GREENWOOD (SANDRA JEAN) VS. GREENWOOD (HUBERT ALLEN)Annotate this Case
RENDERED: DECEMBER 19, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
SANDRA JEAN GREENWOOD
APPEAL FROM HARDIN FAMILY COURT
HONORABLE PAMELA ADDINGTON, JUDGE
ACTION NO. 06-CI-01744
HUBERT ALLEN GREENWOOD
AFFIRMING IN PART AND
REVERSING IN PART
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BEFORE: ACREE AND CLAYTON, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
CLAYTON, JUDGE: Appellant appeals a decision of the Hardin Family Court
Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
regarding the custody and support of her two children. After reviewing the record
in this case, we will affirm in part and reverse in part.
Sandra Jean Greenwood and Hubert Allen Greenwood were married
on July 5, 1986. A daughter and son were born to the couple in 1990 and 1995
respectively. The Hardin Family Court entered a Decree of Dissolution on October
15, 2007. The couple had settled all issues related to personal property through
mediation, but required a final hearing to resolve the issues relating to the children,
including custody, visitation, child support payments and reimbursement of
medical expenses. The family court ordered joint custody of the minor children
with each party having physical custody on alternating months. Because physical
custody was shared, there was no child support obligation ordered for either party.
Ms. Greenwood brings three issues on appeal. First, she argues the
award of joint custody was clearly erroneous and was an abuse of discretion.
Second, she contends that the trial court abused its discretion when it failed to
award her reimbursement for one-half of the children’s medical expenses incurred
during the pendency of the dissolution proceedings. Her third contention is that
the trial court erred in failing to award child support during the pendency of the
STANDARD OF REVIEW
We will not substitute our own findings of fact unless those of the trial
court are “clearly erroneous.” Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
In reviewing the trial court’s decision, we must determine whether it abused its
discretion. Abuse of discretion requires that the decision be whether the decision
was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000);
Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Ms. Greenwood’s first argument on appeal is that the family court
erred in awarding joint shared custody. She acknowledges, however, that there
was sufficient evidence to support the decision of the trial court ordering joint
shared custody and that the findings of fact were not clearly erroneous. As set
forth above, a custody award “will not be disturbed unless it constitutes an abuse of
discretion.” Sherfey v. Sherfey, 74 S.W.3d 777, 782-83 (Ky. App. 2002). “Abuse
of discretion implies that the family court’s decision is unreasonable or unfair.”
B.C. v. B.T., 182 S.W.3d 213, 219 (Ky. App. 2005).
Ms. Greenwood testified that joint custody would be appropriate. The
children had requested the opportunity to spend equal time with each parent. Prior
to the final hearing, the parties had been alternating custody in a joint arrangement.
Based upon this evidence, there is nothing in the family court’s application of its
findings of fact to lead us to believe the decision was unreasonable or unfair. As
there is ample evidence in the record to support the trial court’s decision regarding
joint shared custody, we find that there was no abuse of discretion regarding this
Ms. Greenwood next contends that the family court erred in failing to
award her child support from the date of the initial filing of the divorce petition
until the date of the hearing. On November 1, 2006, Ms. Greenwood filed a
motion for child support. At the final hearing almost a year later, the family court
found Ms. Greenwood had been the primary residential custodial of the children,
yet found “that both parties [had] provided for their children and [had] provided
well.” Specifically, the court held:
the Court is equally convinced that both parties
have provided for their children and have provided well.
The Court concludes that [Mr. Greenwood] more than
likely, although, lack of sufficient proof at the hearing
[sic] did provide for his children since [Mr. Greenwood]
agreed to utilize non-marital funds to establish a college
trust fund for both Sara and Seth. The Court believes,
although there was no testimony brought forth at the
hearing on this point, [Ms. Greenwood] may not have
sought child support from [Mr. Greenwood] to the fact
[Mr. Greenwood] had provided with his non-marital
funds college funds for both the children. More than
likely [Ms. Greenwood] did not want to press this issue
to ensure that [Mr. Greenwood] would be so agreeable.
Ms. Greenwood argues the family court abused its discretion when it
failed to award her child support during the pendency of the divorce. We agree.
Child support is ordinarily left to the discretion of the family court.
Van Meter v. Smith, 14 S.W.3d 569 (Ky. App. 2000). We will not substitute our
judgment absent a showing of an abuse of that discretion. Gibson v. Gibson, 211
S.W.3d 601 (Ky. App. 2006). The family court has set forth a holding that is based
purely on conjecture and speculation rather than on testimony and other evidence.
As a result, she abused her discretion and the issues of child support and
reimbursement of expenses during the pendency of the divorce should be returned
to the court for findings based upon evidence which supports them.
Ms. Greenwood next contends that the family court erred in failing to
award her reimbursement of half of the medical expenses she incurred for the
children. Medical expenses shall be allocated between the parties in proportion to
their combined monthly adjusted parental gross incomes. Kentucky Revised
Statutes (KRS) 403.211(8). Again, the decision of the family court judge was
based upon conjecture and speculation rather than evidence set forth at the hearing.
This issue too, must be remanded to the trial court for a decision based upon the
The judgment of the Hardin Family Court is affirmed as to the issue
of child custody and reversed on the issues of child support and reimbursement of
ACREE, JUDGE, CONCURS.
GUIDUGLI, SENIOR JUDGE, CONCURS IN PART,
DISSENTS IN PART, AND FILES SEPARATE OPINION.
GUIDUGLI, SENIOR, JUDGE, CONCURRING IN PART AND
DISSENTING IN PART: I concur in part and dissent in part. I concur with the
majority as to the custody issue but dissent as to the issues of retroactive child
support and medical expenses. As the majority points out, child support is
ordinarily left to the discretion of the family court. Van Meter v. Smith, 14 S.W.3d
569 (Ky. App. 2000). In this case each party filed for custody and child support
but there was never a hearing on either motion. The petition for dissolution was
filed on September 26, 2006. Mr. Greenwood filed for custody and child support
on October 23, 2006. Ms. Greenwood filed for custody and support on November
1, 2006. The parties mediated the property issues on March 14, 2007. And the
final hearing was held on October 4, 2007, with the decree being entered on
October 15, 2007. Based upon the order of joint custody, no child support was
ordered. While the family court could have ordered retroactive child support to
either party (mother does earn more than father), it did not. The family court could
have addressed the issue better but based upon the facts of this case, I see no
benefit to sending it back for additional findings when neither party pushed the
issue during the year-long separation. Since the decree was entered, the parties
have addressed future medical expenses and miscellaneous expenses.
It is very clear from the family court’s discussion that offsets against
the child support and medical expenses were taken into consideration and applied
against these sums when Mr. Greenwood paid for other expenses incurred on
behalf of the children. While it is correct that the family court did not do an
analysis down to the last penny, I can find nothing in the record or in Ms.
Greenwood’s arguments to suggest the family court’s determinations were “clearly
erroneous.” Dull v. George, 982 S.W.2d 227, 230 (Ky. App. 1998). Ms.
Greenwood has failed to show that the family court abused its discretion.
Therefore, I would affirm the judgment entered by the Hardin Family Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Lori A. Kinkead
Douglas E. Miller