LITTLEFIELD (DANIEL B.) VS. SCHNEIDER (CARLA DANIELLE)Annotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
DANIEL B. LITTLEFIELD
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOSEPH W. O’REILLY, JUDGE
ACTION NO. 01-FC-006888
CARLA DANIELLE SCHNEIDER
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
STUMBO, JUDGE: Daniel B. Littlefield appeals from an order of the Jefferson
Circuit Court ruling that he is voluntarily underemployed for purposes of child
support calculation and denying his motion to decrease child support. Littlefield
contends that the circuit court erred in finding that Carla Danielle Schneider, with
whom he has a child, pays $461.00 per month in child support for a prior born
child. Because Littlefield’s claim was not raised below, not preserved for appellate
review, and not supported by reference to the record, we affirm the order on
Sydney Littlefield was born on April 13, 2001, to Littlefield and
Schneider. A paternity action followed in Jefferson Circuit Court establishing
Littlefield as the child’s biological father. On March 23, 2007, the Jefferson
County Attorney’s Office filed a motion on behalf of Schneider to establish
Littlefield’s child support obligation. After proof was heard on the motion, the
circuit court rendered an order on July 2, 2007, finding that Littlefield was
voluntarily underemployed pursuant to KRS 403.212(2)(d) and imputing to him
the income of $14.00 per hour for a 40-hour work week. Relying on the Kentucky
Child Support Guidelines, the court ordered Littlefield to pay $113.64 per week in
child support to Schneider.
Thereafter, Littlefield filed a pro se motion to modify the child
support obligation, and the County Attorney’s office moved to summarily dismiss
the motion. After a series of delays, a hearing on the motions was conducted on
November 19, 2007, and the circuit court rendered an order on November 27,
2007. It found in relevant part that Littlefield failed to demonstrate a change in
income of at least 15% as required by KRS Chapter 403 sufficient to justify a
change in his child support obligation. As part of the calculus upon which the
court relied in reaching this conclusion, it found that Schneider paid $461.00 per
month in child support for a prior born child. This appeal followed.
Littlefield now argues that the circuit court erred in finding that
Schneider pays $461.00 per month in child support for a prior born child.
Littlefield contends that Schneider actually receives $461.00 per month in child
support, and that this incorrect finding skewed the child support calculation
resulting in the court failing to properly find that Littlefield experienced a change
in income in excess of the statutorily required 15%. Littlefield notes that for
purpose of calculating child support, the court may deduct from the gross income
of either party the amount of child support paid to prior born children. He seeks an
order finding that the trial court erred in deducting $461.00 per month from
Schneider’s gross income, and remanding the matter for recalculation of his child
We find no error. We must first note that this issue was not raised
before the circuit court. A party may not raise one argument before the trial court,
and another argument before an appellate court. Newell Enterprises, Inc. v.
Bowling, 158 S.W.3d 750, 755 (Ky. 2005); see also, Kennedy v. Commonwealth,
544 S.W.2d 219, 222 (Ky. 1976). Similarly, and for the same reason, Littlefield
has not complied with the requirement set out in CR 76.12 (4)(c)(v) that he
demonstrate at the beginning of his argument that the issue raised is preserved for
appellate review and, if so, in what manner. We would be well within our
authority to strike Littlefield’s brief and summarily affirm the order on appeal. CR
76.12(8)(a). “It goes without saying that errors to be considered for appellate
review must be precisely preserved and identified in the lower court.” Combs v.
Knott County Fiscal Court, 141 S.W.2d 859 (Ky. App. 1940).
Even if this issue were preserved for appellate review, Littlefield has
not offered even a scintilla of proof that Schneider receives child support for a
prior born child, nor has our review of the record uncovered any such proof. The
burden is on the party alleging error to show it affirmatively by the record.
Smithers v. Bindner, 351 S.W.2d 872 (Ky. 1961). Littlefield has not met that
burden, and accordingly we find no error.
For the foregoing reasons, we affirm the November 27, 2007, order of
the Jefferson Circuit Court.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Russell Lloyd
Laura E. Taylor
Dana M. Cohen
Assistant Jefferson County Attorneys