DAVIDSON (NANCY) VS. DAVIDSON (BRIAN)
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RENDERED: OCTOBER 9, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001747-MR
NANCY DAVIDSON
v.
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 06-CI-00939
BRIAN DAVIDSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON AND THOMPSON, JUDGES; LAMBERT,1 SENIOR
JUDGE.
CLAYTON, JUDGE: Nancy Davidson (Nancy) appeals the August 1, 2008, order
of the Boyd Circuit Court. That order adopted a February 13, 2008, domestic
relations commissioner’s report in the dissolution of the marriage of Nancy and
Brian Davidson (Brian). Nancy appeals the custody decision of the order, the
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to
Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.
allocation of debt between the parties, and the court’s failure to award her
temporary child support. Because we hold that the trial court has not abused its
discretion, we affirm
The parties were married on July 2, 1999, and one child was born of
the marriage. On September 28, 2006, Nancy filed a petition for dissolution of
marriage. On October 10, 2006, Nancy filed a motion requesting, among other
things, temporary child support. No order was ever entered granting or denying
Nancy’s motion. On December 30, 2006, Nancy, along with the parties’ minor
son, moved to Oklahoma. Hearings were held before the Domestic Relations
Commissioner on June 6, 2007, July 30, 2007, and October 29, 2007. During the
pendency of the action, Brian continued to make payments on the parties’
Chevrolet Trailblazer, as well as provide insurance on the vehicle. On August 31,
2007, the trial court entered an order that the Trailblazer be sold and the remaining
debt be split equally between the parties. On February 13, 2008, the
Commissioner entered her report, recommending, among other things, that the
parties share joint custody of their child, with Brian being the primary physical
custodian. Exceptions were filed and heard, and on August 1, 2008, the trial court
entered an order confirming the Commissioner’s report. Nancy filed a motion to
alter, amend, or vacate on August 4, 2008. On August 22, 2008, the trial court
entered an order confirming the Commissioner’s report, with the exception of
Nancy’s time-sharing, which the court then altered. This appeal followed.
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Nancy first appeals the award of primary physical custodian to Brian.
Specifically, she argues that the award was an abuse of discretion and was not
supported by substantial evidence. Nancy maintains that she should be awarded
custody or, in the alternative, that the matter should be remanded to the trial court
for further findings, due to the length of time that passed from the original hearing
and the entry of the final order.
A custody award shall not be disturbed unless it constitutes an abuse
of discretion. Sherfey v. Sherfey, 74 S.W.3d 777, 782-783 (Ky. App. 2002).
‘Abuse of discretion in relation to the exercise of judicial
power implies arbitrary action or capricious disposition
under the circumstances, at least an unreasonable and
unfair decision.’ The exercise of discretion must be
legally sound.
Id. at 783 (citations omitted).
Nancy argues that several of the Commissioner’s findings are
improper and unsupported.
Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses. A factual finding is not clearly erroneous
if it is supported by substantial evidence. “Substantial
evidence” is evidence of substance and relevant
consequence sufficient to induce conviction in the minds
of reasonable people. After a trial court makes the
required findings of fact, it must then apply the law to
those facts.
Sherfey, 74 S.W.3d at 782 (emphasis added).
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The first finding that Nancy challenges addresses when she left for
Oklahoma. It was agreed between the parties that Nancy left earlier than agreed.
Just how early Nancy left was a disputed fact among the parties. Nancy argued
that she only left one day early, while Brian argued, and the Commissioner agreed,
that she left two days early. Nancy argues that she was “faulted” for this finding.
Because it is within the court’s discretion to believe one party’s testimony over the
other, Nancy has failed to show that this finding is improper. Furthermore, as the
parties both agreed that Nancy left town early, a discrepancy of one day in the
finding would be so harmless that a reversal would not be warranted.
Nancy next challenges the Commissioner’s finding that Nancy had
enrolled the parties’ son in a different school other than the one originally
mentioned by her. Nancy has failed to show that this finding is improper. Again,
this is an example of the Commissioner choosing to believe the testimony of one
party over the other, and it appears that Nancy’s main criticism of the
Commissioner is that she chose to believe Brian’s testimony over that of Nancy.
The record supports the Commissioner’s other findings that the child’s school
progress was poor, that Brian had encountered difficulties in talking with his son,
that Nancy may have been saying inappropriate things to the child, and that Nancy
initiated an investigation into unsubstantiated sex abuse allegations. As a whole,
the record supports what appears to be the Commissioner’s belief that Nancy’s
testimony was disingenuous. As the Commissioner is the party in the best position
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to judge the credibility of the witnesses, and possesses the authority to do so, we
see no abuse of discretion.
Nancy also argues that the passage of time between the hearings and
the eventual entry of an order warrants further hearings. We do not agree. The
passage of time, in and of itself, is an insufficient circumstance to warrant a change
in custody. Custody modifications are governed by KRS 403.340, which states, in
pertinent part:
(2) No motion to modify a custody decree shall be made
earlier than two (2) years after its date, unless the court
permits it to be made on the basis of affidavits that there
is reason to believe that:
(a) The child's present environment may endanger
seriously his physical, mental, moral, or emotional
health; or
(b) The custodian appointed under the prior decree
has placed the child with a de facto custodian.
As Nancy has failed to indicate that either of these situations were present, the trial
court acted appropriately in denying a modification based on the passage of time or
any other changed circumstances.
Nancy’s final argument is that the trial court’s assignment of one-half
the debt for the Trailblazer was an abuse of discretion. Nancy argues that the
assignment should be vacated due to the trial court’s failure to set child support for
the parties’ child. As property and child support are two distinct issues this
argument is actually two challenges: one to the debt division, another to the failure
to grant child support. We will address each in turn.
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The division of marital property is within the sound discretion of the
trial court and will not be disturbed unless we find an abuse of discretion.
Neidlinger v. Neidlinger, 52 S.W.3d 513, 519-520 (Ky. 2001).
In dividing marital property, including debts,
appurtenant to a divorce, the trial court is guided by
Kentucky Revised Statute (KRS) 403.190(1), which
requires that division be accomplished in “just
proportions.” This does not mean, however, that
property must be divided equally. . . . It means only that
division should be accomplished without regard to
marital misconduct and in “just proportions” considering
all relevant factors.
Lawson v. Lawson, 228 S.W.3d 18, 21 (Ky. App. 2007) (citations omitted).
The parties both testified that the Trailblazer was a marital debt. As
Nancy has failed to show that the debt related to the Trailblazer was not divided in
just proportions, we see no abuse of discretion. Accordingly, the trial court’s
division of this debt is affirmed.
Child support issues are governed by KRS 403.211, and deviation
from the guidelines is governed by subsection 3, which provides:
A written finding or specific finding on the record that
the application of the guidelines would be unjust or
inappropriate in a particular case shall be sufficient to
rebut the presumption and allow for an appropriate
adjustment of the guideline award if based upon one (1)
or more of the following criteria:
(a) A child's extraordinary medical or dental needs;
(b) A child's extraordinary educational, job
training, or special needs;
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(c) Either parent's own extraordinary needs, such
as medical expenses;
(d) The independent financial resources, if any, of
the child or children;
(e) Combined monthly adjusted parental gross
income in excess of the Kentucky child support
guidelines;
(f) The parents of the child, having demonstrated
knowledge of the amount of child support
established by the Kentucky child support
guidelines, have agreed to child support different
from the guideline amount. However, no such
agreement shall be the basis of any deviation if
public assistance is being paid on behalf of a child
under the provisions of Part D of Title IV of the
Federal Social Security Act [42 U.S.C.A. § 651669b]; and
(g) Any similar factor of an extraordinary nature
specifically identified by the court which would
make application of the guidelines inappropriate.
The family court has broad discretion with regard to matters of child
support and a family court's decision will not be reversed unless it has abused that
discretion. Wilhoit v. Wilhoit, 521 S.W.2d 512, 513 (Ky. 1975). However, the
lower court's discretion is not without limit. See Price v. Price, 912 S.W.2d 44
(Ky. 1995) (holding that the trial court does not have the power to forgive child
support arrearages), and Keplinger v. Keplinger, 839 S.W.2d 566 (Ky. App.1992)
(holding that the trial court does not have the discretion to deviate from the
statutory guidelines for child support merely because it believes the amounts were
incorrectly created by the Legislature).
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During the pendency of the underlying action, Brian was making the
payments on the Trailblazer, as well as paying for its insurance and maintenance.
Brian testified that he made these payments in lieu of any temporary child support
which Nancy had petitioned the court for. However, no orders were entered by the
court as to Nancy’s motion for temporary child support, nor ordering the
Trailblazer payment as a substitute. As such, the issue is not preserved for
appellate review. See Bratcher v. Com., 151 S.W.3d 332 (Ky. 2004). Although
we will not address this issue herein, we note that it remains pending before the
trial court.
In conclusion, we affirm the August 1, 2008, order of the Boyd
Circuit Court.
THOMPSON, JUDGE, CONCURS.
LAMBERT, SENIOR JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mary Hall Sergent
Ashland, Kentucky
Sharon Easthom Rowsey
Ashland, Kentucky
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