CROSS APPELLEE v. CROSS APPELLANT

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Court of Appeals of Kentucky.

christopher ryan maynard APPELLANT / CROSS- APPELLEE v. JESSICA MAYNARD APPELLEE / CROSS- APPELLANT

NO. 2011–CA–001351–ME NO.2011–CA–001385–ME

Decided: June 01, 2012

BEFORE:  MOORE, STUMBO, AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  B.D. Nunnery Prestonsburg, Kentucky BRIEF FOR APPELLEE:  Brian Cumbo Inez, Kentucky

NOT TO BE PUBLISHED

OPINION AND ORDERREVERSING IN PART, REMANDING, ANDDISMISSING CROSS–APPEAL

Ryan Maynard appeals the judgment of the Floyd Family Court denying his motion to alter, amend, or vacate the family court's award of temporary child support on behalf of the parties' minor children.   Jessica Maynard cross-appeals.   After a thorough review of the record, we reverse and remand with respect to the temporary child support award and dismiss Jessica's cross-appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ryan Maynard and Jessica Maynard were divorced on February 25, 2011.   The parties have two minor children.   Prior to the entry of the parties' divorce decree, Jessica filed a motion requesting temporary child support.   In conjunction with her motion, Jessica filed an itemized statement of her monthly expenses, which she represented to be $3,651.67.   On October 1, 2009, the family court set Ryan's temporary child support obligation at $3,650 per month.   The record does not contain any income information from Ryan prior to the entry of the order.   However, the family court noted that this award would be reviewed upon completion of Ryan's 2008 tax returns.   Ryan filed a motion to alter, amend or vacate this award, indicating that his most recent financial documentation showed a decrease in his income that supported his request for a reduction of his child support obligation.

Although the family court did not address Ryan's argument in his motion to alter, amend, or vacate in its November 6, 2009 order,Double the family court did revisit Ryan's obligation in light of his 2008 tax returns and reduced his obligation to $3,480 per month.   Ryan again filed a motion to alter, amend, or vacate the award, arguing that the family court erroneously relied upon his 2008 tax return to compute his obligation because his 2009 financial reports reflected a significant decrease in his income.   Accordingly, he argued that he was entitled to a reduction of his child support obligation.   However, although Ryan's 2009 tax return appears to substantiate a decrease in his income, Ryan did not submit the returns until May 12, 2010.

On June 10, 2010, Ryan filed a motion requesting that the family court rule on the pending motions to alter, amend, or vacate the family court's temporary child support award.   The Commonwealth of Kentucky, Cabinet for Income Support subsequently filed a motion to modify Ryan's child support obligation.   On August 23, 2010, the family court denied Ryan's motions to alter, amend, or vacate, but ultimately granted the Cabinet's request for a reduction when setting Ryan's post-decree obligation at $1,277.86 per month on March 15, 2011.   Ryan timely filed a motion for specific findings of fact with respect to the family court's denial of his motions to alter, amend or vacate the October 1, 2009, October 15, 2009, and November 6, 2010 orders pertaining to temporary child support.

In response, the family court included the following findings of fact in a June 27, 2011 order:  Double

In regard to its present ruling and the Court's earlier ruling herein made pertaining to the issue(s) raised by the Respondent in his Motion the Court reviewed the prior orders of the Court in this case concerning maintenance and child support, including those Orders of the former Family Court Judge, Hon. Johnny Ray Harris.   Additionally, the Court notes and so finds that the Respondent's income did exceed and does exceed the guidelines as set forth by Kentucky Statute, and further notes that the child support obligation of Respondent was already twice reduced by Order of the Court.   Furthermore, in making its determination, the Court considered the income of the respective parties, the property disparagement between Petitioner and Respondent, each parents' financial ability to meet the needs of the children, the age and physical condition of the children as well as their station in life, expenses associated with their education, and the period of time that the children had resided with each parent.   The court also considered all of the testimony presented in this action, not just the income tax statements presented by Respondent.

The family court then determined that “in accordance with the findings set forth above and the considerations heretofore made, Respondent's Motion to lower child support and for additional findings other than as contained herein is/are overruled.   Additionally, all pending motions consistent with this Order are overruled.”   This appeal followed.

II. 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).

III. ANALYSIS:  RYAN'S APPEAL

Ryan raises three arguments on appeal in relation to the family court's award of temporary child support.   Specifically, he argues that the family court incorrectly calculated his income, the family court failed to give Ryan credit for the monthly maintenance payments he was making to Jessica, and that the family court's findings were not supported by substantial evidence.

Upon reviewing of the family court's orders pertaining to the temporary child support award, we cannot reach the merits of Ryan's arguments, as we are unable to do so absent additional findings of fact.  Kentucky Rule of Civil Procedure 52.01 provides that “[i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment․”  (Emphasis added).

In this case, the family court neglected to make adequate findings of fact as requested by Ryan. Specifically, the family court did not make any findings regarding the amount of Ryan's monthly income or whether it considered Ryan's spousal maintenance obligation prior to finding that his income was in excess of the guidelines.   Additionally, although the family court indicates in its November 6, 2009 order that it performed a new calculation based upon Ryan's 2008 tax returns, no such calculations are reflected in the record. Double Without such there is no basis for a meaningful review by our Court.   See Robinson v. Robinson, 548 S.W.2d 155, 156 (Ky.App.1977).

IV. ANALYSIS:  JESSICA'S CROSS–APPEAL

As mentioned, Jessica's notice of cross-appeal indicates that she is asserting error with respect to the family court's June 28, 2010, March 15, 2011, and June 27, 2011 orders.   Ryan's notice of appeal designates a June 27, 2011 order but does not designate the June 28, 2010 or March 15, 2011 orders.

“[A] party cannot cross-appeal from a judgment rendered in a distinct action between the appellant and himself, which [a] supplemental judgment in the same case [is] regarded as being.”  Crook v. Schumann, 293 Ky. 334, 168 S.W.2d 1004, 1005 (1943).   In other words, “[a] cross appeal is not appropriate if it seeks to review an order or judgment that is separate and distinct from the order or judgment under review by the main appeal.”   4 C.J.S. Appeal and Error § 21 (2012);  see e.g., Elizabethtown, L. & B.S.R. Co. v. Catlettsburg Water Co., 110 Ky. 175, 61 S.W. 47, 49 (1901) (“[J]udgment from which the cross appeal was taken was not the same as that from which the original appeal was taken, and therefore that the cross appeal did not lie.”) (citing Brown v. Van Cleave, 86 Ky. 381, 6 S.W. 25, 27 (1887)).

Ryan's appeal did not arise from any of the orders raised in Jessica's cross-appeal.   Nor are the orders appealed in Jessica's cross-appeal merely interlocutory orders preceding a final order with respect to the same assignment of error.   See Brown, 6 S.W. at 27.   Rather, Ryan's sole contention on appeal is with regard to the family court's temporary child support award.   Jessica, on the other hand, appeals the June 28, 2010 Double order pertaining solely to issues regarding temporary spousal maintenance and the March 15, 2011 order pertaining solely to spousal maintenance and the post-decree child support award.   And, although she attached the same June 27, 2011 order to her notice of cross-appeal that was addressed by Ryan on appeal, it is evident from her brief that Jessica's assignments of error pertains to the third of the June 27, 2011 orders (see above description of three orders entered June 27, 2011) denying Jessica's motion to alter, amend, or vacate the family court's March 15, 2011 post-decree child support order.   Accordingly, these judgments are separate and distinct from those raised for review in Ryan's notice of appeal and, as such, are not properly before us on review.  Elizabethtown, L. & B.S.R. Co., 61 S.W. at 49.   Consequently, we dismiss Jessica's cross-appeal.

For the aforementioned reasons, we REVERSE as to Ryan's appeal and REMAND for additional findings.   We DISMISS Jessica's cross-appeal.

ALL CONCUR.

ENTERED:  June 1, 2012 /s/ Joy A. Moore

JUDGE, COURT OF APPEALS

MOORE, JUDGE: