WHITE (CLAY RUSSELL) VS. OWENS (YOLANDA)Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CLAY RUSSELL WHITE
APPEAL FROM CLAY CIRCUIT COURT
HONORABLE GENE CLARK, JUDGE
ACTION NO. 07-CI-00064
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BEFORE: FORMTEXT KELLER AND TAYLOR, JUDGES; GUIDUGLI,
TAYLOR, JUDGE: Clay Russell White brings this appeal from a December 3,
2007, order of the Clay Circuit Court denying his motion to eliminate child
support. We affirm.
Clay Russell White and Yolanda Owens are the biological parents of
two minor children, Ryan and Lana. Pursuant to a November 29, 2007, decree of
custody, the parties were granted joint custody of Ryan and Lana. Yolanda was
designated as primary residential custodian, and Clay was granted visitation.
Clay’s visitation schedule was as follows: (1) during the school year, Clay had the
children “every weekend from Friday at 6 p.m. until school commences on
Monday morning” except for the first full weekend of each month when the
children remain with Yolanda; and (2) during the summer, Clay had the children
the same times as during the school year except he returned the children at 6 p.m.
on Sunday. Under the decree, Clay was also ordered to pay child support of
$67.15 per week.
Clay subsequently filed a motion to decrease or eliminate child
support. Therein, Clay argued that his child support should be decreased because
he had experienced a 15 percent reduction in income. Alternatively, Clay argued
that his child support should be eliminated because he and Yolanda shared joint
legal and physical custody of the children. By order entered December 3, 2007,
the circuit court granted Clay’s motion to decrease child support and set support at
$57.45 per week. The court denied Clay’s motion to eliminate child support. This
Clay contends the circuit court erred by denying his motion to
eliminate child support. He relies upon Plattner v. Plattner, 228 S.W.3d 577
(Ky.App. 2007) for his contention that child support should be eliminated.
Specifically, Clay maintains that he and Yolanda share joint legal and physical
custody of the children, enjoy “nearly equal physical custodial/parenting time,”
and “incur nearly equal expenses” while “earning nearly equal incomes.” For the
reasons hereinafter stated, we disagree.
Under KRS 403.211(2) and (3), a circuit court may deviate from the
child support guidelines only if the court finds that application of the guidelines
would be unjust or inappropriate. Plattner, 228 S.W.3d 577. And, it has been
recognized that an “equal division of physical custody may constitute valid
grounds for deviating from the guidelines” and awarding no child support. Id. at
579. Furthermore, it is well-settled that the establishment and modification of
child support are within the sound discretion of the circuit court. Vanmeter v.
Smith, 14 S.W.3d 569 (Ky.App. 2000). An abuse of discretion occurs only where
the circuit court’s decision was “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Com. v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Clay’s reliance upon Plattner is misplaced. The facts of Plattner are
clearly distinguishable from the facts in the case sub judice. In Plattner, the parties
were awarded joint custody of their two children and, more importantly, actually
shared equal physical custody of the children:
[T]he children reside with him each Monday and
Tuesday and each alternating Friday, Saturday, and
Sunday. The children spend each Wednesday and
Thursday and each alternating Friday, Saturday, and
Sunday with Levoir. Because he has a more flexible
work schedule, Plattner attends medical appointments
and stays at home with the children when either of them
The parties were awarded joint custody of the children,
and neither of them was designated as the primary
residential custodian. Because physical custody of the
children is evenly divided between the parents, they bear
an almost identical responsibility for the day-to-day
expenses associated with their care. And since there is
no significant disparity between the parties' annual
income, the expenses necessary to provide a home for the
children (even when they are not in residence) are also
incurred by each party in equal proportion.
Plattner, 228 S.W.3d at 579-580.
Unlike the facts in Plattner, Clay and Yolanda do not truly share
equal physical custody of their two children. Rather, Clay merely has physical
custody of the children for approximately three weekends per month. During the
school year, his custody time slightly increased each weekend until Monday
morning. However, it is clear that Yolanda retains physical custody of the children
for the majority of each month. Additionally, Yolanda was designated the primary
residential custodian; where, as in Plattner, neither party was so designated.
Considering the whole of the case, we cannot say that application of the child
support guidelines would be unjust or inappropriate. As such, we conclude that the
circuit court did not abuse its discretion by denying Clay’s motion to eliminate
For the foregoing reasons the order of the Clay Circuit Court is
BRIEF FOR APPELLANT:
NO BRIEF FOR APPELLEE
Clay Russell White, Pro Se