LEE (CALVIN E.) VS. FERGUSON (RUTH)Annotate this Case
RENDERED: FEBRUARY 27, 2009; 2:00 P.M.
NOT TO BE PUBLISHED
OPINION OF DECEMBER 31, 2008, WITHDRAWN
Commonwealth of Kentucky
Court of Appeals
CALVIN E. LEE
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE TAMRA GORMLEY, JUDGE
ACTION NO. 96-CI-00107
RUTH FERGUSON, (FORMERLY LEE)
VACATING AND REMANDING
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BEFORE: CAPERTON AND STUMBO, JUDGES; BUCKINGHAM,1 SENIOR
CAPERTON, JUDGE: Calvin Lee appeals the judgment and order of the Scott
Circuit Court which denied his motion to modify child support. Lee moved the
court to reduce his child support obligation as both parties had retired. The trial
Senior Judge David C. Buckingham, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110 (5) (b) of the Kentucky Constitution and the Kentucky Revised Statutes
court, pursuant to Ruth Ferguson’s response to Lee’s motion, increased the child
support obligation and found that Lee was voluntarily underemployed. Lee argues
that the trial court’s finding that he was voluntarily underemployed requires
specific findings of facts, which in this case are unsupported by substantial
evidence. After a review of the record before us, we agree with Lee. Accordingly,
we vacate and remand to the trial court.
Lee presents three arguments to this Court. First, that the trial court
erred in resolving disputed factual issues without taking testimony, leaving its
decision unsupported by the evidence. Second, that Lee is entitled to have child
support recalculated based upon both parties’ current, post-retirement, reduced
incomes. Third, that neither Lee nor Ferguson are voluntarily underemployed as
both are in the identical and appropriate circumstances of age and retirement.
Ferguson argues that the trial court did not err in resolving the matter
and that oral testimony was not necessary; that Lee is not entitled to have his child
support reduced as he is voluntarily underemployed; and that the circumstances of
the parties are not identical and the trial court properly found that only Lee was
On July 13, 2007, Lee filed a motion to reduce his child support. In
support of that motion, Lee stated that both parties had retired since the last time
child support was established and that the child support obligation should be set
commensurate with the parties’ current income. Attached to the motion was the
notice for a hearing. No exhibits were attached to the motion.
Ferguson filed a combination response and a motion to increase child
support. In the response and motion she alleged that Lee had failed to comply with
Kentucky Revised Statutes (KRS) 403.212 by not verifying his income to the court
with proper documentation. Ferguson further alleged that Lee was voluntarily
underemployed. Exhibits attached to Ferguson’s response and motion included
Ferguson’s retirement income, child support worksheets, and a W-2 for Lee
covering half of a year. Ferguson also attached a child support worksheet for Lee’s
At the motion hour on September 5, 2007, Lee’s motion for a
reduction in child support was denied. Lee claims that the motion was denied
without an opportunity to present testimony or any factual evidence in support of
his position.3 The trial court, based on its own notes, read an order from the bench.
This order was written on the docket, noted as a final and appealable order, and
signed by the judge. The September 5, 2007, order stated:
Court reviewed pleadings submitted by both parties and
makes the following ruling: Mr. Lee was aware of his
child support obligation at the time he voluntarily elected
to buy out the remaining years of his employment and
retire early. He was also aware of the drastic reduction in
income that would result. Mr. Lee voluntarily created his
situation. The Court will impute to him as if [he] had
Note that the W-2 offered as an exhibit is allegedly for only a half-year of employment.
Ferguson then took the amount listed, multiplied by two for a full year, and then divided by 12 to
get a per-month amount for the worksheet.
While a video record of the motion hour was designated on appeal, the clerk indicated that no
continued in his preretirement employment. Motion to
modify overruled, support obligation is $568.80.4
Thereafter, Lee filed a motion to vacate the September 5, 2007, order.
Lee stated that the court made findings of fact without taking testimony as to
factual issues in dispute and failed to make findings on important relevant issues.
The motion also stated that the finding of voluntary underemployment was not
supported by any evidence, let alone substantial evidence. Attached to the motion
to vacate was an affidavit from Lee. The affidavit averred that Lee had developed
a stress related disorder that led him to being asked to retire.5 In addition, the
affidavit stated that Lee had lost his license as a class IV water treatment plant
operator and, thus, could not work at any water treatment plant in Kentucky. Lee
had been a water treatment plant operator for twenty-two (22) years.
The motion to vacate was overruled at motion hour on September 19,
2007. The written order on the docket was signed by the judge and simply stated
that the motions of the defendant were overruled.
While a trial court retains broad discretion in ruling on motions to
modify child support, this discretion is not unfettered. See Wilhoit v. Wilhoit,
521 S.W.2d 512, 513 (Ky. 1975). This Court will not disturb the trial court's
findings of fact unless clearly erroneous. “Findings of fact are not clearly
erroneous if supported by substantial evidence.” Janakakis-Kostun v. Janakakis, 6
We shall treat the increase in the child support obligation as a denial of Lee’s motion to
decrease child support and a simultaneous grant of Ferguson’s motion to increase child support.
The affidavit further avers that if he had failed to retire, he would have been fired.
S.W.3d 843, 852 (Ky.App. 1999). Substantial evidence is that evidence, when
taken alone or in the light of all the evidence, has sufficient probative value to
induce conviction in the minds of reasonable people. Id., citing Kentucky State
Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972).
In the case sub judice, the trial court found that Lee was voluntarily
underemployed. KRS 403.212 requires that the finding of voluntary
underemployment must be based on a finding of fact. See also Gossett v. Gossett,
32 S.W.3d 109 (Ky.App. 2000). KRS 403.212(d) requires that, before a court may
find voluntary unemployment or underemployment, a court shall consider
“employment potential and probable earnings level based on the obligor's or
obligee's recent work history, occupational qualifications, and prevailing job
opportunities and earnings levels in the community.”
Therefore, the trial court is to consider employment potential and
probable earnings based on an individual’s recent work history and occupational
qualifications in light of the prevailing job opportunities and earnings in their
community. Gossett requires explicit findings by the court concerning the
circumstances surrounding a reduction in income, which is the necessary basis for
determining whether an individual is voluntarily unemployed or underemployed.
Based on the record before this Court, we do not find substantial
evidence to support the trial court’s finding that Lee is voluntarily underemployed;
nor do we find in the record the explicit findings required by Gossett. As such, we
agree with Lee that the trial court’s finding of his voluntary underemployment is
not supported by substantial evidence within the record.
In addition to its finding of voluntary underemployment, the trial
court also determined that modification of child support was appropriate in this
instance. However, child-support awards may be modified only upon a showing of
a material change in circumstances that is substantial and continuing. See KRS
403.213 and Goldsmith v. Bennett-Goldsmith, 227 S.W.3d 459 (Ky.App. 2007).
Under Goldsmith, the decision to modify a child-support obligation will be
reviewed under an abuse of discretion standard. In light of the record, the trial
court could not determine that there was a material change in circumstances that is
substantial and continuing. Therefore, the trial court exceeded its discretion in this
As the record does not support the findings of the trial court
concerning voluntary underemployment nor a modification of child support, we
need not address the remaining arguments presented by Lee until appropriate
findings of facts are entered. Therefore, we vacate and remand to the trial court to
make appropriate findings of fact based on a sufficient record which may require a
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Neil E. Duncliffe
Jennifer McVay Martin