ALAN KEITH MAUSER v. MARY ELIZABETH HAND
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RENDERED: APRIL 2, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-002026-MR
ALAN KEITH MAUSER
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 95-FC-005023
v.
MARY ELIZABETH HAND
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Alan Mauser has appealed from an order entered
by the Jefferson Family Court on April 26, 2002, which denied
his motion to modify his child support obligation.
Having
concluded that the family court correctly ruled that Mauser had
failed to establish a material change in circumstances
warranting a modification of his child support obligation as
required by KRS1 403.213(1), we affirm.
1
Kentucky Revised Statutes.
Alan Mauser and Mary Hand were married in Jefferson
County, Kentucky, on August 25, 1985.
The marriage produced
four children, all of whom have yet to reach the age of
majority.
The couple separated in August 1995, and shortly
thereafter Mauser filed a petition for dissolution of the
marriage.
On March 22, 1996, the parties entered into a
settlement agreement concerning, inter alia, the custody of
their children.
In sum, the agreement provided for a joint
custody arrangement, whereby the parties agreed to equally share
time with their children.2
On May 15, 1996, the Jefferson Family
Court entered a decree of dissolution, which incorporated the
settlement agreement.
On October 24, 1996, Hand petitioned the family court
for a change of custody.
Hand requested the family court to
award her sole custody of the children, or in the alternative,
to grant her “ultimate decision-making responsibility” with
respect to the children.
However, on November 25, 1997, the
family court entered an order awarding Mauser sole custody of
the children.
The family court agreed with Hand that it was “in
the best interest of the children to have the stability of a
2
The settlement agreement failed to designate either party as the “primary
residential custodian” of the children. Pursuant to the agreement, Mauser
agreed to pay Hand $1,500.00 per month as child support. The settlement
agreement also provided for the distribution of the marital assets acquired
by the parties during their marriage and it contained a maintenance provision
whereby Mauser agreed to pay Hand $2,000.00 per month for 36 months,
effective April 1, 1996.
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sole custodial parent to be the final decision-maker,” but it
determined that Mauser was more likely to “recognize the
necessity and capacity of the mother to be involved in [the]
decision-making [process.]”3
On February 25, 1999, Mauser filed a motion requesting
the family court to, inter alia, modify his child support
obligation.
On March 2, 2000, the family court entered an order
setting Mauser’s child support obligation at $1,281.45 per
month.4
Mauser subsequently filed a motion to alter or amend and
a motion for additional findings of fact, in which he requested
the family court to, inter alia, recalculate his child support
3
Although Mauser was awarded sole custody of the children, both parties
submitted a shared-time agreement, which was approved by the family court, in
which they agreed to equally divide their time with the children.
4
The family court found that Mauser had earned an average annual income of
$203,974.34 as a result of his podiatry practice. In addition, the family
court imputed $25,000.00 per year to Hand after concluding that she was
voluntarily underemployed. See KRS 403.212(2)(d). Thus, the family court
found that Mauser had an average monthly income of $16,997.84 and that Hand
had an average monthly income of $2,083.34. The highest level of combined
monthly income set forth in the child support guidelines is $15,000.00. See
KRS 403.212(7). Consequently, the family court used a mathematical
extrapolation of the guidelines to arrive at a monthly child support
obligation of $3,681.00. The family court then determined that Mauser was
responsible for 89% of the child support obligation and that Hand was
responsible for 11% of the child support obligation. The family court based
its decision in this respect on the percentage that each party contributed to
their combined monthly income, which totaled $19,081.18. Using the 89%
figure, the family court calculated Mauser’s monthly child support obligation
to be $3,276.00. Since the parties shared time with the children on an equal
basis, the family court divided this figure in half to arrive at a total
monthly child support obligation for Mauser of $1,481.45. The family court
then applied a $200.00 credit to Mauser’s monthly obligation to account for
the cost of certain activities that Mauser was responsible for providing,
which resulted in a monthly child support obligation of $1,284.45. The
family court failed to provide any findings concerning the reasonable needs
of the children or the standard of living they would have enjoyed if their
parents had remained together in support of its decision to deviate from the
child support table set forth in KRS 403.212(7).
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obligation.
On May 4, 2000, the family court entered an opinion
an order setting forth additional findings.5
On October 23, 2001, Mauser filed a motion requesting
the family court to evaluate and modify his child support
obligation in light of this Court’s recent holding in Downing v.
Downing.6
Specifically, Mauser requested the family court to
recalculate his child support obligation based on “the actual
needs and expenses incurred for the children and the level at
which each parent [ ] fund[ed] [those] expenses[.]”
On April
26, 2002, the family court entered an order denying Mauser’s
motion to modify his child support obligation.
The order
provides, in relevant part, as follows:
The Court heard the testimony and
viewed exhibits relative to the parties’
incomes.7 Dr. Mauser earned the sum of
$202,450.00 in 2000, and he testified that
his income in 2001 was consistent with prior
years. Ms. Hand testified that her income
for 2000 was $10,998.00. These figures are
5
The family court denied Mauser’s request to have his child support
obligation recalculated. This Court rendered an Opinion affirming the family
court’s orders on November 16, 2001. See Mauser v. Hand, 2000-CA-001413-MR
(non-published opinion). Mauser did not raise any issues concerning the
propriety of his child support obligation in his appeal to this Court.
6
Ky.App., 45 S.W.3d 449 (2001). In Downing, this Court reversed a child
support award in which the trial court used a mathematical extrapolation to
determine the child support obligation of a non-custodial parent whose
monthly income exceeded the highest amount set out in the child support
guidelines. In sum, the Court was troubled by the trial court’s failure to
provide any findings in support of its decision concerning the reasonable
needs of the children. Consequently, the Court held that “[a]t a minimum,
any decision to set child support above the guidelines must be based
primarily on the child’s needs, as set out in specific supporting findings.”
Id. at 456 (citing Stringer v. Brandt, 877 P.2d 100, 102 (Or.App. 1994)).
7
An evidentiary hearing was held on March 8, 2002.
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consistent with the findings on which the
Court based the current child support order
as set out in the order herein on March 2,
2000. Therefore, with regard to income,
there has been no substantial or continuing
change in circumstances.
[T]his Court cannot find any substantial
increase in reasonable expenses incurred for
the children since the last order was
entered.
Therefore, Dr. Mauser’s motion to
modify child support is OVERRULED.
Mauser subsequently filed a motion to alter or amend and a
motion for amended and additional findings of fact, which was
denied by the family court on August 29, 2002.
This appeal
followed.
Mauser argues on appeal that: (1) the family court
committed clear error and abused its discretion by denying his
motion to modify his child support obligation on the ground that
the children’s reasonable expenses had not increased since its
previous order; (2) the family court committed clear error and
abused its discretion by continuing to rely upon “arbitrary
arithmetic calculations to justify not evaluating and modifying
[his] child support obligation[ ] in a manner consistent with
this Court’s opinion in Downing” [emphasis omitted]; (3) the
family court committed clear error and abused its discretion by
“condon[ing] an apparent personal subsidy [ ] to the appellee as
part of [his] child support [obligation]” [emphasis omitted];
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and (4) the family court committed clear error and abused its
discretion when it “arbitrarily approved as reasonable assigning
80% of the appellee’s housing related costs to the children”
[emphasis omitted].
It is well-established that a trial court’s decision
with respect to child support is reviewed for an abuse of
discretion.8
“The test for abuse of discretion in reviewing the
trial court’s decision is whether the decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.”9
KRS 403.213(1) sets forth the criteria for modifying a
child support order.
The statute provides, in relevant part, as
follows:
The provisions of any decree respecting
child support may be modified only as to
installments accruing subsequent to the
filing of the motion for modification and
only upon a showing of a material change in
circumstances that is substantial and
continuing [emphasis added].
As previously discussed, the family court found that
Mauser had failed to establish a substantial or continuing
change in circumstances with respect to his or Hand’s income.
8
See Downing, 45 S.W.3d at 454 (citing Redmon v. Redmon, Ky.App., 823 S.W.2d
463 (1992)).
9
Clary v. Clary, Ky.App., 54 S.W.3d 568, 570 (2001)(citing Goodyear Tire &
Rubber Co. v. Thompson, Ky., 11 S.W.3d 575, 581 (2000); and Commonwealth v.
English, Ky., 993 S.W.2d 941, 945 (1999)). See also Romstadt v. Allstate
Insurance Co., 59 F.3d 608, 615 (6th Cir. 1995)(“‘A [ ] court abuses its
discretion when it relies on clearly erroneous findings of fact, or when it
improperly applies the law or uses an[ ] erroneous legal standard’”)(quoting
Southward v. South Central Ready Mix Supply Corp., 7 F.3d 487, 492 (6th Cir.
1993)).
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In addition, the family court further found that Mauser had
failed to establish “any substantial increase in reasonable
expenses incurred for the children since [its previous] order
was entered.”
These findings are supported by substantial
evidence contained in the record, and thus, we cannot say that
they are clearly erroneous.10
Likewise, we are unable to
conclude that the family court abused its discretion in denying
Mauser’s motion to modify his child support obligation as he
failed to establish a material change in circumstances that
would warrant a modification.11
Based on the foregoing reasons, the orders of the
Jefferson Family Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
B. Mark Mulloy
Louisville, Kentucky
Sally Hardin Lambert
Louisville, Kentucky
10
Kentucky Rules of Civil Procedure (CR) 52.01; Cherry v. Cherry, Ky., 634
S.W.2d 423, 425 (1982).
11
Mauser claims that his motion to modify his child support obligation was
not based on a material change in circumstances. In sum, he contends that
his motion was based on this Court’s recent holding in Downing. Regardless
of how such a motion is couched, the movant is still required to establish a
material change in circumstances that is substantial and continuing prior to
obtaining a modification of his child support obligation. This he failed to
do.
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