ERIC K. BUCKLEY v. RENEE BUCKLEY
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RENDERED:
DECEMBER 8, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002050-MR
ERIC K. BUCKLEY
v.
APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 03-CI-00126
RENEE BUCKLEY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: TAYLOR, JUDGE; ROSENBLUM,1 SENIOR JUDGE; MILLER,2 SPECIAL
JUDGE.
MILLER, SPECIAL JUDGE:
Eric Buckley appeals from a judgment of
the Henry Circuit Court determining that he had accrued a child
support arrearage of approximately $750.00 and requiring the
establishment of a joint checking account by the parties from
which certain expenses for the benefit of the parties’ minor
1
Senior Judge Paul W. Rosenblum, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
2
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
children were to be paid.
For the reasons stated below, we
affirm.
The parties were married on January 21, 1984.
children were born of the marriage.
Three
On May 13, 2003, Eric filed
a petition for dissolution of marriage.
On July 29, 2003, the
circuit court entered a final decree of dissolution, which
incorporated a settlement agreement executed by the parties.
The settlement agreement provided that the parties
would have “true joint custody” of the children, with physical
custody alternating weekly, with neither party paying child
support to the other.
The agreement also provided that Eric
would pay “100% reimbursed meds, prescription and eyeglasses not
covered by insurance.”
On October 19, 2004, Renee filed a motion to establish
child support based upon material changes in circumstances,
including changes in the parties’ incomes and payment of marital
debt.
On December 14, 2004, the circuit court entered an order
requiring Eric to pay child support of $70.20 per week.
The
order also determined that Eric owed an arrearage of $577.41
from the date of the filing of the motion, and that
extraordinary medical expenses should be prorated at 65% to Eric
and 35% to Renee.
On July 21, 2005, Renee filed a “Motion for
Contempt/For Order Detailing Expenses to be Paid by Each Party.”
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The motion alleged that Eric had failed to pay $742.77 in pastdue child support.
The motion also requested that “the Court
entered an Order detailing exactly what fees each party is to
pay for the children.”
The motion alleged that since the child
support order had been entered that “the Petitioner has refused
to pay for any items for the children, even when they are in his
care[.]”
Eric filed a cross-motion for modification of the
child support order.3
On September 21, 2005, the circuit court entered an
order determining that Eric had a child support arrearage of
“approximately $750.00” and establishing a plan whereby a joint
checking account would be set up.
Under the plan, the checking
account would initially be funded with the $750.00 arrearage,
and thereafter supplemented at the rate of $65.00 per month by
Eric and $35.00 per month by Renee.
The purpose of the account
would be to pay various expense items relating to the children
upon which the parties’ had been unable to agree.
Before us, Eric contends that the circuit court erred
by determining that he had incurred a $750.00 arrearage and by
establishing the joint checking account.
The circuit court’s September 21, 2005, order stated,
in relevant part, as follows:
3
We are unable to locate a copy of this motion in the record.
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Testimony before the Court now shows that
the husband did not make full monthly
payments of the ordered child support until
a wage assignment was put in place on
February 25, 2005. Prior to that time, and
including the period covered by the Court’s
prior arrearage, the petitioner subtracted
from the curt ordered child support amounts
that he paid for miscellaneous items on
behalf of the children. It was the
petitioner’s testimony that by paying child
support to his wife, it was his wife’s
obligation to pay virtually all school and
related expenses for the children.
The Court finds that the petitioner has
misinterpreted the child support award. In
fact, the Court by using the comparison
method of child support for parties that
share 50/50 custody split was merely
recognizing a difference in the earning
potential of the two parties. The child
support ordered is to insure that both
parties are able to provide a safe and
stable home for the children when they are
with that party. In no way does it mean
that $303.95 per month is sufficient to pay
all of the expenses necessary in raising
three teenagers.
The parties have been through mediation on
this issue and appeared before the Court
with both parties telling the Court they
needed some direction. After hearing
testimony, it is certainly evident to the
Court that these parties need directions as
to how to provide for their children. Given
the difficulties shown to date, the Court
devises the following plan which should
alleviate many of the problems.
First, the Court notes that the parties
enjoy a 50/50 custody split with the
children. The children spend one week with
the mother and one week with the father. It
is incumbent on the parents to pay the
normal out of pocket expenses for their
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children during the time the children are
with them. This means that all meals,
breakfast, lunch, and dinner should be paid
for by the parent who has custody on that
given day. This includes school lunches.
Incidental expenses for the children,
including, for example, going to the movie
theater or small items of supply and
clothing should be paid for by the parent
with custody at that time. Each parent has
a responsibility to make sure the child is
wearing clothes that are suitable, the right
size and not overly frayed.
The Court also finds that the current
support arrearage owed by Mr. Buckley to Ms.
Buckley is approximately $750.00.
The Court orders Mr. Buckley to open a
checking account with an initial deposit
from him of $750.00. That checking account
must be maintained for the benefit of the
children and shall have checks that may be
signed by either Mr. Buckley or Ms. Buckley.
Beginning on October 1, 2005 and
subsequently on the first date of each
month, Mr. Buckley is ordered to deposit
$65.00 into this joint children’s’ account.
Ms. Buckley is ordered to deposit $35.00 at
the first day of each month into the joint
children’s’ account. This joint children’s’
account will be used for the following
items:
A. Any and all unreimbursed medical
expenses may be paid for by direct check out
of the joint children’s account. This
includes co-pays for doctor visits and
prescribed medicines. It does not include
incidentals such as soap, toothpaste, nonprescription medicines and other over the
counter items that should be bought by the
parents while they have custody of the
children.
B. The funds in the joint children’s
account may also be used by either party to
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pay any and all school fees. School fees
are defined as any payments related to the
children’s education that is made payable to
the school or the school system. This does
not include school lunches, but it does
include such items as student fees, athletic
participation fees, field trips, books, and
other items or services that are purchase
through the school.
C. The fund in the joint children’s
checking account may also be used for
Nikki’s tutoring which commenced prior to
the separation of the parties and continues.
D. The parties may also agree in writing to
use these funds for any other matter for the
children, such as supplies for school,
vacations, etc. The Court will require both
parties to keep a full record of any
expenses they make out of the joint
children’s account and to keep written
record of any agreement of these expenses
which are not unreimbursed medical expenses,
school fees, or tutoring for Nikki. The
best way to keep these records is for the
parties to email their request or agreement
with one another and to print out and keep a
copy of the emails.
E. Twice per year, once in the month of
April and once in the month of August, the
parties are to withdraw monies from the
joint children’s account to provide clothing
for the three children. At no time should
the draw of monies for clothing bring the
account balance to below $400.00. The
parties must also agree as to which parent
is to take the children shopping for clothes
and a dollar amount to be assigned either in
total or for each child.
By maintaining the above referenced joint
children’s account, the parties should be
able to 1) anticipate their likely out of
pocket costs for these expenses and 2) share
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in these expenses in an amount comparable to
their relative earning capacities.
It is evident to the Court that the parties
are raising three intelligent and active
children. It is a testament to the parents
that the children have not been involved in
the minutia of cost disputes which have
engaged the parties. The Court recommends
that it be kept that way. Neither party is
to discuss with the children the financial
arrangements between the parties or the
reluctance of one party or the other to
agree to pay for a certain thing. It is
also the Court’s recommendation that the
parties communicate, whether by phone or by
email, to insure that the best interest of
the children are met. By using the
children’s joint account, they should be
able to use their funds and resources for
the children and not for attorney or
mediator fees.
There is conflicting evidence concerning the issue of
the $750.00 arrearage which presented a factual question for the
circuit court.
As such, its findings may not be disturbed
unless found to be clearly erroneous.
Kentucky Rules of Civil
Procedure 52.01; Story v. Story, 423 S.W.2d 907, 908 (Ky. 1968).
This we do not find.
Renee testified and presented documentary
evidence in support of her claim of the arrearage, and this
testimony and evidence is substantial evidence supporting the
finding of the circuit court.
Hence, we find no error in the
circuit court’s determination that Eric was in arrears on his
child support obligation in the amount of $750.00.
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Eric also contends that the circuit court erred by
requiring the establishment and maintenance of a joint checking
account from which various expenses related to the children
would be paid.
Eric contends that the requirement that the
account be established represents a deviation from the child
support guidelines.
court’s order.
We, however, do not so construe the circuit
Rather, we construe the order as merely the
enforcement of its prior orders requiring that the parties share
in the children’s school, recreational, and extracurricular
activities expenses.
Courts have inherent power to enforce compliance with
their lawful orders.
(Ky. 1993).
Blakeman v. Schneider, 864 S.W.2d 903, 906
The record supports the determination by the
circuit court that Eric had “misinterpreted the child support
award” by deducting normal expenses, for which he was
responsible, from his child support obligation.
This, in turn,
lead to the accruing of an arrearage and ongoing dissension
between the parties regarding these routine expenses.
A trial judge has a broad discretion in determining
what is in the best interests of children.
S.W.2d 790, 793 (Ky. 1983)
Krug v. Krug, 647
In many instances he will be able to
draw upon his own common sense, his experience in life, and the
common experience of mankind and be able to reach a reasoned
judgment concerning the likelihood that certain conduct or
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environment will adversely affect children.
Id.
The
circumstances of this case require that we defer to the circuit
court on the proper resolution of the ongoing dissension between
the parties concerning expenses for the children.
The circuit
court has fashioned a practical remedy to the problem, and we
will not second-guess its judgment.
Finally, we note that the intent of the plan is not to
have Eric pay more in expenses as a result of the joint checking
account plan than he would otherwise; rather, amounts for which
he would otherwise have been responsible will be paid from the
joint account rather than his personal account.
In summary,
under the unique circumstances of this case, we cannot conclude
that the circuit court abused its discretion by requiring the
establishment of the joint checking account.
For the foregoing reasons the judgment of the Henry
Circuit Court is affirmed.
TAYLOR, JUDGE, CONCURS.
ROSENBLUM, SENIOR JUDGE, CONCURS IN RESULT.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Virginia Lee Harrod
New Castle, Kentucky
Alan Q. Zaring
New Castle, Kentucky
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