Opinion
NO. 2013-CA-000957-ME
03-14-2014
STEVEN THOMAS APPELLANT v. STEPHANIE THOMAS APPELLEE
BRIEF FOR APPELLANT: Donald J. Haas Louisville, Kentucky BRIEF FOR APPELLEE: Lori A. Kinkead Elizabethtown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 94-CI-01333
OPINION
AFFIRMING
BEFORE: LAMBERT, STUMBO AND THOMPSON, JUDGES. THOMPSON, JUDGE: Steven Thomas appeals from an order of the Hardin Family Court denying his motion to modify child support. We conclude the family court did not abuse its discretion when it determined Steven failed to demonstrate a material change in circumstances that is substantial and continuing since the entry of the family court's May 22, 2012, support order and affirm.
Steven, a former Colonel in the United States Army, and Stephanie Thomas, a special education teacher, were married on July 12, 1986, and in January 1996, divorced. In a separation agreement incorporated into the decree, the parties acknowledged one of their two children, Jay, is disabled and it was appropriate to deviate from the child support guidelines and support for Jay may continue after his eighteenth birthday. Child support was established at $1,000 per month. The parties also agreed Steven would pay Stephanie $500 per month maintenance.
After Stephanie remarried, on October 6, 2003, the parties entered into an agreed order providing Stephanie's maintenance award would be converted to child support and, on October 23, 2006, an order was entered providing child support for Jay would continue past his eighteenth birthday. After the parties' other child was emancipated, Steven paid $1,000 per month for Jay's support.
On April 2, 2012, Stephanie filed a motion to modify Steven's child support to $1,579 per month. In an affidavit accompanying the motion, Stephanie stated she is a teacher and pays respite care in the amount of $866 per month for Jay who has autism, cerebral palsy, seizure disorder, is severely profoundly mentally handicapped, has a sleep disorder, sensory integration disorder and is incontinent. She further stated she must pay $193 for Jay's medical insurance because Steven dropped Jay from his military health insurance. Stephanie attached a child support worksheet and stated she believed Steven earned, or was capable of earning, $12,089 per month.
The motion advised Steven if he did not consent to the modification of child support, he was required to file a responsive affidavit setting forth his monthly income and expenses and attach copies of his last three pay stubs or, if self-employed, proof of his current income. The motion was mailed addressed to Steven at 2561 Upper Park Road, Orlando, Florida, 32814, the address identified in the court record. A hearing order was entered on April 18, 2012, setting a hearing on Stephanie's motion for May 4, 2012. The court's order was mailed to Steven's Orlando address. Steven did not respond to Stephanie's motion or attend the hearing.
At the hearing, Stephanie was unable to document Steven's income but testified he was voluntarily underemployed and requested the court impute income to Steven in the amount of $12,089 per month, based on wage information received on the internet from the Department of Defense. She testified Steven was in the active duty reserves but chose to accept a position at a base in South Carolina to stay near his wife and children in Florida. She further testified regarding Jay's reasonable care expenses and that Steven was no longer providing for Jay's health insurance.
On May 22, 2012, an order was entered imputing to Steven $12,089 per month income and awarding $1,597 per month child support for Jay. A copy of that order was mailed to Jay at his Orlando address and unreturned to the clerk.
Steven did not file post-judgment motions and did not appeal from the May 22, 2012, order. Instead, approximately four months later on September 12, 2012, he filed a motion to modify child support stating he did not earn the amount imputed to him and had never earned that amount. A hearing was held on April 2, 2013.
Steven appeared at the hearing and testified regarding his status with the U.S. Military where he served twenty-eight years as an officer and reached the rank of Colonel in the United States Army. In January 2011, Steven left the Army and entered the inactive reserves. He testified he currently earns $5,500 per month as a salesman. At the end of 2015, Steven will face mandatory retirement from the military. On cross-examination, Steven admitted the military pay chart for his rank and years of service showed he could receive a base pay of $10,047 per month and over $2,000 in housing allowance.
At the conclusion of the hearing, the family court found Steven remains voluntarily underemployed and there had not been a change of circumstances warranting a modification of child support. The family court denied the motion and Steven appealed.
This Court's review of a family court's decision on a motion to modify child support is subject to an abuse of discretion standard. Howard v. Howard, 336 S.W.3d 433, 436 (Ky. 2011). An abuse of discretion occurs when the family court's "decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App. 2001).
Modification of child support is only warranted when the party seeking modification demonstrates "a material change in circumstances that is substantial and continuing." KRS 403.213(1). "Under KRS 403.213(2), a change in circumstances is rebuttably presumed to be substantial if application of the child-support guidelines (KRS 403.212) to the new circumstances would result in a change in the amount of child support of 15% or more." Snow v. Snow, 24 S.W.3d 668, 672 (Ky.App. 2000). However, when the amount sought to be modified was not based on the child support guidelines, the rebuttable presumption is not applicable. "In these cases, the proper standard for modification of child support is found in KRS 403.213(1) and simply requires a showing of a material change in circumstances that is substantial and continuing." Dudgeon v. Dudgeon, 318 S.W.3d 106, 112 (Ky.App. 2010)(internal quotations omitted).
In their settlement agreement, the parties agreed Jay is disabled and deviation from the guidelines appropriate. Steven presented no evidence to the family court that Jay has overcome his disability or no longer requires full-time care. Therefore, we focus our discussion on whether Steven has shown a material change in circumstances that is substantial and continuing.
Howard is particularly instructive in resolving Steven's appeal. As here, the Court addressed the requirement that modification be based on a material change of circumstances that is substantial and continuing in the context of a previous finding of voluntary underemployment. In doing so, the Court stressed the issue was not whether the original finding was correct, but whether there had been a change of circumstances since that finding was made. "[T]he party requesting the change must prove a material and continuing change of circumstances by presenting evidence of what has occurred since the initial obligation was established." Howard, 336 S.W.3d at 438. The question then is whether there had been a material, substantial, and continuing change of circumstances justifying a modification of child support, including any change in circumstances since the order demonstrating Steven was no longer voluntarily underemployed. Id. at 440-441.
The family court did not abuse its discretion in finding Steven failed to demonstrate a substantial and continuing change of material circumstances in the little over four months since it modified the child support award. In reality, his motion was based on his desire to relitigate the issues presented at the May 4, 2012, hearing. Although Steven argues he did not receive notice of the pending motion or hearing, he offers no evidence to refute the record which demonstrates otherwise. Moreover, his argument is better suited to a motion to set aside the May 22, 2012, order pursuant to Kentucky Rules of Civil Procedure (CR) 60.02 motion than a motion to modify child support.
For the reasons stated, the family court did not abuse its discretion. The order of the Hardin Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Donald J. Haas
Louisville, Kentucky
BRIEF FOR APPELLEE: Lori A. Kinkead
Elizabethtown, Kentucky