AMY HAGAN PAGE v. JOHN D. HAGAN, III
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RENDERED:
NOVEMBER 23, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000261-ME
AMY HAGAN PAGE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE PATRICIA WALKER FITZGERALD, JUDGE
ACTION NO. 97-FC-002631
v.
JOHN D. HAGAN, III
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; HENRY AND SCHRODER, JUDGES.
COMBS, CHIEF JUDGE:
Amy Hagan Page appeals from an order of the
Jefferson Circuit Court, Family Division, that modified the
amount of the child support obligation of the appellee, John D.
Hagan, III, for the support of the parties’ minor child.
Page
contends that the trial court erred in deviating from the child
support guidelines in setting the amount of Hagan’s support
obligation.
Finding no error, we affirm.
The facts are not in dispute.
married in 1993 and divorced in 1997.
The parties were
Amy and John agreed to
share joint custody of their only child, Joshua, who was born on
August 29, 1995.
They also agreed as to the amount of time that
Joshua would spend with each of them.
The parenting schedule
has essentially remained unchanged during the eight years since
their separation.
Pursuant to that schedule, Joshua spends five
nights out of every two weeks with John and the remaining nights
with Amy.
However, the parties were not able to reach an
agreement on child support.
In its order of August 1, 1997, the
Family Court found sufficient grounds to deviate from the child
support guidelines due to the parties’ nearly equal arrangement
for sharing time with Joshua.
It ordered John to pay child
support in the amount of $75 per month as well as 54% of all
child care costs and uninsured medical expenses.
In May 2004, Amy filed a motion seeking an increase in
child support.
Following a hearing, the court entered an order
on January 5, 2005, which increased John’s monthly support
obligation to $90.
The court reasoned as follows:
Application of the Kentucky Child
Support Guidelines to the current
circumstances of the parties would result in
a monthly child support obligation for Mr.
Hagan in the amount of $347.06. Pursuant to
the order entered in this action on August
5, 1997 Mr. Hagan now pays the sum of $75.00
per month as child support for Josh. This
amount is a deviation from the amount that
Mr. Hagan would have paid pursuant to the
Kentucky Child Support Guidelines at the
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time his child support obligation was last
determined; deviation was granted due to the
time sharing arrangement of the parties, in
that Mr. Hagan had Josh about 43% of the
time. Mr. Hagan continues to have the same
number of overnights with Josh that he had
when child support was previously
calculated. Each party provides a home for
Josh a substantial percentage of the time.
Both parties buy clothing for Josh and
contribute to his regular expenses. Mr.
Hagan asks that he again be granted a
deviation pursuant to the Kentucky Child
support Guidelines.
. . .
Under KRS 1 403.211(3)(g), the court may
consider the nearly equal distribution of
parenting time between the non-custodial and
custodial parents as a circumstance of an
“extraordinary nature” and may “deviate from
the guidelines. . if convinced their
application would be unjust.” Downey v.
Rogers, 847 S.W.2d 63, 65 (Ky.App. 1993). A
twenty-five percent change in parenting time
was found to be a substantial change which
rendered a child support payment pursuant to
a settlement agreement unconscionable. See,
Adkins v. Adkins, 574 S.W.2d 898, 900
(Ky.App. 1978). With regard to the sharing
of expenses when parenting time is
relatively equal, the Kentucky Court of
Appeals has observed:
Many, if not most, expenses necessary
to provide a home continue throughout
the month regardless of where the
children reside. However, we recognize
that where actual physical custody is
fairly equal, expenses for items
consumed on a daily basis, such as
food, are substantially reduced for the
parent without possession. Downey,
supra, at p. 64.
In light of the significant amount of
time that Mr. Hagan has the parties’ child,
1
Kentucky Revised Statutes.
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this Court finds that the sharing of
parenting time and resultant shift in
expenses is a factor of an extraordinary
nature which would make application of the
guidelines inappropriate, and that
accordingly, Mr. Hagan is entitled to a
deviation from the Kentucky Child Support
Guidelines. As a starting point for
deviation from the child support guidelines
and in light of the fact that expenses in a
shared custody arrangement are greater for
the noncustodial parent than are anticipated
by the guidelines, this Court calculated 1.5
times the amount of support indicated by the
guidelines, attributed the cost to each
party based upon the percentage of time that
Josh is with each parent, and credited Mr.
Hagan’s payment of health insurance for
Josh. Under this calculation, Mr. Hagan
should pay to Mrs. Page the sum of $90.00
per month as child support for Josh. The
cost of extraordinary medical expenses shall
be divided according to the parties’
proportionate share of their combined joint
income; petitioner [John] shall pay 53% and
the respondent [Amy] shall pay 47%.
(Family court’s order of January 5, 2005, at pp. 6-8.)
Following the entry of this order, Amy appealed to
this court.
We note at the outset that Amy’s brief fails to
comply with CR 2 76.12(4)(c)(v), which requires that the
appellant’s brief contain “a statement with reference to the
record showing whether the issue was properly preserved for
review and, if so, in what manner.”
See, Skaggs v. Assad, 712
S.W.2d 947 (Ky. 1986) and Elwell v. Stone, 799 S.W.2d 46
(Ky.App. 1990).
2
Despite the omissions, we have nonetheless
Kentucky Rules of Civil Procedure.
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examined the entire record in order to consider the merits of
the appeal.
Amy argues that the court’s decision to deviate from
the child support guidelines constitutes an abuse of discretion.
“The test for abuse of discretion is whether the trial judge’s
decision was arbitrary, unreasonable, unfair or unsupported by
sound legal principles.”
Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
We cannot conclude
that the judgment reflects any abuse of the court’s exercise of
discretion; on the contrary, the order reflects meticulous
reasoning tailored to every specific detail involved in the
child support obligation at issue.
In support of her argument, Amy first contends that
the court’s math is incorrect.
She argues that she and John do
not share time with Joshua on a “nearly equal” basis -- a
contention at variance with the court’s finding.
According to
her own calculations, she has Joshua 61.5% of the time and John
has him only 38.5% of the time.
Although the court referenced its previous order which
had found that Joshua spent 43% of his time with John, it did
not make a new finding as to the exact amount of time that
Joshua currently resides in each parent’s home.
Instead, it
found in more general language that Joshua spent a “significant
amount of time” with his father, an amount which it
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characterized as “nearly equal” to that spent with Amy.
It also
found that the amount of time spent with John resulted in the
shifting to him of expenses related to Joshua’s care that would
normally be borne by the primary custodian.
Whether the exact
division of parenting time is 57%/43% or 61.5%/38.5%, we
disagree that the court was either arbitrary or unreasonable in
characterizing the time Joshua spends with each parent as being
“nearly equal.”
Under KRS 403.211(2),(3) and (4), a court is empowered
to exercise discretion and to deviate from the guidelines when
it finds that application of the guidelines would be “unjust or
inappropriate.”
In this case, the court carefully addressed the
issue and made a direct finding that the parenting schedule and
the resulting shift in expenses for Joshua’s care justified a
deviation.
An array of evidence supported this finding: both
parents provide Joshua with a home; both share his expenses on a
nearly equal basis for items such as clothes, food, school
supplies, extra-curricular activities, hair cuts, and vacations.
In light of the evidence of record, we have no basis to say that
the court abused its discretion in deviating from the child
support guidelines.
Downey v. Rogers, supra; Downing v.
Downing, 45 S.W.3d 449 (Ky.App. 2001).
Amy also argues that “the record is unrebutted that
[she] pays virtually 100% of the costs for [Joshua’s] organized
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extracurricular activities.”
(Appellant’s brief at p. 8.)
In
support of this statement, she refers to a document introduced
at the hearing which itemizes the expenses she has incurred on
Joshua’s behalf since 1997.
However, a review of all of the
evidence presented to the family court reveals that John, too,
has financed many of his son’s extracurricular activities.
Thus, the finding that such expenses are shared is not clearly
erroneous.
Finally, Amy argues that in determining the proper
amount of John’s child support obligation, the court failed to
take into consideration the fact that she pays all of Joshua’s
private school tuition.
The evidence was undisputed that it was
Amy’s desire that Joshua attend the private school.
It was also
undisputed that the parties agreed that Joshua could enroll in
the school with the proviso that Amy would pay the entire
tuition.
Under these circumstances, we agree with John that the
court did not err in refusing to consider Amy’s voluntary
payment of private school tuition in determining the appropriate
amount of his child support obligation.
See,
Miller v. Miller,
459 S.W.2d 81 (Ky. 1970); and Smith v. Smith, 845 S.W.2d 25, 26
(Ky.App. 1992).
The order of the Jefferson Circuit Court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
B. Mark Mulloy
Louisville, KY
Melanie Straw-Boone
Louisville, KY
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