Shively v. Shively, No. 2008-CA-000865-ME (Ky. App. 9/18/2009)
| Decision Date | 18 September 2009 |
| Docket Number | No. 2008-CA-000865-ME.,No. 2008-CA-001180-ME.,2008-CA-000865-ME.,2008-CA-001180-ME. |
| Parties | Mary Levan SHIVELY, Appellant v. Benjamin SHIVELY, Appellee |
| Court | Kentucky Court of Appeals |
Appeal from Jefferson Circuit Court, Honorable Eleanore Garber, Judge, Action No. 04-CI-504397
Allen McKee Dodd, Louisville, Kentucky, Brief for Appellant.
Enrico A. Mazzoli, Louisville, Kentucky Brief for Appellee.
Before: CAPERTON, KELLER AND LAMBERT, Judges.
Not to be Published
Mary Levan Shively (Paulie) appeals1 from the Jefferson Family Court's order whereby the court granted Benjamin Slavery's (Ben) motion to modify child support, denied Paulie's motion to modify child support, and denied both parties' motions for attorney fees. After a careful review of the parties' arguments, the record, and the applicable law, we hereby affirm the Jefferson Family Court's order.
The parties share joint custody of their two minor children. Ben is the primary residential custodian and as such, Paulie was required to pay Ben $159 per month in child support.2 Ben is an attorney currently practicing as an independent contractor with the Waters Law Office. Prior to his independent contract work, Ben worked for the law firm of Parker and O'Connell in Louisville. Ben's largest client at Parker and O'Connell was the tobacco company Brown and Williamson, which generated a substantial amount of income for Ben.3 At the time child support was originally calculated in 2005, the court acknowledged that Ben's income would probably significantly decrease in that he anticipated losing the Brown and Williamson account as the company was moving its headquarters from Louisville.
Paulie is a senior manager in the tax section at Deloitte and Touche, an international accounting firm. She began there in 1991 and worked more than full time hours until the end of 2005, when she switched to fewer hours for less pay. After Paulie switched to fewer hours at work, she moved the court to allow her to provide afterschool care for the parties' children on "Ben's days" if he was required to work. On March 21, 2006, the court entered an order that permitted Paulie to provide afterschool care for the children, but the trial court emphatically stated it was not changing the parenting schedule.4
On November 30, 2007, the court held a hearing5 on Ben's motion to increase child support. However, Ben did not provide sufficient verification of his current income at the hearing.6 Further, Paulie presented an expert witness at the hearing to testify as to Ben's earning capacity. Ben argued that this was an unfair surprise. The trial court kept the record open after the hearing for documentation of Ben's 2007 income and any additional expert witness testimony regarding Ben's potential earning capacity. Each party subsequently filed two post hearing briefs.
After the record closed on February 29, 2008, the court reviewed the evidence presented by the parties. In its order of April 4, 2008, the court addressed the outstanding motions before it: Ben's motion to modify child support, Paulie's motion for common law judgment for child care expenses,7 Paulie's motion to modify child support, and both parties' request for attorney fees.
In its order the trial court first addressed why it found Dr. Berla's opinion (Paulie's expert) that Ben should be making $220,000 per year not credible. First, Dr. Berla acknowledged that Ben's income had fluctuated greatly over the past five years; therefore, past income was not determinative. Second, the information provided to Dr. Berla was inaccurate as Dr. Berla thought Brown and Williamson was a large law firm and not a tobacco company. Moreover, Dr. Berla thought Ben was a non-equity partner and that his last employer was Brown and Williamson, contrary to the fact that Ben's last employment was with Parker and O'Connell. Third, Dr. Berla utilized the Altman Weil Survey of Law Firm Economics from 2004 as a basis for Ben's earnings. The court noted that this survey was based on self-reported information and Dr. Berla did not know if the information was verified. Further, only sixty-four Kentucky attorneys responded to the survey. Dr. Berla did not look at the survey for smaller law firms since he thought Ben worked for a large law firm. The survey included attorneys who had practiced over 20 years, whereas Ben has been licensed for less than 10 years. Fourth, Dr. Berla could not state that Ben was underemployed. Thus, the trial court concluded that Dr. Berla's opinion contained no relevant information.
The trial court next addressed the parties' parenting schedule which had not changed since October 28, 2005. Even though Paulie provides afterschool care for the children, the court noted that she had failed to explain how this had morphed into additional parenting time when Paulie agreed earlier that this was not a change to the parenting schedule. The court found that during the school year Ben has the kids 64% of the time and Paulie 36% and that this reverses in the summer.
As to the parties' income, the trial court found that Ben's gross income in 2007 was $131,177 based on the evidence within the record, which was 55% of the combined parties' monthly incomes. The trial court found Paulie's income in 2007 to be $108,391.72 (45% of the combined monthly incomes) based on her average salary and bonuses from 2003-2007 and that Paulie had worked more than full time during the marriage but had recently reduced her hours for less pay. The parties' combined monthly parental income remained above $15,000; therefore the court deviated from the child support guidelines.
The court then set Paulie's child support obligation, as the nonprimary custodian, based on the children's reasonable monthly expenses of $2500. The court took the percentage of the combined monthly adjusted income that Paulie earned (45%) and multiplied this by the children's reasonable needs per month. This amount of $1,125 per month was reduced to $609.38 per month as Paulie was paying some of the children's living expenses based on her having the children more often. This amount was again reduced since Paulie provides for the children's health insurance and Ben is responsible for 55% of the cost. Thus, the trial court set Paulie's child support obligation at $492.38 per month.
Last, the court declined to award either party attorney fees as they both contributed to unnecessary legal expenses, Paulie's attorney did not submit a time sheet, Dr. Berla did not add anything of value to the court's determination of Ben's income, and the disparity in income was not great. It is from this lengthy and well-reasoned order that Paulie appeals.
Paulie sets forth five claimed errors which she argues mandate reversal of the trial court's order modifying child support. First, Ben's motion to modify child support should have been denied because of the incomplete information he presented at the hearing. Second, the court abused its discretion by ordering Paulie to pay an increase in child support,8 particularly given the near equal parenting schedule. Third, the court erred in its rulings regarding the disclosure of expert witnesses, which resulted in an unfair proceeding to Paulie's claims that the trial court granting Ben additional time to obtain an expert and quashing her discovery was unfair. Fourth, the court erred in quashing Paulie's discovery requests. Fifth, the court should have awarded attorney fees to Paulie under CR 37 and KRS 403.220 due to Ben's tactics before and after the child support hearing.9
Ben counter-argues that the trial court did not err and thus we should affirm the order modifying child support. First, Ben's motion to modify child support was properly granted. Second, the court did not abuse its discretion in computing the child support. Third, the court did not err in its ruling regarding Paulie's failure to disclose her expert. Fourth, the court did not err in quashing Paulie's discovery requests. Fifth, the court did not abuse its discretion in not awarding Paulie attorney fees.
At the outset we note that our standard of review concerning the issues presented by the parties is whether the trial court abused its discretion in modifying child support, in ruling on evidentiary and discovery matters, or in denying attorney fees to the parties. See Goldsmith v. Bennett-Goldsmith, 227 S.W.3d 459, 461(Ky.App. 2007)(modification of child support order is reviewed under abuse of discretion); Brown v. Brown, 952 S.W.2d 707, 708 (Ky.App. 1997)(deviation from child support guidelines reviewed under abuse of discretion standard); Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000)(abuse of discretion is the proper standard of review of a trial court's evidentiary rulings); Naive v. Jones, 353 S.W.2d 365, 367(Ky. 1961)(appellate court should respect the trial court's exercise of sound judicial discretion in the enforcement of the civil rules pertaining to discovery); Miller v. McGinty, 234 S.W.3d 371, 372 (Ky. App. 2007)(decisions regarding attorney fees are within the sound discretion of the trial court).
Abuse of discretion occurs when a decision is arbitrary, unreasonable, unfair, or unsupported by sound legal principles. McKinney v. McKinney, 257 S.W.3d 130, 133 (Ky. App. 2008) (internal citations omitted). Accordingly, we shall review each of the issues presented by the parties in light of the aforementioned abuse of discretion standard.
As to the trial court's factual findings, such as Ben's income, we review said findings pursuant to CR 52.01. This Court will not disturb the trial court's findings of fact unless clearly erroneous. "Findings of fact are not clearly erroneous if supported by substantial evidence." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999). Substantial evidence is that evidence, when taken alone or in the light of all the evidence, has sufficient probative value to induce conviction in the minds...
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