CHARLES S. VOSE v. LESLIE P. VOSE
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RENDERED: DECEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002293-MR
CHARLES S. VOSE
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LEWIS G. PAISLEY, JUDGE
ACTION NO. 99-CI-03882
v.
LESLIE P. VOSE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE AND McANULTY, JUDGES; AND JOHN WOODS POTTER,
SPECIAL JUDGE.1
McANULTY, JUDGE:
Charles S. Vose (Charles) appeals from an
order of the Fayette Circuit Court, entered on September 20,
2001, which granted Leslie P. Vose (Leslie) child support in the
amount of $1,798.34 per month for their daughters.
We affirm.
Charles and Leslie were married on June 21, 1986.
Two
children, Julie Steele Vose and Lucy Steward Vose, were born of
this marriage.
On April 7, 1998, Charles, a dentist, commenced
employment with King Faisal Specialist Hospital in the Kingdom of
1
Senior Status Judge John Woods Potter sitting as
Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution.
Saudi Arabia.
In November 1999, while Charles was working in
Saudi Arabia, Leslie, an attorney, filed a petition for legal
separation with the Fayette Circuit Court.
After the petition for legal separation was filed, the
parties engaged in a mediation session in Louisville, Kentucky.
During mediation, Charles and Leslie reached a separation
agreement.
Pursuant to their agreement, Charles agreed to pay
Leslie monthly child support of $2,500.00 until March 2000, after
which time Charles’ child support obligation would drop to
$1,000.00 per month.
The separation agreement further provided
that future child obligations would be made by agreement between
the parties.
Charles and Leslie also agreed to joint custody of
their children and divided their marital assets, debts and
property.
On December 29, 1999, after the parties agreed to
convert the separation action to a dissolution action, the trial
court granted a dissolution decree and incorporated the
separation agreement by reference.
In June 2000, Charles and Leslie both filed numerous
motions concerning this matter.
On June 5, 2000, Charles filed a
motion to vacate the December 1999 dissolution decree claiming
that the 60 day waiting period required by Kentucky Revised
Statutes (KRS) 403.140(2) had not elapsed because the petition
for separation was filed on November 4, 1999.
Further, Charles
requested the trial court enter a new decree of dissolution, set
this matter for an uncontested trial date and enter an order
approving the separation agreement.
Four months later, due to
the parties’ inability to reach an agreement concerning Charles’
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future child support obligations, Leslie filed a motion asking
the trial court to set child support.
In response, Charles filed
a motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02
asking the trial court to set aside the separation agreement.
In
support of his CR 60.02 motion, Charles tendered an affidavit
stating that Leslie falsely claimed a margin account debt of
$129,000.00 so that she could bolster her share of the marital
equity, misrepresented the waiting period requirements so that
Leslie could file her 1999 federal taxes under the single, head
of household status, and that Leslie misrepresented the mediation
process as non-binding when, in fact, the session was binding
upon the parties.
The trial court conducted an evidentiary hearing on
December 21, 2000, concerning the issues raised in the filed
motions.
During this hearing, Charles testified that he was
aware of the assets and debts of the parties, including the
$129,000.00 margin account debt Leslie claimed was from her
mother’s estate.
Moreover, Charles presented no documentary
proof supporting his allegations of fraud against Leslie.
Finding no evidence of fraud, the trial court denied Charles’
motion to set aside the separation agreement.
At this time, the
trial court also entered a supplemental decree dissolving the
marriage as of December 29, 1999.
On July 19, 2001, the trial court held another
evidentiary hearing concerning the issue of child support.
During this hearing, Leslie testified concerning her income, the
necessary expenses of the couple’s daughters, provided an
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itemized list of the children’s normal expenses, and provided the
trial court with copies of her 2000 federal income tax returns.
Charles did not contest the validity of the monthly expenses
Leslie claimed on behalf of the children, nor did he question
Leslie concerning the standard of living enjoyed by the children.
Furthermore, during his testimony at this hearing, Charles
acknowledged that he refused to appear at a discovery deposition
scheduled to obtain his financial information, including his
employment contract with the Saudi Arabian hospital and his 2000
federal income tax records.
documents at the hearing.
Charles also failed to provide these
However, Charles did testify that he
earned approximately $8,200.00 per month in salary and received a
stipend of approximately $2,500.00 per month to compensate for
living away from his family.
Further, Charles informed the court
that his living expenses were lower in Saudi Arabia because he
lived rent free in hospital-owned living quarters and that he
received tax advantages from the United States government because
of his employment in the Middle East.
Saudi Arabia, according to
Charles, did not withhold taxes from his salary.
Based upon the testimony and evidence presented to it,
the trial court found that Leslie’s income was $9,859.99 per
month.
The trial court also found that Leslie paid $193.00 per
month in insurance, $723.41 per month in child care and $5,315.00
in necessary expenses for the children.
Further, the trial court
attributed Charles with income in the amount of $13,000.00 per
month, with Charles’ monthly salary, stipend, tax advantages and
relatively low living expenses included in that figure.
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The
trial court also determined that, since the combined gross
monthly income of the parties exceeded the limits found in the
child support guidelines, the awarded child support amount should
be extrapolated from the guidelines, using a growth increment of
5%.
Therefore, the trial court ordered Charles to pay $1,798.34
in child support, effective October 1, 2000.
On July 30, 2001, Charles filed a motion to alter,
amend, vacate and/or reconsider the child support ruling.
In
support of his motion, Charles submitted unsigned tax returns
marked “Do Not File” and a child support worksheet showing his
obligation to be $1,399.00.
The trial court refused to revisit
the ruling because no evidence was presented that the submitted
tax returns were actually filed.
This appeal followed.
On appeal, Charles brings forward three assertions of
error for our review.
First, Charles argues that the Fayette
Circuit Court erred in its calculation of his child support
obligation.
We disagree.
Kentucky trial courts are given broad discretion in
considering a parent’s assets and setting the appropriate amount
of child support.
(1992).
Redmon v. Redmon, Ky. App., 823 S.W.2d 463
While KRS 403.212 provides the trial courts with certain
guidelines and limitations concerning the establishment of child
support, the statute empowers the trial courts to exercise its
discretion to achieve just results.
App., 839 S.W.2d 566, 568 (1992).
Keplinger v. Keplinger, Ky.
This legislative scheme cannot
address every possible situation that can arise in divorced
parents supporting their children.
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However, KRS 403.212 provides
trial courts with sufficient flexibility to fashion appropriate
orders.
Downey v. Rogers, Ky. App., 847 S.W.2d 63, 64 (1993).
The child support guidelines set out in KRS 403.212
serve as a rebuttable presumption for the establishment of the
amount of child support.
A trial court may deviate from these
guidelines only upon making a specific finding that applying the
guidelines would create unjust or inappropriate results.
403.211(2).
KRS
Specifically, KRS 403.212(5) provides that a trial
court may deviate from the guidelines when the combined monthly
adjusted parental gross income exceeds the uppermost levels of
the guidelines table.
KRS 403.212(5); Downing v. Downing, Ky.
App., 45 S.W.3d 449, 454 (2001).
In reviewing a trial court’s
order setting a parent’s child support obligation, the reviewing
court should defer to the lower court’s discretion whenever
possible.
See Pegler v. Pegler, Ky. App., 895 S.W.2d 580 (1995).
As long as the trial court’s discretion comports with the
guidelines, or any deviation is adequately justified in writing,
this Court is not empowered to disturb the trial court’s ruling.
Commonwealth ex rel. Marshall v. Marshall, Ky. App., 15 S.W.3d
396, 400-01 (2000).
However, the trial court’s discretion is not
unlimited, as we must ensure that the lower court’s exercise of
its discretion was not arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.
Goodyear Tire and Rubber
Co v. Thompson, Ky., 11 S.W.3d 575, 581 (2000); Commonwealth v.
English, Ky., 993 S.W.2d 941, 945 (1999).
In support of his assertion that the trial court
incorrectly calculated his child support obligation, Charles
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argues that the trial court failed to accurately establish the
standard of living or actual needs of the children.
In reviewing
a trial court’s assessment of the actual needs of children when
setting an amount of a parent’s child support obligation, a panel
of this Court stated:
In determining the reasonable needs of the
children, the trial court should also take
into consideration the standard of living
which the children enjoyed during and after
the marriage. The fundamental premise of the
income shares model is that a child’s
standard of living should be altered as
little as possible by the dissolution of the
family. Consequently, the concept of
“reasonable needs” is flexible and may vary
depending upon the standard of living to
which they have become accustomed.
Any assessment of the child’s reasonable
needs should also be based upon the parents’
financial ability to meet those needs.
Factors which should be considered when
setting child support include the financial
circumstances of the parties, their station
in life, their age and physical condition,
and expenses in educating the children. The
focus of this inquiry does not concern the
lifestyle which the parent could afford to
provide the child, but rather it is the
standard of living which satisfies the
child’s reasonable and realistic needs under
the circumstances. Thus, while a trial court
may take a parent’s additional resources into
account, a large income does not require a
noncustodial parent to support a lifestyle
for his children of which he does not
approve.
Downing, 45 S.W.3d at 456-57.
In this matter before us, Leslie introduced
documentation concerning Julie and Lucy’s monthly expenses.
This
list of monthly expenses includes not only the basic necessities
of life, such as food, water, heat, electricity and medical
expenses, but also expenses concerning the childrens’ education,
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school-related functions, dance and piano lessons and a family
pet.
All of the items listed and introduced as monthly expenses
constitute the reasonable needs of the parties’ children.
These
expenses, while they may appear to be excessive, are not truly a
mere “wish list” of activities when the standard of living
enjoyed by the children during this marriage is considered.
Here, while married, Leslie and Charles earned more than
$200,000.00 annually as successful professionals.
Moreover,
Leslie testified that the standard of living for the children has
changed very little since the petition for separation was filed.
At the hearing, Charles did not question Leslie concerning the
expenses she has incurred on behalf of the children.
Even more
telling is Charles’ failure to object to the lifestyle his
children currently enjoy, coupled with his failure to provide
information contradicting the standard of living his children
enjoy.
In light of Downing, the trial court properly established
Charles’ child support obligation.
Charles further alleges that the trial court erred in
calculating his child support obligation by improperly relying
upon its mathematical extrapolation of the child support
guidelines.
We reject this argument.
Charles correctly points out that a trial court abuses
its discretion when it relies primarily on a mathematical
calculation to set child support without any other supporting
findings or evidence.
Downing, 45 S.W.3d 457.
Despite his
assertions, the trial court did not rely primarily on its
mathematical calculation in establishing Charles’ child support
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obligation.
In the matter before us, the trial court heard
evidence concerning the necessary and actual needs of the
children, considered the parties’ income and debts, the impact of
Charles’ tax advantages and lower living expenses and the
standards of living for all involved before calculating child
support obligation.
The trial court’s findings were specifically
noted in its September 20, 2001 order, as well as verbally
disclosed to the parties after the July 19, 2001 hearing.
Since
evidence does exist in the record setting this child support
obligation above the guidelines, we find no reason to interfere
with the trial court’s discretion.
For his second assertion of error, Charles argues that
the trial court erred in calculating his income for child support
purposes.
Specifically, Charles objects to the trial court
imputing $13,000.00 per month in income to him because a portion
of his income is exempt from taxation due to his employment in
the Middle East.
We reject this argument.
In Snow v. Snow, Ky. App., 24 S.W.3d 668, 672 (2000), a
panel of this Court held that, since KRS 403.212(2)(c) recognizes
that taxation and child support serve different purposes, trial
courts establishing child support obligations have the discretion
and the duty to scrutinize taxable income and deviate from it
whenever it seems to have been manipulated for the sake of
minimizing a child support obligation or when such a deviation is
clearly in the best interest of the child.
Here, the trial court
heard testimony from Charles concerning his income.
During his
testimony, Charles admitted to earning approximately $98,400.00
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per year while practicing dentistry at King Faisal Hospital in
Saudi Arabia.
In addition to his salary, Charles receives an
unrestricted stipend of approximately $30,000.00 per year to
compensate for being away from his family, two months paid
vacation a year, all educational expenses reimbursed and he
resides rent free in living quarters owned by the hospital.
None
of Charles’ income is subject to taxation by the Saudi Arabian
government and, according to Charles, only $23,000.00 of his
income is subject to taxation by the United States government
because of his employment in the Middle East.
In other words,
most of Charles’ income is tax free and, because his living
expenses are negligible, Charles is permitted to preserve almost
all of his income.
Thus, pursuant to Snow, we believe that the
testimony Charles provided to the trial court concerning his
income enabled the trial court to impute income to Charles for
child support purposes.
Therefore, we reject Charles’ argument
because competent evidence exists in the record supporting the
trial court’s imputation of income to him for child support
purposes.
Charles’ final argument on appeal is that the trial
court erred in denying his CR 60.02 motion to set aside the
separation agreement.
This argument is without merit.
CR 60.02 provides, in relevant part, as follows:
On motion a court may, upon such terms as are
just, relieve a party or his legal
representative from its final judgment,
order, or proceeding upon the following
grounds: . . . (d) fraud affecting the
proceedings, other than perjury or falsified
evidence.
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In order to set aside a property settlement agreement
in a divorce action, the movant must demonstrate that the
separation agreement was procured on the basis of fraud, undue
influence or overreaching.
S.W.2d 707 (1979).
Peterson v. Peterson, Ky. App., 583
In this matter, the record reveals no facts
supporting a finding of fraud.
Charles, through his own
testimony, acknowledged that he was aware of the parties’ assets
and liabilities, that he possessed all relevant financial
information referred to in negotiating the separation agreement
and that he could not produce documentary evidence concerning his
allegations of fraud.
With this testimony in mind, we find that
the trial court properly denied Charles’ motion to set aside the
settlement agreement.
For the aforementioned reasons, the judgment of the
Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
William R. Wilson
Burress & Wilson
Shepherdsville, Kentucky
Leslie Patterson Vose
Landrum & Shouse LLP
Lexington, Kentucky
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