ROBERTA DITTOE v. GREGG DITTOE
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RENDERED:
OCTOBER 12, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000934-MR
ROBERTA DITTOE
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 98-CI-01226
v.
GREGG DITTOE
APPELLEE
OPINION
VACATING & REMANDING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Roberta Dittoe appeals from an order of the
Kenton Circuit Court in a dissolution of marriage action claiming
the trial court erred when it failed to include all of her former
husband, Gregg Dittoe’s income in the child support calculation,
and further that the trial court’s maintenance decision was
flawed with respect to both duration and amount of maintenance.
Because the trial court failed to consider Gregg’s bonus income
when determining child support and maintenance, we vacate and
remand for a redetermination of those awards.
The parties were married in July of 1983 and have two
minor children, Nicole and Anna.
On June 24, 1998, Roberta filed
a petition to dissolve the marriage and the parties subsequently
entered into an agreed order which, among other things, provided
for Gregg to pay Roberta child support of $1,500.00 per month,
and maintenance of $2,000.00 per month.
In April of 1999, the trial court entered the decree
wherein it awarded Roberta child support of $1,687.00 per month,
and maintenance of $2,000.00 per month to be paid by Gregg
through July 2000.
Roberta filed a motion to alter, amend, or
vacate which objected to the trial court’s award of child support
and maintenance.
Later the trial court entered an amended decree
addressing various issues, but none relevant to this appeal.
Finally on March 15, 2000, the trial court entered an order and a
second amended decree which overruled Roberta’s motion to modify
the child support award, and extended the term of the $2,000.00
monthly maintenance award until June 2001.
This appeal followed.
First, Roberta contends the trial court erred when it
refused to include all of Gregg’s income in its base child
support calculation.
Specifically, Roberta contends that the
trial court should have included Gregg’s bonus income in its
calculation of Gregg’s child support obligation.
In its original findings of fact and conclusions of law
entered in April 1999 with regard to child support, the trial
court stated as follows:
Father currently earned approximately
$165,000 excluding his year-end bonus. In
1998, Father earned a bonus of approximately
$92,000. That bonus is based on performance
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and fluctuates from year to year. In all,
Father’s income for 1998 was $258,629.
Mother is unemployed, and her only source of
income other than maintenance and child
support is rental income and dividends and
interest she receives from the investments in
her name. The rental income is $1,000 a
month, and the interest and dividend income
over the past year totaled approximately
$16,000.
The combined adjusted parental gross income
is figured using Father’s base salary only.
Using the guidelines set out in KRS 403, the
monthly adjusted parental gross income is
$15,226. Mother makes approximately 8.5% of
that income. Using the chart in Chapter 403
of KRS, Father’s monthly support obligations
come to $1,687 a month.
This obligation was calculated using the
Father’s base salary only. As mentioned
above, a substantial part of Father’s income
has been his bonus. Because this bonus is
anticipated but not predictable, and based on
Father’s ability to earn, which would add
$9,200 to child support, the Court will
require Father to continue payment of
tuition, uniforms, fees, and music lessons.
The alternative, which the Court finds as
undesirable, is to attribute ten per cent of
the bonus to child support at the time
received which causes a windfall to the
children as opposed to support.
KRS 403.212 provides, in relevant part, as follows:
(2) For the purposes of the child support
guidelines:
(a) "Income" means actual gross
income of the parent if employed to
full capacity or potential income if
unemployed or underemployed.
(b) "Gross income" includes income
from any source, except as excluded
in this subsection, and includes but
is not limited to income from
salaries, wages, retirement and
pension funds, commissions, bonuses,
dividends, severance pay, pensions,
interest, trust income, annuities,
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capital gains, Social Security
benefits, workers' compensation
benefits, unemployment insurance
benefits, disability insurance
benefits, Supplemental Security
Income (SSI), gifts, prizes, and
alimony or maintenance received.
Specifically excluded are benefits
received from means-tested public
assistance programs, including but
not limited to public assistance as
defined under Title IV-A of the
Federal Social Security Act, and
food stamps. (emphasis added.)
KRS 403.212(2)(b) unambiguously requires bonuses to be
included in gross income for purposes of determining child
support.
As noted by the trial court, a substantial part of
Gregg’s income has been his bonus.
Gregg’s income exhibit
reflected the following income information for the years 1993
through 1998:
Car
Allowance
Performance
Bonus
Bonus/
Stock
Sales
Total
W-2
Income
Year
Base
Salary
1993
143,500
4,800
4,051
66,010
218,361
1994
152,700
5,400
43,896
129,588
331,584
1995
158,800
5,400
43,518
58,523
266,241
1996
88,000
2,250
0
187,768
278,018
1997
144,000
5,400
50,410
0
199,810
1998
149,300
5,400
91,917
0
246,6171
Average
139,383
4,775
38,965
73,648
256,771
The above table reflects that Gregg had a mean average
of over $112,000 in “Performance Bonus” and “Bonus/Stock Sales”
1
The income exhibit incorrectly reflects a total of
$258,629.00 for the 1998 line.
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income.2
These amounts comprised approximately 43.5% of his
income during the period of 1993 to 1998.
Keplinger v.
Keplinger, Ky. App., 839 S.W.2d 566, 569 (1992) held that
KRS 403.212(2)(a) must be read as creating a
presumption that future income will be on a
par with the worker's most recent experience.
The party who wants the trial court to use a
different income level in applying the child
support guidelines bears the burden of
presenting evidence which would support the
requested finding. Cf. In re Marriage of
Scafuri, 203 Ill.App.3d 385, 149 Ill.Dec.
124, 561 N.E.2d 402 (1990) (Child support
guidelines establish beginning point for
analysis and shift burden of presenting
evidence to parent asking court to deviate
from guidelines).
The trial court noted that the bonus “fluctuates from
year to year” and “is anticipated but not predictable,” but
otherwise provided no justification for disregarding the bonus
income.
Gregg attempts to justify the trial court’s disregard of
his bonus income by explaining how his bonus is calculated and
the unpredictable nature of the bonus.
We are not persuaded.
Gregg has failed to overcome the
presumption that his future bonus income will be on par with his
most recent income.
Accordingly, we reverse the trial court’s
child support award and remand for a determination of child
support under the assumption that Gregg’s future bonus income
will be on par with his most recent bonus income pursuant to
Keplinger.
2
The record does not readily reflect the portion of the
income related to capital gains from stock sales. However, the
same principle applies - KRS 403.212 requires capital gains to be
included in gross income.
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Gregg notes that the combined parental income as
calculated by the trial court exceeded the maximum income as
listed in the child support guideline tables and that in such
cases KRS 403.212(5) confers the trial court with discretion to
determine an appropriate child support award.
Further, the trial
court also required Gregg to pay for private school tuition,
uniforms, fees, and music lessons.
The original award includes a
fundamental error in computing Gregg’s gross income, and we are
unable to conclude that this error was harmless error.
Roberta also contends that the trial court’s
maintenance award was flawed with respect to both the duration
and the amount of maintenance ordered.
She alleges that the
maintenance award will not allow her to maintain the standard of
living she became accustomed to during the marriage, and that a
more equitable award would be an award of $4,000.00 to $5,000.00
in maintenance for an additional three years (until June 2004),
when she could be expected to substantially complete her postgraduate education, and some lesser amount for an additional
period of three to five years until she could become comfortably
established in her career.
In its original findings of fact and conclusions of law
with regard to maintenance, the trial court stated as follows:
Husband currently has a net income of
approximately $9,000 a month in base salary.
(D. Ex. 1 and 5.) In addition, Husband has
investments which earn additional income as
well as the potential to receive a rather
sizable bonus. Because Husband’s bonus is
evaluated annually and his investments are
speculative, his income could and has varied
from year to year.
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Wife currently earns $1,000 a month in rental
income. In addition, this dissolution will
provide her with other income-producing
assets. Wife has a high school diploma. She
has not worked outside of the home during the
parties’ 15-year marriage. Wife is currently
attending college and hopes to secure fulltime employment upon graduation. Wife
expects to receive her degree in May, 2000.
Upon graduation, Wife believes her earning
potential will be in the mid $20,000s.
During their marriage, the parties had become
accustomed to a very comfortable lifestyle.
This lifestyle includes a private home with a
membership to a private club, vacations as
well as other luxuries.
Wife has presented a budget of approximately
$4,700 a month. Husband has presented a
monthly budget of approximately $9,950.
Husband’s budget includes $3,500 for
maintenance and child support as previously
ordered by the Court. Husband’s budget also
includes an expense of $900 for the
educational expenses of the children and
Wife. Husband is no longer obligated to pay
the educational expenses of Wife as this was
considered when determining the amount to
award as maintenance.
The Court finds that continuing the payment
of $2,000 a month is appropriate. This
payment will be continued through July, 2000.
This should provide Wife with enough time to
attain her college degree and obtain gainful
employment. This should also give Wife
sufficient time to gain benefit from the
investment property she received through the
disbursement of marital property.
As previously noted, the trial court granted Roberta’s
motion to alter, amend, or vacate the original decree and
extended the $2,000.00 maintenance award for one additional year
until June 2001.
KRS 403.200 provides that
(1) In a proceeding for dissolution of
marriage or legal separation, or a proceeding
for maintenance following dissolution of a
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marriage by a court which lacked personal
jurisdiction over the absent spouse, the
court may grant a maintenance order for
either spouse only if it finds that the
spouse seeking maintenance:
(a) Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
(b) Is unable to support himself
through appropriate employment or
is the custodian of a child whose
condition or circumstances make it
appropriate that the custodian not
be required to seek employment
outside the home.
(2) The maintenance order shall be in such
amounts and for such periods of time as the
court deems just, and after considering all
relevant factors including:
(a) The financial resources of the
party seeking maintenance,
including marital property
apportioned to him, and his ability
to meet his needs independently,
including the extent to which a
provision for support of a child
living with the party includes a
sum for that party as custodian;
(b) The time necessary to acquire
sufficient education or training to
enable the party seeking
maintenance to find appropriate
employment;
(c) The standard of living
established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and
emotional condition of the spouse
seeking maintenance; and
(f) The ability of the spouse from
whom maintenance is sought to meet
his needs while meeting those of
the spouse seeking maintenance.
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The amount and duration of maintenance is within the
sound discretion of the trial court. Weldon v. Weldon, Ky. App.,
957 S.W.2d 283, 285-286 (1997); Russell v. Russell, Ky. App., 878
S.W.2d 24, 26 (1994). Furthermore, in matters of such discretion,
"unless absolute abuse is shown, the appellate court must
maintain confidence in the trial court and not disturb [its]
findings . . . ." Id. (emphasis original); See also Clark v.
Clark, Ky. App., 782 S.W.2d 56, 60 (1990); Platt v. Platt, Ky.
App., 728 S.W.2d 542 (1987); and Moss v. Moss, Ky. App., 639
S.W.2d 370 (1982). "In order to reverse the trial court's
decision, a reviewing court must find . . . that . . . the trial
court has abused its discretion." Perrine v. Christine, Ky., 833
S.W.2d 825, 826 (1992).
In the April 22, 1999, findings of fact and conclusions
of law, the trial court’s discussion disclosed that, as with
child support, it based its maintenance award on base salary and
did not consider Gregg’s bonus income.
For the same reasons we
vacated the child support award, we conclude that it is necessary
to vacate the maintenance award.
The trial court should have
considered bonus income in its determination of reasonable
maintenance.
(1999).
See Leveridge v. Leveridge, Ky., 997 S.W.2d 1
While Keplinger was limited to the issue of child
support in requiring a presumption that future income will be on
par with the worker’s most recent experience in deriving the
child support calculation, we hold the same presumption applies
when setting the amount and duration of maintenance.
On remand,
the trial court should consider Gregg’s bonus income in
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establishing proper maintenance award in accordance with KRS
403.200.
For the foregoing reasons the judgment of the Kenton
Circuit Court is vacated and remanded for additional proceedings
consistent with this opinion.3
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Suzanne Cassidy
Covington, Kentucky
Beverly R. Storm
Covington, Kentucky
3
In their briefs, both Roberta and Gregg submitted updated
employment and education information extraneous to the trial
record. Such extraneous information is not proper for inclusion
in an appellate brief, Rankin v. Blue Grass Boys Ranch, Inc., Ky.
469 S.W.2d 767, 769 (1971), and accordingly, we have not
considered this information. To the extent that the updated
information is relevant to establishing the proper amount of
child support and maintenance, the parties should address this
information to the trial court.
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