Artrip v. Noe

NOBLE, J.,

concurring in result only.

Initially, the two children involved in this case lived with their mother after their parents’ divorce pursuant to an agreement which gave the parties joint custody. At that time, the parties were dealing with child support by agreement. The father was first paying $200 per month in support, which after 24 months increased to $400 per month. In the meantime, the mother remarried, and her new husband was relocated to Florida due to employment. The father also became disabled in the interim.

Due to the mother’s relocation, the parties went to a Domestic Mediation to resolve several issues. They agreed that the girls would temporarily reside with the father for the last month of school, and most of the summer, while the mother *234relocated to Florida. They agreed that the father would receive the $794 per month the girls were receiving from his disability, and that thereafter, whomever the girls resided with would receive it. They further agreed that the father would completely offset the child support obligation he was previously ordered to pay against these funds. The father sought no further support at that time.

In August, the father filed a motion requesting information about the mother’s retirement account, and orally asked the court to set child support. Although she was unemployed at the time, the mother agreed that the child support obligation of the parents could be calculated using her income from her previous job. The trial court calculated support based on KRS 403.212, but decided to deviate from the guidelines because of the income the children were receiving from Social Security. The mother did not find employment in Florida, and returned to Lexington, Kentucky three months later, in November. She returned to her previous employment but at a significantly reduced salary. She then filed a motion to modify child support, and requested the same reduction she had been given based on the children’s Social Security income.

The problem with this case is how the court determined what the reduction should be, not with the court’s authority to deviate from the guidelines. When the trial judge allowed the initial deviation, which he said was based on the children having independent income, he applied one-third of that income against the mother’s support obligation for a reduction. He was not authorized to do this.

Where I do not agree with the majority is its reasoning that children’s Social Security benefits cannot be considered to be independent income as the basis for a trial court to deviate from the support guidelines. Clearly it can be, if the statute is properly applied. The rule the majority adopts avoids the plain language of the statutes, and can lead to an improper result in the next case.

KRS 403.211(8) provides that a trial court can make a written and specific finding that “application of the guidelines would be unjust or inappropriate in a particular case,” and that such a finding would be sufficient to rebut the presumption that the guidelines amount was appropriate. However, that finding must be based on one of several grounds, one of which is the independent financial resources of the children under KRS 403.211(3)(d). The statute does not define what an independent resource is, but for purposes of calculating child support based on the parents’ income pursuant to KRS 403.212, “income” includes Social Security benefits. Presumably, such benefits can thus be included in children’s independent income. When a trial court determines that the independent income makes the child support guidelines amount unjust, it can deviate.

This case is better understood if one looks at how child support amounts are calculated. First, KRS 403.212(2)(a) provides that the income of each parent must be determined to arrive at “actual gross income.” This section, as mentioned above, specifically provides that Social Security benefits must be used to arrive at actual gross income. The actual gross income of each parent is then added together pursuant to KRS 403.212(2)(g) to arrive at the “combined monthly adjusted gross parental income,” after allowing for deductions for certain statutory payments to be deducted from the gross income of the parent ordered to make the payments. Then, pursuant to KRS 403.212(3), the combined monthly adjusted gross parental income is applied to the table in KRS 403.212(7) to determine the child support *235obligation from that table, which the parents are then ordered to pay “in proportion” to their share of the combined monthly gross parental income. Thus if the father’s proportionate share of the combined incomes is 60%, for example, then he would be obligated for 60% of the total child support obligation taken from the table.

The trial court is allowed to deviate from the table amount of child support when it finds that “application of the guidelines would be unjust or inappropriate,” KRS 403.211(3), or when the adjusted parental gross income exceeds “the uppermost levels of the guideline table.” KRS 403.212(5). It is the total amount of support (table amount) from which the court can deviate, not the individual support obligation of one parent.

In application, this means that if the table amount for child support is $600 from both parents, the trial court can consider the child’s independent income to reduce the table amount to $500, for example, if that would be just and appropriate. Then each parent would still pay his or her proportionate share of that amount based on his or her share of the combined gross parental income. In this manner, the court can make an equitable reduction that relieves both parents of some amount of table support which is offset by the children’s independent income to some degree.

In addition to this reduction, however, if the income comes from Social Security based on disability, the disabled parent is entitled to offset dollar for dollar the amount of his child support against the independent income that comes to the child through him pursuant to KRS 403.211(15). Here, this would probably zero out the father’s support obligation based on his proportionate share of the combined gross parental income.

Unfortunately, what the trial judge stated on the record was that he was reducing the mother’s support obligation by one-third of the children’s Social Security benefits. The majority is correct that he cannot do this, and that there is no statutory basis to do so. This does not mean, however, that in an appropriate case those benefits could not be considered by the trial court to deviate from the total support amount from the table. Had the trial court made written findings on the record as to why the independent income of the children made the total monthly support obligation from the table unjust or inappropriate, he would have been well within his discretion pursuant to KRS 403.211(3).

Consequently, due to the specific facts of this case, I agree with the result reached by the majority, but cannot agree with its legal reasoning, which I believe sets bad precedent.

SCOTT and VENTERS, JJ., join this opinion, concurring in result only.