JOE BARTLETT HILL v. DEBORAH ANN GREEN HILL
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RENDERED: APRIL 8, 2005; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002755-MR
JOE BARTLETT HILL
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 03-CI-00325
DEBORAH ANN GREEN HILL
APPELLEE
OPINION
AFFIRMING IN PART, VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
BUCKINGHAM, McANULTY, AND VANMETER, JUDGES.
McANULTY, JUDGE:
In this divorce case, Joe Bartlett Hill (Joe)
challenges the trial court’s temporary and permanent child
support orders.
Joe claims that the trial court deviated from
the child support guidelines without making a specific finding
that was appropriate to do so in this case.
In addition, Joe
argues that it was fundamentally unfair for the trial court to
order Joe to make the monthly payments on the former marital
mobile home and pay his ex-wife $10,500.00 -- within 90 days -for her interest in the mobile home, but be deprived of its
possession for another six years (the time it would take until
the youngest child reached the age of 18).
Because it appears
that the trial court did deviate from the child support
guidelines and did not make a finding that it was appropriate to
do so in this case, we vacate and remand.
In addition, we
vacate the trial court’s order as to the division of the equity
in the mobile home because such a division constituted an abuse
of discretion given Joe’s assets and financial situation after
the divorce.
We affirm, however, that part of the order that
pertains to Joe’s responsibility for the monthly mobile home
loan payment.
Joe and Deborah Ann Green Hill (Deborah) married on
July 4, 1981.
Joe was 21.
When they married, Deborah had just turned 16 and
For the majority of their marriage, they resided in
a mobile home on property located in Page Cutoff, Bell County,
Kentucky.
Deborah and Joe have two sons who were 15 and 10 at
the time Deborah and Joe separated in July of 2003.
Prior to
their separation, Joe spent little time at the family’s home -–
no more than 12 nights in the three years leading up to the
separation.
At the time of separation, Deborah was a cook with the
Bell County Board of Education, and Joe was a traveling salesman
for Logan Corporation.
Deborah filed her petition for
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dissolution of marriage on July 16, 2003. In the verified
statement attached to Deborah’s petition, Deborah stated that
her income was $10,000 a year, and Joe’s income was
approximately $45,000 a year.
At some point between the time
that Deborah petitioned for divorce and the time of the final
hearing in December of 2003, Deborah received a promotion and a
raise.
She was promoted to food service manager for Bell County
schools.
At the time she filed her petition, Deborah also filed
a motion for temporary custody, child support and maintenance.
The trial court heard the motion less than two weeks later.
Although Joe was served with the motion, neither he nor an
attorney on his behalf appeared at the hearing.
At the conclusion of the hearing, the trial court
issued an order granting temporary custody to Deborah.
On the
issue of child support, the court asked Deborah’s attorney if he
computed child support based on Deborah and Joe’s incomes.
Deborah’s attorney responded that the monthly child support
obligation was $933, and Joe made 80 percent of the monthly
income.
After hearing this, the trial court ordered Joe to pay
Deborah $750.00 per month in child support and $750.00 per month
in temporary maintenance.
At this point, neither party had
supplied income statements to verify his or her income.
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Two and a half months after the trial court issued the
order setting temporary child support and maintenance, Joe filed
a motion to reduce child support.
The basis of his motion was
that he had not seen a chart computation on child support.
The
record reflects that Joe voluntarily continued this motion for a
hearing about a month later than previously noticed.
After a
hearing, the trial court issued an order directing the parties
within 10 days to submit proposed findings of fact, conclusions
of law and judgment including completed child support charts.
About a week after the deadline for submitting
proposed findings and conclusions, the trial court made its
findings of fact and conclusions of law and issued its judgment
and decree of dissolution.
Deborah was awarded sole custody of
the couple’s two sons.
The key provisions of the decree for the purposes of
this appeal are as follows:
FINDINGS OF FACT
(9)
The parties have acquired the
following personal marital assets:
. . .
(d) The Respondent shall receive his
bicycle, Grandmother’s rocking chair, gun
safe, pine gun cabinet, personal clothing,
reloading bench, chest of drawers, Army
cot, guns, 2 carat diamond ring, 1996
Nissan pickup truck and chainsaw.
. . .
(10) The Court finds from the record that
the value of the real property and its
improvements is $50,000.00, . . .
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(11) The parties hereto owe $24,000.00
against the said property and the value of
the property unimproved is set out as
$5,000.00, both in the appraisal and in the
tax assessment. The Court finds that the
unimproved real property is that of the
Respondent and is non-marital.
(12) The property is worth $50,000.00 and
there is $29,000.00 in debt against it.
There remains herefore $21,000.00 of equity
therein.
(13) The Respondent shall pay to the
Petitioner within ninety (90) days of this
date $10,500.00 as her determined equity in
the improvements to this property.
(14) Thereafter, the Respondent shall pay
the monthly payments on the said home to
Greentree Financial or their assigns until
the youngest child reaches the age of
eighteen (18). On or before July 1st of the
year in which the youngest child turns
eighteen (18), the Petitioner shall vacate
the premises and it shall become the sole
property of the Respondent.
. . .
(16) The parties have the following marital
debts with approximate amounts:
a. Greentree - Security agreement on
mobile home - $25,000.00.
. . .
(26) The Petitioner testified that she had
received substantial raises and promotions
since she has last sworn that she earned
$10,000 per year in this case.
(27) Per the pay records of the
Petitioner’s employer, the Petitioner’s
gross pay was $608.21 every two weeks for a
yearly gross of $608.21 @ 26 equals
$15,813.40. Her monthly gross for the child
support chart is $1,317.78 ($15,813.40
divided by 12 equals $1,317.78).
. . .
(29) Per the payroll records subpoenaed
from the Respondent’s employer to the Court
the Respondent’s gross pay is $3,213.50 per
month.
. . .
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(32) The Respondent shall pay to the
Petitioner child support in the amount of
$700.00 per month beginning January 01,
2004, plus seventy-one (71%) percent of all
unreimbursed medical, surgical, dental,
orthodontic, optometric, nursing and
hospital expenses, . . .
It is from these findings and conclusions that Joe appeals.
And
Joe appeals from the trial court’s failure to adjust his
temporary child support from the time he filed his motion to
modify.
Joe presents three arguments for our review.
First,
Joe argues that the trial court erred in failing to reduce his
temporary child support obligation of $750 per month.
Second,
Joe contends that the trial court erred in ordering him to pay
$700 per month permanent child support plus the $299.14 payment
on the mobile home.
Third, Joe argues that the trial court
abused its discretion in ordering him to pay Deborah within 90
days $10,500.00 for her equity in the mobile home.
The first step in resolving the issues raised by Joe
is identifying the appropriate standard of review.
Two
different standards are applicable -- the clear error standard
for findings of fact and the abuse of discretion standard for
conclusions of law.
As to the trial court’s findings of fact,
CR 52.01 states that these findings shall not be set aside
unless we determine that they are clearly erroneous.
Under this
clear error standard, factual findings supported by significant
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probative evidence will not be disturbed.
S.W.2d 849, 851 (Ky.App. 1986).
See Poe v. Poe, 711
And as to the trial court’s
conclusions drawn from its factual findings, the abuse of
discretion standard of review applies.
507 S.W.2d 153, 153 (Ky. 1974).
See Eviston v. Eviston,
We will not reverse the trial
court unless a party shows that the trial court abused its
discretion.
Guided by these standards, we turn to the issue of the
trial court’s calculation of temporary and permanent child
support.
Joe argues that the trial court did not follow the
guidelines in establishing his child support.
Joe argues that a
trial court is to use the child support guidelines set out in
KRS 403.212 to establish child support.
And if a court deviates
from the guidelines, it has to make a written finding specifying
the reason for the deviation.
Here the trial court deviated
from the guidelines, but did not make a specific finding as to
why it was appropriate to do so in this case.
As to the temporary child support, a temporary child
support order terminates when the final decree is issued.
403.160.
KRS
Based on the evidence in the record as of the hearing
for temporary child custody and child support, it is apparent
that the trial court failed to appropriately account for Joe’s
court-ordered temporary maintenance payments of $750.
In the
final decree, however, the trial court did modify the child
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support that it had previously established and found that
Deborah was no longer entitled to maintenance.
So, what is to be the effect of this Court’s
determination that the trial court erred in establishing the
amount of temporary child support?
Although Joe does not
directly request recoupment of the amount he may have overpaid
under the child support guidelines, that seems to be the remedy
he desires.
However, restitution or recoupment of excess child
support is inappropriate unless an accumulation of benefits
exists that was not consumed for support of the child.
See Clay
v. Clay, 707 S.W.2d 352, 353 (Ky.App. 1986) (considering the
public policy behind and the purpose of child support -- the
obligation of the parent to the child, not from one parent to
another -- and discussing the question of “whether the reversal
or vacation of a child-support decree gives the payor the right
of restitution or recoupment for amounts previously paid”).
As
Joe failed to argue before the trial court that any amounts he
may have overpaid were not consumed for the support of his two
children much less acknowledge this precedent on appeal, we
shall consider the matter no further.
We move to Joe’s argument that the trial court erred
in ordering Joe to pay $700.00 per month in permanent child
support plus the $299.14 monthly payment on the loan for the
mobile home.
First, Joe argues that the trial court erred in
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calculating his monthly child support obligation.
Based on the
combined monthly adjusted parental gross income, his monthly
child support obligation should be $660.00 per month.
We agree
and remand for a determination of permanent child support in
accordance with the guidelines.
Joe goes a step further and argues that the monthly
payment of $299.14 per month must be considered in the nature of
child support.
If not considered in the nature of child
support, it should be considered in the nature of spousal
maintenance and should have been deducted -- in accordance with
the child support guidelines -- from the combined monthly
adjusted parental gross income.
In response, Deborah argues that the loan payment is
not concealed maintenance or child support.
It is the
assignment of marital debt to Joe, the person who will have the
asset in the end.
And KRS 403.190(1)(d) provides for the award
of the family home or the right to live therein for a reasonable
period to the spouse having custody of the children.
In its findings, the trial court listed the debt to
Greentree as a marital debt.
Consistent with its allocation of
the parties’ other marital debt, it then assigned responsibility
for the debt to the party who was awarded the asset.
Deborah
was awarded sole custody of the children, so the trial court
awarded her the right to live in the mobile home until the
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youngest son was 18.
But the trial court awarded the mobile
home to Joe.
We review issues pertaining to the assignment of
marital debt for abuse of discretion.
See Neidlinger v.
Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001).
We conclude the
trial court did not abuse its discretion in assigning the debt
on the financing of the mobile home to Joe.
We move to Joe’s last argument that the trial court
erred in ordering him to pay Deborah $10,500.00 within 90 days
for her equity in the mobile home.
Joe does not dispute the
amount he owes, but argues that the trial court abused its
discretion in requiring Joe to pay immediately.
Joe believes he
should not have to pay Deborah her equity in the mobile home
until he is able to take possession of the mobile home.
It was
unfair and inequitable to order him to pay her immediately, and
Kentucky case law supports this position.
See Cochran v.
Cochran, 746 S.W.2d 568, 569 (Ky.App. 1988)(obligation to pay
one-half equity to former spouse who was awarded the right to
live in the marital home until the couple’s minor child turned
19 arose when spouse vacated the home); Stephanski v.
Stephanski, 473 S.W.2d 806, 807 (Ky. 1971)(under divorce decree
wife permitted to remain in home with three children until the
youngest child turned 18, at which time the residence would be
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sold and wife would be entitled to one-third of the net
proceeds).
Considering the parties’ assets and liabilities and
the division of property in this case, we conclude that
requiring Joe to pay Deborah $10,500.00 within 90 days
constituted an abuse of discretion.
Thus, we vacate and remand.
For the foregoing reasons, the trial court’s judgment
and decree of dissolution are affirmed in part and vacated and
remanded in part for proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Marcia A. Smith
David O. Smith
Corbin, Kentucky
Bill Hayes
Hayes Law Office
Middlesboro, Kentucky
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