CARWELL GARDNER, JR. v. JUDY W. LOWRY
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RENDERED:
April 13, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000268-MR
CARWELL GARDNER, JR.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY PAYNE, JUDGE
ACTION NO. 97-CI-02411
v.
JUDY W. LOWRY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BARBER, AND KNOPF, JUDGES.
BARBER, JUDGE: Appellant, Carwell Gardner, Jr. (“Gardner”),
appeals from an order of Fayette Circuit Court, modifying his
child support obligation.
(“Lowry”).
The Appellee is Judy W. Lowry
At issue is the adequacy of the findings to support
the trial court’s determination of imputed income.
For the
reasons set forth below, we reverse and remand.
The parties have never married; they have a son,
Carwell Gardner, III, born October 26, 1992 in Lexington,
Kentucky.
At the time of the child’s birth, Gardner was a
professional football player.
He was employed by the Buffalo
Bills from 1990-1995, by the Baltimore Ravens in 1996, and by the
San Diego Charges in 1997.
During those years, Gardner’s income
ranged from $331,000.00 to $818,000.00 in (1993) per season.
That came to a halt in October 1997, when he injured his knee,
ending his football career.
On or about July 8, 1997, Lowry filed a petition for
joint custody, support and visitation, alleging that Gardner had
acknowledged paternity, and had been paying child support
voluntarily since the child’s birth.
On August 15, 1997, Lowry
filed a motion for temporary custody, temporary child support and
temporary visitation seeking $1,581.19 per month as temporary
child support.
On September 3, 1997, the court entered an order
for temporary custody, support and visitation.
The order
directed Gardner to pay temporary child support in the amount of
$1,102.00 per month, effective August 1, 1997 as well as tuition
and day care expenses.
The order also provided for joint custody
and for Gardner to have liberal time sharing with the child.
On November 12, 1997, Gardner filed a motion to
terminate temporary child support on the ground that he had been
released from the San Diego Chargers and had no income at the
present time.
By order of December 4, 1997, the court denied the
motion to terminate support, and ordered that a hearing be set
after the completion of discovery; further, that any adjustment
made to Gardner’s child support obligation after the matter is
heard “shall be retroactive to the date of the filing of
[Gardner’s November 12, 1997] . . . motion.”
The court allowed
90 days to complete discovery and submit memoranda of law.
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The parties testified at a hearing on November 6, 1998.
At that time, Gardner had moved back to Lexington and was looking
for a job.
After his October 1997 injury, Gardner had stayed in
San Diego for a period of time, undergoing daily physical therapy
in an attempt to rehabilitate his knee.
In September 1998,
Gardner realized his injury was permanent and that he would not
be able to play football.
Since September 1998, Gardner had
applied for jobs with the state - as a correctional officer and
youth worker - with starting salaries of $1,345-$1,455 per month.
He had also applied for a commission sales job with a base of
$7.00 per hour, as well as for jobs with Lexmark, Intermedia
Cable and Stanley Steamer.
Gardner’s attempts to find a job
using his athletic/sports background were unsuccessful, because
he lacked a college degree.
The child’s mother, Lowry, had an undergraduate degree
in elementary education, an M.A., and is working for a Rank I
degree, which she describes as something between an M.A. and
Ph.D.
School.
She works nine months a year as a teacher at Norton Middle
In 1997, Lowry earned approximately $40,000.00.
She
also receives rental income from a duplex, where she resides with
the parties’ son and her child from a previous marriage.
In
1997, she received rental payments in the amount of $9,700.00
At the end of the hearing, Lowry’s counsel expressed
his opinion that Gardner was untruthful and was hiding income.
Lowry’s counsel theorized that Gardner’s allegedly undisclosed
assets would generate interest income of $50,000 - $70,000 per
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year.
However, there is no evidence of record of any hidden
assets.
On November 19, 1998, the court granted Gardner’s motion to
reduce child support:
Respondent is no longer able to play for the
NFL due to an injury he received. The Court
is under the belief that he has assets which
have not been disclosed, but the court cannot
set child support based on its belief. It is
a finding of the Court that the Respondent is
capable of earning $50,000 per year.
Therefore, the Court will impute income to
him and set child support at $492.00 per
month, effective December 1, 1998.
On November 25, 1998, Gardner filed a motion to alter or amend
pursuant to CR 59.05.
Gardner contended that the December 4,
1997 Order, which was signed by counsel for both parties,
mandated that any adjustments to child support would be
retroactive to his November 12, 1997 motion to reduce.
On
January 15, 1999, the court entered an order denying Gardner’s
motion to alter or amend.
The court explained:
It appears to the Court that this Division
ruled that any reduction would be retroactive
to November 12, 1997. However, the Order
setting forth this Court’s ruling was
inadvertently submitted to Judge Mary Noble
or was intentionally signed by Judge Mary
Noble pursuant to Rule 2(d).
The court agrees with . . . [Lowry’s]
position. Due to the discovery process, this
matter was pending for over one year. Both
parties were involved with discovery prior to
the final hearing and ruling of the Court.
The Court finds that it would not be
equitable to the child to make the reduction
retroactive to November 12, 1997; to do so
would mean that child support would not have
to be paid until the year 2000.
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On February 1, 1999, Gardner filed a notice of appeal
from the court’s November 19, 1998 and January 15, 1999 orders.
On appeal, Gardner contends that if the court believed he was
voluntarily underemployed or unemployed, it did not explain how
it arrived at its determination of potential income.
Further,
the evidence does not support an imputed income of $50,000,
taking into account his occupational qualifications, education,
the positions for which he had applied and the job opportunities
in the community.
Gardner also argues that any reduction in
child support should be retroactive to the date of the motion to
reduce child support.
In his reply brief, Gardner requests that
we strike Lowry’s brief, on the ground that it fails to comply
with CR 76.12.
Gardner contends that Lowry makes “absolutely no
references” to the record in her Brief; further, that Lowry has
included matters which have not been preserved for review or
which are not of record.
Lowry has not requested leave to file a
corrected brief.
Lowry’s brief contains no references to the record, as
required by CR 76.12(4)(d)(ii) & (iii).
Moreover, the brief is
replete with personal attacks and other unsubstantiated
accusations against Gardner which have no bearing on the issues
on appeal.
Lowry’s brief also improperly refers to matters
outside of the record.
Lowry’s brief stricken.
Under these circumstances, we order
CR 76.12(8).
KRS 403.212 (2)(d)
If a parent is voluntarily unemployed or
underemployed, child support shall be
calculated based on a determination of
potential income, except that a determination
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of potential income shall not be made for a
parent who is physically or mentally
incapacitated or is caring for a very young
child, age three (3) or younger, for whom the
parent owes a joint legal responsibility.
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 level in the
community. A court may find a parent
intended to avoid or reduce the child support
obligation.
Gardner was not working at the time of the hearing.
The personal
opinion of Lowry’s counsel notwithstanding, there was no evidence
that Gardner had any income at the time.
The trial court found
that he was capable of earning $50,000 per year.
The language of
the KRS 403.212(2)(d) is mandatory and outlines the factors that
the court must use in imputing income.
“Potential income shall
be determined based upon employment potential and probable
earnings level based on the obligor’s recent work history,
occupational qualifications, and prevailing job opportunities and
earnings level in the community.” (emphasis added).
A review of the record reflects that Gardner has a high
school education, and some college (prior to 1990).
His entire
work history was as a professional football player.
The evidence
further established that Gardner could no longer play football,
due to the effects of his knee injury.
His testimony that he
could not find a position using this sports background, due to
his lack of a college degree, was uncontroverted.
There was no
evidence that Gardner had the physical ability and occupational
qualifications to perform any jobs other than those essentially
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entry-level jobs for which he had applied.
They did not pay
anything close to the amount that the trial court found Gardner
was capable of earning.
There was no evidence that Gardner has assets that were
capable of producing income.
‘[A]s a general rule the evidence must
sustain the judgment, proof being as
essential to the support of a judgment as
pleading. The evidence must be of a
substantial character, sufficient to support
the judgment rendered. The judgment must be
founded on sufficient facts legally
ascertained, and cannot rest on evidence of
an incompetent character, or which was never
adduced in court, such as matters not put in
evidence of which the court took judicial
notice. A judgment may not rest on
conjecture and speculation or on mere surmise
or suspicion, nor may a judgment find support
in assumptions or in possibilities or
probabilities falling short of actual proof.’
[citing 49 C.J.S. Judgments, §44, page 103]
[A] . . . judgment . . . based upon alleged
transactions that were never proven at trial
of this proceeding but . . . founded upon the
private opinion and personal knowledge of the
trial judge . . . is erroneous.
Stephenson v. Burton, Ky., 246 S.W.2d 999, 1000 (1951).
The trial court’s determination that Gardner was
capable of earning $50,000 a year is clearly erroneous, because
it is not based upon substantial evidence.
We vacate the court’s
order and remand for a determination of Gardner’s income, based
upon the evidence, in accordance with the factors outlined in KRS
403.212(2)(d).
On remand, the court should make specific
findings regarding Gardner’s recent work history, occupational
qualifications, and prevailing job opportunities and earnings
levels in the community.
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Gardner also contends that the trial court erred in
failing to order that the modification in child support be
retroactive to November 12, 1997, the date of his motion to
reduce child support.
The December 4, 1997 order, signed by the
parties’ counsel, states that any adjustment in child support
“shall be retroactive to the date of the filing of the
Respondent’s motion.”
(emphasis added).
KRS 403.213(1) provides
that “[t]he 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.”
Citing Weldon v. Weldon, Ky. App., 957 S.W.2d 283
(1997) and Pretot v. Pretot, Ky., 905 S.W.2d 868 (1995) the trial
court in an (unrelated) order and opinion entered September 30,
1998 observed that “Kentucky case law has consistently . . .
modified child support payments to date back to the date of the
filing of the motion”.
(emphasis added).
Nevertheless, the
trial court declined to follow this practice, reasoning that it
would be inequitable to the child.
The trial court stated that
to make the reduction retroactive would mean that child support
would not have to be paid until the year 2000.
Making the
reduction retroactive would not relieve Gardner of any child
support payments.
It would mean that he pays what he owes, based
upon his income as determined by the court.
Not making the
reduction retroactive would mean that Gardner pays more than
twice what he owes for over a year.
-8-
In light of the unambiguous language in the December 4,
1997 order, we cannot agree that a retroactive modification would
be inequitable.
Clearly, Lowry knew that Gardner had sustained
an injury and that he was not working.
Lowry was on notice that
Gardner’s child support obligation would probably be reduced.
Lowry never sought to have the December 4, 1997 order set aside,
prior to the hearing on the motion to reduce child support.
Nor
did she argue that a retroactive reduction in child support would
be detrimental to the parties’ child, in her response to
Gardner’s CR 59.05 motion.
Disregarding the December 4, 1997
order after the hearing is inequitable; to do so effectively
deprived the parties of an opportunity to develop proof or
present any argument on the issue.
Under these facts, we believe
that the trial court abused its discretion.
We reverse the
portion of the trial court’s January 15, 1999 order denying the
motion to alter or amend.
Upon remand, any modification in child
support shall be effective November 12, 1997, the date of filing
of the motion to reduce child support.
KNOPF, JUDGE, CONCURS.
GUDGEL, CHIEF JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Grant M. Helman
Louisville, Kentucky
Henry E. Davis
Webb, Hoskins, Glover &
Thompson, PSC
Lexington, Kentucky
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