Jones v. Hammond, Ky COA, Modification of Child Support

Jones v. Hammond, 2009-CA-000546-MR

Published:  Affirming in Part, Reversing in Part, and Remanding

County:  Jefferson

 

    Mother appealed from trial court’s order terminating father’s child support obligation.

 

    The parties were divorced in 2006 and family court entered an order in which father agreed to pay $872.90 per month in support for their two children.  In March, 2008, father filed a motion to terminate his child support obligation citing the children’s independent financial resources, the parenting schedule and the mother’s financial resources, and also requesting the court to impute income to mother.  Mother then filed a motion for an increase in child support.

 

    At the hearing in September, 2008, father testified that his annual salary was $73,892.  Mother was a stay-at-home mom, suffering from various medical problems associated with the birth of the second child.  She was in the process of appealing the initial denial of her social security disability claim.  Although unable to work, mother had income from family gifts and trusts of approximately $43,057 in 2007.

 

    The children also received distributions from trusts and gifts, which mother testified was either used for private school tuition and books or reinvested and added to the principal of the trust.

 

    Father testified that he had the children 43% of the time, but mother’s testimony indicated he had them only 36% of the time.

 

    The Family Court terminated father’s child support obligation and overruled mother’s motion for an increase in child support.  The court found that mother had not met the burden of proof of her disability, the children had significant financial resources, that father had physical custody 43% of the time, that mother had significant financial resources and that she was voluntarily unemployed.

 

    Mother appealed, stating that termination of child support violated Kentucky common law and public policy and that the findings were inconsistent with the facts of record from the hearing.

 

    CA noted that child support decisions are left to the discretion of the trial court, but must be fair, reasonable and supported by sound legal principles.  The TC has broad discretion in assessing reliability of evidence and factual findings are not clearly erroneous if they are supported by substantial evidence.

 

    KRS 403.213(1) provides that child support may be modified only upon a showing of a material change in circumstance that is substantial and continuing and which results in equal to or greater than 15% change in monthly support.  FC did not address the change in circumstance which allowed for modification, although since the original child support order, father had not changed employment, mother was still unemployed, and the parenting schedule remained the same.

 

    CA found that even if income was imputed to mother, the result would not be a 15% change in child support and thus not rebuttably presumed to be a substantial change in circumstance.  Therefore, FC must make written findings of statutory factors allowing for a deviation from the guidelines.

 

    CA acknowledged mother’s medical difficulties, but did not believe she provided sufficient evidence that she is completely unable to work in her profession as a clinical psychologist.

 

    FC ruled that there were grounds to deviate from the guidelines because their application would have been unjust or inappropriate due to the disparity in the parties’ resources, the children’s independent financial resources, and the timesharing arrangement.

 

    The CA did not find that the FC abused its discretion in determining that the children’s independent financial resources permit a deviation from the guidelines.  It noted, however, that the child support obligation of each parent must be adjusted.  Further, normal gifts from grandparents were not intended to be part of the child support calculus and such gifts do not abrogate a parent’s duty to provide for children.

 

    The CA found that the FC failed to make sufficient findings to justify deviation from the guidelines on the basis of actual sharing of expenses and relatively equal parenting time.  The CA was unable to find any factor of an extraordinary nature which would allow for deviation from the guidelines under KRS 403.211(3)(g).

 

    CA noted that parents have a universal duty to support and maintain their minor children as well as a statutory duty to do so and therefore decision to terminate all of father’s child support obligation is difficult to reconcile with public policy.  CA concluded TC erred by eliminating father’ entire child support obligation.

 

    Affirmed with respect to FC’s imputing income to mother and finding children’s independent financial resources permitted deviation from guidelines.  Reversed with respect to FC’s elimination of father’s entire child support obligation.  Remanded to FC for calculation of child support with imputation of income to mother.  Then, FC shall use independent financial resources of children to deviate from the guidelines per each parent’s proportionate child support responsibility.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates