JANEEN MARIE GRAF APPELLANT v. JEFFREY ALLAN GRAF APPELLEE

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Court of Appeals of Kentucky.

JANEEN MARIE GRAF APPELLANT v. JEFFREY ALLAN GRAF APPELLEE

NO. 2010–CA–002084–ME

Decided: January 13, 2012

BEFORE:  MOORE, NICKELL, AND THOMPSON, JUDGES. BRIEF FOR APPELLANT:  Scott E. Karem Louisville, Kentucky BRIEF FOR APPELLEE:  William L. Hoge, III Louisville, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Janeen Marie Graf appeals the Jefferson Family Court's order denying her motion to modify the parties' visitation schedule and to reduce her child support payment for the parties' two minor children, and the family court's order overruling her motion to alter, amend, or vacate.   After a careful review of the record, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jeffrey and Janeen Graf were divorced on April 4, 2003.   Both parties are employed as pilots.   Given the nature of their employment, the parties agreed to an equal visitation schedule where each would have the children for alternating five-day periods.   The parties further agreed that neither would pay child support, but that “if at any time either party incurs an income loss which is not voluntary in nature (i.e. furlow [sic], termination not for cause, etc.), then in such event, child support shall be immediately established pursuant to the guidelines of the Commonwealth of Kentucky․”

Jeffrey later filed a motion requesting that the family court award child support.   He indicated that his employer, Northwest Airlines, had filed for bankruptcy.   As a result, he was required to take a reduction in pay, thereby triggering the parties' agreement to establish child support.   The family court found that Jeffrey's salary had in fact been reduced by forty-eight percent.   The family court held that, “[i]n light of the reduction in Mr. Graf's income, the increase in Ms. Graf's income, the parties' combined income far in excess of the child support guidelines, their equal parenting schedule, and all the facts properly before the Court, this Court will grant Mr. Graf's motion for child support and will require Ms. Graf to pay $500.00 per month as child support.”

On November 3, 2009, Janeen filed a motion requesting a reduction of her child support obligation and that the parties' visitation schedule be modified from a “5 on 5 off” schedule to a weekly schedule with the parties exchanging the children each Sunday.   Janeen argued that she had experienced a reduction in income due to job sharing and was therefore entitled to a reduction of her child support obligation.   The family court found that the reduction was temporary.   At the time of the entry of the court's order, the job sharing had ceased and Janeen had been reinstated to her position as a full-time captain.   Because Janeen had not been working full time in the months preceding the hearing, the family court calculated her income by using the minimum monthly flight hours established by Janeen's employer.   Janeen had discussed the possibility of taking a voluntary demotion from captain to first officer to spend more of her parenting time with the children.   Thus, although Janeen was still employed as a captain, the family court calculated Janeen's income based upon a first officer's salary.   The family court had also calculated Jeffrey's income based upon the minimum flight hours required by Delta. Double After considering the parties' respective expenditures and proportionate obligations, the family court found that Janeen should actually pay more than the current child support amount and accordingly denied Janeen's motion.

The family court also denied Janeen's motion with respect to modification of the parties' visitation arrangement, finding that Janeen had failed to demonstrate that the children were “suffering from the current parenting schedule.”

Janeen filed a motion to alter, amend, or vacate the family court's order.   She argued that the family court improperly calculated Mr. Graf's income and expenditures on behalf of the children and that it failed to consider the benefit to the children with respect to a modified timesharing schedule.   The family court denied Janeen's motion, indicating that Janeen had failed to establish that the best interest of the children would be served by a modification of the current visitation schedule.   Additionally, the family court concluded that a modification was not warranted because there was no “material change in circumstances that is substantial and continuing,” given the fact that both parties continued to earn incomes well in excess of the guidelines and maintained the same timesharing schedule.   Janeen now appeals.

III. STANDARD OF REVIEW

A family court is afforded broad discretion when deviating from the child support guidelines where the parents' combined incomes exceed the uppermost level of the guidelines.  KRS  Double 403.212(5);  Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App.2001).   Accordingly, we review such a determination for an abuse of discretion.  Downing, 45 S.W.3d at 454.   The test for abuse of discretion is whether the [family court's] decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”   Id. We also cannot set aside the family court's findings of fact unless clearly erroneous.  CR  Double 52.01;  See also Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky.App.2010).

IV. ANALYSIS

a. Child Support

Janeen first argues that the family court did not correctly calculate Jeffrey's income. Double More specifically, Janeen argues that the family court should have used an average of Jeffrey's actual flight hours (75.35 hours) instead of the minimum 68 hours to calculate his income.   As mentioned previously, because the family court did not have information regarding Janeen's full-time income, it calculated her income by using the minimum hours required by her employer.   It then used this same method for calculating Jeffrey's income.   Moreover, Janeen overlooks the fact that the court also attributed a significantly lower hourly wage to her as a first officer (171 per hour), instead of her actual income as captain (244 per hour).   Thus, we cannot find that the family court abused its discretion.

Janeen next argues that the family court allowed Jeffrey to claim expenses which the parties actually shared.   However, it is clear that the family court took into consideration the fact that the parties were sharing some expenses.   The family court also evaluated both parties' expenses and disallowed expenses that it considered unnecessary to meet the needs of the children.   In doing so, the family court was acting in its capacity as fact finder, and we decline to set aside those findings where Janeen presented no evidence indicating they were clearly erroneous.  CR 52.01;  See also Humphrey, 326 S.W.3d at 463.

Finally, Janeen argues that the family court erred by applying a different calculation method than it had when initially determining child support.   She further argues that “law of the case” applies, thereby prohibiting the family court from using a different calculation.   However, Janeen cites to no authority to support her argument, and we reject it.   We reemphasize that a court has broad discretion when making child support determinations where the parties' income is in excess of the guidelines.  KRS 403.212(5);  Downing, 45 S.W.3d at 454.   The court may consider multiple factors and errs where it relies solely upon mathematical calculations.   See generally Downing, 45 S.W.3d at 456.

Moreover, because the parties' incomes were greatly in excess of the guidelines, the family court acted wholly within its discretion when it initially set the amount of Janeen's child support obligation.   Janeen's arguments are based upon mathematical extrapolations intended to reduce that initial award.   In doing so, she discounts the exercise of the family court's discretion.   Upon Janeen's request for a modification, it was unnecessary for the family court to re-calculate the award.   Instead, the family court was required to evaluate the parties' schedules, incomes, and expenses only insofar as necessary to determine whether the change in the parties' circumstances was substantial and continuing so as to warrant a modification.  KRS 403.213.   For the aforementioned reasons, we find no abuse of discretion.

b. Visitation

Janeen argues that the family court incorrectly denied her motion to modify the parties' visitation agreement.   Although Janeen concedes in her brief that the children are doing well on their current schedule, she insists that a modified schedule would be in the best interest of the children because it would allow her to more easily schedule her flight time around her parenting time.

We review a court's determination regarding modification of visitation or custody for an abuse of discretion.  Pennington v. Marcum, 266 S.W.3d 759, 761 (Ky.2008).  KRS 403.320(3) provides that a modification of visitation should be granted only when it is in the best interest of the children.   See also Humphrey, 326 S.W.3d at 464.   It is the burden of the party seeking the modification to prove that it is in the children's best interest to modify the current visitation schedule.  McNeeley v. McNeeley, 45 S.W.3d 876, 878 (Ky.App.2001).

In the case sub judice, the family court found that Janeen had failed to meet her burden demonstrating that it was in the children's best interest to modify the visitation schedule.   The family court also found that the children had been on the current schedule since the parties' separation—approximately seven years—and were active in extracurricular activities, were performing well in school, and were not in counseling.   Janeen presented no evidence to the contrary.   We therefore conclude that the family court did not abuse its discretion.   Accordingly, we AFFIRM.

ALL CONCUR.

MOORE, JUDGE: