RAYBURN HILDABRAND v. KIMBERLY A. HILDABRAND
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RENDERED:
December 23, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001351-MR
RAYBURN HILDABRAND
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE PATRICIA WALKER FITZGERALD, JUDGE
ACTION NO. 99-FC-009749
KIMBERLY A. HILDABRAND
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE:
Rayburn Hildabrand, Jr. appeals from an order
of the Jefferson Family Court denying his motion to alter,
amend, or vacate a February 19, 2003, order addressing
maintenance, child support, and attorney fees.
For the reasons
stated herein, we affirm the order on appeal.
Rayburn and Kim were married in Jefferson County on
September 14, 1985.
The marriage produced three children.
Kimberly filed a petition in Jefferson Family Court seeking to
dissolve the marriage.
Thereafter, all issues arising from the
divorce were resolved by way of a property settlement agreement
executed on November 20, 2000.
counsel.
Both parties were represented by
The property settlement agreement was accepted by the
trial court and incorporated into a decree of dissolution
rendered November 22, 2000.
When the property settlement agreement was executed,
Rayburn was employed as a sales contractor for FedEx Custom
Critical.
His average salary derived from 1099 forms for the
preceding three years was $115,000 per year.
Kim worked
approximately 30 days per year as a substitute teacher, but
devoted most of her time as a stay-at-home mother.
The property settlement agreement stated that Rayburn
agreed to pay $1,412 per month in child support and $2,250 in
maintenance until September, 2004.
Beginning in October, 2004,
the child support obligation rose to $1,549 per month, and
maintenance was reduced to $740 per month.
The agreement went
on to provide that the maintenance obligation could be reduced
if Rayburn’s income for all sources fell below $95,000.
In February, 2002, Rayburn filed a motion to reduce
the child support and maintenance obligation claiming that he
had suffered a reduction in income.
The following month, Kim
moved for an award of attorney fees and also moved to hold
Rayburn in contempt for failing to pay preschool, medical and
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orthodontic expenses of the children as required by the
agreement.
A hearing on the matter was conducted by a Domestic
Relations Commissioner.
At issue was whether Rayburn’s income
had fallen below the $95,000 threshold established in the
property settlement agreement.
Rayburn offered proof that his
gross income before taxes and deductions was $129,000 in 1999,
$134,600 in 2000, and $95,000 in 2001.
After business expenses
were deducted, he argued that his adjusted gross income in 2001
was $54,987.
Kim questioned the business expenses and the
method by which they were calculated.
Upon considering the record, the Commissioner rendered
recommendations finding that Rayburn’s adjusted gross income in
2001 was $51,102.
The Commissioner opined that Rayburn’s
average income had declined below the $95,000 threshold set
forth in the property settlement agreement, and recommended that
the maintenance obligation be reduced to $1,305.
The
Commissioner also recommended that child support be reduced to
$699.36 per month.
The Commissioner went on to find that
Rayburn should be held in contempt for failure to pay certain
costs related to the children’s care, and denied Kim’s motion
for attorney fees.
Kim filed exceptions to the Commissioner’s
recommendations.
She maintained that the Commissioner
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improperly deducted Rayburn’s business expenses in calculating
his income, since the parties did not factor in business
expenses in arriving at the amount of maintenance set forth in
the property settlement agreement.
The Jefferson Family Court
was persuaded by this argument, and held that the parties’
income should be calculated in the same manner as the original
agreement.
The court entered an order to that effect on
February 19, 2003.
The court went on to rule that Rayburn was
not entitled to a reduction in the maintenance obligation since
his gross income was in excess of $95,000.
It also ruled that
the slight reduction in Rayburn’s income was not a substantial
and continuing change of circumstances that would justify a
reopening of the parties’ agreement and a modification of child
support.
Lastly, it ordered Rayburn to pay $2,000 towards Kim’s
attorney fee because of the disparity of the parties’ incomes.
Rayburn responded with a motion to alter, amend or
vacate the February 19, 2003, order.
The trial court entered an
order on June 4, 2003, denying his motion to alter, amend or
vacate the February 19, 2003, order as to maintenance, but
granting it as to child support.
The court opinion that KRS
402.212(2)(c) allows for the deduction of business expenses from
gross income when child support is calculated.
It recalculated
Rayburn’s income to reflect a $1,267 deduction, and found that
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he was entitled to a reduction of $230 per month (to $1,182) in
the child support obligation.
On June 11, 2003, Rayburn filed another motion to
alter, amend or vacate the February 19, 2003, order.
The motion
was denied, and this pro se appeal followed.
We must first note that Rayburn’s pro se brief fails
to comply with numerous provisions of Kentucky Rules of Civil
Procedure (CR) 76.12.
The brief fails to contain an
introduction, a statement of points and authorities, and a
statement of the case and argument conforming to the statement
of points and authorities.
It also fails to contain a statement
with reference to the record showing whether the issues were
properly preserved for review and, if so, in what manner.1
While
we are aware of the difficulties of proceeding pro se and afford
pro se parties a degree of latitude, we may strike a brief and
dismiss an appeal for failure to comply with the civil rules.2
This alone would form a sufficient basis for our decision to
affirm the February 19, 2003 and June 4, 2003, orders.
Nevertheless, we have closely examined Rayburn’s
arguments and find no error.
He first maintains that the trial
court erred in denying his motion to reduce his maintenance
obligation.
He claims that when calculating his income for
1
CR 76.12(4)(c)(v).
Skaggs v. Assad, By and Through Assad, Ky., 712 S.W.2d 947 (1986); Yacom v.
Jackson, Ky., 502 S.W.2d 524 (1973); Sharp v. Sharp, Ky., 491 S.W.2d 639
(1973).
2
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purposes of his motion to alter, amend or vacate, he should be
entitled to deduct business expenses.
He argues that the amount
of maintenance set forth in the property settlement agreement
was not based on his income, but rather was simply an amount to
which the parties agreed.
As such, he claims that it may be
modified based upon his adjusted gross income falling below
$95,000.
Since his income, minus business expenses, is well
below the $95,000 threshold set forth in the property settlement
agreement, he argues that he is entitled to a reduced
maintenance obligation.
In examining the question of maintenance, the trial
court noted that the property settlement agreement did not
reflect a deduction of business expenses when the parties fixed
his income in the agreement at $115,000.
Since the parties did
not deduct business expenses when calculating his income in the
property settlement agreement, the trial judge determined that
the same method of calculating income should be used for
purposes of Rayburn’s motion to alter, amend or vacate.
We do
not believe the court erred in reaching this conclusion.
Rayburn contends that KRS 403.212(2)(c) should operate
to allow him to deduct business expenses when calculating income
for purposes of establishing maintenance.
however, applies only to child support.
This statute,
It provides, in
relevant part, that, “[F]or income from self-employment, rent,
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royalties, proprietorship of a business, or joint ownership of a
partnership or closely held corporation, ‘gross income’ means
gross receipts minus ordinary and necessary expenses required
for self-employment or business operation.”
It goes on to state
that, “[I]ncome and expenses from self-employment or operation
of a business shall be carefully reviewed to determine an
appropriate level of gross income available to the parent to
satisfy a child support obligation.”
(Emphasis added).
The
statute is styled “[C]hild support guidelines; terms to be
applied in calculations,” and the trial court correctly
concluded that it only applies to the means by which income is
established for purposes of calculating child support.
It does
not apply to the calculation of income for the purpose of
establishing maintenance.
Common sense and equity also dictate
that the same method of calculating income in the property
settlement agreement should be used when calculating income for
the purpose of reducing the maintenance obligation.
Accordingly, we find no error on this issue.
Rayburn next argues that though the trial court
ultimately sustained his motion seeking a reduction in child
support, the court abused its discretion in failing to order an
even greater reduction.
The trial court relied on KRS
403.212(2)(c) which, as noted above, requires business
deductions to be utilized in determining income for purposes of
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establishing child support.
Rayburn does not take issue with
the court’s reliance on this provision, but rather argues that
the court improperly failed to accept all of his tendered
business deductions.
We find no error in this issue because evidence is
contained in the record upon which the trial court reasonably
calculated Rayburn’s business deductions and the resultant
income figure.
While the court did not accept all of the
proffered deductions, Rayburn has offered little in the way of
proving that the trial court’s refusal to accept all of the
deductions constitutes an abuse of discretion.
The court found
that Rayburn was entitled to a diminution of $230 in child
support per month based on the business deductions it accepted
as properly proven.
and law,3
We regard this as a mixed question of fact
which will not be disturbed absent a showing of abuse
of discretion.4
“Abuse of discretion in relation to the exercise
of judicial power implies arbitrary action or capricious
disposition under the circumstances, at least an unreasonable
and unfair decision.5
The trial court did not engage in an
arbitrary or capricious exercise of judicial power resulting in
3
The trial court resolved the factual issues regarding which deductions were
proven by credible evidence, then applied its findings to the law to
determine the amount of child support to which Kim was entitled.
4
Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777 (2002), citing Bickel v. Bickel,
Ky., 442 S.W.2d 575, 577 (1969).
5
Sherfey, citing Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679 (1994).
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an unreasonable and unfair decision, and as such, we find no
error.
Rayburn’s final argument is that the trial court’s
award of attorney fees constituted an abuse of discretion.
He
claims that Kim should not be entitled to any attorney fees
because the trial court incorrectly calculated the parties’
incomes.
He maintains that when his maintenance, child support,
and other obligations arising from the dissolution are
considered, the income differential between the parties is
heavily weighed in Kim’s favor.
As such, Rayburn argues that he
should not have to pay attorney fees to Kim and that the trial
court erred in failing to so rule.
The trial court may exercise broad discretion in
awarding attorney fees and costs.6
The award of $2,000 in
attorney fees to Kim does not constitute an abuse of discretion
when taken in the context of the parties’ finances, and in light
of the fact that some of the fees were incurred when Kim sought
reimbursement for unpaid medical expenses.
Accordingly, we
cannot conclude that the trial court erred on this issue.
For the foregoing reasons, we affirm the order of the
Jefferson Family Court.
ALL CONCUR.
6
Neidlinger v. Neidlinger, Ky., 52 S.W.3d 513 (2001).
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rayburn Hildabrand, Jr.
Louisville, KY
Melanie Straw-Boone
Louisville, KY
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