APPEAL FROM LYON CIRCUIT COURT HONORABLE CLARENCE A. WOODALL, III, JUDGE ACTION NO. 10-CI-00052
BRIEFS FOR APPELLANT: Lindell Choat
BRIEF FOR APPELLEE: Natalie M. White
BEFORE CAPERTON, CLAYTON, AND TAYLOR, JUDGES.
John Seay appeals from the denial of his motion, and the corresponding motion to alter, amend, or vacate said denial, to reduce his child support obligation given the emancipation of one of his three children. After a thorough review of the parties' arguments, the record, and the applicable law, we reverse and remand this matter for further consideration by the court below.
The parties are parents to three children born of their marriage. In February 2011, the parties attended a mediation session to determine property division, debt allocation, child custody, and child support in their divorce proceedings. The mediation settlement gave joint custody of the children to both parents with Donna being designated the primary residential custodian of the children. John agreed to pay child support to Donna in the amount of $725.00 per month, in accordance with the Kentucky Child Support Guidelines, using offset charts for the two oldest children with whom John had more time-sharing than the youngest child. The court incorporated the settlement agreement in its entirety into its June 6, 2011, decree of dissolution of marriage.
The eldest child reached the age of majority and graduated high school in May 2012. In June 2012, John moved the court for modification of his child support based on this material change in circumstance. John's motion was heard on August 9, 2012, at which time Donna gave testimony that the parties had not been abiding by the "shared custody" arrangement as to the middle child and that John had only visited with the middle child pursuant to the 56th Judicial Circuit Guidelines for visitation/time-sharing. John concurred with this but explained that this was a temporary situation since John had permitted the middle child to stay with Donna more to help her recover from a motor vehicle accident. Donna's calculation of child support without credit to John for the "shared custody" arrangement was $687.03 per month. John's calculation of child support with credit for his belief that he maintained custody of the middle child 50% of the time was $504.73 per month.
On August 21, 2012, the court below denied John's motion for modification of child support, reasoning that a deduction from $725.00 per month to $687.03 was inappropriate. In so doing, the court found that John could not substantiate that he had exercised 50% of the time-sharing with the middle child; that the sought-after amount was only a 6% decrease from his original child support obligation and did not meet the 15% threshold; and that, accordingly, a reduction in child support was not merited.
On August 24, 2012, John filed a motion to alter, amend, or vacate the August 21, 2012, order. The court denied his motion on September 19, 2012. The court noted that while one of the three children had been emancipated, the relevant inquiry was how much amount of support is being paid at the time of the motion and the amount due pursuant to the guidelines. The court noted that agreements in regard to custody and support are not binding on it. Additionally, the court stated that time-sharing and shared custody are factors which the court may consider in its discretion. Based on the testimony heard before it, the court determined that "the resulting split in time is 70% to [Donna] and 30% to [John]" which is consistent with the normal "non-custodian parent" parenting time. The court concluded that the guidelines were not unjust or inappropriate. The court denied John's motion to alter, amend, or vacate. It is from these orders that John now appeals.
On appeal, John presents two issues, namely: (1) whether the emancipation of the eldest child, without more, was an event pursuant to Kentucky Revised Statutes (KRS) 403.213(3) that would allow a court to review the child support payable pursuant to statute and caselaw; and (2) whether a mediated agreement effected by order of the court is the law of the case  and is thereby not subsequently modifiable by the court. With these issues in mind we turn to the applicable standard for our review of this matter.
At the outset we note, that "[a]s are most other aspects of domestic relations law, the establishment, modification, and enforcement of child support are prescribed in their general contours by statute and are largely left, within the statutory parameters, to the sound discretion of the trial court." Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000). "However, a trial court's discretion is not unlimited. The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001).
Turning to the first issue before us - the emancipation of the eldest child - the court erroneously concluded that John's child support obligation could not be modified without a 15% change in the amount of support due when a child is emancipated. The legislature clearly did not intend such as result:
(3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child shall be terminated by emancipation of the child unless the child is a high school student when he reaches the age of eighteen (18). In cases where the child becomes emancipated because of age, but not due to marriage, while still a high school student, the court-ordered support shall continue while the child is a high school student, but not beyond completion of the school year during which the child reaches the age of nineteen (19) years. Provisions for the support of the child shall not be terminated by the death of a parent obligated to support the child. If a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, ...