Layman v. Bohanon, 2019-SC-000364-DGE
| Decision Date | 26 March 2020 |
| Docket Number | 2019-SC-000364-DGE |
| Citation | 599 S.W.3d 423 |
| Court | United States State Supreme Court — District of Kentucky |
| Parties | Ashley LAYMAN, Appellant v. Richard Lee BOHANON, Jr., Appellee |
COUNSEL FOR APPELLANT: Paul E. Craft.
COUNSEL FOR APPELLEE: Tracy Denise Frye, Russell, Marie Elizabeth Troxler, Frye Law Offices, P.S.C.
The Boyd Family Court issued an order modifying the parties’ timesharing arrangement and holiday schedule and recalculating child support. The father, Richard Lee Bohanon, Jr., appealed. The Court of Appeals affirmed the family court's modification of the holiday schedule but reversed that portion of the family court's order that modified timesharing and child support. The mother, Ashley Layman, petitioned this Court for discretionary review, which we granted. Having reviewed the record and the applicable law, we reverse the decision of the Court of Appeals as to the issues before us.
Layman and Bohanon divorced on June 14, 2016. They entered into a settlement agreement in which they shared joint custody and equal parenting time with their two minor children, then ages four and seven. Under that agreement, neither parent was listed as the primary residential custodian. Rather, Layman would keep the children one week and Bohanon would keep them the following week. This week-on-week-off schedule continued for approximately two months, until Bohanon's work schedule changed in August 2016. Under his new schedule, he had two weekdays off each week. As a result, the parties altered the timesharing arrangement such that the children stayed with Bohanon two consecutive days during the week (including overnight) and every other weekend. Under this modified arrangement, the children stayed with Bohanon on Tuesday and Wednesday of one week, then Thursday through Sunday of the next week, after which the two-week cycle would repeat. Thus, the parties still shared equal parenting time.1
The parties’ modified timesharing arrangement was not memorialized in writing but continued for almost two years. During that time, Bohanon remarried. He is now a stepfather to his wife's two children, and he and his wife also have twins, born in March 2018. He lives approximately three minutes from Layman's home.
On April 13, 2018, Bohanon filed a motion to memorialize the modified timesharing schedule. He also moved for, among other things,2 modification of the parties’ holiday schedule, arguing that the current schedule allowed Layman to have the children on almost every holiday. In addition, Bohanon requested a modification of child support. More specifically, he sought recalculation of the amount agreed to in the settlement agreement—$400 per month—because Layman voluntarily quit her previous job and had since been receiving "gift income" from her parents, including $2,000 a month and a new automobile.
The family court held a two-day hearing. During the hearing, Layman requested that the children stay with her Mondays through Fridays. Under her proposed timesharing schedule, the children would sleep at her house during the week, but Bohanon could visit with the children and attend extracurricular activities on his two days off. She argued that this arrangement would be in the best interest of the children because it would provide consistency and hopefully help with certain behavioral issues. For example, she testified that the children struggled to complete their homework during the week, there were issues with transporting the children to and from their extracurricular activities, and the parties’ daughter often fought with one of Bohanon's stepchildren.
On October 3, 2018, the family court entered an order in which it found that "it is in the best interests of the children for the children to live primarily with [Layman]." It also ordered that Bohanon's parenting time follow the schedule set forth in Plaintiff's Exhibit #1, which outlined the timesharing schedule that the parties had been abiding by since August 2016. The court also adopted the holiday and vacation schedule proposed by Layman, and recalculated Bohanon's child support at $925 per month based on the guidelines but eliminated his obligation to pay for extracurricular activities or academic expenses.3
Bohanon filed a motion to alter, amend, or vacate. Relevant to this appeal, Bohanon took issue with the court's designation of Layman as the primary residential custodian and its calculation of child support. On the issue of child support, Bohanon again argued that Layman was voluntarily underemployed and received gifts from her parents that should be included as income in the child support calculation.
In response, the family court issued an order on October 15, 2018 amending its previous order. The court explained that it had inadvertently referenced Plaintiff's Exhibit #1 and clarified that this would not be the timesharing schedule going forward. Rather, under the amended order, Bohanon would keep the children every other weekend and two days per week for three hours each day, from 5:00 PM to 8:00 PM. The family court explained that this schedule would allow the children to spend time with Bohanon, while also addressing Layman's concerns about homework, academics, and extracurricular activities. It would also allow the children to spend the night in the same home throughout the week.
Bohanon appealed. In his prehearing statement to the Court of Appeals, Bohanon argued that the family court erred in (1) awarding primary custody to Layman; (2) reducing Bohanon's timesharing; and (3) recalculating child support "without considering all relevant facts and income." More specifically, he argued that the family court failed to consider the presumption for joint custody and equal parenting time set forth in the custody determination statute, Kentucky Revised Statute ("KRS") 403.270, and the custody modification statute, KRS 403.340. He also argued that the family court failed to consider shared parenting time when calculating child support, and he again reiterated his argument that Layman was voluntarily underemployed and receiving gift income.
The Court of Appeals affirmed in part and reversed in part. As explained in more detail below, the Court of Appeals read KRS 403.270 () in conjunction with KRS 403.320 (). It concluded that that the family court could only modify the equal timesharing schedule—thereby reducing Bohanon's parenting time to less than fifty-percent—if it first found that the children were seriously endangered. There were no such findings, and the Court of Appeals therefore reversed the family court's timesharing modification. The Court of Appeals also found that the family court erred in failing to impute income to Layman for the gifts she received from her parents. It affirmed the family court's finding that Layman was not voluntarily underemployed, however.4
This Court granted Layman's petition for discretionary review to determine (1) whether the Court of Appeals correctly interpreted and applied KRS 403.320 and KRS 403.270 ; (2) whether the family court erred in modifying the timesharing arrangement; and (3) whether the family court erred in declining to impute income to Layman for gifts she received from her parents. We address each issue in turn.
Layman first argues that the Court of Appeals erred in applying KRS 403.270 to a modification of timesharing. The parties requested a modification of timesharing, not custody, and Layman therefore argues that the court was bound to the standard set forth in KRS 403.320, not the standard for determining custody found in KRS 403.270. This issue is one of statutory interpretation, and we therefore review it de novo. Bob Hook Chevrolet Isuzu, Inc. v. Com. Transp. Cabinet , 983 S.W.2d 488, 490 (Ky. 1998).
KRS 403.270(2) (emphasis added). Prior to July 2018, this subsection included only the first and last sentence. The remainder of the subsection, emphasized above, was added and became effective July 14, 2018, shortly before the hearing in this case.
KRS 403.320(3) governs the modification of visitation. Under that statute, "The court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child; but the court shall not restrict a parent's visitation rights unless it finds that the visitation would endanger seriously the child's physical, mental, moral, or emotional health." The term "visitation" is often used interchangeably with "timesharing." Anderson v. Johnson , 350 S.W.3d 453, 455 n.1 (Ky. 2011) (citing Pennington v. Marcum , 266 S.W.3d 759, 765 (Ky. 2008) ). Furthermore, "the term ‘restrict’ means to provide [either] parent with something less than ‘reasonable visitation.’ " French v. French , 581 S.W.3d 45, 50 (Ky. App. 2019) (quoting Kulas v. Kulas , 898 S.W.2d 529, 530 (Ky. App. 1995) ). Accordingly, under KRS 403.320(3), a court can modify timesharing if it is in the best interests of the child, but it can only order a "less than reasonable"...
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