Serrano v. Serrano
| Decision Date | 13 March 2020 |
| Docket Number | NO. 2018-CA-001888-ME,2018-CA-001888-ME |
| Parties | SAMANTHA DAWN SERRANO APPELLANT v. JORGE CHASE SERRANO APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM BOYD CIRCUIT COURT
Because the trial court deviated from the child support guidelines and worksheet but failed to identify a factor of an extraordinary nature justifying the deviation as required by KRS 403.211(2) and (3)(g), we reverse the child support award and remand for further proceedings.
Because the trial court may be unaware, we note that Kentucky courts are permitted, though not compelled, to consider applying the Colorado Method of deviating from the support guidelines in some cases in which joint custody with equal parenting time is awarded. On remand, the trial court should consider the evidence to determine if the amount of time the children are with each parent increases the expenses of maintaining two homes and, if so, whether that fact is an extraordinary factor justifying a greater total child support obligation than contemplated by the existing child support guidelines, KRS 403.212(7), and the Kentucky Worksheet for Monthly Child Support Obligation (CS-71, Line 10).2
Lastly, because the trial court did not abuse its discretion regarding attorney's fees, we affirm that part of the decree.3
The parties married on July 6, 2011, and had two children. Seven years later, the parties separated. They were able to successfully co-parent by equitably dividing physical custody and parenting time with the children. They coordinated work schedules, so the children were always with a parent. This minimized the need for formal daycare and the accompanying expenses.
Following a hearing before a domestic relations commissioner (DRC) to finalize their divorce, the Boyd Circuit Court entered its findings of fact, conclusions of law, and decree of dissolution on November 30, 2018, adopting the commissioner's findings as its own.
Specifically, the court found that Mother works for Bon Secours Health System and earns $3,223.39 per month. The court found Father works for the Ashland Police Department earning $4,351.90 per month and has a second income of $541.87 per month for a total monthly income of $4,893.77.
The family incurs child care expenses of $33 per day for an average of three days per month and a total monthly cost of $99. Additionally, Father pays monthly health insurance premiums for the children of $174. Applying the law to these facts, the court ordered Father to pay Mother $67 per month as child support.
The child support ordered is a deviation from the amount calculated on the worksheet of $722. (R. 206, R. 213: CS-71, Line 13, Column B). The court failed to articulate a reason for the deviation downward to $67. After the trial court denied both Mother's motion to alter, amend, or vacate the order, and her motion seeking attorney's fees, she brought this appeal.
We review support orders for abuse of discretion. Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009). The standard "is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound reasonable principles." Penner v. Penner, 411 S.W.3d 775, 779-80 (Ky. App. 2013) (citation omitted). The grant or refusal to award attorney's fees pursuant to KRS 403.220 is also reviewed for abuse of discretion. Allison v. Allison, 246 S.W.3d 898, 909 (Ky. App. 2008). Claims of legal error are reviewed de novo. Oster v. Oster, 444 S.W.3d 460, 466 (Ky. App. 2014) (citing Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006)).
The trial court, adopting the DRC recommendations, calculated child support by a method this Court has seen before. It utilizes the worksheet in a modified way not expressly authorized by the statutes or regulations that govern its use. Rather than following the worksheet that requires one parent to pay the other parent the full amount calculated on the worksheet's Line 13, Column B, this modified method looks to each parent's individual monthly obligation, calculates the difference between the two, and orders the parent with the greater obligation to pay the difference to the parent with the lesser obligation. Because this method necessarily deviates from the guidelines, the family court, or circuit court sitting as a family court, must comply with KRS 403.211(2) with "a written finding or specific finding on the record . . . specifying the reason for the deviation." The Boyd Circuit Court followed this method but failed to explain its reason for deviating from the guidelines.
Mother argues the trial court erred in two primary ways. She says first that the court misapplied the support statute, KRS 403.212, in calculating the support obligation. Second, she says the support award is a deviation from what a proper calculation would yield, and that the trial court erred by failing to articulate a justification or reason for that deviation as required by KRS 403.211(2)-(3).
Mother's second point is clearly correct. Proper calculation of the support amount using the Kentucky Worksheet for Monthly Child Support Obligation directs Father to pay Mother $722, an amount presumed correct pursuant to KRS 403.211(2). The court reduced that amount to $67 without identifying a "factor of an extraordinary nature" under KRS 403.211(3)(g) to overcome that presumption. Therefore, this Court must reverse and remand the case, at least to allow the court to express its reasoning for the deviation. KRS 403.211(2) ( ); Carver v. Carver, 488 S.W.3d 585, 593 (Ky. 2016) ().
However, Mother's other argument squarely presents another issue of merit - how should courts calculate child support when joint custody and equal parenting time are awarded? The applicable statutes and regulations clearly guide the courts when sole custody is awarded, whether it is traditional sole custody or that rare "subset of sole custody - split custody." Pennington v. Marcum, 266 S.W.3d 759, 765 (Ky. 2008). But, as Mother correctly points out, the legislature failed to say how courts should calculate support after an award of joint custodywith equally shared parenting time, despite expressing the public policy preference for such custody awards.4
Mother believes the Boyd Circuit Court erred in its support calculation because it failed to apply the Colorado Method (discussed below) for deviating from the support schedule set out in KRS 403.212. She also notes the Kentucky Supreme Court has approved the Colorado Method for use in Kentucky's 17th Judicial Circuit. See Campbell Fam. Ct. Rule 7.H.3. Mother "proposes that this Court adopt the Colorado Method for calculating child support in a true shared parenting situation . . . and provide guidance to Trial Courts across the state . . . ." (Appellant's brief, pp. 7-8).
Mother posits that the lack of legislative guidance has forced family courts (and circuit courts sitting as such) to resort to creative, though not always uniform, solutions. There is some accuracy to that observation, and good reason toaddress it. As discussed below, uniformity in child support awards across the state is both a federal and a state mandate. Assuring uniformity is therefore essential.
"Generally speaking, a trial court enjoys 'broad discretion in the establishment, enforcement, and modification of child support.'" Bell v. Bell, 423 S.W.3d 219, 222 (Ky. 2014) (emphasis added) (citing Com., Cabinet for Health and Family Servs. v. Ivy, 353 S.W.3d 324, 329 (Ky. 2011)). That aphorism was truer before 1990 than it is today. Before 1990, a court could order any amount it believed "reasonable or necessary" after considering "all relevant factors" including five (5) enumerated in KRS 403.210 (1988; repealed 1990).
That pre-1990 statute was typical of those in many states. But, according to Congress, such broad discretion had created the specific problems that "child support awards were inadequate to cover the actual costs of raising a child," and that "child support orders varied drastically for no apparent reason." Linda Henry Elrod, The Federalization of Child Support Guidelines, 6 J. AM. ACAD. MATRIM. LAW. 103, 111 (1990). To solve the problems, Congress motivated state governments to change their laws with a mandate tied to federal funding of welfare programs. See Family Support Act of 1988, Pub. L. No. 100-485, 102 Stat. 2343 (1988) ().
If the states wanted to ensure receipt of federal funding, they would have to establish a child support commission and add several procedures to theirlaws relating to child support establishment and collection. 45 C.F.R. § 304.95 and Child Support Enforcement Amendments of 1984, Pub. L. No. 98-378, 98 Stat. 1305 (1984) (...
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