Robert's motion to the extent that it amended the February 14, 2019, order to find Robert was unemployed because he was terminated from his employment with America's Auto Auction and that he was "very capable of earning at least $20.00 per hour."
A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.CR 52.04. In the absence of a motion for additional findings of fact, we "must presume that the evidence presented at trial supports the trial court's conclusions." McKinney v. McKinney, 257 S.W.3d 130, 134 (Ky. App. 2008) (citing Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982)). On this basis, Robert's argument that the court's order must be vacated because it failed to find his unemployment was voluntary is not preserved for this court's review.
Furthermore, the family court did not abuse its discretion in imputing Robert income of $20.00 per hour for 40 hours of work per week. Robert argues that the court erred because his income should have been imputed based either on his income for the entirety of 2018, including his wages earned and expenses incurred while working for AA Repo West, LLC, or the minimum wage.
We cannot find the family court abused its discretion unless its findings of fact are clearly erroneous, meaning they are not "supported by substantial evidence." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted).
Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.Id. (citations and internal quotation marks omitted).
Where a party is voluntarily unemployed, "child support shall be calculated based on a determination of potential income[.]" KRS 403.212(2)(d). "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." Id. There is a presumption that a party's future income will be on par with his most recent experience. Keplinger v. Keplinger, 839 S.W.2d 566, 569 (Ky. App. 1992).
Kentucky Revised Statutes. --------
Herein, the family court considered all sources of income Robert presented but found only his testimony regarding his income from America's Auto Auction to be credible. Specifically, the court found Robert's testimony regarding self-employment related expenses, including a large automotive repair expense, lacked credibility. Despite holding a bachelor's degree and various certifications in automotive mechanics, Robert claimed he was unable to find new employment because of the active DVO against him; yet, he provided no documentation that he had been rejected from potential positions for this reason. Again, the family court found this testimony lacked credibility. The court, in its exclusive province, weighed the evidence presented and evaluated the credibility of the witnesses. Based upon Robert's own testimony, the court imputed him with income equal to what he earned in his most recent employment. Taking into consideration Robert's most recent employment and qualifications, we cannot hold that the family court abused its discretion in imputing his income.
CONCLUSION
Therefore, for the foregoing reasons, we affirm the order of the Warren Family Court.
ALL CONCUR. BRIEF FOR APPELLANT Kenneth A. Meredith, II
Bowling Green, Kentucky BRIEF FOR APPELLEE CABINET
FOR HEALTH AND FAMILY
SERVICES, COMMONWEALTH OF
KENTUCKY: Vaughn Wallace
Amy Hale Milliken
Bowling Green, Kentucky