BRADLEY DAVID HEIDORF v. ROBERTA KAY HEIDORF; AND MELANIE STRAW-BOONE, ATTORNEY
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RENDERED:
FEBRUARY 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002622-MR
BRADLEY DAVID HEIDORF
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE KATHLEEN VOOR MONTANO, JUDGE
ACTION NO. 00-FC-00553
ROBERTA KAY HEIDORF; AND
MELANIE STRAW-BOONE, ATTORNEY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Bradley David Heidorf has appealed from the
July 29, 2003, order of the Jefferson Family Court, which denied
his motion to reduce his child support and awarded attorney’s
fees to Roberta Kay Heidorf’s attorney.
Having concluded that
the trial court made adequate factual findings which were
supported by substantial evidence, that it correctly applied the
law, and that it did not abuse its discretion, we affirm.
Bradley and Roberta were married on April 29, 1989.
Two minor children were born of the marriage, namely Paige
Elizabeth Heidorf (DOB 10/25/94) and Hudson Bradley Heidorf (DOB
7/10/97).
At the time of the parties’ separation, Bradley was
38-years old and employed as a pilot for United Parcel Service
with a gross income of approximately $14,782.00 per month.
Roberta was 36-years of age and unemployed.
Bradley filed a petition for dissolution of marriage
on January 24, 2000.
Both parties requested the family court to
award them joint custody of the minor children and to set child
support in accordance with the Kentucky Child Support
Guidelines.
Roberta requested that she be awarded temporary and
permanent maintenance.
The family court entered orders1 on
February 1, 2000, requiring that mediation and a case management
conference be held.2
On June 2, 2000, following two mediation sessions, the
parties signed a handwritten agreement establishing custody,
visitation, and child support for the minor children;
maintenance for Roberta; and the property rights of both
1
Honorable Patricia Walker Fitzgerald, Jefferson Circuit Judge, presided in
this case and signed various orders until February 20, 2003, when this case
was transferred to Division 10 of the Jefferson Family Court with Honorable
Kathleen Voor Montano presiding.
2
On March 28, 2000, the family court held a case management conference and
determined that since the parties could not resolve their differences, a
trial was necessary and scheduled it for June 20, 2000, and June 23, 2000.
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parties.
The informal, terse agreement stated, in relevant
part, as follows:
Maint.
Child Supp.
3 yrs
3 yrs
non-modif. $2250/m
non[-]modif. $2250/m
. . .
Joint Cust. No primary resid. Parties[’]
time with children shall be as close to
50/50.
. . .
Pet. will pay Resp. $2,500.00 towards her
atty’s fee.
The family court entered a decree of dissolution of marriage on
June 12, 2000, dissolving the parties’ marriage and
incorporating the handwritten mediation agreement into the
decree.
Approximately three years later, on May 9, 2003,
Bradley filed a motion and affidavit requesting a modification
of his child-support obligation, stating, in relevant part, as
follows:
4.
The Affiant further states that by the
terms of that mediated agreement, the
Affiant . . . was required to pay to
[Roberta] the sum of $2,250 per month
as child support that was nonmodifiable and in addition thereto, the
sum of $2,250 per month, nonmodifiable, as maintenance. The
parties specifically agreed that those
two (2) figures would not be modified
for a period of three (3) years and
both parties fully acknowledge that the
child support as conveyed was greater
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than what any Court would have awarded
based upon the parties[’] respective
incomes at that time.3
5.
Further, the Affiant states that the
agreement did not take into
consideration for child support
purposes [Roberta’s] income, including
the amounts agreed to in the form of
maintenance. . . . The Affiant states
that as of the signing of this
Affidavit thirty-six (36) months have
passed and the Affiant moves to
terminate the maintenance per the
agreement and to modify child support
predicated upon the parties’ respective
incomes [emphasis added].
Bradley also filed a motion requesting an award for the
attorney’s fees he “incurred in establishing child support for
the parties’ two (2) minor children.”
Roberta filed a motion
requesting “an award of attorney’s fees incurred in defending
Mr. Heidorf’s motion to reduce his child support.”
After a hearing was held on June 27, 2003, the family
court entered an order on July 29, 2003, which included the
following findings of fact:
In [the handwritten Property Settlement
Agreement], child support was set at
$2250.00 per month. The amount was agreed
to be non-modifiable for three (3) years.
3
The family court’s order makes no reference to this allegation. Bradley
relies upon this contention in making his argument that child support should
have been established “anew” following the expiration of the three-year
period. Bradley contends the family court erred in applying the law
pertaining to modification of child support because the temporary amount of
child support he had agreed to pay exceeded the amount he would have been
required to pay under the law. The flaw in this argument is that when the
family court computed Bradley’s child-support obligation in 2003, the amount
that it determined he owed was not 15% lower than the amount he had been
paying. See Kentucky Revised Statutes (KRS) 403.213(2).
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Now that the three (3) year period has
passed, Petitioner wanted to have his child
support obligation lowered. However, there
have been no substantial changes to support
the lowering of child support. In fact the
only changes that have occurred are that
Petitioner earns a higher income and the
children have more expenses. Both of these
changes would only support an increase in
child support.
Based on these facts and others, the family court denied
Bradley’s motion for a reduction in child support and his motion
for attorney’s fees, but granted Roberta’s motion for attorney’s
fees.
Thus, Bradley’s child support payment remained at
$2,250.00 per month and he was ordered to pay Roberta’s attorney
a fee of $1,747.50.
On August 8, 2003, Bradley filed a CR4 59.05 motion,
requesting the family court to alter, amend, or vacate its July
29, 2003, order.
Bradley stated that his three-year, child-
support obligation had been based upon an agreement between the
parties; and that when the three-year period expired, the child
support was to be modified.5
He claimed that the reason for the
three-year period was to give Roberta “an opportunity get on her
feet[;]” that for “tax reasons” the amount of child support was
4
Kentucky Rules of Civil Procedure.
5
In this motion, Bradley referred to his initial motion as a “motion to
modify child support.”
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“based upon the maintenance amount[;]”6 and that “the parties
agreed to deviate from the guidelines but they agreed to deviate
only for the three years[.]”
He further stated that the award
of attorney’s fees resulted in him being “punished for filing
his appropriate motion.”
The family court denied Bradley’s
motion in an order entered on November 6, 2003.
This appeal
followed.
Bradley alleges the family court erred by refusing to
grant him a reduction in his child support and by making an
award of attorney’s fees to Roberta’s attorney.
He makes three
arguments concerning the child support, but his second argument
has two aspects.
First, Bradley contends the family court erred
by applying the wrong statute in setting his child support.7
Second, Bradley claims the family court (1) failed to consider
and to make adequate findings as to the reasonable expenses of
the children, their standard of living, and the amount of time
they spent with each parent; and (2) made factual findings to
support its child-support award that were not supported by
6
This argument seems illogical since normally the payor would benefit from
having a greater tax deduction for his maintenance payments if the
maintenance portion of his total payments for maintenance and child support
were inflated. Bradley seems to be saying that his child-support payments
were inflated for “tax reasons.”
7
We use the more general term “setting” because Bradley claims he was asking
the trial court to establish child support after the expiration of the threeyear period, but Roberta contends the child support was established in the
decree of dissolution and that Bradley was attempting to obtain a reduction
in child support through a modification. Regardless, the trial court would
have to “set” an amount for child support.
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substantial evidence.
Third, he claims the family court abused
its discretion in setting his child support.
Lastly, Bradley
contends that the family court erred by ordering him to pay
Roberta’s attorney’s fees.
A trial court’s determination of child support
involves three steps that entail three separate standards of
review.8
Initially, the trial court must determine the law that
is applicable to the movant’s claims.
“Since the interpretation
of a statute is a legal question, the trial court’s
interpretation is subject to de novo review by an appellate
court” [citations omitted].9
In light of the law that is
applicable to the matter being litigated, the trial court must
make the appropriate findings of fact.
The factual findings are
reviewed under the clearly erroneous standard, as this Court
stated in Sherfey:
“Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of the
witnesses.” A factual finding is not
clearly erroneous if it is supported by
substantial evidence. “Substantial
evidence” is evidence of substance and
relevant consequence sufficient to induce
conviction in the minds of reasonable people
[footnotes omitted].10
8
Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App. 2002).
9
Clary v. Clary, 54 S.W.3d 568, 571 (Ky.App. 2001).
10
Sherfey, 74 S.W.3d at 782.
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Finally, “[a]fter a trial court makes the required
findings of fact, it must then apply the law to those facts[,]”11
and in doing so it must make a judgment based on the factual
findings and the applicable law as to the proper amount of child
support to be awarded.
This “determinat[ion] by the trial court
will not be disturbed unless it constitutes an abuse of
discretion” [footnote omitted].
“‘“Abuse of discretion in
relation to the exercise of judicial power implies arbitrary
action or capricious disposition under the circumstances, at
least an unreasonable and unfair decision.”’ . . .
‘The exercise
of discretion must be legally sound’” [footnote omitted].12
We will initially address Bradley’s contention that
the trial court erred in applying KRS 403.21313 to deny
modification of his child support because he was first entitled
11
Sherfey, 74 S.W.3d at 782.
12
Sherfey, 74 S.W.3d at 782-83.
13
KRS 403.213(1) provides in part that “[t]he provisions of any decree
respecting child support may be modified only as to installments accruing
subsequently to the filing of the motion for modification and only upon a
showing of a material change in circumstances that is substantial and
continuing.” KRS 403.213(2) provides in part as follows:
Application of the Kentucky child support
guidelines to the circumstances of the parties at the
time of the filing of a motion or petition for
modification of the child support order which results
in equal to or greater than a fifteen percent (15%)
change in the amount of support due per month shall
be rebuttably presumed to be a material change in
circumstances. Application which results in less
than a fifteen percent (15%) change in the amount of
support due per month shall be rebuttably presumed
not to be a material change in circumstances.
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to have his child support established under KRS 403.211.14
Since
the interpretation of the parties’ settlement agreement and the
applicable statutes present questions of law, we review them de
novo.15
In their agreement, the parties merely stated that
Bradley would pay Roberta child support of $2,250.00 per month
for three years and that the amount was not subject to
modification during the three-year period.
If the parties had
wanted to agree that child support would be set “anew” after
three years, the agreement could have so stated.16
Instead, we
agree with the family court’s interpretation of the agreement:
that the child support had been initially set in 2000 and that it
was not modifiable for three years; but that after three years,
it was subject to modification under the applicable law.
Thus,
we conclude that Bradley’s motion was a motion to modify his
child support under KRS 403.213(1) since his child support had
14
KRS 403.211(1) provides in part that “[a]n action to establish or enforce
child support may be initiated by the parent, custodian, or agency
substantially contributing to the support of the child.”
15
First Commonwealth Bank of Prestonsburg v. West, 55 S.W.3d 829, 835
(Ky.App. 2000) (stating that “[t]he construction and interpretation of a
contract, including questions regarding ambiguity, are questions of law to be
decided by the court”); Clary, 54 S.W.3d 571.
16
Employers Insurance of Wausau v. Martinez, 54 S.W.3d 142, 145 (Ky. 2001)
(stating that the Court saw “no reason to rewrite the parties contract”).
See also Morganfield National Bank v. Damien Elder & Sons, 836 S.W.2d 893,
895 (Ky. 1992); and O’Nan v. O’Nan, 345 S.W.2d 377, 379 (Ky. 1961).
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already been established under KRS 403.211(1) by the decree of
dissolution, which adopted the parties’ agreement.17
We now turn our review to whether the family court’s
factual findings were adequate, whether those findings were
clearly erroneous, and whether the family court abused its
discretion in setting child support.
Kentucky trial courts have
been given broad discretion in considering the various factors in
setting child support.18
“As long as the trial court’s discretion
comports with the guidelines, or any deviation is adequately
justified in writing, this Court will not disturb the trial
court’s ruling in this regard.”19
The family court has the
discretion to set a reasonable amount of child support in excess
of the Guidelines and among the factors it may consider is an
extrapolation of the Guidelines.
This Court stated in Downing v.
Downing,20 as follows:
When child support is set outside of
the Guidelines, the Court is required to
exercise discretion in arriving at a fair
and equitable amount of support. In
exercising such discretion, the finder of
fact may consider the needs of the children.
. . . Also the finder of fact may consider
17
It appears that Bradley may have also viewed his motion as a motion to
modify since in his affidavit in support he stated that he moved “to modify
child support predicated upon the parties’ respective incomes.”
18
Redmon v. Redmon, 823 S.W.2d 463, 466 (Ky.App. 1992).
19
Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396, 400-01 (Ky.App.
2000) (citing Bradley v. Bradley, 473 S.W.2d 117, 118 (Ky. 1971)).
20
45 S.W.3d 449, 452, 456 (Ky.App. 2001).
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the lifestyle the children would have
enjoyed had the parties continued to be
together and married. The finder of fact
may also consider a “projection” of the
Guidelines.
. . .
The trial court may not substitute a
mechanical calculation for the exercise of
its discretion. While such a calculation
may be a useful tool in determining an
appropriate amount of child support, the
amount reached through such a calculation is
not entitled to presumptive weight.
Further, the family court is required to find the facts
“specifically and state separately its conclusion of law thereon
and render an appropriate judgment[.]”21
Courts “‘will give more
careful consideration to the problem if they are required to
state not only the end result of their inquiry, but the process
by which they reached it.’”22
In this case, the family court specifically determined
the parties’ combined amount of monthly income and that total was
in excess of the highest amount provided in the Guidelines.
The
family court stated:
The parties’ actual combined [monthly] income
is $17,717.00, with Petitioner earning eightyseven percent (87%) of that amount. A
mathematical projection or extrapolation of
the guidelines would result in a child support
obligation of approximately $2,254.00.
21
CR 52.01.
22
Stafford v. Stafford, 618 S.W.2d 578, 580 (Ky.App. 1981) (quoting United
States v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L.Ed.2d 629 (1964)).
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However, this court does not rely on a
straight projection or extrapolation of the
guidelines.23
Since the parties’ combined income was in excess of the
Guidelines, the family court had the discretion to deviate from
the Guidelines and to set the appropriate amount of child support
if the evidence supported a deviation.
Bradley argues that “[o]nce the lower court exercised
its discretion to deviate from the guidelines based on
Appellant’s high income, it was bound to follow this Court’s
decisions that require it to consider the reasonable expenses of
the children, their standard of living and the amount of time the
children actually spent with each parent.”
However, our review
of the limited record on appeal indicates that the family court
did consider these factors since it made specific findings
relating to these issues and the children.24
As stated previously, if the family court’s factual
findings are supported by substantial evidence, then they must be
affirmed.
Roberta introduced a chart detailing the children’s
monthly expenses and a record of Bradley’s flight schedule,
showing that the children stayed with Roberta an average of 66%
of the time.
The family court made the following findings:
23
KRS 403.212(5) provides that “[t]he court may use its judicial discretion
in determining child support in circumstances where combined adjusted
parental gross income exceeds the uppermost levels of the guideline table.”
24
We have not been provided with a tape or transcript of the evidentiary
hearing.
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Respondent presented credible evidence
that the children’s monthly expenses total
$2,780.36. While Petitioner took exception to
the method of calculating the children’s
expenses, this Court finds that the method was
reasonable and results in a fair assessment of
the needs of the children. It is clear that
the children enjoy a higher standard of living
while staying in the home of Petitioner.
Respondent was just able to meet the expenses
of the children prior to the expiration of the
agreed upon child support. This Court finds
no reason why child support should be lowered
when the children’s expenses have increased,
Respondent’s income is virtually unchanged,
and Petitioner has an increase in income.
In Downing, the court stated that “The basic
premise of [the child support guidelines] is
that a child should receive the same
proportion of parental income that the child
would have received if the parents had not
divorced.” . . . The court also went on to
say that “a child is not expected to live at
a minimal level of comfort while the
noncustodial parent is living a life of
luxury.” . . . This Court finds that the
reasonable needs of the children would not
be met if the child support were lowered.
There is some discrepancy over whether
Petitioner has the children half of the
time. Respondent presented an exhibit
[Bradley’s flight schedule indicating the
nights he was at home] alleging that she has
the children over half of the time each
month, as measured by the nights that the
children spend in her home. While
Petitioner originally alleged that the
children were in his home half of the time,
he did not dispute any of the information in
[the flight schedule presented by
Respondent]. As such, it appears that the
children are in the home of Respondent more
than half of the time. Regardless of which,
Petitioner would not be entitled to a
reduction of child support under the
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totality of the circumstances in this case,
due to the large disparity in the parties’
incomes and given the financial needs of the
children and the standard of living to which
they have become accustomed. Under KRS
403.211(2), “Courts may deviate from the
guidelines where their application would be
unjust or inappropriate.” Regardless of the
amount of time that the children spend in
the home of Petitioner, child support in the
amount of $2,250.00 is in no way unjust or
inappropriate. In fact, it would be unjust
to set child support at a lower amount based
upon the facts of this case where Petitioner
alone earns in excess of the upper-most
levels of the Guideline tables and at least
eighty-seven percent (87%) of the combined
monthly gross income of the parties.
Respondent’s income barely replaces the
monthly maintenance she previously received.
Respondent cannot meet her own needs and the
needs of the children if the child support
is reduced.
Based on the evidence of record, we hold that in setting the
child support the family court adequately weighed the children’s
needs and reasonable expenses as well as the amount of time they
spent with each parent and its factual findings were supported
by substantial evidence.
Further, based on the applicable law and the family
court’s factual findings, we cannot conclude that it abused its
discretion in setting child support.
The family court made
sufficient findings as to the parties’ income, the
reasonableness of the children’s needs and expenses, and the
amount of time they spent with each parent; and the amount of
child support it awarded was reasonable under the circumstances.
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Thus, since the family court applied the correct law, made
adequate findings of fact that were supported by substantial
evidence, and did not abuse its discretion, we affirm the child
support award.
Bradley also claims the trial court erred by granting
Roberta’s attorney’s fees.
KRS 402.220 provides as follows:
The court from time to time after considering
the financial resources of both parties may
order a party to pay a reasonable amount for
the cost to the other party of maintaining or
defending any proceeding under this chapter
and for attorney’s fees, including sums for
legal services rendered and costs incurred
prior to the commencement of the proceeding or
after entry of judgment. The court may order
that the amount be paid directly to the
attorney, who may enforce the order in his
name.
In determining that Bradley should pay Roberta’s
attorney’s fees, the family court stated as follows:
Both parties’ attorneys submitted affidavits
of attorneys’ fees. It is unclear why
Petitioner made motion for an award of
attorney’s fees, as it was Petitioner’s
motions that brought this case before the
court. On the other hand, Respondent was
forced to incur attorney fees in defending
against Petitioner’s motion to reduce child
support. Additionally, there is a great
disparity between the income of the parties.
The family court found a great disparity in the parties’
financial resources; and under KRS 403.220, nothing more is
required.
The family court’s award of attorney’s fees was
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supported by the law and the facts and it was not an abuse of
discretion.25
For the foregoing reasons, the order of the Jefferson
Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Sammy Deeb
A. Holland Houston
Louisville, Kentucky
Melanie Straw-Boone
Louisville, Kentucky
25
Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990).
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