CYNTHIA M. FEE v. JAMES J. SMITH
Annotate this Case
Download PDF
RENDERED: February 19, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-000039-MR
CYNTHIA M. FEE
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JAMES MICHAEL GREEN, JUDGE
ACTION NO. 81-CI-11610
v.
JAMES J. SMITH
APPELLEE
OPINION AFFIRMING IN PART
AND REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from a judgment modifying
child support after a change in custody.
Appellant argues that
the trial court’s award of child support was too low because of
erroneous rulings on issues related to the determination of child
support.
Upon consideration of these arguments in light of the
record herein and the applicable law, we affirm in part and
reverse in part and remand.
The marriage of the parties was dissolved by decree on
January 13, 1983.
In the initial decree, appellant, Cynthia Fee,
was granted custody of the parties’ two minor children, Julie,
born February 23, 1979, and Donovan, born November 21, 1977.
On
July 2, 1993, appellee, James Smith, was granted custody of both
children, and Cynthia was thereafter ordered to pay child support
to James.
On March 10, 1995, Julie was removed from James’s home
and placed in Cynthia’s custody.
Cynthia then moved for
modification of child support based on the custody change on
April 26, 1995.
Apparently, Donovan also moved back into
Cynthia’s home (voluntarily) on December 31, 1996.
After two hearings and the taking of depositions, the
court found Cynthia’s adjusted monthly income, for purposes of
determining child support, to be $3,314.00 a month.
James’s
monthly income was found to be $5,333.00 per month, or $64,000 a
year.
Using the child support guidelines, the court ordered
James to pay Cynthia $879.00 per month from April 26, 1995
through May 1996.
(Donovan turned eighteen (18) years of age on
November 21, 1995 and graduated from high school in May of 1996.)
From June 1996 through February 1997, James’s child support
obligation was $584.00 a month for Julie.
The court found that
Julie was emancipated on the date of her eighteenth birthday
(February 23, 1997) since she was no longer attending high school
on that date because she had gone on to enroll in college.
Pursuant to a motion by both parties to amend the judgment, the
court altered the judgment, ruling that James owed child support
from April 1995 through December 1995 for only one child because
Donovan lived with James until January of 1996.
Thus, the court
recalculated the child support for that period to be $546.00 a
month.
Cynthia now appeals from the child support awards in both
orders.
-2-
Cynthia first argues that the trial court erred in
finding that Julie was emancipated at the time of her eighteenth
birthday.
KRS 403.213(3), as it existed at the time of the
hearing, provided that child support shall be terminated by
emancipation of the child at age eighteen unless the child is a
high school student when she reaches the age of eighteen.
In
that case, child support shall continue while the child is in
high school, but not beyond the completion of the school year
during which the child turns nineteen years of age.
At the time of Julie’s eighteenth birthday, although
she had neither dropped out of high school nor graduated from
high school, Julie was enrolled at the University of Louisville
as a college student carrying a full load of courses.
The
evidence established that Julie was taking courses at the
University of Louisville as part of a partnership between the
college and her high school whereby an advanced program student
who has accelerated through most of his or her high school
requirements is allowed to take classes at the college as a
visiting high school student.
The student is given high school
credit for the college classes to the extent that she has any
further requirements to complete.
At the time of the hearing in
this case, the only requirement that Julie needed to complete her
high school credits was senior English, and the college freshman
English class she was taking was to fulfill that requirement.
The trial court adjudged that, even though Julie had not yet
graduated from high school, the fact that she was carrying a full
load of college classes and was not living with either parent was
-3-
evidence that she was fully emancipated under the statute.
(At
the time, Julie was living with her brother in a house which was
owned by Cynthia.)
We do not agree.
A trial court’s findings of fact in domestic matters
will not be reversed unless they are clearly erroneous.
Ghali, Ky. App., 596 S.W.2d 31 (1980); CR 52.01.
Ghali v.
A finding of
fact is clearly erroneous if it is not supported by substantial
evidence.
Black Motor Co. v. Greene, Ky., 385 S.W.2d 954 (1964).
We believe the trial court was clearly erroneous in finding that
Julie was emancipated under the statute.
The statute
specifically mandates that “court-ordered support shall continue
while the child is a high school student.”
KRS 403.213(3).
Julie was considered by her high school to still be a student of
the high school at the time she was taking classes at the
University of Louisville.
She had not yet graduated from high
school, and one of the college classes went toward the completion
of her requirements for high school graduation.
Further, the
program which allowed her to take the college classes while still
a high school student was undertaken in conjunction with the high
school.
In our view, the child and the custodial parent should
not be penalized for the child’s progress and desire to get the
most out of her high school education.
The fact that Julie was
not residing with either parent at the time is not a controlling
factor because the statute mandates that support continue while
the child is still in high school and makes no mention of a
requirement that the child be living with a parent.
-4-
Thus, the
court’s child support award for Julie should be extended through
May of 1997.
Cynthia next argues that the trial court erroneously
computed James’s income for purposes of determining child
support.
The trial court, relying on James’s 1995 income tax
return, found James’s income to be $64,000.00 a year.
Cynthia
maintains that James’s income was far greater than $64,000.00 a
year, but provided no evidence thereof except evidence that James
and his present wife built a home in 1994 with a tax assessed
value of $491,241.00 and acquired a 20% interest in two hotels in
Florida with an initial investment of $400,000, which was 100%
financed.
There was also evidence that James’s income had
sharply decreased in 1995 from 1994 when he earned over $100,000.
A trial court’s findings regarding a party’s income for child
support purposes will not be disturbed unless they are clearly
erroneous.
Barnes v. Barnes, Ky. App., 772 S.W.2d 636 (1989).
In the present case, we cannot say the court’s finding as to
James’s income was clearly erroneous.
The 1995 tax return was
apparently James’s most recent tax return at the time of the
hearing, as the 1996 return had not been completed as of that
date.
As to the court’s determination of income from the 1995
return, which Cynthia claims was inaccurate due to the court’s
neglecting to include certain income contained therein, we cannot
find the 1995 return in the record and Cynthia does not point to
where the document is in the record as required by CR
76.12(4)(c)(iii) and (iv).
As to the evidence relative to the
house built by James and his wife, we do not believe this is
-5-
convincing evidence of James’s income.
The house was purchased
with his wife and there was no evidence as to her income.
Also,
the house was built in 1994, and James explained that his income
had dropped since then because he had started his own business
and had significantly fewer clients as a result.
The same can be
said for the evidence regarding the investments in the two
hotels.
In the absence of any substantive evidence that James’s
income was greater than $64,000.000, the trial court’s finding to
that effect will not be disturbed.
The next assignment of error that we will address is
Cynthia’s claim that the trial court should have awarded her
attorneys fees due to James’s obstructive tactics and failure to
cooperate in turning over information regarding his income.
The
allocation of attorneys fees in a domestic case is entirely
within the discretion of the trial court and is not mandatory.
Underwood v. Underwood, Ky. App., 836 S.W.2d 439 (1992).
In its
order of July 11, 1997, the court attributed the delay in
obtaining information regarding James’s income to both parties.
Given this finding and the fact that there was not a gross
imbalance in the parties’ incomes, we cannot say that the trial
court abused its discretion in not awarding Cynthia attorneys
fees.
Cynthia’s next argument is that the trial court
provided inconsistent and incomplete relief.
Cynthia points to
certain mathematical errors that the court made in its
calculations regarding child support in the amended order.
reviewing the order, it does appear that the court made
-6-
In
mathematical errors in determining James’s child support
obligation for the period of April 1995 through December 1995.
The court mistakenly determined that James’s share of child
support was 59.6%, when James’s share of the child support
obligation should have been 61.7%.
The proper total per month
during that period would then be $584.00 instead of $546.00.
Regarding both parties’ assertion that the court
improperly credited James for temporary child support payments,
we cannot discern from the court’s opinion, the record, or the
parties’ briefs what the correct amount should be.
However,
since both parties agree that the amount is incorrect, we remand
for a recalculation of this figure.
As to Cynthia’s motion to allocate medical expenses of
the children, which the court failed to rule on, upon reviewing
the record, we do not see where Cynthia brought this failure to
the trial court’s attention as required by CR 52.04.
Thus, it
was not properly preserved.
Lastly, Cynthia claims that the court should have made
its award of child support retroactive to March 1995, when she
actually got custody of Julie.
KRS 403.213 only allows child
support orders to be modified as to installments accruing
subsequent to the filing of the motion for modification.
For the reasons stated above, the court’s award of
child support is affirmed in part and reversed in part and
remanded for recalculation consistent with the dictates of this
opinion.
ALL CONCUR.
-7-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Cynthia M. Fee, Pro Se
Fisherville, Kentucky
Terry W. Holloway
Louisville, Kentucky
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
