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Court of Appeals of Kentucky.


NO. 2011–CA–000976–me

Decided: January 20, 2012

BEFORE:  TAYLOR, CHIEF JUDGE;  DIXON AND LAMBERT, JUDGES. BRIEF FOR APPELLANT:  Nanci M. House Winchester, Kentucky BRIEF FOR APPELLEE:  Elizabeth Elkins Bond Winchester, Kentucky



Lawrence Scott Anderson (Father) appeals the judgment of the Clark Circuit Court as to custody and child support of his child (Child) with Suzanne Jean Taylor (Mother).   We affirm.

Father and Mother, who were not married, ended their relationship in March 2010, when Child was four years old.   The court heard extensive testimony at a temporary custody hearing in April 2010.   Father indicated he wanted primary custody of Child, with Mother having reasonable visitation.   The testimony established that Child's paternal grandparents cared for Child during the day while Mother and Father worked.   The court drafted a temporary time-sharing schedule, where the parties received nearly equal parenting time with Child.   The schedule provided that Child spend each weekday with the paternal grandparents until 4:15, when Father returned home from work.   Father had a few hours with Child every night except Wednesday, and Child stayed overnight with Father on Tuesday and alternating weekends.   Child had overnight visits with Mother on Monday, Wednesday, Thursday, and alternating weekends.

The court also heard evidence regarding temporary child support.   Father earns approximately $3800.00 per month at his manufacturing job, while Mother earns approximately $1700.00 per month working at a doctor's office.   An issue arose regarding Mother's prior employment at a grocery store where she had worked on Saturday to earn extra income.   Mother testified she was fired from the grocery after Father contacted the wife of Mother's boss regarding what he perceived as inappropriate communication between Mother and her boss.   Father acknowledged his conduct, but contended he did not intend for Mother to get fired.   After hearing the evidence, the court set Father's temporary child support obligation at $455.87 per month pursuant to the statutory guidelines.

The trial court held a final hearing on December 8, 2010, to resolve disputed issues of custody and child support.   Father asserted he provided a better home for Child and reiterated that he wanted primary custody of Child.   Father testified he thought Mother's home was unclean, Mother made poor parenting decisions, Mother used corporal punishment on her teenage daughter from a prior relationship, Mother did not interact with Child, and Mother did not provide adequate heat in the home.

Mother denied Father's allegations and testified she played games with Child and that they enjoyed cooking dinner together.   Mother explained that, although she previously had difficulties with her teenage daughter, their relationship was improving.   Mother also advised that her older daughter bonded with Child and that they got along well.

At the conclusion of the hearing, the court addressed the parties from the bench.   The court found the 50–50 time-sharing arrangement to be in Child's best interest.   The court modified the schedule to allow Father an additional overnight visit on Thursday.   The court also provided that when it was Father's weekend with Child, he would return Child to Mother at 2:00 p.m. on Sunday, instead of 6:00 p.m. as the temporary schedule had allowed, so Mother could enjoy an afternoon with Child.   The court also determined that Father's child support obligation would remain $455.87 per month as calculated in the temporary order.   Father now appeals the court's decision regarding child support and custody.

I. Child Support

“As are most other aspects of domestic relations law, the establishment, modification, and enforcement of child support are prescribed in their general contours by statute and are largely left, within the statutory parameters, to the sound discretion of the trial court.”  Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.App.2000).   In Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App.2001), this Court explained, “A reviewing court should defer to the lower court's discretion in child support matters whenever possible.”  “As long as the trial court's discretion comports with the guidelines, or any deviation is adequately justified in writing, this Court will not disturb the trial court's ruling in this regard.”  Id. “The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Id.

Father asserts the court abused its discretion by setting child support according to the statutory guidelines;  instead, he asserts the court should have deviated from the guidelines and decreased Father's support obligation in proportion to the 50–50 time-sharing schedule. Double Father also alleges the court improperly ordered him to pay guideline child support as punishment for the grocery store incident.

“The child support guidelines set out in KRS 403.212 serve as a rebuttable presumption for the establishment or modification of the amount of child support.”  Id. Pursuant to KRS 403.211(2), a court may deviate from the guidelines if it makes a specific finding that applying the guidelines would be unjust or inappropriate.   In Plattner v. Plattner, 228 S.W.3d 577 (Ky.App.2007), this Court explained, “The period of time during which the children reside with each parent may be considered in determining child support, and a relatively equal division of physical custody may constitute valid grounds for deviating from the guidelines.”  Id. at 579;  See also Downey v. Rogers, 847 S.W.2d 63, 65 (Ky.App.1993).

In the case at bar, Father's argument focuses on the equal time-sharing schedule and ignores the fact that Father earns twice the income of Mother.   In its findings, the court noted its disapproval that Father's behavior may have caused Mother to get fired from the grocery, as that was extra income for Mother's household.   However, the court clearly held that the disparity between the parties' incomes warranted an award of support pursuant to the guidelines;  consequently, the court declined to accept Father's proposed calculation based on the division of time-sharing.

While it is clear that the percentage of time-sharing can be a valid basis for deviating from the guidelines, our cases do not indicate that a court is required to reduce support for that reason.   See, e.g., Plattner, 228 S.W.3d at 579–80;  Downey, 847 S.W.2d at 64–65.   Indeed, we are mindful of the discretion afforded trial courts tasked with establishing child support.   Van Meter, 14 S.W.3d at 572.   Here, the trial court recognized that the parties exercised equal parenting time, but chose to rely on the child support guidelines to establish support in light of the income gap between Mother and Father.   See Downey, 847 S.W.2d at 65.

Based on the evidence, we find no abuse of discretion in the court's decision to apply the statutory child support guidelines without deviating therefrom.

II. Custody and Time–Sharing

In custody matters, the trial court must determine the “best interests of the child,” and give equal consideration to both parents.  KRS 403.270(2).   The statutory factors include:  the wishes of the parents and child;  the interpersonal relationships of the child with its parents, siblings, and others;  the child's assimilation to home, school, and community;  mental and physical health issues;  and evidence of domestic violence.  KRS 403.270(2)(a-f).  “A trial judge has a broad discretion in determining what is in the best interests of [a] child[ ] when he makes a determination as to custody.”  Krug v. Krug, 647 S.W.2d 790, 793 (Ky.1983).   On appeal, we uphold the trial court's findings of fact “unless they are clearly erroneous, and due regard must be given to the opportunity of the trial judge to view the credibility of the witnesses.”  Polley v. Allen, 132 S.W.3d 223, 228 (Ky.App.2004).   A finding of fact is not clearly erroneous if it is supported by substantial evidence.  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).

Father contends the court erred by failing to grant him primary custody.   Essentially, Father argues his evidence established he is a better parent than Mother, and he cites several criticisms of Mother's parenting.   Father also asserts the court improperly restricted his Sunday parenting time in the final time-sharing order.

The court awarded Mother and Father joint custody of Child and crafted a schedule that provided a 50–50 division of parenting time.   Despite Father's negative assertions regarding Mother's parenting, the court heard testimony regarding Mother's loving relationship with Child, Child's relationship with Mother's teenage daughter, and the activities Mother and Child enjoy together.

The record indicates that most of the testimony at the hearing was bitter and conflicting;  furthermore, it was clearly for the trial court to determine the credibility of witnesses and weigh the evidence.  Polley, 132 S.W.3d at 228.   The court specifically found that Mother and Father are both good and loving parents to Child.

After careful review, we are satisfied the court considered all of the evidence and applied the relevant factors outlined in KRS 403.270 to conclude that joint custody is in Child's best interest.   We find no error in the custody determination.

Finally, we are not persuaded the court improperly restricted Father's parenting time by reducing his weekend visits by four hours.   The court clearly explained that equal time-sharing was in Child's best interests, and the court sought to balance the joint-custody schedule by giving Mother an additional four hours on Sunday afternoon since Father was granted an additional overnight on Thursday.   Our review indicates the court considered the circumstances of this case at length, and the judgment is supported by substantial evidence.

For the reasons stated herein, the judgment of the Clark Circuit Court is affirmed.