Opinion
NO. 2015-CA-001790-ME
12-22-2016
RACHAEL YOCKEY APPELLANT v. CRAIG STORN APPELLEE
BRIEFS FOR APPELLANT: Tracy A. Smith Covington, Kentucky BRIEF FOR APPELLEE: M. Erin Wilkins Newport, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CAMPBELL CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE RICHARD A. WOESTE, JUDGE
ACTION NO. 12-CI-00304 OPINION
AFFIRMING
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BEFORE: MAZE, TAYLOR, AND VANMETER, JUDGES. TAYLOR, JUDGE: Rachael Yockey brings this appeal from an October 21, 2015, Order of the Campbell Circuit Court, Family Court Division, granting a motion to hold Yockey in contempt for violating an order as to time-sharing with the parties' child and denying Yockey's motion to modify child support. We affirm.
Rachael Yockey and Craig Storn were never married but have one child in common, P.S. When the child was approximately five years old, Storn filed a paternity action. Ultimately, an Agreed Order of Custody and Judgment of Paternity (Agreed Order) was entered on April 23, 2012, adjudicating Storn the biological father of P.S. The Agreed Order also provided that Storn and Yockey would share parenting time equally and that neither would pay child support. The parenting-time schedule provided that each parent would have the child two consecutive week nights (Monday and Tuesday night or Wednesday and Thursday night) and would alternate weekends. The parties operated under the parenting schedule set forth in the Agreed Order but were unable to agree upon which elementary school P.S. would attend.
When Rachael Yockey and Craig Storn agreed to the provisions of the April 23, 2012 Agreed Order, Yockey worked part-time at a restaurant, and Storn worked as an automotive mechanic. --------
The court subsequently conducted a hearing on the issue of which elementary school the child would attend. Yockey testified the child should attend Reiley Elementary School, which was close to Yockey's home in Alexandria, Kentucky. Storn, on the other hand, believed the child should attend Newport Primary School, which was closer to his home in Newport, Kentucky. Yockey introduced evidence that Reiley's achievement test scores were higher than Newport and that she would pay the required tuition. By order entered August 7, 2012, the family court ordered that P.S. would attend Reiley Elementary School. Relevant to this appeal, the August 7, 2012, order also contained an agreement by the parties that they would utilize a "right of refusal":
The parties agree that there shall be a three (3) hour right of refusal. If either party is to be gone from the child during his or her respective parenting time for a period of at least three (3) hours, then that parent shall contact the other parent not exercising parenting time to determine if the other parent wishes to exercise parenting time during his or her absence from the child.
Over the next few years, the parties parented the child without involvement of the family court. Then, relevant to this appeal, on January 16, 2015, Storn filed a motion for contempt and motion to modify parenting time. In the affidavit attached to Storn's motion, he averred:
4. I have recently discovered that Mother is working third shift at County Market in Alexandria, Ky. Although I am not sure of her exact schedule, it is most week nights when P.S. is in her care and some weekend nights. I am not sure who is watching him while she works overnight, although I believe it may be the child's grandmother. Mother also works at Gold Star Chili.Storn's Affidavit at 1. Storn essentially argued that if Yockey was working third shift or overnight when she had the child then Storn should have been offered such time to him in conformity with the August 7, 2012, order. Yockey responded that Storn had known for some time she was working third shift but only raised the issue now because he wanted the child at his house overnight. Yockey believed it was an attempt to have the child attend school in Newport near Storn's home. Yockey subsequently filed a motion to modify child support, and a hearing was conducted on all outstanding motions on July 24, 2015.
5. Mother has never offered this time to me. We have a three hour right of first refusal that she has consistently and purposefully violated for what I believe to be a period of at least six months.
By order entered October 21, 2015, the family court granted Storn's motion to find Yockey in contempt for failing to abide by the right of refusal as set forth in the August 7, 2012, order. The family court sentenced Yockey to five days in jail conditionally discharged for two years provided she followed all other orders of the court. The family court denied Storn's motion to modify parenting time and denied Yockey's motion to modify child support. This appeal follows.
Yockey initially contends the family court erred by finding her in contempt. Yockey specifically argues that the family court erroneously found Storn had met his burden by demonstrating Yockey violated the August 7, 2012, order regarding the right of refusal.
The initial burden in a contempt proceeding is upon the moving party to demonstrate by clear and convincing evidence that the alleged contemnor violated a valid court order. Com., Cabinet for Health and Family Srvs. v. Ivy, 353 S.W.3d 324 (Ky. 2011) (citing Roper v. Roper, 242 Ky. 658, 47 S.W.2d 517 (1932)). Once the movant has made a prima facie case, a presumption of contempt is created and the burden of production then shifts to the alleged contemnor to demonstrate clearly and convincingly that he/she was unable to comply or was justified in not complying. Ivy, 353 S.W.3d 324 (citing Clay v. Winn, 434 S.W.2d 650 (Ky. 1968)). And, the trial court has "nearly unlimited discretion" in its exercise of contempt power. Meyers v. Petrie, 233 S.W.3d 212, 215 (Ky. App. 2007) (citation omitted). Therefore, we will not disturb a trial court's exercise of contempt authority absent an abuse of that discretion. Lanham v. Lanham, 336 S.W.3d 123 (Ky. App. 2011) (citation omitted).
In the case sub judice, the parties' agreement to utilize a right of refusal was included in the family court's order of August 7, 2012. The August 7, 2012, order essentially provided that if the party exercising parenting time was to be absent from the child for three hours or more, the other parent should be offered that time with the child. Yockey testified that she had been working the overnight shift (10:00 p.m. - 7:00 a.m.) at County Market Sunday thru Thursday for approximately one and one-half years. Yockey stated that Storn knew about her work schedule. Yockey did not deny that she had failed to abide by the right of refusal in the court's order; rather, she merely asserted that Storn had been aware of her schedule for some time but only raised the issue now in an attempt to modify the timesharing and eventually change the school P.S. would attend.
A review of the record reveals that Storn met the initial burden and demonstrated by clear and convincing evidence that a valid court order existed and Yockey violated the order. Yockey, however, did not demonstrate that she was unable to comply or that she was justified in not complying with the August 7, 2012, order regarding the right of refusal. In fact, rather than comply with the right of refusal, Yockey quit her job at County Market to prevent having to comply with the court's order. Therefore, we do not believe the family court erred by finding Yockey in contempt.
Yockey also asserts the family court erred by denying her Motion for Modification of Child Support. Yockey points out that the parties agreed to no child support as reflected in the April 23, 2012 Agreed Order. But, Yockey maintains she no longer has full-time employment and her household expenses have increased since her boyfriend moved out. Yockey specifically believes the family court erred by determining she had not proved by a preponderance of the evidence that the circumstances of the parties had materially changed since entry of the April 23, 2012, Agreed Order.
Modification of child support is within the sound discretion of the circuit court and will not be disturbed on appeal absent an abuse of discretion. Plattner v. Plattner, 228 S.W.3d 577 (Ky. App. 2007). Child support modification is governed by KRS 403.213 and provides, in relevant part:
(1) The Kentucky child support guidelines may be used by the parent, custodian, or agency substantially contributing to the support of the child as the basis for periodic updates of child support obligations and for modification of child support orders for health care. 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.
It is well-established that parties may enter into an agreement regarding child support; however, the family court retains ongoing jurisdiction over child support and the court may modify support that was previously set by agreement of the parties or by agreed order. Tilley v. Tilley, 947 S.W.2d 63 (Ky. App. 1997). A party seeking modification of an agreed order of child support must initially demonstrate "a material change in circumstances that is substantial and continuing" per KRS 403.213(1). Tilley, 947 S.W.2d at 65. If a substantial and continuing material change in circumstances has occurred since entry of the agreed order of child support, the family court must consider child support "anew." Id. at 65.
In this case, the family court found that the parties' incomes were substantially the same and had not materially changed since entry of the April 23, 2012, Agreed Order. When the April 23, 2012, Agreed Order was entered, Yockey worked part-time at a restaurant and she also worked part-time at a restaurant at the time of filing her child support modification motion. However, Storn had left his job as an automotive mechanic and had taken an IT job that paid $.12 per hour less but was work that utilized his education. Considering these facts, we do not perceive any error in the family court's determination that Yockey had failed to demonstrate a material change in circumstances that was substantial and continuing. Thus, the family court did not abuse its discretion by denying Yockey's motion for modification of child support.
For the forgoing reasons, the October 21, 2015, Order of the Campbell Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Tracy A. Smith
Covington, Kentucky BRIEF FOR APPELLEE: M. Erin Wilkins
Newport, Kentucky