ROBERT ALLISON FLETCHER v. CAROL LEE FLETCHER
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RENDERED:
March 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1996-CA-001809-MR
ROBERT ALLISON FLETCHER
v.
APPELLANT
APPEAL FROM MARSHALL CIRCUIT COURT
HONORABLE DAVID C. BUCKINGHAM, JUDGE
ACTION NO. 93-CI-0038
CAROL LEE FLETCHER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE.
Robert Allison Fletcher (Bob) appeals from
orders of the Marshall Circuit Court that were made final upon
the entry of an order on May 28, 1996.
Bob raises issues
concerning the trial court’s calculation of child support and the
award of sole child custody to his ex-wife, Carol Lee Fletcher
(Carol).
We affirm.
This case has a long and convoluted procedural history
and a voluminous record.
To better understand the issues on
appeal, it is helpful to review some of that history.
In an
August 29, 1994 recommended order, the Domestic Relations
Commissioner (Commissioner) recommended that the parties have
joint custody of their children, Harold Robert Fletcher (DOB, 311-86) and Lee Robinson Fletcher (DOB, 8-30-87), with Carol
having primary physical possession of the children.
Carol filed exceptions.
Both Bob and
On September 19, 1994, Carol filed a
motion to set child support.
This same day, the trial court
sustained Carol’s exceptions and remanded the matter to the
Commissioner for further findings on “the remaining issues before
the Commissioner.”
Following a motion by Bob concerning the
exceptions, the trial court entered another order on October 17,
1994, remanding this matter to “the Commissioner for an
evidentiary hearing on all remaining matters.”
The Commissioner
recommended, on October 20, 1994, that Bob’s temporary child
support obligation be set at $1,580.00 per month.
exceptions, to which Carol responded.
Bob filed
The trial court adopted
the Commissioner’s recommended order on November 30, 1994.
A final hearing was held on May 16, 1995, at which time
the Commissioner heard further evidence from the parties as to
the issues of joint custody, permanent child support, and other
issues not pertinent to this appeal.
Additionally, the parties
filed memoranda concerning the issues to be addressed at the
hearing.
On June 21, 1995, the Commissioner filed recommended
findings of fact and conclusions of law supporting an
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interlocutory decree of dissolution.
On August 4, 1995, the
trial court adopted the Commissioner’s recommended findings of
fact and conclusions of law and made them a part of the decree of
dissolution.
The trial court dissolved the parties’ marriage,
but reserved for a future ruling “all matters related to child
custody, child support, and visitation”, as well as other matters
not pertinent to this appeal.
On September 8, 1995, the Commissioner filed a
recommended order “on the issues of custody, child support,
visitation” and other issues not raised on appeal.
The
Commissioner awarded Carol sole custody, care and control of the
two children and awarded Bob visitation.
In support of his
recommendation, the Commissioner stated as follows:
1. . . . Carol . . . shall have the sole
custody, care and control of the parties’ two
minor children, Harold Robert Fletcher . . .
and Lee Robinson Fletcher. . . .
2. By agreement of the parties, the Court
appointed Pam Haines with Psychological
Associates of Paducah as the Court’s expert
witness to evaluate this case. It was the
recommendation of Ms. Haines, in her written
report and in her sworn testimony, that
[Carol] should have the sole custody, care
and control of the two minor children born to
the parties. It was her opinion that [Bob]
was not capable of providing the structure
that the children needed and that he could
not exercise parental responsibility on a
day-to-day basis for the children. The Court
heard extensive testimony from [Carol], as
well as from [Bob], regarding his day-to-day
involvement with the children. The Court
heard the testimony of the witnesses
presented live by [Carol], and reviewed the
deposition testimony of the witnesses
presented by [Bob].
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3. The Court has reviewed the
requirements of KRS 403.270 and finds that it
is in the best interest of both children that
their mother shall be their custodian. The
Court has reviewed specifically the
provisions of KRS 403.270(3), and finds that
it is not in the best interest of the
children to grant joint custody to both
parents. The Court finds that there is no
history of cooperation between the parties
during this period of separation. Also, the
Court finds that the great geographic
distance between the homes of the parties
militates against joint custody. The Court
has reviewed the decision in Mennemeyer vs.
Mennemeyer, 887 SW2d 555 (Ky.App. 1994), as
well as the provisions of Squires vs.
Squires, 854 SW2d 765 (Ky. 1993). Sole
custody to [Carol] is in the best interest of
these children, not joint custody.
4. The Court has had the benefit of the
testimony of its expert witness, and has
specifically reviewed the wishes of both
parents; the stated wishes of the children;
the interaction and interrelationship of the
children with their parents, with each other,
and with other significant persons in their
lives; as well as the adjustments of the
children to home, school and community; and
lastly the Court has given consideration to
the mental and physical health of both
parents. All the provisions of KRS 403.270
have been considered.
5. The Court finds credible the opinion
of its expert witness that [Bob] extensively
coached the children as to what to say in
their sessions with the Court’s expert, and
even with the Court. That became apparent
during the in camera session that the
Commissioner had with the children. The
evaluations of the mental health of each
parent that were performed by the Court’s own
expert witness also strongly supported
determination that [Carol] be granted the
sole custody of the children, and that is the
Commissioner’s recommendation.
6. The Court does not find persuasive the
testimony of [Bob’s] expert, John Gilman.
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This expert admittedly did not have the
benefit of an interview with [Carol]. In
light of this, as well as the Court’s belief
that the children were subjected to coaching,
whether direct or indirect, this expert
presented himself more as an advocate rather
than one exercising independent judgment.
7. The Court has given equal
consideration to each parent in this matter,
and finds an award of sole custody to [Carol]
to be in the best interest of the children.
The Commissioner further awarded Carol child support in
the amount of $1,500.00 per month and found as follows:
14. The Commissioner has struggled with a
determination of the appropriate support
payment in this matter. As will become even
more clear later in this Recommended Order,
the Court had insufficient evidence on which
to determine the adjusted gross income of
[Bob].
15. It is the opinion of the Commissioner
that never was there so much testimony taken,
with so little evidence being provided.
There was virtually no evidence provided
regarding [Bob’s] income from investments,
various trusts, or other sources, including
his relationship (however it might be
characterized) with “Uncle Buck’s Venison” in
New Hampshire. This is in spite of the fact
that the Commissioner took a five-month
recess between the date the final hearing
started in December 1994 and its ultimate
conclusion in May 1995 to allow [Bob] to
gather precisely that financial information.
16. In the sworn Disclosure Statement
filed by [Bob] on August 8, 1994, [Bob]
indicated that he had income of $160,000.00
per year. A specific finding was made by
former Commissioner Charles Brien that [Bob]
had an annual income of $160,000.00 per year.
17. [Bob] took exceptions to the
Commissioner’s Order, and by an Order of the
Circuit Court on November 30, 1994, those
Exceptions were denied by Circuit Judge David
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Buckingham, who made a judicial determination
in his Order to the effect that “The
Respondent does, in fact, have an annual
income of at least $160,000.00 per year. He
acknowledged this in the hearing before the
Commissioner.”
18. Subsequently, the Commissioner
ordered [Bob] to supplement his Disclosure
Statement at least thirty (30) days prior to
the May 1995 hearing, and to file an amended
Disclosure Statement. [Bob] did file such an
amended Disclosure Statement in April 1995,
and set out exactly the same information in
exactly the same language that had led to the
November 30, 1994, finding by Judge
Buckingham, that [Bob] had an annual income
of “at least” $160,000.00
19. However, it now seems clear that
[Bob] has absolutely no idea what his annual
income is. Nor has he provided sufficient
information to the Court to allow the Court
to make that determination. Under KRS
403.212(2)(f), [Bob] had a duty to prove his
income. The burden of proof fell on [Bob] to
prove his annual income, not on [Carol]. The
provisions of that statute mandate that the
“income statements of the parties shall be
verified by documentation of both current and
past income.” [Bob] knew he was coming to a
final hearing before the Commissioner
regarding the fixing of child support, and he
knew that his income was going to be an issue
before the Court. It had been an issue
before and remained an issue. The statute
imposed the duty upon [Bob] to verify “by
documentation” both his current and past
income. [Bob] did not meet that burden.
20. Very often the documentation of a
party’s current and past income consists of
information that is solely within the control
of that party. This is especially so where
that party is self-employed. This is
obviously the reason that the statute
requires any parent to “verify by
documentation” the statements that he may
make regarding his income.
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21. However, the statute does not allow a
party to defeat the goals of the Kentucky
child support statutes by merely failing to
provide the required documentation. Instead,
the Court is required under KRS 403.211(5) to
act even in those situations.
22. Under KRS 403.211(5), “when a party
has defaulted . . .” or if “the Court is
otherwise presented with insufficient
evidence to determine gross income,” the
Court has a specific duty to act. In fact,
the statute says that “the Court shall order
child support based on the needs of the child
or the previous standard of living, whichever
is greater.”
23. However, the Court finds that the
$160,000.00 annual figure shown on [Bob’s]
Disclosure Statement of April 1995 is only an
expectancy, and not a statement of income.
The Court specifically finds that there is
insufficient evidence to determine the
adjusted gross income of [Bob], because of
his failure to provide adequate information
to the Court regarding that.
24. The Court specifically finds that a
child support award in the amount of
$1,500.00 per month is necessary based upon
the previous standard of living of the
children. The Court is required to set child
support at the greater of either the previous
standard of living or the needs of the child.
In this case, the previous standard of living
of the children is the greater.
25. These are children who have enjoyed
the benefit of vacations in New England on a
regular basis, ski-mobiles, renovated rustic
lodges and camps, extensive vacations, crosscountry jet flights, and a father who appears
to have a virtually unlimited source of funds
to spend on them.
26. During his testimony, [Bob] stated
that he had spent the sum of $70,000.00 in a
single six-month period from the middle of
1994 to the end of 1994, but that he could
not account for that money. When the former
marital residence in Kentucky was sold, most
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of the proceeds of that property went to
[Bob] on his claim of a non-marital
investment in the home. There was
approximately $150,000.00 distributed to him
as his non-marital property, upon agreement
of [Carol]. (The Court makes no finding that
this was in fact an appropriate distribution
of marital/non-marital proceeds from the sale
of the house. The Court merely notes that
[Carol] agreed to this amount). At the final
hearing, [Bob] testified that he had spent
$70,000.00 of those funds in a six-month
period, and had no idea where any of it had
gone. [Bob] has a tremendous amount of
completely disposable funds that are
available to him. At the rate of $1,500.00
per month, that $70,000.00 would have paid
his entire child support obligation for
almost four years.
Bob filed exceptions to the Commissioner’s recommendations on
September 18, 1995, and Carol filed a response on October 2,
1995.
On October 10, 1995, the trial court adopted the
Commissioner’s recommendations.
The parties continued to file numerous other motions in
attempts to resolve miscellaneous issues.
On April 19, 1996, the
Commissioner filed a recommended order “resolv[ing] all of the
remaining issues in this case.”
Bob filed exceptions concerning
the amount of child support, reimbursement of the escrow account,
“the ruling concerning the New Hampshire property”,
commissioner’s fees, expert witness fees, and attorney’s fees.
On May 28, 1996, the trial court overruled said exceptions
stating “[t]hat this is a final and appealable order.”
This
appeal followed.
Carol incorrectly claims that this appeal should be
dismissed as untimely filed.
While the issues on appeal were
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addressed by interlocutory orders, the law is clear that the
judgment to be appealed is the final judgment, which in this case
was entered on May 28, 1996.
When the remaining claim or claims in a
multiple claim action are disposed of by
judgment, that judgment shall be deemed to
readjudicate finally as of that date and in
the same terms all prior interlocutory orders
and judgments determining claims which are
not specifically disposed of in such final
judgment.
Kentucky Rules of Civil Procedure (CR) 54.02(2).
See also Blair
v. City of Winchester, Ky.App., 743 S.W.2d 28, 31 (1987); and
Employers’ Liability Assurance Corp. v. Home Indemnity Co., Ky.,
452 S.W.2d 620, 623 (1970).
The first two issues raised by Bob are (1) whether the
trial court erred in basing the child support on his expected
income rather than his actual income, and (2) how any excess
payment of child support should be credited.
Bob is simply
mistaken when he claims that the child support was “based on an
expectancy or future contingency.”
To the contrary, the trial
court’s findings, as quoted from previously at paragraphs 14
through 26, were quite clear that the child support was based on
“the previous standard of living” of the children pursuant to KRS
403.211(5).
Bob has failed to demonstrate that this finding was
clearly erroneous; thus, it must be affirmed.
v. Cherry, Ky., 634 S.W.2d 423 (1982).
CR 52.01; Cherry
Since we affirm the trial
court’s setting of the child support, there was no payment of
excess child support and the second issue is moot.
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The third issue raised by Bob is whether the trial
court erred by granting Carol sole custody of the children
instead of granting the parties joint custody.
First, we note
that Bob’s brief fails to comply with CR 76.12(4)(c)(iv) in that
it does not contain “ample supportive references to the record.”
Bob states, “[i]t is clear from the evidence presented that the
children in this situation will benefit most from input by both
parents.
Thus[,] joint custody is the best for the children.”
However, Bob fails to provide any citation to the record as to
any evidence supporting his position.
The trial court’s
findings, as quoted previously at paragraphs one through seven,
are not clearly erroneous.
Thus, once again, we must affirm.
CR
52.01; Cherry, supra.
The judgment of the Marshall Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Rita Lynn Cartee
Paducah, KY
Hon. Scott Alan Hoover
Hon. J. V. Kerley
Paducah, KY
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