SUE ELLEN FLEENER v. JESSIE WAYNE FLEENER
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RENDERED: APRIL 28, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002807-MR
SUE ELLEN FLEENER
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
ACTION NO. 90-CI-00530
v.
JESSIE WAYNE FLEENER
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, MILLER AND TACKETT, JUDGES.
TACKETT, JUDGE:
Appellant, Sue Ellen Fleener (Sue), appeals from
an order of the Bullitt Circuit Court denying her motion to
increase child support.
For the reasons set forth herein, we
affirm in part, reverse in part and remand.
Sue’s marriage to appellee, Jesse1 Wayne Fleener
(Jesse) was dissolved by the Bullitt Circuit Court in 1991.
The
decree ordered Jesse to pay $96 per week ($416 per month) in
child support for the parties’ two children, and further ordered
1
Mr. Fleener’s name is alternately spelled “Jesse” and
“Jessie” in the record.
Jesse to maintain health insurance for the children.
In 1998 Sue
filed a motion to increase Jesse’s child support obligation.
A
domestic relations commissioner (the commissioner) recommended
that Sue’s motion be denied and the Bullitt Circuit Court
overruled Sue’s exceptions to the commissioner’s report.
Sue
then filed this appeal.
Kentucky Revised Statute (KRS) 403.213(2) provides,
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.
The commissioner found that the evidence was insufficient to meet
the 15% threshold, and the trial court overruled Sue’s exceptions
without elaboration.
All parties agree with the commissioner’s finding that
Sue’s gross monthly income is $1,291; however, the parties
disagree as to Jesse’s gross monthly income.
The commissioner
found Jesse’s gross monthly income to be $2,244, but did not
specify how he arrived at this figure.
Jesse’s paycheck for the
pay period ending June 13, 1998, (the most recent paycheck he
submitted) shows his year-to-date earnings to be $13,262.91 for
twenty-two (22) weeks of work, which calculates to a monthly wage
of $2,612.39.2
Jesse’s counsel argued, however, that Jesse’s
earnings were expected to decrease in the future to $15 per hour.
2
$13,262.91 / 22 weeks = $602.86 per week X 52 weeks per
year = $31,348.72 per year / 12 months per year = $2,612.39 per
month.
-2-
Using a forty-hour work week, earnings of $15 per hour equates to
a gross monthly income of $2,600.3
The commissioner apparently attempted to average
Jesse’s 1997 earnings with his 1998 year-to-date earnings to
calculate Jesse’s monthly income.4
Jesse’s 1997 W-2 statements
indicate a total income of $25,348.19.5
Adding that sum to his
$13,262.91 earnings for the first twenty-two weeks of 1998 leads
to a combined 1997-1998 income of $38,611.10.
Dividing that sum
by seventy-four (the fifty-two weeks of 1997 plus the first
twenty-two weeks of 1998) leads to an average weekly wage for
1997-1998 of $521.77.
This means that Jesse’s average monthly
wage for 1997-1998 was $2,261.6
Following the mandate of KRS
403.212(g) to deduct the health insurance premium of $22.54 per
week that Jesse paid for the children’s benefit, his gross
monthly income would be $2,163.33.7
We are unable to determine,
3
$15 per hour X 40 hours per week = $600 per week X 52 weeks
per year = $31,200 per year / 12 months per year = $2,600 per
month.
4
When the parties presented their documentation of Jesse’s
earnings, the Commissioner stated “1997 plus the first one [i.e.
wage statement] to this year [1998.] We will just average?”
Transcript of Testimony of hearing before the commissioner, page
7.
5
Jesse submitted three W-2 forms. One form indicated gross
income of $1,532, another indicated a gross income of $11,824.19,
and the third indicated a gross income of $11,992. $1,532 +
$11,824.19 + $11,992 = $25,348.19 total gross income for 1997.
6
$521.77 X 52 weeks per year = $27,132.04 per annum
average / 12 months = $2,261.
7
$22.54 per week X 52 weeks per year = $1,172.08 per year /
12 months = $97.67 per month. $2,261 per month salary - $97.67
per month health insurance premium = $2,163.33 adjusted gross
income.
-3-
therefore, how the commissioner determined Jesse’s monthly
adjusted gross income to be $2,244.00.
Regardless, it was improper for the commissioner to
consider Jesse’s 1997 earnings as it is clear that a court should
presume that a party’s future income will be “on a par with the
worker’s most recent experience.”
Keplinger v. Keplinger, Ky.
App., 839 S.W.2d 566, 569 (1992). (emphasis added).
Jesse’s most
recent work experience was evidenced by his paycheck from June
1998 which indicated that his gross income had averaged $2,612.39
per month.
See footnote 2, supra.
Deducting $97.67 per month in
health insurance benefits from that sum leaves Jesse’s adjusted
gross monthly income as $2,514.72.
Adding that figure to Sue’s
monthly gross income of $1,291 produces a combined monthly income
of $3,805.72.
The child support guidelines found in KRS
403.212(6) provide that the total child support for parents who
have two children and a combined monthly adjusted gross income of
between $3,800 and $3,900 is $808.
Dividing that sum in
proportion to Sue and Jesse’s respective incomes leaves Jesse
owing $533.28 in monthly child support, an increase of over 28%
from the previously ordered amount.8
Therefore, Sue’s motion to
increase child support should have been granted.9
8
$2,514.72 (Jesse’s adjusted gross monthly income) /
$3,805.72 (total combined income) = 0.66 X $808 (total monthly
support under the guidelines) = $533.28. Thus, Jesse owes
$533.28 per month in child support. $533.28 - $416 (child support
ordered under dissolution decree) = $117.28 additional support.
$117.28 / $416 = 0.282.
9
The trial court on remand may choose to accept Jesse’s
contention that his income will drop to only $15 per hour. See
Keplinger, supra at 569 (holding that a presumption exists that a
(continued...)
-4-
Sue also argues that the trial court erred by not
prorating Jesse’s health insurance premium as the insurance
policy covers Jesse’s present wife and stepson, as well as
Jesse’s biological children.
in support of her argument.
Sue is unable to cite any authority
Furthermore, the evidence indicates
that Jesse is not forced to pay any additional amounts to cover
his current wife and stepson as his premium is the same
regardless of the number of people covered by the policy.
See
e.g. Transcript of Hearing, supra, at page 5 (“it [health
insurance premium] is a flat cost whether it is one [covered
child] or five”).
Thus, we do not believe that Jesse is
depriving his biological children of funds and the trial court
properly refused to prorate Jesse’s health insurance premiums.
The trial court’s order denying Sue’s motion for an
increase in child support is reversed and the matter is remanded
for proceedings consistent with this opinion.
ALL CONCUR.
9
(...continued)
worker’s future income will be on a par with his “most recent
experience” but that a party may present evidence which would
support a contrary finding). Regardless, Sue’s motion should
have been granted. As noted in footnote 3, supra, usage of
Jesse’s $15 per hour figure results in a monthly gross income of
$2,600, which is only $12.39 per month less than the monthly
income reflected on Jesse’s latest 1998 paycheck. Thus, the
amount of child support owed using the $2,600 per month income
level would easily exceed the 15% threshold found in KRS 403.213.
-5-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Barbara A. Sullivan
Ellen G. Friedman
Louisville, Kentucky
Mark E. Edison
Shepherdsville, Kentucky
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