COMMONWEALTH OF KENTUCKY, EX REL., SHARON ARLINGHAUS v. STEVE ARLINGHAUS
Annotate this Case
Download PDF
RENDERED:
APRIL 14, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000404-MR
COMMONWEALTH OF KENTUCKY, EX REL.,
SHARON ARLINGHAUS
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, SPECIAL JUDGE
CIVIL ACTION NO. 95-CI-01815
v.
STEVE ARLINGHAUS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
MINTON AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
MINTON, JUDGE:
The Commonwealth of Kentucky, ex rel., Sharon
Arlinghaus, appeals from an order of the Kenton Circuit Court
reducing Steve Arlinghaus’s monthly child support obligation.
Sharon has presented nothing to show that the trial court’s
decision to reduce Steve’s child support was contrary to the
evidence or the law.
1
Therefore, we affirm.
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 Kentucky Revised Statutes (KRS) 21.580.
Steve and Sharon divorced in 1996 when three of their
five children were minors.
While the divorce was pending, Steve
and Sharon entered into a property settlement agreement.
Section 8.07 of that agreement provided that the $727.00 per
month child support owed by Steve to Sharon was subject to
annual review by application of the child support guidelines
found at KRS 403.213.
Furthermore, that section of the
agreement provided that “[f]or the year[s] 1996 through 1999,
the parties agree, income from the Investment Properties as
identified in Section 10.01 shall be excluded from computation
of child support.”
But the next sentence of the agreement
provided that “‘[i]ncome’ referred to herein, shall include
income from all sources with reference to the Investment
Property, including capital gains.”
The circuit court
incorporated the settlement agreement into its decree of
dissolution of marriage.
Steve’s child support obligation was reduced in 1997
and, again, in 1999, each when one of the children reached the
age of majority.
The court’s 1999 order set Steve’s child
support obligation at $445.00 per month.
In November 2003,
however, the trial court granted Sharon’s motion to increase
Steve’s child support obligation, largely due to an increase in
his income, and raised his monthly obligation to $529.53.
-2-
In December 2004, Steve filed a motion to reduce the
amount of child support, citing a reduction in his wages due to
his prior unemployment and recent opening of his own real estate
company.
After averaging Steve’s 2004 income with his
2003 income, the court determined that Steve’s monthly earning
capacity was $3,295.00 per month, a significant drop from the
$4,479.00 monthly income it found him to have in November 2003.
So the court granted Steve’s motion and reduced his child
support obligation to $350.62 per month.
This appeal followed.
As best we can decipher Sharon’s brief, she makes
three arguments.
First, she contends that the trial court erred
by failing to include Steve’s disability payments when
determining his monthly income.
Second, she argues that the
trial court erred by failing to take Steve’s rental property
income into account in determining his monthly income.
Finally,
she argues that the trial court should have found Steve to be
voluntarily unemployed.
We reject each of these arguments.
We agree with Sharon that Steve’s disability payments
must be taken into account in determining his monthly gross
income, because KRS 403.212(2)(b) requires disability payments
to be included in assessing a person’s gross income for child
support calculation purposes.
But we disagree with Sharon’s
contention that the trial court failed to take Steve’s
disability payments into account.
-3-
The order in question recites
that it took into account the income Steve received “from all
sources in 2004[.]”
Furthermore, the mathematics required to reach the
court’s conclusions show that Steve’s disability payments were
considered.
The court found that Steve’s earning capacity was
“3,295.00 per month by averaging the income he received from all
sources in 2004 with the average monthly income imputed to him
in 2003 of $4,479.00.”
The mathematical formula used by the
trial court is as follows:
$4,592.00 (unemployment payments) +
$2,700.00 (disability payments) + $18,044.00 (real estate
business income) = $25,336.00 (total 2004 income).
$25,336.00 +
$53,748.00 ($4,479.00 monthly income from 2003 x 12 months) =
$79,084.00 (combined 2003 and 2004 income) / 24 (total months in
2003 and 2004 combined) = $3,295.17 (average monthly income from
2003 and 2004).
Thus, it is clear that the trial court took
Steve’s disability payments into account in arriving at his
$3,295.00 monthly earning capacity.
Next, we agree with Sharon that Steve’s rental
property income should have been taken into account in
determining his child support obligation because the settlement
agreement’s three-year window for excluding such income had
expired.
But the 2004 Form 1040 Schedule E, Supplemental Income
and Loss from rental real estate, provided by Steve, showed that
he had $2,301.00 in rental real estate losses in 2004.
-4-
Although
the Schedule E submitted by Steve bears a notation that it is
not final, the circuit court has the sole authority to choose
what evidence to believe; and there is no tangible proof that
the form submitted by Steve is inaccurate, especially in light
of the fact that Steve submitted Schedules E from earlier years
that also showed rental real estate losses.
And as noted above,
the trial court’s order expressly stated that it took Steve’s
income from all sources into account in determining his child
support obligation.
So we reject Sharon’s argument that the
trial court should have added additional income from rental
properties in assessing Steve’s monthly income.
Finally, Sharon argues that the trial court erred by
not finding Steve to be underemployed because he turned down a
job paying $40,000.00 per year.
But a $40,000.00 annual salary
represents a $3,333.00 monthly income, a figure very near the
$3,295.00 monthly income found by the trial court for Steve.
And Steve testified that his search for higher paying employment
was unsuccessful, which led him to open his own real estate
company.
That company did not produce large revenue during its
infancy, which resulted in a diminution of Steve’s income.
the trial court did not err by refusing to find Steve to be
underemployed because there was evidence to support his
-5-
So
contention that his change of occupation, and concomitant
decrease in income, was done in good faith.2
We may only disturb a trial court’s assessment of
child support if that assessment represents an abuse of
discretion.3
There is ample support in the record for the trial
court’s findings, and the legal conclusions of the trial court
are consistent with the law.
Therefore, we must affirm.
For the foregoing reasons, the Kenton Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gabrielle Summe
Covington, Kentucky
Steve Arlinghaus, Pro se
Villa Hills, Kentucky
2
See 16 L. GRAHAM & J. KELLER, KENTUCKY PRACTICE, DOMESTIC RELATIONS
LAW § 24.27 (2d ed. West Group 1997) (“[i]n the past, parents have
been permitted employment changes under a good faith standard. If
the obligor showed that his change in occupation was not related to
an attempt to avoid child support, then his income was determined
through his current employment because he was not underemployed.”).
3
Wilhoit v. Wilhoit, 521 S.W.2d 512, 513 (Ky. 1975).
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
