ROBERT W. COLE v. BARBARA J. COLE (NOW RAMBO)
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RENDERED: MAY 3, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000894-MR
ROBERT W. COLE
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE GREGORY M. BARTLETT, JUDGE
ACTION NO. 94-CI-00880
v.
BARBARA J. COLE (NOW RAMBO)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BARBER, McANULTY, SCHRODER, JUDGES.
McANULTY, JUDGE:
Robert W. Cole (Robert) appeals from an order
of the Kenton Circuit Court requiring him to reimburse his former
wife, Barbara J. Cole,1 (Barbara) for the extraordinary
educational expenses associated with sending their oldest child,
Robert Cole, III (Rob), to a private parochial high school.
We
affirm.
The parties were married November 9, 1984, and had
three children during their marriage.
born April 22, 1985.
1
The oldest child, Rob, was
On May 31, 1994, Barbara filed a petition
Now Barbara J. Rambo.
to dissolve the marriage.
The divorce decree was entered on May
9, 1995, and incorporated a separation agreement dated June 17,
1994.
The agreement gave the parties joint custody of the
children, with Barbara designated as the primary residential
custodian.
After the decree was entered, various litigation
involving child support ensued.
On June 15, 1998, the parties
entered into an agreed order which, pursuant to the child support
guidelines, set child support at $268.00 per week during the
school-year period of September 1 to June 1.
During the summer
months, in a deviation from the child support guidelines, support
was set at $359.00 per week.
On September 21, 2000, Barbara filed a motion to modify
child support.
Following a hearing, on April 4, 2001, the
circuit court entered an order ruling on the motion.
The order
determined that a modification of child support was not justified
based solely upon changes in the earnings capacities of the
parties because the changes in earnings produced less than a 15
percent increase in the amount due per month under the child
support guidelines.
See KRS2 403.213(2).3
However, the circuit court further determined that Rob
had been diagnosed with Attention Deficit Hyperactivity Disorder
(ADHD) and depression, and that his interest would be best served
by attending a private parochial school, LaSalle High School,
rather than the local public high school, Colerain High School.
2
Kentucky Revised Statutes.
3
Changes in the parties’ earnings produced an increase in
child support of $268.00 per week to $294.00 per week, an
increase of 9.7 percent.
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The order required Robert to reimburse Barbara for the expenses
associated with attending the private school in proportion to
Robert’s percentage of the parties’ total income.4
This appeal
followed.
First, Robert argues that the relief granted by the
circuit court, the granting of extraordinary education expenses,
was not properly before the court.
This argument is based upon
Robert’s interpretation of the circuit court’s determination that
“the indicated amount of child support does not represent a 15%
increase so as to allow modification based solely upon the
increase in the earning capacities.
KRS 403.213(2).”
Robert
argues that though the circuit made a determination that a
modification was not permitted based solely on changes in earning
capacities, “[t]he trial court then mysteriously sustained a nonexistent motion,” and that “[t]he record is devoid of [Barbara]
making such a request.”
We disagree.
In Barbara’s affidavit filed in conjunction with her
September 21, 2000, motion to modify child support, as her basis
for modifying support, Barbara stated,
In addition to the normal material changes
which occur due to the children increasing in
size and age, Petitioner’s income has
increased, Respondent’s income has increased,
Petitioner has incurred extraordinary
educational expenses for Robert Cole, III,
(one of the minor children of the parties),
and Respondent has chosen for approximately
the past two and one-half years (almost three
years) not to exercise his visitation rights
4
It appears that the private school expenses consist of
$4,800.00 per year for school tuition and $93.00 per month for
school bus transportation expense. Robert’s proportional share
of the expense is 64 percent.
-3-
thereby decreasing his normal living expenses
and increasing Petitioner’s normal living
expenses. (Emphasis added.)
Further, in her answers to questions twenty and twentyone of “Petitioner’s Answers to Interrogatories” filed on
November 21, 2000, Barbara identified Rob’s “disability/illness”
as a basis for requesting an increase in child support.
addition,
In
Tim B. Klett, a family and adolescent therapist,
provided deposition testimony on the issue of Rob’s educational
circumstances and his need to attend a private school.
Further,
at the March 21, 2001, evidentiary hearing, the majority of the
testimony and evidence concerned the educational issue.
Finally,
substantially all of Robert’s March 21, 2001, “Memorandum in
Opposition to Petitioner’s Motion to Modify Child Support” was
devoted to discussing the educational issue.
The litigation surrounding Barbara’s motion to modify
child support was dominated by the issue of Rob’s alleged
extraordinary educational needs and Barbara’s request to be
reimbursed for the corresponding expense.
The record discloses
that Barbara was requesting reimbursement for these expenses,
that Robert was on notice of this request, and the issue was
properly before the circuit court.
In summary, Robert’s
interpretation of the circuit court’s order is untenable.
Robert also argues that the circuit court erred in its
conclusion that Rob suffers from ADHD and that he would benefit
from private education schooling.
Again, we disagree.
In order to modify child support, KRS 403.213(1)
requires “a showing of a material change in circumstances that is
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substantial and continuing.”
A motion to modify which results in
less that a 15 percent change in the amount of support due per
month is, rebuttably, not a material change in circumstances.
KRS 403.213(2).
However, a finding by the circuit court that the
application of the guidelines would be unjust or inappropriate in
a particular case is sufficient to rebut the presumption and
allow for an appropriate adjustment of the guideline award if
based upon, among other things, a child's extraordinary
educational needs.
KRS 403.211(3).
The meaning of the word
“extraordinary” is to be determined by the circuit court in its
discretion.
KRS 403.211(4).
Any deviation from the guidelines must be accompanied
by the circuit court’s findings specifying the reason for the
deviation.
KRS 403.211(2).
Deviation from the guidelines is
allowed on a motion for modification.
See Redmon v. Redmon, Ky.
App., 823 S.W.2d 463 (1992) (Deviation based upon incarceration
of obligor);
Rainwater v. Williams, Ky. App., 930 S.W.2d 405,
407 (1996) (Deviation based upon financial resources of child).
A decision on whether to deviate from the guidelines is within
the trial court's discretion.
Rainwater at 407.
“As long as the
trial court’s decision comports with the guidelines, or any
deviation is adequately justified in writing, this Court will not
disturb the trial court’s ruling in this regard.”
Marshall v.
Marshall, Ky. App. 15 S.W.3d 396, 400-401 (2000).
A judgment
concerning child support will not be disturbed “unless there has
been a clear and flagrant abuse of the powers vested in that
court.”
Bradley v. Bradley, Ky., 473 S.W.2d 117, 118 (1971).
-5-
The circuit court made the following findings regarding
Rob’s educational circumstances and his extraordinary educational
needs:
5. [T]he minor child, [Rob], is currently
enrolled as a sophomore at LaSalle High
School, a private parochial institution. The
Petitioner enrolled [Rob] at LaSalle due to
his need for smaller classrooms and more
individual attention. [Rob] has been
diagnosed with ADHD and depression. He has
had behavior problems in the past which
affected his performance when enrolled in the
local public schools in Ohio. Since his
enrollment at LaSalle High School, [Rob] has
done well in school, although he still
continues to have periodic behavior issues.
The Court finds that the Petitioner’s
decision to enroll [Rob] at LaSalle was
motivated solely by her desire to have him
placed in a school that will best meet his
educational needs. Indeed, the Petitioner
has enrolled the other two children of the
parties in public schools where she resides.
The Court finds that [Rob] has extraordinary
educational needs which are being best served
by his attending LaSalle High School, rather
than Colerain High School. KRS
403.211(3)(b). . . .
7. Based upon the foregoing facts, the Court
finds that strict application of the Child
Support Guidelines would be unjust or
inappropriate.
"Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses."
52.01.
CR5
Findings of fact are not clearly erroneous if supported
by substantial evidence.
6 S.W.3d 843, 851 (1999).
Janakakis-Kostun v. Janakakis, Ky. App.
The test for substantiality of
evidence is whether when taken alone, or in the light of all the
5
Kentucky Rules of Civil Procedure.
-6-
evidence, it has sufficient probative value to induce conviction
in the minds of reasonable men.
Kentucky State Racing Commission
v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).
The circuit court’s findings that Rob has been
diagnosed with ADHD and depression, that he had behavioral
problems when enrolled in the public schools, and that his
extraordinary educational needs would be best served by attending
a private school are supported by substantial evidence.
Included in the record is the deposition testimony of
Tim B. Klett taken on December 11, 2000.
Klett is engaged in
family and adolescent therapy at Children’s Hospital Medical
Center in Cincinnati, Ohio.
Klett has a bachelor’s degree in
psychology, a master’s degree in social work, is a licensed
independent social worker, and has completed a two-year
internship in clinical therapy.
Klett began counseling Rob in
March 1999, and had been counseling him for approximately oneyear and nine-months at the time of the deposition.
Exhibit 2 of
Klett’s deposition testimony states, in part, as follows:
[Rob] has been in treatment at Children’s
Hospital Medical Center, Dept. Of Psychiatry,
since 3/24/99. He is presently diagnosed
with Attention Deficit-Hyperactivity Disorder
— the combined type and Cyclothymic Disorder,
a type of mood disorder with periods of
depression alternating with hypomanic
symptoms including grandiosity, agitation,
and excessive energy.
[Rob’s] course of treatment has focused
mostly on his school problems - academic,
behavioral, and social/peer, secondary to his
ADHD and Cyclothymia. Upon transfer to
LaSalle HS from Colerain, there was
significant improvement in academic and
social functioning. The increased structure,
individual atten., and smaller classrooms
-7-
increases [Rob’s] performance dramatically,
also lessening his emotional lability [sic]
and depressive symptoms. The short class
periods at LaSalle and the ability to bring
his backpack to each class (i.e.,
individualized educational options) have
specifically helped to meet [Rob’s] spcial
[sic] needs.
As it was at the time of this transfer, and
is still presently, I recommend [Rob]
continue to attend LaSalle in order to meet
his special needs academically. [Rob’s] level
of attention, easy distraction, minimal
ability to complete work independently, and
need for smaller, more structured classes
necessitate him attending a school that will
met [sic] these special needs. He continues
to struggle academically and emotionally, but
at a manageable level of functioning. These
facts indicate that this recommendation
should be taken seriously.
In his deposition testimony, Klett explained that his
conclusion that Rob was suffering from ADHD and depression was
based upon his review of Rob’s case history as reflected in the
records of other Doctors who have evaluated Rob, and based upon
his own professional experience.
Further, based upon his
training and experience as a family and adolescent therapist and
his treatment and counseling of Rob, it would appear that Klett
possesses the necessary credentials to make a competent
professional recommendation regarding whether Rob has
extraordinary educational needs and whether those needs may be
met by attendance at LaSalle High School.
We are persuaded that Klett’s testimony and exhibits
are sufficient to support the circuit court’s findings that Rob
has extraordinary educational needs and that strict application
of the child support guidelines would be unjust or inappropriate.
While we recognize Robert’s concern that Klett is not a medically
-8-
trained psychiatrist and is not trained to administer independent
diagnostic tests, nevertheless, this concern goes to the weight
of the testimony, and the trial court was in the better position
to evaluate the credibility of Klett’s testimony.
CR 52.01;
Chalupa v. Chalupa, Ky. App. 830 S.W.2d 391, 393 (1992).
In summary, the record in this case does not show that
the circuit court’s findings of fact were clearly erroneous, or
that it abused its discretion in deviating from the child support
guidelines and setting Robert’s child support obligation to
include a contribution to the extraordinary educational
requirements of Rob.
For the foregoing reasons the judgment of the Kenton
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Steven R. Dowell
Newport, Kentucky
Harry P. Hellings, Jr.
Dean A. Pisacano
Hellings & Pisacano, P.S.C.
Covington, Kentucky
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