RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0009-MR
JOSHUA KING APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 16-CI-503995
STEPHIE KING APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: LAMBERT, MAZE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Joshua King (“Appellant”) appeals from orders of the
Jefferson Circuit Court establishing child support in favor of his former wife
Stephie King (“Appellee”). Appellant argues that the circuit court erred in failing
to properly apply the child support modification statute, Kentucky Revised Statutes
(“KRS”) 403.213, to Appellee’s motion for child support. As the child support
modification statute was neither pleaded by Appellant nor relied upon by the
Jefferson Circuit Court in modifying the prior child support agreement entered into
by the parties, we reverse and remand the order of child support with instructions
to consider Appellee’s motion pursuant to KRS 403.213.
FACTS AND PROCEDURAL HISTORY
Appellant and Appellee were divorced by way of a decree of
dissolution of marriage entered in September 2017. The decree incorporated by
reference the parties’ separation agreement, which provided that neither party was
required to pay child support.
On July 26, 2019, Appellee filed a motion in Jefferson Circuit Court
seeking child support. In support of the motion, Appellee cited KRS 403.160
(action for temporary child support). A hearing on the motion was conducted on
February 16, 2020, resulting in an order entered on March 11, 2020, establishing a
child support obligation in favor of Appellee in the amount of $471.00 per month.
The amount of the support was based on Appellant’s monthly income of $6,965.00
and Appellee’s income of $4,167.00.
Thereafter, Appellant filed a motion to alter, amend, or vacate the
child support order. He argued that the circuit court improperly failed to impute
income to Appellee, to explain its deviation from the child support guidelines
based on equal parenting time, and to properly account for Appellant’s payment of
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child care, health insurance, and extracurricular expenses for the children. The
court sustained the motion on April 30, 2020. It reduced Appellant’s child support
obligation to $24 per month by imputing income to Appellee. Prior to her motion
for child support, Appellee earned approximately $50,000 per year as a paralegal.
She left that position and later accepted a job as a restaurant server at a
substantially reduced income, though she testified that she was looking for work as
a paralegal or teacher’s aide. In fixing Appellant’s child support obligation at $24
per month, the circuit court imputed to Appellee her paralegal salary based on her
failure to utilize her education and experience. The court also corrected the prior
order to reflect that Appellant alone, rather than the parties jointly, was paying the
children’s healthcare and other expenses.
A series of pleadings and orders followed resulting from Appellee’s
attempt to vacate the April 30, 2020 order reducing Appellant’s child support
obligation. The circuit court would later characterize the parties’ pleadings on this
issue as “procedurally confusing.”1 Appellee asserted that she had applied for
several paralegal positions in her geographic area but was unable to secure
employment in that field. Persuaded by Appellee’s testimony, and taking into
account Appellant’s payment of the children’s healthcare and child care costs, the
court re-calculated Appellant’s child support obligation using “the Craig Ross
1
Order entered November 23, 2020.
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program.” The court determined that the resulting child support “was very similar
to the child support ordered in the Order entered March 11, 2020.” The court
sustained Appellee’s motion to set aside the order of April 30, 2020, and reinstated
the order of March 11, 2020, fixing Appellant’s child support obligation at $471.00
per month. This appeal followed.
ARGUMENTS AND ANALYSIS
Appellant argues that the Jefferson Circuit Court committed reversible
error in modifying child support without applying the mandatory provisions of the
child support modification statute, KRS 403.213. He notes that the parties’
separation agreement provided that neither party was required to pay child support,
and that the agreement was expressly incorporated into the decree of dissolution.
The decree, he argues, thus constituted a child support order. As such, Appellant
asserts that Appellee’s motion to establish child support should have been pleaded
and adjudicated as a motion to modify child support.
Appellant directs our attention to KRS 403.213(1), which provides
that modification of child support may be made “only upon a showing of a material
change in circumstances that is substantial and continuing.” Appellant argues that
the circuit court improperly modified child support without referencing KRS
403.213 nor finding a material change in circumstances that is substantial and
continuing. He asserts that the statutes relied on by Appellee and the circuit court,
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KRS 403.160 (temporary child support) and KRS 403.212 (child support
guidelines), are not applicable to an action to modify child support. Accordingly,
he argues that the child support order on appeal should be vacated.
In response, Appellee asserts that Appellant failed to raise this
argument before the circuit court and failed to comply with Kentucky Rules of
Civil Procedure (“CR”) 76.12(4)(c)(v), which requires a statement at the beginning
of the argument showing whether the issue was preserved and, if so, in what
manner. Appellee contends that because Appellant’s argument is not preserved for
appellate review, we may review his argument only for manifest injustice pursuant
to CR 61.02 and the supportive case law. In the alternative, Appellee argues that
even if we review the circuit court’s award of child support for error, the court’s
failure to reference KRS 403.213 is harmless because the record demonstrates that
Appellee underwent a continuing change in circumstances sufficient to support the
modification of child support.
CR 76.12(4)(c)(v) requires
[a]n “ARGUMENT” conforming to the statement of
Points and Authorities, with ample supportive references
to the record and citations of authority pertinent to each
issue of law and which shall contain at the beginning of
the argument a statement with reference to the record
showing whether the issue was properly preserved for
review and, if so, in what manner.
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Appellant’s ARGUMENT section of the brief does not contain a statement at the
beginning with reference to the record showing whether each issue was properly
preserved for review and, if so, in what manner.
“A brief may be stricken for failure to comply with any substantial
requirement of this Rule 76.12.” CR 76.12(8)(a). The rule requiring a statement
of the case consisting of a chronological summary of the facts and procedural
events is a substantial requirement of CR 76.12 encompassed by CR 76.12(8)(a).
CR 73.02(2)(a) and (b) also allow for striking a brief and dismissing
an appeal based on the failure to comply with rules relating to appeals. See Hallis
v. Hallis, 328 S.W.3d 694 (Ky. App. 2010), for the reasons why compliance with
the briefing rules is not merely a convenience to the court, but is a necessity for
carrying out the ends of justice.
If a party fails to inform the appellate court of where in
the record his issue is preserved, the appellate court can
treat that issue as unpreserved. Appellate courts review
unpreserved claims of error on direct appeal only for
palpable error. To prevail, one must show that the error
resulted in “manifest injustice.” RCr 10.26 provides . . .
[that a] palpable error which affects the substantial rights
of a party may be considered . . . by an appellate court on
appeal, even though insufficiently raised or preserved for
review, and appropriate relief may be granted upon a
determination that manifest injustice has resulted from
the error.
Ford v. Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021) (internal quotation
marks and citation omitted).
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Child support is a statutory creation intended to benefit the children
rather than the adults. Smothers v. Baptist Hospital East, 468 S.W.3d 878, 884
(Ky. App. 2015) (citation omitted). As such, we will review the issues presented
for manifest injustice rather than striking the brief and dismissing the appeal. As
the applicability of KRS 403.213 was not raised below and was not preserved for
appellate review, and in accordance with Ford, supra, the question before us is
this: did the Jefferson Circuit Court’s award of child support, without reference to
KRS 403.213, and with no express finding of a substantial and continuing change
in circumstances, constitute manifest injustice? We must answer this question in
the affirmative.
The facts before us parallel those in Martin v. Cabinet for Health and
Family Services, 583 S.W.3d 12 (Ky. App. 2019). In Martin, as in the matter
before us, the divorcing parents entered into a separation agreement providing that
neither party was required to pay child support. That agreement was incorporated
into the decree.
Thereafter, the Cabinet (which was the assignee of the mother’s right
to seek child support) filed a post-decree motion for initial child support rather than
modification of child support. The matter was pleaded and adjudicated as an initial
award of child support rather than a modification of child support pursuant to KRS
403.213. The Cabinet was awarded child support on the mother’s behalf.
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On appeal, a panel of this Court found that the incorporation of the
separation agreement into the decree constituted an award of child support – albeit
in the amount of zero. As such, the panel determined that the Cabinet’s subsequent
effort to seek child support should have been pleaded and adjudicated pursuant to
the child support modification statute, KRS 403.213. As the matter 1) was not
pleaded nor adjudicated pursuant to KRS 403.213; 2) the circuit court made no
finding of changed circumstances; and 3) there was no evidence of changed
circumstances, the Court vacated the award of child support and dismissed the
complaint without prejudice. Martin, supra.
As in Martin, the parties before us entered into a separation agreement
providing that neither party was required to pay child support and the agreement
was incorporated into the decree. Thus, any modification of that award must be
brought pursuant to KRS 403.213. Martin, 583 S.W.3d at 18. Similarly, neither
the Cabinet in Martin (acting on behalf of the mother), nor Appellee herein moved
for modification pursuant to KRS 403.213. Unlike in Martin, however, the record
before us does show some evidence of Appellee’s changed circumstances, as she
testified that her income was greatly reduced with the loss of her paralegal job and
purported inability to acquire similar employment.
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CONCLUSION
Modification of child support, including modification of an order of
no child support stemming from an incorporated separation agreement, must be
pleaded and adjudicated pursuant to KRS 403.213. Martin, 583 S.W.3d at 18.
Whereas the panel of this Court in Martin vacated the award and dismissed the
action in part because there was no evidence of changed circumstances, Appellee
herein did cite some evidence upon which the circuit court might reasonably find a
substantial and continuing change in circumstances in conformity with KRS
403.213. Because some evidence of Appellee’s changed circumstances is found in
the record, we will reverse and remand rather than vacate and dismiss the child
support order as in Martin. Whether Appellee had a substantial and continuing
change in circumstances is a question of fact properly reserved for the circuit court.
We conclude that an award modifying child support, without reference to KRS
403.213 nor the required finding of a substantial and continuing change in
circumstances, constitutes manifest injustice. Ford, supra. Accordingly, we
reverse the child support order of the Jefferson Circuit Court, and remand the
matter for adjudication pursuant to KRS 403.213. Appellant’s remaining
arguments as to CR 59, CR 60, and the failure to make specific findings are moot.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Justin R. Key Michelle L. Eisenmenger
Jeffersonville, Indiana Louisville, Kentucky
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