RENDERED: MARCH 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0249-ME
AMANDA MARIE RICHARDS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DENISE DEBERRY BROWN, JUDGE
ACTION NO. 16-CI-502648
THOMAS IRVIN DRAKE IV APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.
MCNEILL, JUDGE: The appellant, Amanda Marie Richards (hereafter “Mother”)
and appellee, Thomas Irvin Drake IV, (hereafter “Father”), are the natural parents
of two minor children, T.D., age six, and T.D., age five.1 Father and Mother were
never married. Pursuant to an order issued by the Jefferson Circuit Court, Family
1
Abbreviations are being used to protect the anonymity of the children.
Court Division on March 30, 2018, the parties share joint custody of the children
and utilize a shared parenting schedule. Father was ordered to pay $809.00 per
month in child support.
Due to a change in his employment and a reduction in wages, Father
filed a motion to modify child support. The trial court held a hearing on that
motion on October 11, 2019 and subsequently entered an order granting Father’s
motion reducing his child support obligation to zero, with both parties equally
dividing the cost of work-related daycare. The order also sentenced Father to
thirty days’ incarceration for failure to pay child support arrearages but suspended
that sentence so long as Father made arrearage payments of $100.00 per week.
Mother filed a motion to alter, amend, or vacate the modification order, which the
court denied. Mother now appeals to this Court as a matter of right. Father did not
file a brief.
I. STANDARD OF REVIEW
To prevail in obtaining a modification to reduce a child support
obligation, the obligor must demonstrate that “a material, substantial, and
continuing change of circumstances . . . made him less capable of attaining his
former income level . . . .” Howard v. Howard, 336 S.W.3d 433, 441 (Ky. 2011).
We review child support matters under an abuse of discretion standard, i.e.,
“whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
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unsupported by sound legal principles.” McKinney v. McKinney, 257 S.W.3d 130,
133 (Ky. App. 2008) (citation omitted). With these standards in mind, we now
turn to the merits of the case.
II. ANALYSIS
Mother argues on appeal that the trial court abused its discretion by
granting Father’s motion to modify child support and that the trial court’s order
granting modification should be reversed. She specifically contends that Father is
voluntarily underemployed pursuant to KRS2 403.212(2)(d). For the following
reasons, we agree.
The facts surrounding father’s change in employment are mostly
undisputed—he was determined to be intoxicated at his previous job at RCS
Transportation, LLC after being administered a breathalyzer test. His work
specifically required him to operate motor vehicles. Father testified that he was
permitted to resign in lieu of termination. However, Mother’s counsel introduced
an affidavit and accompanying corporate documents into the record indicating that
Father was discharged for violating the company’s substance abuse policy. Father
now earns nearly half of what he did previously on a per hour basis. Father further
testified during the modification hearing that he had filed for bankruptcy; that he
2
Kentucky Revised Statutes.
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would likely lose his house; that he had no college degree or other specific
training; and that he was currently looking for higher paying jobs. His previous
job at RCS Transportation, LLC was a union job. According to Father, the union
was still assisting him in obtaining a higher paying position.
As previously noted, to obtain a reduction in child support, a party
must show a substantial and continuing material change of circumstances. KRS
403.213(1). Pursuant to KRS 403.213(2), there is a rebuttable presumption of a
material change in circumstances when application of the Kentucky Child Support
Guidelines to the finances of the parties at the time of filing of a motion for
modification would result in a change in the obligation of fifteen percent or more.
In calculating the amount of support due, trial courts must assess each parent’s
gross monthly income. KRS 403.212. However, if the court finds a parent-obligor
to be voluntarily unemployed or underemployed, the calculation is based on KRS
403.212(2)(d):
If a parent is voluntarily unemployed or underemployed,
child support shall be calculated based on a
determination of potential income, except that a
determination of potential income shall not be made for a
parent who is incarcerated, physically or mentally
incapacitated, or is caring for a very young child, age
three (3) or younger, for whom the parents owe a joint
legal responsibility. Potential income shall be
determined based upon employment potential and
probable earnings level based on the obligor’s or
obligee’s recent work history, occupational
qualifications, and prevailing job opportunities and
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earnings levels in the community. A court may find a
parent to be voluntarily unemployed or underemployed
without finding that the parent intended to avoid or
reduce the child support obligation.
As a practical matter, KRS 403.212(2)(d) is divided into two parts.
Part (i) requires the trial court to make a finding whether a parent is voluntarily
unemployed or underemployed and provides three specific classes of people
exempted from consideration. If an affirmative determination is made under part
(i), then the court must assess potential income pursuant to part (ii), which includes
very specific considerations. The issue before this Court is whether the trial court
abused its discretion in applying both internal provisions of KRS 403.212(2)(d). In
its order granting Father’s motion to modify child support, the trial court in the
present case provided the following reasoning supporting its decision:
The court specifically rejects [Mother’s] position that
being fired for a poor choice is equivalent to being
voluntarily underemployed. The economic reality is that
it will be difficult for [Father] to find a position earning
close to $25.00 per hour. To hold him to this standard
simply because he lost his previous job would create a
child support order that is nearly impossible for him to
meet while meeting his own needs, which would not be
in the best interest of the child.
Although the trial court’s reasoning was neither arbitrary nor unreasonable, we
believe that it was unfair and unsupported by sound legal principles and, therefore,
constitutes an abuse of discretion for the following reasons.
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First, it is important to note that the General Assembly amended KRS
403.212(2)(d) in 1994 to explicitly include that “a court may find a parent to be
voluntarily unemployed or underemployed without finding that the parent intended
to avoid or reduce the child support obligation.” The clear legislative intent is to
broaden what may constitute voluntarily unemployment or underemployment, not
to constrain it. Case law also proves instructive.
The most authoritative case relevant to the issues presented is
Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396 (Ky. App. 2000).
Therein, the Court generally held, inter alia, the former husband and child support
obligor voluntarily engaged in conduct that resulted in his incarceration and, thus,
his income would be imputed to him for child support purposes while he was in
prison. Id. at 401. More specifically, the Court held that “[w]e align ourselves
with those jurisdictions that equate incarceration with voluntary unemployment”
and that “it is apparent that [father] voluntarily engaged in conduct which he
should have known would impair his ability to support his children.” Id. (emphasis
added). In so holding, the Court specifically reasoned that “[t]here are few matters
over which the trial court has more discretion than cases involving domestic
relations issues . . . . However, that discretion is not unlimited.” Id. at 400
(emphasis added) (footnotes omitted).
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It would strain credulity to hold that while an incarcerated parent-
obligor is considered voluntarily unemployed, a father whose employment was
terminated due to his on-the-job inebriation is not considered voluntarily
underemployed.3 Like the incarcerated parent-obligor in Marshall, the Father in
the present case “voluntarily engaged in conduct which he should have known
would impair his ability to support his children.” Id. at 401 (emphasis added). A
contrary conclusion would run afoul of the core holding of Marshall and would
require this Court to condone a result that is unfair and unsupported by sound legal
principles. Therefore, we hold that the trial court abused its discretion in failing to
find that Father was voluntarily underemployed.
Furthermore, we cannot discern from the trial court’s order how the
court arrived at its recalculation of child support benefits. Therefore, we cannot
determine how the court exercised its discretion in that regard and must conclude
3
We also note several unpublished decisions that, while not binding, are instructive. See Hardy
v. Hardy, No. 2016-CA-001214-ME, 2017 WL 1455059, at *2 (Ky. App. Apr. 21, 2017)
(applying Marshall and affirming trial court’s ruling that father was voluntarily underemployed
after his previous employment was terminated for, inter alia, failing to show up at a meeting
because he was hungover and doing “donuts” in a vehicle rented by his employer) and VonFeldt
v. Beckovich, No. 2016-CA-001095-ME, 2017 WL 2992535, at *1 (Ky. App. Jul. 14, 2017)
(imputing income to a parent-obligor who argued that he was unable to return to his employment
in medical device sales to due alcohol abuse disorder, anxiety, and depression). See also
Wardrip v. Wardrip, No. 2009-CA-000092-ME, 2009 WL 3672919, at *1 (Ky. App. Nov. 6,
2009); Grigsby v. Commonwealth, Cabinet for Families and Children, No. 2006-CA-000313-
ME, 2006 WL 3040063, at *1 (Ky. App. Oct. 27, 2006).
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that the court lacked substantial evidence for its decision to reduce Father’s support
child support payments to zero.
On remand, the trial court shall enter an order finding Father to be
voluntarily underemployed. The court shall then proceed to the second part of
KRS 403.212(2)(d) in order to assess potential income with “due consideration of
all of the statutory factors.” Gripshover v. Gripshover, 246 S.W.3d 460, 469 (Ky.
2008). Thereafter, the amount of income shall be calculated according to the child
support guidelines table provided in KRS 403.212(7).4 It is noteworthy that, in its
order granting modification, the trial court also determined that “this case is
appropriate for a deviation from the child support guidelines . . . .” As previously
stated, the court re-assessed Father’s and Mother’s monthly child support
obligations, with neither party paying support to the other. Again, however, the
trial court did not articulate how it reached the mathematical result that it did. To
the extent that the trial court deems KRS 403.211(3) to be applicable, it must
specifically indicate so on remand.5
4
Completion of a child support worksheet may prove beneficial.
5
The previously noted unpublished case of VonFeldt v. Beckovich, proves particularly
instructive on the issue of the imputation and calculation of potential income. 2017 WL
2992535, at *4. Again, we do not cite VonFeldt as binding authority. Rather, we cite it as a
practical guide for the parties and the trial court in re-assessing Father’s potential income on
remand.
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Lastly, Mother requests that we reverse and remand to “reconsider the
sentencing on contempt to include incarceration of not less than 180 days, which
under the circumstances, is quite reasonable.” We are cognizant of the difficulties
in obtaining timely payments from child support obligors and are confident that the
trial court will continue to exercise its sound discretion including consideration of
whether incarceration is appropriate in the event of future delinquencies.
Nevertheless, for purposes of the present case, we cannot say that the trial court
abused its discretion in suspending Father’s sentencing for contempt so long as he
makes arrearage payments of $100.00 per week.
III. CONCLUSION
For the foregoing reasons, we hereby affirm the judgment of the
Jefferson Circuit Court in part and reverse in part. We remand for additional
proceedings consistent with this Opinion.
CLAYTON, CHIEF JUDGE, CONCURS.
KRAMER, JUDGE, CONCURS IN RESULT ONLY.
BRIEF FOR APPELLANT: NO BRIEF FOR FILED APPELLEE
David B. Mour
Louisville, Kentucky
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