EMMA LOU REED; AND BRYAN GOWIN, HER ATTORNEY v. BRODERICK GLENN REED
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RENDERED:
DECEMBER 22, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002699-MR
EMMA LOU REED; AND
BRYAN GOWIN, HER ATTORNEY
APPELLANTS
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE JOSEPH W. O'REILLY, JUDGE
ACTION NO. 02-CI-503959
v.
BRODERICK GLENN REED
APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; MILLER, SENIOR JUDGE. 1
JOHNSON, JUDGE:
Emma Lou Reed and her attorney, Bryan Gowin,
have appealed from an order of the Jefferson Family Court
entered on November 3, 2003, which denied Emma’s motion for
modification of Broderick Glenn Reed’s child-support obligation
and denied Gowin attorney’s fees.
1
Having concluded that the
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
family court failed to make sufficient findings of fact
regarding the child-support award, we vacate that part of the
order and remand for further proceedings.
Having further
concluded that the family court did not abuse its discretion in
refusing to award attorney’s fees, we affirm on that issue.
Emma and Broderick were married on August 30, 1996, in
Jefferson County, Kentucky.
One child was born during the
marriage, namely Devin Alexander Reed, whose date of birth is
November 17, 1997.
Emma filed a petition for dissolution of
marriage on October 1, 2002.
On December 23, 2002, the parties submitted a handwritten settlement agreement to the family court.
The agreement
provided that the parties would have joint custody of Devin, and
that neither party would pay child support. 2
Broderick was
required to pay all of the daycare expenses until Devin started
kindergarten in August 2003. 3
Thereafter, the parties would
equally divide the child-care costs.
Broderick was to provide
health insurance coverage for Devin, and any non-covered medical
expenses incurred were to be divided equally between the
parties. 4
2
Both parties and their respective attorneys signed the
The agreement stated:
time.”
“No child support shall be due or owing at this
3
Although not specifically stated in the agreement, it is clear that Devin
would primarily reside with Emma based on Broderick’s visitation schedule.
4
The agreement also addressed the division of marital property and debts;
however, these issues are not relevant to this appeal.
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agreement.
The family court entered a decree of dissolution of
marriage on December 27, 2002, which incorporated the settlement
agreement as not unconscionable, but it did not make any other
findings of fact or conclusions of law.
On July 16, 2003, Emma filed a motion to set child
support.
In essence, Emma claimed that Broderick was not
exercising his visitation as set forth in the parties’
settlement agreement, and because of the financial disparity
between the parties she was entitled to child support from
Broderick since she was Devin’s primary custodian, having him in
her custody more than one-half of the time.
Emma’s motion also
requested that Broderick pay the attorney’s fees she incurred in
bringing the motion for child support before the family court.
On July 30, 2003, Emma filed a motion to modify
visitation, wherein she requested that she be allowed to enroll
Devin in school in the district where she resided, and that
Devin be allowed to reside with her during the entire school
week, with Broderick having visitation with Devin every other
weekend.
She also requested that Broderick pay the attorney’s
fees she incurred in bringing the motion to modify visitation.
On August 13, 2003, the family court held a hearing on
Emma’s motion to modify the visitation schedule.
In an order
entered on August 15, 2003, the family court allowed Emma to
enroll Devin in kindergarten in the district where she resided,
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but it did not modify the visitation schedule previously set
forth in the settlement agreement.
However, the family court
did order Broderick to pay the full amount of the child-care
costs until further order of the court.
The motion for
attorney’s fees was passed until the family court entered an
order on the motion to set child support.
On October 22, 2003, the family court held a hearing
on Emma’s motion for child support.
In its order entered on
November 3, 2003, the family court noted that the parties had
previously agreed that neither party would pay child support.
Further, although Broderick was only required to pay one-half of
the child-care costs, he was currently paying the entire amount. 5
The family court stated that “[t]he parties knew going into the
Agreement that that amount of money owed by [Broderick] for
daycare costs would decrease in August 2003, because of both the
reduced cost of childcare once the child entered school and the
understanding that the parties would split the costs of the
after school care evenly.”
The family court denied the motion
for child support on the grounds that no material and continuing
change of circumstances had occurred.
Further, the family court
denied Emma’s requests for attorney’s fees.
On November 12, 2003, Emma filed a motion to alter,
amend, or vacate the family court’s denial of her motion for
5
This statement is inconsistent with the August 15, 2003, order which stated
that Broderick was required to pay the entire amount of the child-care costs.
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child support and attorney’s fees.
November 24, 2003.
Broderick responded on
The family court entered an order on
December 4, 2003, denying Emma’s motion.
This appeal followed.
Emma argues on appeal that the family court abused its
discretion in refusing to modify the parties’ child-support
agreement.
Emma contends that the family court should have
modified the portion of the agreement relating to child support
because of the financial disparity between the parties and the
fact that Broderick had missed several visitation periods with
Devin and she had custody of him over one-half of the time.
In reviewing a determination of child support, we must
determine whether the trial court’s factual findings are clearly
erroneous, whether the trial court applied the correct law to
those factual findings, and whether its ultimate determination
was an abuse of discretion. 6
Where there is evidence of
substance and relevant consequence sufficient to induce
conviction in the minds of reasonable people that supports the
trial court’s finding, that finding is not clearly erroneous. 7
After the trial court applies the correct law to its factual
findings, it is within its sound discretion to make the ultimate
determination setting child support.
For that discretion to be
deemed an abuse of discretion it must constitute arbitrary
6
See Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky.App. 2002).
7
Id.
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action or capricious disposition under the circumstances, at
least an unreasonable and unfair decision. 8
In setting or modifying child support, a family court
has the discretion to deviate from the child-support guidelines. 9
A family court has the discretion to deviate from the guidelines
when it finds that the parties have entered into an agreement
concerning child support and that agreement is not
unconscionable. 10
However, a separation agreement may not
preclude or limit modification of child support, 11 and a family
court retains jurisdiction over child support and is not
permanently bound by the parties’ agreement to forego child
support. 12
After reviewing the record below, we conclude the
family court erred by not making sufficient findings as to
whether a modification of child support would be appropriate
under the circumstances.
Because the parties signed a
settlement agreement three months after Emma filed her petition
for dissolution and agreed that neither of them would pay child
support, the family court at the time of the dissolution did not
8
Sherfey, 74 S.W.3d at 782-83.
9
Rainwater v. Williams, 930 S.W.2d 405, 407 (Ky.App. 1996).
10
KRS 403.180.
1986).
See also Whicker v. Whicker, 711 S.W.2d 857, 859 (Ky.App.
11
KRS 403.180(6).
12
Tilley v. Tilley, 947 S.W.2d 63, 65 (Ky.App. 1997).
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calculate any amount for child support based on the guidelines. 13
When the family court considered Emma’s motion to modify the
award of no child support, it did not have an initial amount of
child support to use as a base in determining whether there was
grounds for a modification, and it failed at that time to
establish what the amount would have been at the time of
dissolution.
On remand, the family court should calculate the
amount at which the child support would have originally been set
based on the guidelines without the parties’ agreement to forego
child support.
This will allow the family court to determine
whether a change in circumstances has occurred that will support
a modification.
While the separation agreement specifically
states “[n]o child support shall be due or owing at this
time[,]” the question is whether a change in circumstances now
entitles Emma to child support. 14
Following its determination of what the original
child-support award would have been, the family court must then
determine, pursuant to KRS 403.213, 15 whether the difference in
13
See Clary v. Clary, 54 S.W.3d 568, 571 (Ky.App. 2001) (stating that “KRS
403.211(3) requires a trial court to make written findings that application
of the guidelines would be unjust or inappropriate in a particular case”).
14
Whicker, 711 S.W.2d at 859 (stating that “[a] parent’s obligation to
support a child may not be absolutely waived by any contract between the
parties”).
15
KRS 403.213 states, in part, as follows:
(2)
Application of the Kentucky child support
guidelines to the circumstances of the parties
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the calculation of what the original award of child support
would have been and the calculation of the current amount of
child support, from the date of the filing of Emma’s motion for
modification, constitutes a change sufficient to support
modification of the child support.
If the original amount of
child support based on the guidelines and the current child
support calculation based on the guidelines differs by 15% or
more, then Emma is entitled to modification of the original
amount of child support based on the guidelines unless the
family court makes specific findings to justify a deviation from
the guidelines pursuant to KRS 403.211. 16
The family court may
at the time of the filing of a motion or
petition for modification of the child support
order which results in equal to or greater than
a fifteen percent (15%) change in the amount of
support due per month shall be rebuttably
presumed to be a material change in
circumstances. Application which results in
less than a fifteen percent (15%) change in the
amount of support due per month shall be
rebuttably presumed not to be a material change
in circumstances.
16
KRS 403.211 states, in part, as follows:
(3)
A written finding or specific finding on the
record that the application of the guidelines
would be unjust or inappropriate in a
particular case shall be sufficient to rebut
the presumption and allow for an appropriate
adjustment of the guideline award if based upon
one (1) or more of the following criteria:
(a)
A child’s extraordinary medical or dental
needs;
(b)
A child’s extraordinary educational, job
training, or special needs;
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also consider the times the parties have possession of Devin and
the expenses that each incurs in determining whether each
party’s expenses have significantly changed so as to affect an
award of child support.
Finally, Emma contends the family court erred by not
ordering Broderick to pay the attorney’s fees associated with
bringing her motions before the family court.
Specifically,
Emma asserts that given the disparity in the financial resources
of the parties, the family court’s decision was an abuse of
discretion.
(c)
(d)
The independent financial resources, if
any, of the child or children;
(e)
Combined monthly adjusted parental gross
income in excess of the Kentucky child
support guidelines;
(f)
The parents of the child, having
demonstrated knowledge of the amount of
child support established by the Kentucky
child support guidelines, have agreed to
child support different from the
guideline amount. However, no such
agreement shall be the basis of any
deviation if public assistance is being
paid on behalf of a child under the
provisions of Part D of Title IV of the
Federal Social Security Act [footnote
omitted]; and
(g)
(4)
Either parent’s own extraordinary needs,
such as medical expenses;
Any similar factor of an extraordinary
nature specifically identified by the
court which would make application of the
guidelines inappropriate.
“Extraordinary” as used in this section shall
be determined by the court in its discretion.
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KRS 403.220 reads, in relevant part, as follows:
The court from time to time after
considering the financial resources of both
parties may order a party to pay a
reasonable amount for the cost to the other
party of maintaining or defending any
proceeding under this chapter and for
attorney’s fees, including sums for legal
services rendered and costs incurred prior
to the commencement of the proceeding or
after entry of judgment. . . .
In a dissolution proceeding, the allocation of attorney’s fees
is “entirely within the discretion” of the family court. 17
As
the family court is in the best position to observe the conduct
and tactics of the parties, broad discretion shall be given to
the family court’s allocation of attorney’s fees. 18
A reviewing
court will not disturb the family court’s refusal to award
attorney’s fees absent an abuse of discretion. 19
A review of the record does not reveal that the family
court’s decision was arbitrary or capricious under the
circumstances.
When Emma and Broderick signed the settlement
agreement, they were both awarded an equitable share of the
marital property, and there was no indication that Emma lacked
the financial resources to pay her attorney’s fees.
17
Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001).
18
Thus, the
Id.
19
See Giacalone v. Giacalone, 876 S.W.2d 616, 620-21 (Ky.App. 1994) (citing
Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990); and Wilhoit v. Wilhoit, 521
S.W.2d at 512).
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family court did not abuse its discretion by refusing to award
attorney’s fees to Emma.
Accordingly, the order of the Jefferson Family Court
as it relates to attorney’s fees is affirmed.
However, as the
order relates to the motion to modify child support, it is
vacated, and this matter is remanded to the family court for
further proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Bryan Gowin
Louisville, Kentucky
Steven S. Reed
Louisville, Kentucky
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