CRECELIUS (BRUCE ALLEN) VS. CRECELIUS (DENISE)Annotate this Case
RENDERED: AUGUST 22, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
BRUCE ALAN CRECELIUS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 03-CI-02540
MARY DENISE CRECELIUS
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BEFORE: COMBS, CHIEF JUDGE; DIXON AND LAMBERT, JUDGES.
DIXON, JUDGE: Appellant, Bruce Crecelius, appeals from an order of the
Fayette Family Court denying his motion for a modification of his child support
obligation. Finding no error, we affirm.
Bruce and Denise Crecelius were married on May 8, 1992. Two
children were born during the marriage, Katie Noel and Cara Nicole. On June 16,
2003, Denise filed a petition in the Fayette Family Court for legal separation. A
mediated agreement was thereafter entered on January 20, 2004, granting the
parties joint custody of the children, with Denise being the primary residential
custodian. The parties further agreed that child support would be set according to
the Kentucky Child Support guidelines, with Bruce paying $1,451.60 per month.
A worksheet introduced into evidence shows that factored into Bruce’s support
amount was his percentage of the children’s private school tuition payments and
after-school care. Interestingly, however, the mediation agreement contained the
1. We agree that child support will be set consistent with
the Guidelines attached to this Agreement and that Father
will pay the sum of $1451.60 per month. Beginning
March 1, 2004, child support will be paid by wage
assignment. Prior to this date, child support will be due
on the first of the month.
2. We agree that Mother will be solely responsible for
the payment of tuition to The Lexington Christian
Academy and also will be responsible for all child care
The Fayette Family Court issued a decree of dissolution on December
28, 2004, incorporating the mediation agreement, as well as a separate property
agreement. A uniform child support order was also entered in the amount of
$1,451.60 per month, less $30 for 100 months.1
On August 23, 2007, Bruce filed a motion to modify child support on
the grounds that he could no longer afford to pay for his children to attend private
The $30 credit was a reimbursement for Bruce’s equity interest in the marital residence.
school. Further, although he acknowledged that his monthly child support
obligation included his percentage of the children’s private school and that the
tuition was calculated on the child support worksheet as a childcare expense, he
nonetheless argued that “[t]here was never an agreement that [he] would continue
to be obligated for private school tuition as part of his child support payment.”
Denise responded that there had been no material and continuing change in
circumstances as required by KRS 403.213 that would justify a modification.
Following a hearing, the family court denied the motion for modification. Bruce
thereafter filed a motion to alter, amend, or vacate, and for a hearing on whether
private school was in the best interest of the children. On December 26, 2007, the
family court denied the motion. This appeal followed.
Bruce argues on appeal that private school tuition is an unreasonable
and unnecessary child care expense that he should not required to pay under the
child support guidelines. Bruce further contends that there is no language in the
mediation agreement itself that references the calculation worksheet or imposes a
continuing obligation to divide the tuition expenses. To the contrary, the only
language pertaining to tuition specifically provides that Denise is solely
responsible for such expenses. Bruce also claims that he was entitled to a hearing
for the purposes of introducing extrinsic evidence as to the parties’ intentions.
In response, Denise points out that Bruce conceded that his child
support obligation includes his share of the children’s private school tuition
calculated in the same manner as a child-care expense. As such, Bruce was aware
of how the support was calculated at the time he signed the mediation agreement
and he understood that his portion of the tuition was included in the child support
calculation. Further, Denise argues that paragraph 2 of the agreement simply
ensures that Bruce will not be “double-billed” for tuition expenses and after-school
costs as those costs are already included in his monthy child support payment.
Finally, Denise claims that absent explicit language to the contrary, the proper
interpretation of the mediation agreement is that future calculations would be
conducted in the same manner as the original calcuation. We agree.
KRS 403.211 sets forth the procedure for establishing child support
based on the parent’s gross income and the child support guidelines. As Bruce
correctly asserts, nothing in the statute requires that private school tuition be
included in child care costs. Indeed, in Miller v. Miller, 459 S.W.2d 81, 83 (Ky.
1970), our Supreme Court concluded that absent proof that public schools were
unsuitable or inadequate for the educational purposes of the children, an award of
additional support for private school tuition was improper. However,
when parents wish to provide or agree to provide more
support than required by law, the Guidelines should not
act as a barrier. Furthermore, when the trial court
reviews the parties' agreement that requires child support
in excess of the Guidelines, it is only required to find that
the parents, ‘having demonstrated knowledge of the
amount of child support established by the [Guidelines],
have agreed to child support’ in excess of the Guidelines.
(Emphasis in original)
Pursley v. Pursley, 144 S.W.3d 820, 826 (Ky. 2004) (Quoting KRS
Bruce has conceded that at the time of the mediation agreement, he
agreed to include the private school tuition as part of his child support obligation.
The calculation worksheet that Bruce placed into evidence clearly shows that the
tuition expenses were calculated into the monthy support payment. From that
fixed amount, Denise is responsible for paying the private school tuition and the
child care costs. She will not receive any additional funds from Bruce for the care
of the children. Thus, since we find that the parties’ intentions were clear and
unambiguous from the mediation agreement, we conclude that a hearing to
introduce extrinsic evidence was not warranted. See Frear v. P.T.A. Industries,
Inc., 103 S.W.3d 99 (Ky. 2003).
Furthermore, “[t]he provisions of any decree respecting child support
may be modified only . . . upon a showing of a material change in circumstances
that is substantial and continuing.” KRS 403.213(1). We are of the opinion that
Bruce has failed to prove that there has been a material change in circumstances
that is substantial and continuing to warrant a reduction in child support. Although
he asserts that he can no longer afford to pay and simply does not want to pay the
private school tuition expenses, the record reflects that his income has increased
since the mediated agreement. Such does not satisfy the statutory requirements for
a modification. Absent a significant and continuing decrease in income, the fact
that a party claims he “cannot afford” the payment is insufficent grounds for
modification. Downey v. Rogers, 847 S.W.2d 63, 65 (Ky. App. 1993). Nor is “a
change of heart,” or an unwillingness to comply with the agreement regarding
child support a legitimate reason for modification. Pursley, supra, at 826.
Finally, Bruce argues that the family court erred in denying his
motion for a hearing on whether private school was in the children’s best interest.
However, the motion did not contain any allegation that continuing in private
school was not in their best interest, nor did it address a substantive issue regarding
the propriety of private school. Rather, the issue was merely raised as an
alternative prayer for relief in his motion to alter, amend or vacate. As such, we
cannot conclude that the family court erred in denying a hearing.
For the foregoing reasons, the judgment of the Fayette Family Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Carl D. Devine
Stephen L. Marshall