WILLIAM DAVID ISON v. CONNIE J. ISON CARTER
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000114-MR
WILLIAM DAVID ISON
APPELLANT
APPEAL FROM LAWRENCE CIRCUIT COURT
HONORABLE JAMES A. KNIGHT, JUDGE
ACTION NO. 83-CI-00224
v.
CONNIE J. ISON CARTER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order increasing
appellant’s child support obligation from $100 a month to $253 a
month.
Appellant argues that the evidence did not support such
an increase.
We do not agree and, thus, affirm.
Appellant, William Ison, and appellee, Connie Ison
Carter, were divorced in 1984.
The decree, which incorporated
the parties’ settlement agreement, granted custody of the
parties’ only child, born in 1982, to appellee and required
appellant to pay $100 a month in child support.
On September 9,
1996, appellee filed a motion to increase child support.
Appellant’s response to the motion alleged there was no basis for
an increase under the Kentucky Child Support Guidelines (KRS
403.212) and that if the guidelines were applied to appellant’s
current income, child support would actually be reduced to sixty
dollars ($60) per month.
On May 13, 1997, a hearing was held before the domestic
relations commissioner.
Appellant and his current wife, Lorie
Ison, who keeps the books for appellant’s business, testified at
this hearing that appellant is self-employed as a truck driver
and that his business has operated at a loss for several years.
They testified that they and their four-year-old child live off
of Lorie’s meager earnings as a bank teller.
They offered into
evidence their 1994 and 1995 tax returns, which showed that
appellant had operated his trucking business at a $2600 loss in
1995.
The 1994 return shows that the Isons together had a gross
income of $36,255, but there was apparently no schedule C filed
for appellant’s business that year and no business income or loss
was listed.
Other records of appellant’s business were included
in the record.
On October 15, 1997, the commissioner entered his order
recommending that appellant’s child support obligation be
increased to $253 a month.
The commissioner found that appellant
had a contract to haul freight and that his business earned
$2,000 per week.
The commissioner noted that fuel, insurance,
and repairs are paid from this income.
The commissioner found
that appellant’s gross income for child support purposes was
$1,500 per month.
The income of appellee, who was unemployed at
the time, was imputed at minimum wage, $893 a month.
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Appellant filed exceptions to the commissioner’s
recommendations.
As a result, the circuit court conducted a de
novo hearing on November 24, 1997.
the hearing was that of Lorie Ison.
The only testimony offered at
Lorie testified that her
husband’s business had lost money for the last several years.
She stated that it was presently losing $500 a week and that from
January, 1997 through November 24, 1997, his business had lost
over $22,000.
When asked why her husband remained in the
business, she replied, “he just keeps hoping that it’ll get
better.”
Appellant also offered into evidence documentation of
expenses of appellant’s business, as well as the living expenses
of his family and copies of loans he and his current family were
forced to obtain to meet their living expenses.
Although
appellant maintains in his brief that his 1996 tax return showed
that his business grossed $116,894, but operated at a loss of
$113, we cannot find the 1996 tax return anywhere in the record.
As of the date of the hearing in 1997, Lorie Ison testified that
the business had grossed $62,998, but had operating expenses of
$85,867.
Appellee presented no evidence at the hearing.
On
November 26, 1997, based on “the testimony and evidence presented
at the Hearing”, the court issued an order increasing child
support to $253 a month.
Although the court did not specifically
adopt the recommendations of the commissioner, it made reference
to the child support worksheet attached to the commissioner’s
order.
The court also noted in its order:
[I]t is apparent that the Petitioner
[appellant] had previously paid only ONE
HUNDRED ($100.00) DOLLARS per month for the
past thirteen years. It is also apparent
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from the record that the Petitioner is able
to pay the required amount of child support
in the amount of TWO HUNDRED FIFTY-THREE
DOLLARS ($253.00) per month.
Appellant did not move for more specific findings.
The appeal of
this order is now before us.
Appellant’s primary argument is that there was no
evidence to support an increase in his child support obligation.
Although the court did not explicitly state that it was adopting
the findings of the commissioner, it is clear from the court’s
decision that it was indeed adopting those findings since it
referred to the commissioner’s worksheet and ordered the
commissioner’s recommended increase in child support.
In any
event, appellant did not move for more specific findings, thus,
he waived any error regarding the adequacy of the court’s
findings.
CR 52.04.
The main issue we must then decide is, was there
sufficient evidence that appellant’s income for purposes of
determining child support was $1500 a month?
A trial court’s
findings of fact in a domestic action will not be reversed unless
they are clearly erroneous — i.e. not supported by substantial
evidence.
(1980).
CR 52.01; Ghali v. Ghali, Ky. App., 596 S.W.2d 31
In reviewing the record, the evidence establishes that
appellant’s business suffered a loss in 1995.
could not find appellant’s tax return.
As to 1996, we
As to 1994, the tax
return did not reflect losses since no schedule C was filed.
Assuming that appellant’s business is now losing money as
appellant and his wife allege, that does not mean the court must
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automatically determine his child support based on an income of
$0.
Under KRS 403.212(2)(d), if the court finds that the parent
is voluntarily underemployed, child support shall be calculated
“based on a determination of potential income”.
KRS
403.212(2)(d) further provides in part:
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 . . . A court may find a parent to
be voluntarily unemployed or underemployed
without finding that the parent intended to
avoid or reduce the child support obligation.
Although the court did not specifically find that appellant was
voluntarily underemployed, appellant waived the issue of the
adequacy of the court’s findings as stated earlier, and we are
nevertheless free to affirm the lower court for different reasons
than those given by the lower court.
See Jefferson County Bank
v. Insurance Company of State of Pennsylvania, 251 Ky. 502, 65
S.W.2d 474 (1933).
There was evidence that appellant at one time had
driven a truck for a company, but quit to start his own business,
which, according to the evidence, has steadily lost money.
While
we applaud appellant’s entrepreneurial spirit, his child should
not be made to suffer in the process as a result of this
decision.
In our view, if appellant has the skills to operate
his own truck-driving business which has gross receipts of over
$100,000, we do not think it was error to impute an income of
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$1500 a month ($18,000 a year) to him.
While appellant is free
to start his own business which loses money, he still has an
obligation to his child which is based on what he is capable of
earning.
We believe that is the purpose of KRS 403.212(2)(d),
which now explicitly excludes the bad faith requirement
previously read into the statute by this Court.
See Redmon v.
Redmon, Ky. App., 823 S.W.2d 463 (1992); Keplinger v. Keplinger,
Ky. App., 839 S.W.2d 566 (1992); and McKinney v. McKinney, Ky.
App., 813 S.W.2d 828 (1991).
In imputing $1500 a month in income to appellant, it
results in a greater than 15% increase in child support as
required by KRS 403.213 in order to warrant a modification of
child support.
Accordingly, the court did not err in increasing
appellant’s child support obligation to $253 a month.
Appellant’s second argument is that the circuit court
considered inappropriate factors in his decision to increase
appellant’s child support.
In particular, appellant points to
the following finding: “[i]t is also apparent from the record
that the Petitioner is able to pay the required amount of child
support in the amount of TWO HUNDRED FIFTY-THREE DOLLARS
($253.00) per month.”
We see nothing wrong with this finding in
light of appellant’s voluntary underemployment.
If KRS
403.212(2)(d) applies, the court must estimate what the parent
would pay based on his income potential.
For the reasons stated above, the judgment of the
Lawrence Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Nelson T. Sparks
Louisa, Kentucky
Don A. Bailey
Louisa, Kentucky
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