PHILIP G. FIELDS v. THERESE KEELING (now D'EUFEMIA)
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RENDERED:
AUGUST 4, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-000905-MR
PHILIP G. FIELDS
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE KEVIN L. GARVEY, JUDGE
CIVIL ACTION NO. 92-FD-001288
v.
THERESE KEELING (now D’EUFEMIA)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; HUDDLESTON,1 SENIOR JUDGE.
HUDDLESTON, SENIOR JUDGE:
Philip G. Fields, a physician, and
Therese Keeling (now D’Eufemia), a psychiatrist, were married in
Louisville, Kentucky, in March 1990.
Just over two years later,
in June 1992, Fields filed a petition seeking dissolution of the
parties’ marriage; and in December of that year, their marriage
was dissolved.
Prior to the dissolution, Fields and Keeling entered
into a voluntary agreement resolving the issue of custody of
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
their only child, Carol Elaine Fields, born October 12, 1990.
Fields and Keeling agreed to joint custody of Carol with Fields
having physical custody of Carol for six consecutive nights and
Keeling having physical custody of the child for the next eight
consecutive nights.
For all practical purposes, Keeling acted
as the child’s primary residential custodian.
Fields and
Keeling also agreed that neither would pay child support but
that each party would be responsible for supporting Carol during
their respective parenting time.
In April 2004, Fields moved to modify the custody
arrangement by naming him primary residential custodian and
permitting him to take Carol with him if he were to move from
Louisville.
In an affidavit accompanying his motion, Fields
stated that he had received a prestigious two-year fellowship
from Rush-Presbyterian-St. Luke’s Medical Center in Chicago,
Illinois, and would be moving to that city.
Later, Fields
withdrew his motion.
On June 8, 2004, Keeling filed a motion with Jefferson
Family Court seeking child support from Fields.
In a January
11, 2005, order, Fields was ordered to pay child support to
Keeling.
In doing so, the family court noted that by taking the
fellowship, Fields’ income dropped from over $100,000.00 a year
to $47,000.00 a year.
However, instead of using Fields’ new,
lower income to calculate child support, the court took the
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average of Fields’ income from the previous five years, 1999 to
2003, $157,867.00 or $13,155.00 per month.
The court determined
that Keeling’s annual gross income was $194,771.00 or $16,230.00
per month.
According to Keeling, Carol’s reasonable monthly
living expenses were $4,672.00.
The family court rejected this
amount and determined that the child’s monthly living expenses
were $1,982.00, including $542.00 for Carol’s tuition.
The
court found that Fields was responsible for 44.77% of Carol’s
monthly living expenses or $887.34.
Fields was ordered to pay
$887.34 in monthly child support beginning June 8, 2004, the
date Keeling filed the motion seeking child support.
On January 21, 2005, Fields moved the court, pursuant
to Kentucky Rules of Civil Procedure (CR) 59.05, to amend its
order.
Fields argued that the family court had abused its
discretion when it ordered him to begin making child support
payments on June 8, 2004, because he had physical custody of
Carol during most of the month of June.
And, although he had
moved to Chicago by July 1, 2004, he argued that the court
should have ordered support payments to begin on August 1, 2004,
because he and Keeling had a long history of sharing custody.
Fields also argued that the court abused its discretion when it
used the five-year average of his income to calculate his child
support obligation.
According to Fields, the family court
should have used his new income of $47,000.00.
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Fields contended that Carol’s monthly expenses of
$1,982.00 appeared to include a pro-rata share of the mortgage
payments that Keeling owed on two different homes.
Arguing that
the inclusion of Keeling’s mortgage payments was unjust, Fields
insisted that his monthly child support payments should be
reduced by $250.00.
Furthermore, Fields insisted, he should not
have to contribute to Carol’s monthly tuition expenses because
his annual income would be $47,000.00 for the next two years,
while Keeling’s income was higher than his and because he had
paid Carol’s tuition from third grade to the eighth grade.
Although the family court did reduce Fields’ monthly
child support payments from $887.34 to $820.19, it denied the
balance of his motion to alter or amend its previous order.
On appeal, Fields argues that Jefferson Family Court
abused its discretion when it ordered him to begin making child
support payments as of June 8, 2004.
Fields insists that the
court was not required to use the date that Keeling filed her
motion and that using the June date was unfair because Keeling’s
motion was premature in that she filed it before he moved to
Chicago.
In addition, since he had physical custody of Carol
during most of June 2004 and given that the parties had a long
history of sharing custody, Fields contends that his support
obligation should have been effective as of August 1, 2004.
-4-
Family courts have broad discretion to consider a noncustodial parent’s income and assets when fixing a child support
obligation.2
On appeal, we give great deference to the family
court in such matters and will not disturb the court’s decision
as long as it is in accord with the guidelines found in Kentucky
Revised statutes (KRS) 403.212.3
If, however, the court deviated
from the guidelines, we will still affirm if it adequately
justified the deviation in writing.4
Despite this, the family
court’s discretion is not unlimited.
If the decision is
arbitrary, unreasonable, unfair or unsupported by sound legal
principles, the court has abused its discretion and we will
reverse its order.5
While Fields makes it abundantly clear that he
believes that the family court’s entire order was unfair, he
fails to demonstrate that the decision ordering his child
support payments to begin on June 8, 2004 was arbitrary,
unreasonable, unfair or unsupported by sound legal principles.
Fields also insists that the family court abused its
discretion when it used a five-year average of his income to
determine his child support obligation.
According to Fields,
2
Downing v. Downing, 34 S.W.3d 449, 454 (Ky.App. 2001).
3
Id.
4
Id.
5
Id.
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child support could have accrued only from July 2004, after he
had moved to Chicago.
In addition, Fields insists that the
family court abused its discretion when it considered his entire
gross income for the year 2000.
According to Fields, while he
earned approximately $308,000.00 in 2000, $231,000.00 of that
amount represented capital gains.
Fields claims that such
capital gains will never be repeated; thus, he reasons, the
court should not have factored in such income.
In addition,
Fields claims that 75% of his current income is spent on
housing.
Thus, he insists, the child support obligation fixed
by the court is unreasonable.
In short, he insists, he cannot
afford to pay the amount set by the court.
According to KRS 403.212(2)(d), if a parent is
voluntarily underemployed, then the family court may calculate
his child support obligation by ascertaining his potential
income by considering his probable earnings level based on his
recent work history, his occupational qualifications, the
prevailing job opportunities in the community and the earning
levels in the community.6
Fields voluntarily chose to accept the
fellowship in Chicago knowing he would earn less money, so he
was voluntarily underemployed as defined by KRS 403.212(2)(d).
Accordingly, the family court did not abuse its discretion by
using the five-year average of Fields’ income in fixing his
6
Id.
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child support obligation.
Nor did the family court abuse its
discretion by factoring in Fields’ capital gains since gross
income, as defined by KRS 403.212(2)(b), specifically includes
capital gains.
The family court found that Carol’s reasonable monthly
expenses were $1,920.00.
According to Fields, in determining
this amount, the court included the monthly mortgage payment
Keeling owes on a piece of investment property, an amount that
was unreasonable to include when it calculated Carol’s monthly
living expenses.
If a child’s parents have a combined monthly income in
excess of the guidelines found in KRS 403.212 and the family
court specifically makes such a finding, then it may deviate
from the guidelines.7
In the present case, there is no dispute
that the parties combined monthly income exceeds the maximum
monthly income set forth in the guidelines, so the court did not
abuse its discretion when it deviated from the guidelines.
When
the family court deviates from the guidelines, it must consider
the reasonable needs of the child8 and must set support in an
amount that is reasonably and realistically related to the
child’s needs.9
7
Id. at 454.
8
Id. at 455.
9
In determining the child’s reasonable needs, the
Id. at 456.
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court must consider the standard of living that the child
enjoyed both during the marriage and after the dissolution.10
The court should also take into account the parties’ financial
circumstances, their station in life, their age, their physical
condition and the cost of educating their child.11
Despite
Fields’ insistence to the contrary, the court considered these
factors in setting his support obligation.
Simply because
Fields disagrees with the determination does not mean that the
court abused its considerable discretion.
Keeling insisted below that Carol’s reasonable monthly
expenses were $4,672.00 which included $600.00 for two mortgage
payments she owed.
However, the family court rejected Keeling’s
estimate and found that Carol’s reasonable monthly expenses were
$1,920.00.
There is no indication that the court took into
account Keeling’s mortgage payments when it calculated Carol’s
monthly expenses.
Fields has failed to demonstrate that the
court abused its discretion.
Lastly, Fields argues that the family court abused its
discretion when it included the cost of Carol’s tuition
expenses.
Fields says that including Carol’s tuition was
inequitable because for the previous five years he paid her
entire tuition and thus has contributed enough to Carol’s
10
Id. at 457.
11
Id.
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education.
In any event, because Keeling earns more money, she
can easily afford to pay Carol’s entire tuition.
In determining a child’s reasonable monthly living
expenses, the family court is to consider “expenses in educating
the children.”12
Jefferson Family Court considered Carol’s
educational expenses as required by this Court in Downing v.
Downing; thus, it did not abuse its discretion.
The order from which this appeal is prosecuted is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Victoria Ann Ogden
OGDEN & OGDEN
Louisville, Kentucky
William L. Hoge, III
Louisville, Kentucky
12
Id. at 457.
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