RICHARD B. STAVERMAN v. TERI ANN STAVERMAN, NOW KNOWN AS TERRY ANN BUCKLER
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RENDERED: JUNE 7, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001409-MR
RICHARD B. STAVERMAN
v.
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE WILLIAM J. WEHR, JUDGE
ACTION NO. 87-CI-00795
TERI ANN STAVERMAN,
NOW KNOWN AS TERRY ANN BUCKLER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order granting the
mother’s motion to increase child support.
The father argues
that the court failed to grant him a hearing on his objections,
the court’s calculation of his income was in error, and that the
court erred in finding that he was voluntarily underemployed.
Upon review of appellant’s arguments, the record herein and the
applicable law, we adjudge that the court held a hearing on
appellant’s exceptions, the court’s calculation of his gross
income was not in error, and the court did not err in finding him
voluntarily underemployed.
Hence, we affirm.
Appellant, Richard Staverman, and appellee, Teri Ann
Buckler, were divorced on July 15, 1988.
Two children were born
of the marriage who were two and three years of age at the time
of the divorce.
Child support was initially established in the
amount of $340 a month, and then increased to $400 per month
pursuant to an agreed order entered on November 26, 1991.
On
August 23, 2000, Buckler filed a motion to increase child
support, after which a hearing on the matter was held before the
domestic relations commissioner on March 21, 2001.
At the hearing, there was evidence presented that
Staverman had worked at Dobbs International (“Dobbs”) for 19
years as a liquor and equipment manager.
There was also evidence
that while employed at Dobbs, Staverman also did work on the side
as a general contractor.
On May 12, 2000, Staverman quit his job
at Dobbs because, according to Staverman, the stress of his job
was affecting his relationships with family and friends.
He
stated that he was stressed at the job because there was no room
for advancement, he had inferior help, he often worked overtime,
and he was required to travel frequently.
He testified that the
stress made him unhappy and caused him to snap at people.
He
maintained that, consequently, his wife and son were always
stressed too.
Staverman insisted that the only way to save his
marriage and his relationship with his children was to quit his
job.
Upon leaving Dobbs, Staverman became employed at PDC
Construction (“PDC”) building homes.
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As an employee of PDC,
Staverman helped build custom homes and, in between home-building
projects, poured concrete footers.
The parties stipulated that Buckler earned $2,374 a
month.
Staverman earned $14.60 an hour in his employment with
Dobbs.
The domestic relations commissioner found that between
his job at Dobbs and his part-time contracting work, Staverman
earned:
$42,570 in 1997; $35,885 in 1998; and $35,027 in 1999.
In the year 2000, he earned $15,297.40 at Dobbs through May 9.
When he began working at PDC, he earned $11.00 an hour.
Staverman testified that he has not worked full-time every week
since working for PDC because the work is not available.
The domestic relations commissioner found that since
Staverman voluntarily quit his job at Dobbs to take a job earning
less money and working less hours, he was voluntarily
underemployed.
$38,000.
She then imputed to him a yearly income of
Based on that figure, she recommended that Staverman’s
child support obligation be increased to $622.36 a month pursuant
to the child support guidelines.
The report of the domestic relations commissioner was
filed on April 10, 2001.
On April 18, 2001, Staverman filed
objections to the domestic relations commissioner’s report, and
on June 7, 2001, he filed a memorandum in support of his
objections.
A motion for a hearing on the objections was filed
on June 18, 2001.
On June 21, 2001, the circuit court entered
its order overruling Staverman’s objections and adopting the
recommendations of the domestic relations commissioner.
appeal by Staverman followed.
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This
The first argument we shall address is Staverman’s
claim that the court erroneously deprived him of a hearing on his
objections pursuant to CR 53.06(2).
S.W.3d 812 (2002).
See Kelley v. Fedde, Ky., 64
CR 53.06(2) requires that the court afford
the parties an opportunity for oral argument before ruling on the
objections.
Haley v. Haley, Ky. App., 573 S.W.2d 354 (1978).
Although Staverman maintains that the court did not conduct a
hearing, the record would indicate otherwise.
At the beginning
of the court’s order overruling the objections, the court states
that it “held a hearing on the matter at its regular motion hour
on April 20, 2001 . . .”
Such is consistent with the notice
attached to Staverman’s objections, which states:
“Notice is
hereby given that the foregoing has been scheduled for hearing in
Division No. One of the Campbell Circuit Court at the Courthouse,
Fourth and York Streets, Newport, Kentucky, on Friday, April 20,
2001 at 9:00 A.M.”
Staverman makes no mention of the April 20
hearing, instead pointing out that he moved for a hearing on
June 18, 2001, which he claims was set for July 7, 2001 (of which
there is no record), and that the court ruled on the objections
before this hearing was held.
As CR 53.06(2) only requires an
opportunity for one hearing, which was held in this case, we deem
this argument to be without merit.
We next turn to Staverman’s argument that the lower
court erroneously found that he was voluntarily underemployed.
KRS 403.212(2)(d) provides:
If a parent is voluntarily unemployed or
underemployed, child support shall be
calculated based on a determination of
potential income, except that a determination
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of potential income shall not be made for a
parent who is physically or mentally
incapacitated or is caring for a very young
child, age three (3) or younger, for whom the
parents owe a joint legal responsibility.
Potential income shall be determined based
upon employment potential and probable
earnings level based on the obligor's or
obligee's recent work history, occupational
qualifications, and prevailing job
opportunities and earnings levels in the
community. A court may find a parent to be
voluntarily unemployed or underemployed
without finding that the parent intended to
avoid or reduce the child support obligation.
Staverman contends that he was justified in quitting
his job at Dobbs and that there was no evidence that he worked
less than full-time hours since ending his employment at Dobbs.
Staverman appears to be making a similar argument as the father
in Gossett v. Gossett, Ky. App., 32 S.W.3d 109 (2000).
In Gossett, prior to the divorce, the father frequently
worked overtime in his full-time job and had another part-time
job.
After the divorce, the father quit his part-time job and
stopped working overtime at his full-time job and thereafter
moved for a reduction in child support based on the decrease in
his income.
The lower court held, as a matter of law, that the
father was not obligated to continue working more than one job or
overtime hours for purposes of determining child support, and
reduced his child support obligation accordingly.
On appeal,
this Court recognized that it was generally inappropriate to
impute income from more than one full-time (40-hour week) job.
However, we held that whether a parent is voluntarily
underemployed in quitting a second job or in no longer working
overtime hours is a question of fact, not one of law.
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We stated
that in determining whether a parent is voluntarily underemployed
under those circumstances, the lower court should consider:
a history of [the] spouse having had two
jobs, . . . the previous history of
employment, the occupational qualifications,
the extent to which the parent may be under
employed in the primary job, the health of
the individual, the needs of the family, the
rigors of the primary job and the second job,
and all other circumstances.
Id. at 112, (quoting Bishop Cochran v. Cochran, 14 Va. App. 827,
419 S.E.2d 419 (1992)).
The Court further noted:
The purpose of the statutes and the
guidelines relating to child support is to
secure the support needed by the children
commensurate with the ability of the parents
to meet those needs.
. . .
Indeed, even some involuntary changes in
circumstances are not sufficient grounds for
modification if the change is the result of
the obligor’s voluntary action.
Gossett, 32 S.W.3d at 112-113 (footnote omitted).
Likewise, in the case of a parent quitting a job to
take a job with fewer hours and less money, whether that new
employment constitutes voluntary underemployment is a question of
fact.
It is undisputed that Staverman voluntarily quit his job
at Dobbs.
While we acknowledge that Staverman quit his job for
legitimate reasons and it does not appear that he was
intentionally trying to reduce his child support obligation, we
cannot say the court erred in, nevertheless, imputing to him
income from a like job.
Staverman has an associate degree in
business and gained experience and skills in his 19-year job at
Dobbs, much of which was in a management position, which surely
would have enabled him to obtain more than a construction job
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earning only $11.00 an hour.
Moreover, despite his claims to the
contrary, Staverman himself testified that he does not work a 40hour week every week at PDC because of construction slowdowns in
the winter months.
Given Staverman’s history of overtime hours
and working side jobs, this is further evidence of his voluntary
underemployment.
As noted by the domestic relations
commissioner, “Interestingly, since [Staverman] became employed
in the construction field, he not only works less than full time
but also takes on no additional employment.”
For these reasons,
we cannot say that the lower court’s finding of voluntary
underemployment was clearly erroneous.
We now come to Staverman’s numerous arguments assigning
error to the court’s calculation of his gross income.
Staverman
first argues that Buckler did not meet her burden of presenting
evidence to support the court’s calculation of his gross income
at $38,000.
KRS 403.212(2)(a) provides, “‘Income’ means actual
gross income of the parent if employed to full capacity or
potential income if unemployed or underemployed.”
Staverman
points to the evidence establishing that his most recent work
experience yielded $27,997 a year.
However, this ignores the
fact that Staverman was properly found to be voluntarily
underemployed, hence, the issue was what Staverman was
potentially capable of earning, not what he actually earned.
As
we shall discuss further below, we believe there was sufficient
evidence to impute potential income to Staverman of $38,000.
The domestic relations commissioner arrived at the
$38,000 figure by looking at appellant’s income from 1997, 1998,
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and 1999 and considering his income potential.
The commissioner
additionally concluded that because there was evidence that
Staverman’s income was even greater than what he represented, it
further justified imputing to him income of $38,000.
Appellant claims that the commissioner erroneously
concluded that his 1998 earnings were $35,885.
We cannot be
certain how the commissioner arrived at this figure.
The 1998
tax return for Staverman and his wife reflects around $35,900 in
income, but, as pointed out by appellant, approximately $4,800 of
it was income attributable to his current wife.
However, even if
this figure was arrived at in error, we cannot say it was
reversible error, because there was nevertheless sufficient
evidence to support the imputed income of $38,000.
There is no
requirement that the past years’ incomes be strictly averaged to
arrive at an imputed income.
The commissioner was using the past
years’ income not to determine Staverman’s actual gross income,
but to estimate “potential” income under KRS 403.212(2)(d).
Also, the domestic relations commissioner found that there was
evidence regarding Staverman’s spending that tended to show that
he had under-reported his income.
Staverman next argues that the domestic relations
commissioner erroneously failed to deduct self-employment
expenses from his 1997, 1998, and 1999 incomes.
As stated
previously, given the finding that Staverman under-reported
income and the fact that this past income was used only to
estimate “potential income,” we cannot say the commissioner’s
findings regarding Staverman’s past income were reversible error.
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The next argument, that the commissioner erred in
including extraordinary and non-reoccurring overtime in
determining Staverman’s gross income for 1997 and 1999, has
already been addressed above in the context of his voluntary
underemployment.
Whether to include overtime in the
determination of imputed income is an issue of fact, and we
cannot say the court’s inclusion of overtime was clearly
erroneous given Staverman’s long history of working overtime
hours.
See Gossett, 32 S.W.3d at 112.
Staverman’s final argument is that the commissioner
erroneously imputed an excessive amount of gross income to him.
Given Staverman’s education, work experience in a management
position, history of working overtime, previous income, and the
evidence of under-reporting of income, we cannot say the court
erred in imputing gross income of $38,000 a year to him.
For the reasons stated above, the judgment of the
Campbell Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank A. Wichmann
Erlanger, Kentucky
James A. Daley
Alexandria, Kentucky
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