BELL (RUSSELL WAYNE) VS. BELL (BETH ANN)
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RENDERED: MAY 23, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001368-MR
RUSSELL WAYNE BELL
v.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIM FEELEY, JUDGE
ACTION NO. 06-CI-00326
BETH ANN BELL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DIXON AND NICKELL, JUDGES; KNOPF,1 SENIOR JUDGE.
KNOPF, SENIOR JUDGE: Russell Wayne Bell appeals the April 4, 2007, decree
of dissolution and June 8, 2007, findings of fact and conclusions of law of the
Oldham Circuit Court in his dissolution action with Beth Ann Bell. We affirm.
1
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
21.580.
The facts of this case are lengthy and need not be portrayed in their
entirety herein. The facts relevant to the appeal are as follows: the parties were
married on December 28, 2001 and have four children in common. A petition for
dissolution of marriage was filed on May 15, 2006, by Russell. On May 19, 2006,
Beth filed a petition for entry of a domestic violence order (“DVO”) against
Russell. On that same day, a DVO was entered for a period of six months. That
order addressed several other issues between the parties, including custody of their
children. Custody was granted to Beth, with Russell having a set timesharing
schedule until further order from the court. Also on May 19, 2006, Russell filed a
motion, in the dissolution action, seeking to have Beth enjoined from removing the
children from Oldham County, Kentucky for more that a forty-eight hour period of
time, without court order.
On May 26, 2006, Beth filed a response to Russell’s motion and also
filed several motions of her own. In her motions, Beth sought, among other things,
temporary and permanent custody of the children; temporary child support;
temporary maintenance; permission to relocate, permanently, with the children to
Ohio; and a timesharing schedule. On June 14, 2006, a hearing was conducted on
all pending motions, and on June 20, 2006, an order was entered. In that order, the
court awarded temporary joint custody to the parties and designated Beth as the
primary residential custodian. The order also granted Beth permission to relocate
to Ohio with the children and set up a timesharing schedule for Russell. It was
ordered that the youngest child, Samantha, would not participate in timesharing
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with Russell until she was no longer breastfeeding. The court imputed an income
to Russell, found that Beth had no income, and accordingly entered orders
awarding child support and maintenance to Beth.
Russell filed a motion to alter, amend or vacate the June 20, 2006,
order, asking, among other things that he be allowed timesharing with Samantha.
On July 7, 2006, a hearing was held and a new order was entered on July 10, 2006,
allowing Russell timesharing with Samantha. A final hearing was scheduled for
September 1, 2006. On that date, the trial court, noting that Russell had not
complied with discovery requests, rescheduled the hearing to November 28, 2006.
On November 28, 2006, Russell informed the court that he had relocated to Ohio.2
The trial court then set a new timesharing schedule, ordered Russell to comply
with discovery by January 5, 2007.
On January 19, 2007, Russell was adjudicated to be in contempt for
failure to comply with discovery and the case was set for a final trial on March 30,
2007. Russell had filed a motion to dismiss the action or transfer it to Ohio and
that motion was denied. The final hearing was held on March 30, 2007. On April
4, 3007, the trial court entered a decree of dissolution, in which it stated that the
remaining issues had been taken under submission. On June 8, 2007, the court
entered its findings of facts and conclusions of law. This appeal followed.
On appeal, Russell makes the following arguments: 1) the circuit
court lacked continuing jurisdiction and should have allowed the matter to be
2
Sometime after the June 20, 2006, order, Beth had also relocated to Ohio with the children.
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transferred to an Ohio court; 2) there was no substantial basis for the amount of
child support to be paid; 3) there was no substantial basis for the award of
temporary or permanent maintenance, or in the alternative, there was no substantial
basis for the amount of maintenance awarded; and 4) the court abused its discretion
by denying Russell timesharing due to breast-feeding.
Russell first argues that the circuit court lacked continuing jurisdiction
and should have allowed to the matter to be transferred to an Ohio court.
Allegations that a court acted outside its jurisdiction are to be reviewed de novo.
Grange Mut. Ins. Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). When a
dissolution of marriage action is first commenced, the court is given jurisdiction
over the parties’ children pursuant to KRS 403.822, which reads, in part:
(1) Except as otherwise provided in KRS 403.828, a
court of this state shall have jurisdiction to make an
initial child custody determination only if:
(a) This state is the home state of the child on the date of
the commencement of the proceeding, or was the home
state of the child within six (6) months before the
commencement of the proceeding and the child is absent
from this state but a parent or person acting as a parent
continues to live in this state; or
(b) A court of another state does not have jurisdiction
under paragraph (a) of this subsection. . .
The home state of the Bell children, at the time the dissolution action commenced,
was Kentucky. Russell argues that jurisdiction over the children should have been
transferred to Ohio, pursuant to KRS 403.824, which states, in relevant part:
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(1) Except as otherwise provided in KRS 403.828, a
court of this state which has made a child custody
determination consistent with KRS 403.822 or 403.826
has exclusive, continuing jurisdiction over the
determination until:
(a) A court of this state determines that neither the child,
nor the child and one (1) parent, nor the child and a
person acting as a parent have a significant connection
with this state and that substantial evidence is no longer
available in this state concerning the child's care,
protection, training, and personal relationships; or
(b) A court of this state or a court of another state
determines that the child, the child's parents, and any
other person acting as a parent do not presently reside in
this state.
None of the determinations required by KRS 403.824 to change jurisdiction have
been made by this or any other state. It is likely that the current location of all
parties may make Ohio more appropriate for future custody determinations.
However, we do not believe the jurisdiction exercised for the initial custody
determination was improper when the parties resided in Kentucky at the time the
action was commenced.
Russell next argues that there was no substantial basis for the amount
of child support to be paid and that the trial court deviated from the guidelines.
The family court has broad discretion with regard to child support matters and a
family court's decision will not be reversed unless it has abused that discretion.
Wilhoit v. Wilhoit, 521 S .W.2d 512, 513 (Ky.1975). Temporary child support was
originally set at $1,794.00 per month. This amount was based on Russell’s making
$7,000.00 per month; an amount arrived at through testimony of the parties
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regarding their monthly expenses. Under the child support guidelines, the amount
of support is correct. KRS 403.212. The June 8, 2007, judgment of the trial court
imputed an annual salary of $45,000.00 to Russell, also based upon his testimony,
and child support was set at $1,126.00 per month. This amount is also correct
under the child support guidelines. KRS 403.212.
It is appropriate for the trial court to impute income to a parent who is
voluntarily underemployed or unemployed. KRS 403.212 (2) (d). We believe this
practice is also appropriate when a party fails to appropriately provide the court
with their income information. It is clear from the record that Russell was less
than forthcoming with his income information and failed repeatedly to comply
with discovery. This, combined with his testimony regarding his income, is
sufficient to convince us that the trial court’s imputation was appropriate and we
affirm its child support award. At the time of trial, Beth was not working, so no
income was imputed to her. Because she was caring for three children under the
age of three, this decision was appropriate. KRS 403.212 (2) (d).
Next, Russell argues that there was no substantial basis for the award
of temporary or permanent maintenance, or in the alternative, there was no
substantial basis for the amount of maintenance awarded. Our standard of review
regarding an award of maintenance is that of abuse of discretion. “The amount and
duration of maintenance is within the sound discretion of the trial court.” Russell
v. Russell, 878 S.W.2d 24, 26 (Ky.App. 1994). The requirements for an award of
maintenance are set out in KRS 403.200, which states in part:
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(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked
personal jurisdiction over the absent spouse, the court
may grant a maintenance order for either spouse only if it
finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs;
and
(b) Is unable to support himself through appropriate
employment or is the custodian of a child whose
condition or circumstances make it appropriate that the
custodian not be required to seek employment outside the
home.
As we have previously discussed, Beth is the primary residential custodian for
several very young children. The June 8, 2007, judgment awarded Beth with
maintenance in the amount of $400.00 per month for a period of twenty-four
months as well as a lump sum payment of $3,875.00 payment towards her
attorney’s fees. Additionally, Beth was awarded several other maintenance awards
to cover a joint unsecured debt, uninsured medical expenses for the children,
birthing expenses, and debt payments made by Beth that had previously been
ordered to be paid by Russell. After reviewing the record, we do not believe this
determination to be an abuse of discretion by the trial court. The award appears to
assist Beth in providing for herself, while continuing to care for the youngest
children. Also, the award ends after two years. The additional awards of
maintenance appear to cover expenses that Russell has shown a history of refusing
to pay, regardless of the court orders to do so and also expenses accrued on behalf
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of the children. Furthermore, Russell has failed to show that these awards are an
abuse of discretion.
Russell’s final argument is that the court abused its discretion by
denying Russell timesharing with Samantha due to breast-feeding. The issue of
timesharing is interrelated to that of custody. When reviewing child custody
issues, we must determine whether the ruling was clearly erroneous or constituted
an abuse of discretion. Eviston v. Eviston, 507 S.W.2d 153 (Ky. 1974). The trial
court, when determining how custody will be shared among the parties, must also
determine what is in the best interest of the child. This determination includes the
issue of timesharing. See KRS 403.270 and KRS 403.320. See also Fenwick v.
Fenwick, 114 S.W.3d 767 (Ky. 2003). Under the facts of this case, we do not
believe that the temporary denial of timesharing to one parent while the other is
breastfeeding and in another state is an abuse of discretion. Furthermore, because
the trial court has since entered orders granting timesharing to Russell, this issue
becomes moot.3
For the foregoing reasons, the April 4, 2007, decree of dissolution and
June 8, 2007, findings of fact and conclusions of law of the Oldham Circuit Court
are affirmed.
ALL CONCUR.
3
It has also been brought to the Court’s attention that, on several occasions, Russell chose to
forego the timesharing with Samantha when he had an opportunity to do so.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Stephen C. Emery
Stewart Roelandt Stoess
Craigmyle & Emery, PLLC
Crestwood, Kentucky
James L. Theiss
Williamson, Simpson & Theiss
LaGrange, Kentucky
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