DAVID JOHNSON v. SHERRI JOHNSON
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RENDERED: AUGUST 24, 2007; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001790-ME
DAVID JOHNSON
v.
APPELLANT
APPEAL FROM FRANKLIN FAMILY COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 04-CI-00461
SHERRI JOHNSON
APPELLEE
OPINION
AFFIRMING
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BEFORE: KELLER AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
NICKELL, JUDGE: David Johnson (hereinafter “David”) appeals a final order of the
Franklin Family Court entered August 3, 2006, that recalculated and increased his child
support obligation. We affirm.
David and Sherri Johnson (hereinafter “Sherri”) were wed on October 1,
1993. A daughter was born to their union on December 17, 1994. They separated on
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Senior Judge William L. Knopf 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.
January 12, 2003, and on April 1, 2004, Sherri petitioned the Franklin Family Court to
dissolve the marriage, to award to her full and permanent sole custody of their nine-yearold daughter, and to require David to pay child support pursuant to the statutory
guidelines. Sherri filed a separate motion for temporary custody and child support the
same day seeking monthly support from David in the amount of $760.20. David
responded on April 14, 2004, stating both he and Sherri were fit custodians, that joint
custody was best for their daughter, and that the family court should determine the proper
child support contribution each parent should make based upon the statutory guidelines.
According to David’s calculations, his maximum child support contribution should be
$717.50.
On June 18, 2004, the family court entered an order granting temporary
joint custody to the parties with Sherri being designated as primary residential custodian.
David was awarded timesharing with his daughter every Tuesday and Thursday night and
every other weekend from Friday evening until Sunday. David was ordered to pay
temporary child support to Sherri at a rate of $750.00 per month.
The parties executed a written custody and settlement agreement and filed it
with the family court on November 30, 2004. In it, the parties agreed to “jointly and
equally” share custody of their daughter. The child would spend each Tuesday and
Thursday afternoon and evening with David as well as every other weekend. Both David
and Sherri would share holidays, vacation time, and special occasions with their
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daughter. Each parent would also have two uninterrupted weeks of summer vacation
with the child. Rather than figuring child support pursuant to Kentucky Revised Statutes
(KRS) 403.212(3), David and Sherri chose instead to calculate it using the split custody
arrangement set forth in KRS 403.212(6)(b). A worksheet attached to the signed and
notarized agreement lists Sherri’s monthly gross income as $2,241.00 and David’s as
$5,315.00. They listed the base monthly support for one child at $891.00 which is the
amount listed in the guidelines table for one child with a combined monthly adjusted
parental gross income of $7,600.00. Based upon these figures, they agreed David would
pay to Sherri $356.40 in monthly child support and the parties would equally divide child
care expenses plus the cost of their daughter’s health insurance and any additional
medical, dental, or prescription drug expenses.
On December 7, 2004, the family court entered its findings of fact,
conclusions of law and decree of dissolution. It found the terms of the settlement
agreement executed by the parties were “fair, equitable and not unconscionable” and
incorporated them fully into the decree of dissolution. Thus, David’s monthly child
support obligation was set at $356.40.
On March 3, 2006, Sherri filed a motion to compel David to comply with
the terms of the property settlement. Coupled with the motion to compel was a request
that the family court review the child support calculation because both Sherri and David
were now earning more money and David was not keeping their daughter one-half of the
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time as was anticipated when the child support obligation was originally computed.
Sherri asked that child support now be figured pursuant to the guidelines table rather than
the split custody formula used in the original settlement agreement.
David filed a response and counter-motion on March 27, 2006. He argued
the family court should not review the child support obligation unless Sherri first
demonstrated, as required by KRS 403.213(2), that recalculation would result in at least a
15% deviation from the current base monthly support amount.
On May 4, 2006, the family court entered an order that, among other things,
required Sherri and David to exchange current income information so the child support
obligation could be calculated according to the statutory guidelines. On June 14, 2006,
Sherri again moved the family court to review the child support obligation and to set it
according to the guidelines.
The family court held a hearing on July 17, 2006, at which both Sherri and
David testified. Sherri suggested she had custody of the child more than 50% of the time.
Likewise, David suggested he had custody of the child more than 50% of the time. At
the conclusion of the hearing, the family court ruled from the bench that child support
would be figured pursuant to the statutory child support guidelines and both parents
would share the cost of the child’s dental insurance. Thereafter, David’s attorney asked
for a ruling on whether David would be reimbursed for half of the dental insurance costs
he had already expended. The family court ruled that any amount already paid would be
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considered voluntary and Sherri would be responsible for half of any future cost of their
daughter’s dental insurance. Importantly, during the hearing, no additional findings of
fact were made or requested.
A couple of weeks later, on August 3, 2006, the family court entered a
written order requiring David to pay $637.32 in monthly child support effective March 3,
2006. The order specified support was being computed according to the statutory child
support guidelines and directed the parties to split the cost of their daughter’s dental
insurance. No additional findings or conclusions were included in the order or
subsequently requested by the parties. This appeal followed.
On appeal, David raises two grounds for relief. Both are intertwined and
will be addressed together. The first claim is that the family court erred in reviewing the
child support calculation without first requiring Sherri to demonstrate at least a 15%
change in the amount of total child support that was due. The second claim is that since
Sherri did not prove at least a 15% deviation, the family court abused its discretion in
increasing David’s child support obligation. For her part, Sherri argues that when
correctly computed there is a greater than 15% increase; a family court always retains
authority to review child support matters; and, the increased income of both parties, when
considered together with the amount of time each parent was actually exercising custody
of the child, created a substantial and continuing material change in circumstances that
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justified review and modification of David’s child support obligation. We affirm due to
the lack of preservation of error.
Modifying a child support obligation is generally within the sound
discretion of the court. Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.App. 2000);
Rainwater v. Williams, 930 S.W.2d 405, 407 (Ky.App. 1996). We will not disturb a
family court’s findings unless the decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles. Downing v. Downing, 45 S.W.3d 449, 454
(Ky.App. 2001). In other words, “as long as the trial court gives due consideration to the
parties’ financial circumstances and the child’s needs, and either conforms to the
statutory prescriptions or adequately justifies deviating therefrom, this Court will not
disturb its rulings [citation omitted].” Van Meter, 14 S.W.3d at 572.
KRS 403.180(1) allows parties to a dissolution to enter into an agreement
settling property issues including child custody, child support, and visitation. David and
Sherri executed such an agreement using the split custody formula to calculate the child
support obligation of each parent. However, KRS 403.180(2) specifies the family court
was never bound by the terms of the agreement as it pertained to the couple’s daughter.
Still, in its decree of dissolution, the family court found the terms of the agreement
reached by David and Sherri to be “fair, equitable and not unconscionable,” and fully
incorporated them into the decree including David’s agreed upon child support obligation
of $356.40. Thus, in order to make a change in child support, Sherri, as the party seeking
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the change, was statutorily required to show “a material change in circumstances that is
substantial and continuing.” KRS 403.213(1). By statute, proof of a deviation of 15% or
more “in the amount of support due per month shall be rebuttably presumed to be a
material change in circumstances.” KRS 403.213(2). Conversely, any change that is less
than 15% is “rebuttably presumed not to be a material change in circumstances.” Id.
David contends the required showing of a 15% deviation or more was not
made; Sherri claims it was. Our review is hampered by the lack of any factual findings
upon which the family court based its ruling. From the videotaped hearings and the
written record, we know only that the family court granted Sherri’s motion to recalculate
child support using the statutory guidelines and that by applying the statutory formula,
David’s child support obligation increased from $356.40 a month to $637.32 a month.
What we do not know is why the family court chose to apply the statutory child support
calculation instead of the split custody formula the parties originally employed. While it
was error for the court to modify the support agreement without making findings of fact,
Burnett v. Burnett, 516 S.W.2d 330 (Ky. 1974), we must lay the absence of such findings
of fact at David’s feet because he did not request them as required by Kentucky Rules of
Civil Procedure (CR) 52.04.2 As stated in Adkins v. Adkins, 574 S.W.2d 898, 900
(Ky.App. 1978), a child support modification case relied upon by David in the brief filed
2
CR 52.04 mandates: “A final judgment shall not be reversed or remanded because of the
failure of the trial court to make a finding of fact on an issue essential to the judgment unless
such failure is brought to the attention of the trial court by a written request for a finding on that
issue or by a motion pursuant to Rule 52.02.”
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with this Court, “no judgment shall be reversed for failure to make such findings unless
the failure is brought to the court’s attention in the form of a written request or motion for
said findings.” Having failed to ask the family court to state upon the record its rationale
for reviewing and ultimately recalculating the child support award, David has not
properly preserved this issue for review.3 Furthermore, we have no basis upon which to
find any abuse of discretion by the court. Thus, we affirm the family court’s order.
As an aside, we note that while the family court did not make specific
findings from the bench during the July 17, 2006, hearing or in its August 3, 2006,
written order, there was proof from which it could have found a substantial and
continuing material change in circumstances had occurred and therefore justified review
and modification of the child support award. Both Sherri and David testified during the
July 17, 2006, hearing that they were keeping the child more than 50% of the time. In
light of such conflicting testimony, it would not have been an abuse of discretion for the
family court to modify the agreement of the parties and to recalculate child support
without reference to the split custody arrangement David and Sherri originally
envisioned. Finding no error, we affirm.
3
David claims this issue is preserved by the written response and counter-motion he filed on
March 27, 2006. However, only one paragraph in that pleading references child support. In it,
David argues the annual salary increments both he and Sherri received as state employees and
the additional money he had spent on his daughter, beyond his child support obligation, did not
demonstrate a 15% difference in the total amount of child support due. This brief mention of
child support in a response/counter-motion filed with the family court some four months before
the hearing and five months before entry of the court’s written order does not trump CR 52.04
which requires a party to request a written finding before mounting a challenge.
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For the foregoing reasons, the Order of the Franklin Family Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Judy
Frankfort, Kentucky
Marie Brannon
Frankfort, Kentucky
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