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2007 OK 35
164 P.3d 1049
Case Number: 99970
Decided: 05/15/2007


JENNIFER ANN KERBY, Plaintiff/Appellant/Counter Appellee,
ROBERT CHRISTOPHER KERBY, Defendant/Appellee/Counter Appellant.


¶0 Jennifer Ann Kerby (Mother) sought modification of child support after Robert Christopher Kerby's (Father) income increased to $1.3 million per year from the $125,000.00 per year he made at the time of his divorce. The trial court granted an increase from $1500.00 per month to $2,800.00 per month and also awarded an arrearage of $62,400.00 representing the increase back to the time Mother filed her motion to modify. The trial court refused to entertain evidence from Mother regarding Father's lifestyle and she appealed. Father appealed the effective date of the arrearage calculation. The Court of Civil Appeals (COCA), Division III, affirmed the trial court's ruling that an increase and arrearage were warranted but found the trial court erred in denying evidence regarding Father's lifestyle. COCA remanded the matter back to the trial court to entertain evidence regarding lifestyle. This Court granted certiorari.


M. Joe Crosthwait, Jr., and Traci L. Soderstrom, The Crosthwait Law Firm, Midwest City, Oklahoma and Laura Haag McConnell, Hartzog, Conger, Cason & Neville, Oklahoma City, Oklahoma, for Plaintiff/Appellant/Counter Appellee.
William E. Liebel, James T. Gorton, Oklahoma City, Oklahoma, for Defendant/Appellee/Counter Appellant.


¶1 There are two issues dispositive of this appeal: (1) Whether the trial court erred in refusing to consider evidence of Father's lifestyle in setting the increase in child support; and (2) Whether the trial court erred in setting the effective date for the awarded increase in support as the date Mother filed her motion to modify. We find no error and affirm the trial court's ruling.


¶2 After nearly six years of marriage, Jennifer Ann Kerby (Mother) and Robert Christopher Kerby (Father) divorced in 1995. The Journal Entry and Decree of Divorce ("Divorce Decree"), entered July 11, 1995, granted custody of the couple's two daughters to Mother.

¶3 In June 1999, Mother filed a motion to modify the child support provisions of the Divorce Decree. Mother asserted that Father's annual income had significantly increased and that an increase in child support would be in the best interests of the children "allowing them to have the lifestyle that befits them." At the time Mother filed the motion to modify, Father's income had increased to about $500,000.00 per year while Mother's income generally remained the same. Mother requested an increase in child support to approximately $8,000.00 per month. Father opposed the motion to modify arguing that the current support amount was sufficient to meet the children's reasonable needs.

¶4 Upon Father's objection at trial, the court refused Mother's proffered exhibit showing projected expenses and instead limited it to an offer of proof. The trial court subsequently denied Mother's request for increased support. Mother appealed the matter which resulted in our opinion in Kerby v. Kerby,

¶5 In Kerby I, we held that the "significant increase in Father's income was a material change of circumstances allowing the [trial] court to review the existing child support award." Kerby I,

¶6 After remand, Father moved for a protective order after Mother sought to discover evidence of the "current lifestyle of the Father and his children with his new wife." While Mother argued such information was necessary to determine what type of support the children deserved, Father argued "that any aspect of [his] 'lifestyle' or assessment thereof has no bearing" in a modification hearing. Father also objected to providing information regarding his current income.

¶7 The trial court granted Mother's motion to compel Father to provide his tax returns and current income information finding such information relevant based on this Court's mandate in Kerby I. However, with respect to discovery into Father's lifestyle, the trial court ruled that, with the knowledge of Father's current income and his stipulation to the ability to pay any reasonable amount of support, such information was not relevant to this case.

¶8 Through discovery after remand, it was learned that Father's income had risen to nearly $1.3 million dollars annually, roughly ten times more than it was at the time of the divorce. Mother increased her demand of projected expenses to approximately $10,000.00 per month. Father again argued that the original child support order was sufficient for the children's reasonable expenses, casting mother's projected expenses as "ridiculous."

¶9 After trial, the court ruled that a modification was indeed warranted based on the evidence and increased the child support from $1500.00 per month to $2800.00 per month. The trial court set the effective date of the increase as the date of Mother's motion to modify and ordered Father to pay an arrearage of $62,400.00 calculated upon $1300.00 per month increase for forty-eight (48) months.

¶10 Mother appealed the trial court's denial of evidence relating to Father's lifestyle and Father appealed the trial court's determination of the effective date of the increase. The Court of Civil Appeals (COCA), Division III, agreed with the trial court that an increase was warranted and that its effective date was the date Mother filed the motion to modify but held that the court abused its discretion in failing to consider evidence regarding Father's lifestyle. COCA remanded the case back to the trial court, ordering it to "evaluate what amount of child support is warranted based upon the parties' incomes and lifestyle at the time modification was sought." We granted certiorari.

I.Modification of Child Support

¶11 Mother argues that because Father's income has increased, her children are entitled to live in the same lifestyle as Father. In support of her argument, Mother relies on this Court's opinion in Kerby I wherein we stated that the children should benefit, in the form of an enhanced lifestyle, from the significant increase in their Father's income. Kerby I,

¶12 While we do not deny that lifestyle of the parents may be a relevant factor in certain cases, lifestyle was not an issue before this Court in Kerby I. Moreover, this Court has never held that lifestyle is a requisite factor in all modification cases. To the contrary, in cases such as this, where Father's monthly income alone is above the maximum child support guidelines, the Legislature has left the courts with discretion to determine the factors for setting child support above the guideline amounts.

¶13 Taking into account all relevant factors as instructed by Kerby I, the trial court found evidence of Father's lifestyle to be irrelevant in this case. The court determined that evidence of Father's income, Father's stipulation to the ability to pay any reasonable amount of child support, and evidence of the children's projected needs, were sufficient factors to award an increase in support without hearing evidence of the lifestyles of Father and his new family. Based on these facts, we find no error in the trial court's decision.

II.Arrearage Award

¶14 Father contends the trial court erred in setting the effective date for the increase as the date Mother filed the motion to modify. When modification of child support is ordered, Oklahoma law provides that:

An order of modification shall be effective upon the date the motion to modify was filed, unless the parties agree to the contrary or the court makes a specific finding of fact that the material change of circumstances did not occur until a later date.

43 O.S.2001 § 118(E)(16)(a)(4). In the instant matter, the trial court complied with § 118 and specifically determined the effective date for the increase in child support to be the date of filing of Mother's motion to modify. The court, relying on Kerby I, found the significant increase in Father's income to be the material change of circumstance initiating the modification process and, therefore, ordered Father to pay an arrearage of $62,400.00.7 The court further stated that even if the increase in income did not suffice as the "material change of circumstances" required under § 118, a material change resulted nevertheless with the finding that "the children's needs were $2,800.00 back in June, 1999, when the motion to modify was filed."

¶15 Father argues the material change in circumstance allowing the arrearage must be based on the increased needs of the children and not on the increase in his income. Because Father claims the expenses had not yet been incurred on behalf of the children, he claims the trial court's award of an arrearage is nothing more than a windfall to Mother.

¶16 Father is incorrect on several points. First, Father's argument is moot as the trial court specifically found both, the material increase in income and the change in the children's needs, to have occurred at the time of the filing of Mother's motion to modify. The trial court weighed the parties' evidence regarding actual and projected expenses and specifically determined that the children's needs as of the time of the modification were $2800.00. Moreover, as this Court has previously held, a significant change in income can be the sole basis warranting modification of a child support award. Kerby I, 2002 OK 91 at ¶¶ 7 and 8, 60 P.3d at 1041; Stephen v. Stephen, 1997 OK 53, ¶ 12, 937 P.2d 92, 97. We find no abuse of discretion in this determination, as it is supported by the record, and uphold the trial court's ruling in this regard.

III.Appeal-Related Attorney Fees

¶17 Mother has moved for attorney fees incurred on appeal. Appeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court. Kerby I, 2002 OK 91 at ¶12, 60 P.3d at 1041. Title 43 O.S.2001 §110 provides for the award of counsel fees in divorce and subsequent related actions.8 However, counsel fees claimed pursuant to §110 do not depend on one's status as the prevailing party. Rather, they are awarded to the litigant who qualifies through the balancing of judicial equities. Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, 934-935; Merritt v. Merritt, 2003 OK 68, ¶ 20, 73 P.3d 878, 884.

¶18 As we previously found in granting Mother's appeal-related attorney fees in Kerby I, the equitable considerations in this case weigh in favor of Mother. Kerby I, 2002 OK 91 at ¶15, 60 P.3d at 1041-1042. Since remand, the equities have further increased in Mother's favor as Father's income has more than doubled since that time and Mother successfully sought an increase in child support. Accordingly, we grant Mother's appeal-related attorney fees in an amount to be determined by the trial court on remand.





1 At the time of the divorce, the children were 2 and 5 years old.

2 In addition to his monthly obligation of support, Father agreed to pay "fifty (50) percent of any dues, fees, charges or assessments by any third party as a result of either minor child of [the] marriage participating in any equine activities." Father also agreed to pay medical insurance premiums for the children as well as Mother, provide actual tuition expenses for the children's post-secondary education, and to maintain a life insurance policy benefiting the children until the youngest reaches age 22.

3 Father also filed a cross-motion to modify requesting modifications and/or clarifications to the Divorce Decree.

4 We also granted Mother's request for appeal-related attorney fees, finding that "Mother's motion to modify was not frivolous" and considering other equitable factors such as the "considerable disparity in the respective incomes and net worth of the parties." Kerby I, 2002 OK 91 at ¶ 15, 60 P.3d at 1041-1042.

5 Father also requested the court compel Mother, among other things, to provide an accounting for how she spent the child support.

6 Although a transcript from the May 30, 2003, hearing addressing the parties' motions is included in the appellate record, no order memorializing the rulings at that hearing is provided for review.

7 The trial court calculated the arrearage by taking the $1300 monthly increase in child support and multiplying it by forty-eight (48) months, back to the time of filing of the motion to modify.

8 Title 43 O.S.2001 §110 provides in pertinent part:

". . . C. Upon granting a decree of divorce or separate maintenance, the court may require either party to pay such reasonable expenses of the other as may be just and proper under the circumstances.