LYNN S. MCALEER v. THOMAS P. MCALEER, JR.
Annotate this Case
Download PDF
RENDERED: May 19, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000417-MR
LYNN S. MCALEER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE RICHARD FITZGERALD, JUDGE
ACTION NO. 96-FC-004111
v.
THOMAS P. MCALEER, JR.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, DYCHE AND GUIDUGLI, JUDGES.
GUIDUGLI, JUDGE.
Lynn McAleer (Lynn) appeals pro se from an
order of the Jefferson Circuit Court entered February 16, 1999,
which denied her motion to modify child support.
We affirm.
Lynn and Thomas McAleer (Thomas) were married on
November 8, 1992.
their marriage.
Two minor children were born as a result of
Thomas had previously been married to Sherri
McAleer (Sherri) and had two minor children from this previous
marriage.
Lynn and Thomas separated on December 31, 1995.
At
that time, Thomas reconciled with Sherri and moved in with her
and their two children.
Lynn maintained primary custody of the
parties’ two minor children and Thomas paid child support in the
amount of $74.00 per week.
This amount was later raised to
$85.29 under the terms of an agreed order.
Lynn filed a petition for dissolution of marriage with
the trial court on August 1, 1996.
On October 16, 1997, the
trial court entered an order dissolving Lynn and Thomas'
marriage.
In regard to the parties’ minor children, the trial
court ordered joint custody with Lynn as primary custodian from
August 15th to June 15th of each calendar year and Thomas as
primary custodian from June 15th to August 15th of each calendar
year.
The order further provided that Thomas was to pay child
support while the children were with Lynn and Lynn was to pay
child support while the children were with Thomas.
The decree
did not set forth the amount of child support to be paid by the
respective parties.
Thomas took custody of the parties' children on June
15, 1998, pursuant to the divorce decree.
On that date, Thomas
filed a motion with the trial court asking that his obligation to
pay child support be either waived or suspended while the
children were in his custody during the summer pursuant to the
terms of the divorce decree.
In her pro se response to Thomas' motion, Lynn argued
that Thomas' child support had not been calculated according to
the guidelines set forth in KRS 403.212(2)(c-d).
Specifically,
Lynn argued:
[T]he very last sentence of section (c) this
[sic] statute . . . states that payments of
expenses by a business which are significant
and reduce personal living expenses, such as,
-2-
free housing and car SHALL be counted as
income. The Petitioner has always contended
this to be the case, throughout, and at every
hearing, and trial to date. Also, Mr.
McAleer acknowledged at least the use of
company vehicles provided by his family
business as a result of his employment, and
gave a detailed accounting of the makes and
models of these vehicles during the most
recent child support hearing with the
commissioner. IN ACCORDANCE WITH THE STATUE
[sic]...,the Petitioner maintains, that this
is a minimum income benefit of 400.00 per
month (vehicle, ins., and fuel). The
Respondent testified that he pays 125.00 per
month for a 1991 mobile home equipped with 3
bedrooms and two bathrooms. In the
Elizabethtown area, mobile home parks were
specifically contacted and this would rent
for over 350.00 per month if available. The
Petitioner maintains that even on the outside
chance that rent is actually paid by Mr,
[sic] McAleer, this is therefore an income
benefit of 225.00. The total of unreported
and UNCONSIDERED income benefits thus far,
without additional proof, are 575.00 per
month in addition to Mr. McAleer's reported
minimum wage earnings.
(emphasis in original). In the alternative, Lynn asked that
Thomas be found to be voluntarily underemployed in his parents'
business for purposes of KRS 403.212(2)(d).
The Domestic Relations Commissioner (DRC) entered his
report on Thomas' motion on November 3, 1998.
The DRC found that
Thomas was employed by his parents' business and that his gross
monthly income from that employment was $1,010.71.
Sherri, who
was also employed in the family business, had a gross monthly
income of $800.
The DRC also found that Thomas maintained health
insurance for the parties' children (from the first marriage) at
a monthly cost of $51.76, which gave him an adjusted gross income
of $958.95.
Thomas had no childcare expenses.
The DRC also
determined that Thomas had an obligation to pay child support for
-3-
his children from his first marriage.
obligation at $257.95 per month.
The DRC set this
Thus, after deducting Thomas’
child support obligation for his prior-born minor children,
Thomas’ adjusted gross income was set at $701.
With regard to Lynn, the DRC found her gross monthly
income to be $2,497.96.
Her monthly insurance cost for the
parties' two children was $102.58.
The DRC found that Lynn had
monthly childcare expenses of $515 for each month in which the
children were in her custody.
Based on these findings, Lynn's
adjusted gross income was set at $2,395.38.
In determining the amount of child support owed for the
parties' children, the DRC established a combined monthly
parental income of $3,096.38 ($2,395.38 + $701).
Based on this
amount, the total child support obligation dictated by the child
support guidelines was $692.
Because Lynn earns 77% of the
combined parental income, her share of child support was
determined to be $532.84 per month.
Thomas was deemed to be
responsible for the remaining $159.16 per month, plus an
additional $118.45 per month representing his share of the
childcare costs for the ten months the children are in Lynn's
custody, for a total of $277.61.
Based on the foregoing, the DRC made the following
recommendations:
Your Commissioner recommends that each
parties' yearly child support obligation to
the other party be netted out so that only
one party needs to write child support
checks.
Your Commissioner finds that Mr. McAleer owes
Ms. McAleer child support, including child
-4-
care costs, in the amount of $2,780.50 for
the 10 months of the year when the parties'
minor children reside with Ms. McAleer
($159.60 per month plus $118.45 per month
times 10 months per year).
Your Commissioner further finds that Ms.
McAleer owes Mr. McAleer $1,065.68 for the
two months of the year when the parties'
minor children reside with Mr. McAleer
($532.84 per month times 2 months per year).
Your Commissioner further finds that Mr.
McAleer's net child support obligation to Ms.
McAleer is $1,714.82 per year ($2,780.50
minus $1,065.68). This yields a weekly child
support obligation amortized over 52 weeks of
$32.98 ($1,714.82 per year divided by 52
weeks).
Your Commission recommends that Mr. McAleer
pay Ms. McAleer child support in the amount
of $32.98 per week for 52 weeks per year,
effective June 15, 1998 and continuing until
further order of the Court.
The weekly amount was later amended to $32.89.
Lynn's exceptions
to the DRC's report appear to have been over-ruled, and on
November 16, 1998, the trial court entered an order setting
Thomas' monthly child support obligation at $32.89.
Lynn filed a motion to amend child support with the
trial court on November 25, 1998.
On January 26, 1999, the DRC
filed his report in which he found:
At the hearing before the undersigned . . .
it became immediately clear that there had
been no change in circumstances since the
Order entered on November 19, 1998.
Petitioner all but acknowledged that the
December 29, 1998 hearing represented her
continuing effort to convince somebody anybody - that the level of child support
required of the Respondent was too low, and
thus unfair to her. Your Commissioner heard
sufficient testimony on December 29, 1998 to
be satisfied that the recommendation of the
previous Commissioner, and the Order
-5-
generated by that recommendation, is wellreasoned and fair.
The trial court denied Lynn's motion by order entered February
16, 1999, and this appeal followed.
Lynn raises the same arguments on appeal that she
raised in response to Thomas' motion to amend child support namely that Thomas was voluntarily underemployed and that the DRC
failed to attribute certain items as income to Thomas.
She
further contends that she offered evidence of these items during
the hearings that occurred before the DRC, the videotapes of
which are part of the record on appeal.
The problem we have in
considering these arguments is that Lynn does not provide
"specific tape and digital counter numbers on the tape recording
to support [her] statement of the case."
App., 686 S.W.2d 833, 834 (1985).
Ventors v. Watts, Ky.
Lynn attempts to excuse this
oversight on the front of her brief, where she states:
Furthermore, the Appellant certifies that the
original record on appeal was not permitted
to be removed from the Office of the Circuit
Court Clerk. Therefore, Audio Taped
Testimony cited in this Brief was based upon
recollection of the hearings only.
It is settled that this Court "will not search a record for
testimony where no reference to the transcript is furnished[.]"
Ventors, 686 S.W.2d at 834-835.
This has been extended to
include situations were a party fails to provide digital counter
numbers to untranscribed videotapes.
Id.
Therefore, we will not
address these issues.
However, in an attempt to be fair to Lynn, we have
reviewed the record to determine if there was a "material change
-6-
in circumstances that is substantial and continuing" which would
mandate an increase in Thomas' child support obligation pursuant
to KRS 403.213(1).
Based on our review, we find that no such
change has occurred.
Finally, Lynn argues that Thomas was not entitled to a
credit for his support of his two prior-born children.
disagree.
We
Pursuant to KRS 403.212(g), Thomas is clearly entitled
to a deduction for any support:
a parent is legally responsible for and
actually providing. . . for other prior-born
children. . . . If the prior-born children
reside with that parent, an "imputed child
support obligation" shall be allowed in the
amount which would result from application of
the guidelines for the support of the priorborn children.
Having considered Lynn's arguments on appeal, the order
of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT, PRO SE:
No Brief for Appellee
Lynn S. McAleer
Crestwood, KY
-7-
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.
