ON REVIEW FROM COURT OF APPEALS CASE NO. 2010-CA-001343-MR LARUE CIRCUIT COURT NO. 09-CI-00112
COUNSEL FOR APPELLANT: Jason P. Floyd, Fulton, Hubbard & Hubbard.
COUNSEL FOR APPELLEE: Caleb Tyler Bland, Birdwhistell Law, P.S.C.
This case presents the question of whether a trial court must take into account the parents' visitation or time-sharing arrangement in deciding the amount of child support to be paid. While such a consideration is permitted, it is not mandatory. Therefore, the trial court's failure to factor time-sharing into its decision in this case was not error. For that reason, this Court affirms.
Dorinda McFelia, Appellee, and Joseph McFelia, Appellant were married in 1994. During the marriage, they had two children. Deciding to divorce, the parties entered into a temporary agreement, which was entered by the trial court on June 15, 2009. This agreement set forth terms dealing with property disposition and the custody and support of the two daughters. They agreed to joint custody, and set time-sharing (called visitation) for Joseph at every Tuesday until 7:00 p.m., Wednesday overnight, and every other weekend. They agreed that child support would be set "according to parties' incomes, " to be paid to the county attorney for distribution, and to begin on June 1, 2009. Attached to the agreement signed by the trial court and filed in the record was a form Uniform Child Support Order, AOC-152, and a child support worksheet that showed the income of both parents.
The standard child support worksheet reflected the calculations to be made in accordance with Kentucky law, and allowed for certain factors to be included in the calculation of support, such as child care costs and insurance, in addition to each party's income. The calculation arrived at the proportionate share each party should pay toward support of the two children, based on income and who paid for certain expenses. The parties' agreement designated Dorinda as the "custodial parent, " and thus the worksheet showed only the proportional share of support that Joseph would pay to her. That amount was $696.00. Nothing on the work sheet took into account the amount of time the children spent in each home.
On July 10, 2009, Joseph filed a motion to modify child support based on the amount of time the children spent in his physical custody. He argued that the children were in his care almost 50% of the time, but that the child support order contemplated a support award as if the children were with their mother 100% of the time. This motion was passed to the August 10 status docket, but the record does not reflect that it was heard on that date because the case went to mediation on numerous matters, which was unsuccessful.
The child support arrangement set in the temporary order remained in place on the date of the final hearing on May 21, 2010. The trial court recognized that the arrangement had been working well, and concluded that under Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008), the current situation remained in the children's best interest, and declined to set time-sharing at alternate weeks with each parent because such an arrangement would unduly disrupt the children's established schedule. The trial court also ordered that child support would remain at the amount the parties agreed to in the temporary order: Joseph would continue paying $696.00 per month in child support to Dorinda.
In its conclusions of law, the trial court held that Joseph would pay this amount until the children turned age 18, or were otherwise emancipated, except that support would continue to age 19 if a child were still in high school. In short, the court's order was in a very common form frequently used in circumstances such as these.
On June 28, 2010, Joseph untimely filed a motion to alter, amend or vacate the judgment because the trial court did not take into consideration the amount of time the children spent in his physical custody when it set the child support. This motion was later withdrawn when opposing counsel objected to its timeliness.
Joseph also appealed this decision, claiming that the trial court did not properly calculate child support because the court did not consider and give proper weight to the amount of time the children were in his physical custody. Indeed, the court did note the time-sharing arrangement of the parties, but only to note that the arrangement is not what the court would have ordered ab initio, but that since it was the parties' agreement and was working well, the court would not disturb the time-sharing. It is true that there is nothing in the trial court's order addressing the amount of time the children spend in each home, and there is no discussion whether this should affect the amount of support paid.
The Court of Appeals affirmed. This Court granted discretionary review to address whether time-sharing or visitation must be considered in ...