Modification of Child Support Under KRS 403.211 Applies Even if the Parties Agreed to a Lower Amount; Equally Shared Parenting Time Arrangement Does Not Modify the Parties' Respective Percentages of Combined Gross Monthly Income; and Agreement for a Paren

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Nelson v. Ecklar

Father petitioned for joint custody of Child, and temporary orders for custody and child support were entered. Father was ordered to pay $371.00 per month in temporary child support. The parties later entered into a parenting agreement whereby "no child support [would] be exchanged between the parties," "[e]xpenses for fees for school, sports, social activities, daycare, medical or dental co-pays and medical/dental insurance premiums [would] be divided equally," and Mother would provide health insurance for the child except that "[i]n the event one parent's employment provide[d] medical or dental insurance for the benefit of [Child], which [was] least expensive and provide[d] similar or better benefits for [Child] than the other parent's insurance, . . . , that parent [would] provide medical or dental insurance." The parties also agreed to joint custody and equally shared parenting time.

 

The parties later modified their agreement regarding Child's expenses, such that, in paragraph three thereof, Father was responsible for "all reasonable expenses associated with the following needs of [Child]: shoes, coats, school clothing, and formal outfits; all school lunches, school fees, school supplies, field trips and other school related expenses; birthday parties and social events attended by [Child]; and haircuts;" and that Father and Mother were responsible for 65% and 35% of uncovered health related expenses, health insurance premiums, and child care costs, respectively.

 

Later, Mother filed a motion for Father to pay child support, which was ordered to mediation. Being unable to come to an agreement, Mother refiled her motion for child support, citing Father's failure to comply with their prior agreement and an increase in Father's income as grounds for modification. The family court found the parties' base monthly support obligation to be $1,084.00, of which Father was responsible for 73% and Mother was responsible for 27%, and that Mother paid the cost of health insurance for Child in the amount of $117.76 per month and ordered Father be responsible for 73% thereof. Based upon the parties' equally shared parenting time arrangement, the family court deviated from the guidelines, crediting Father $292.68 against his total obligation, making his total obligation $583.60, finding a 15% change in in the obligation from the approximately $319.58 per month Father had been paying toward Child's expenses, allowing modification.

 

Upon Father's motion to alter, amend, or vacate, the family court further found the prior agreement to be unconscionable, because of a material change in circumstances that was substantial and continuing. Upon a subsequent motion to alter, amend, or vacate, the family court also found Father's obligation under paragraph three of the modified agreement no longer applied.

 

On appeal, Father argued that (1) there was no material change in circumstances that was continuing and substantial requiring modification of the parties' previous agreement relating to Child's expenses; (2) the family court incorrectly allocated the base amount of support between the parties; and (3) the family court erred by failing to follow the parties' agreement regarding health insurance for Child.

 

The Court of Appeals held that the family court did not err in finding a material change in circumstances that was substantial and continuing requiring modification of the parties' agreement. It reasoned that Tilley v. Tilley, 947 S.W.3d 63 (Ky. Ct. App. 1997) stands for the proposition that the family court retains control over custody, support, and visitation, including when the parties have agreed to a lower amount of child support than suggested by the guidelines; if the legislature intended such an exception, it would have added it to KRS 403.211; and removing the family court's ability to modify child support when the parties agree to a lower amount would directly contradict the reasoning in Tilley.

 

Next, Father argued that because of the parties' equally shared parenting time arrangement, the percentages of combined gross income should be 50% for each parent. The Court of Appeals held that the family court did not err in its allocation of the base amounts of child support. It reasoned that there was no basis in law or fact for Father's argument, because the statute is clear that "[the] base monthly child support obligation is . . . allocated to each parent in proportion to that parent’s respective percentage of the . . . combined monthly adjusted parental gross income," citing Dudgeon v. Dudgeon, 318 S.W.3d 106, 110 (Ky. Ct. App. 2010), for the proposition. It further reasoned that the family court addressed the parties' equally shared parenting time arrangement by granting Father a credit toward his obligation.

 

Finally, the Court of Appeals held that the family court did not err in not following the parties' agreement regarding Child's health insurance. Father argued that his fiancée would be able to add Child to her health insurance through her employer at no extra cost. However, the court reasoned that such an occurrence was not contemplated by the parties' agreement, because only each parent's health insurance plan is considered, as per the terms of the agreement, which are enforceable as contract terms.

 

Digested by Nathan R. Hardymon