Mother and Father divorced, entering into a settlement agreement providing for joint custody and equally shared parenting time. Later, the parties orally agreed to modify their parenting time arrangement due to a change in Father’s work schedule. Two years after the oral agreement to modify the parenting time arrangement, Father moved to memorialize the modified schedule, and to modify child support. He alleged that Mother had voluntarily quit her job and had since been receiving “gift income” from her parents, including $2,000 a month and a new car.
At the hearing, Mother requested to be the primary residential custodian, which would provide for more consistency for the children and help with behavioral issues, such as struggling to complete homework, transportation to and from extracurricular activities, and fighting between one of the minor children and one of Father’s stepchildren. Family Court entered an order designating Mother as the primary residential custodian, setting a parenting time schedule, and increasing Father’s child support obligation.
Father moved to alter, amend, or vacate, taking issue with Family Court’s designation of Mother as the primary residential custodian and its calculation of child support, arguing Mother was underemployed and received gifts from her parents, which should be included in income. Family Court entered an amended order, awarding Father visitation “every other weekend and two days per week for three hours each day, from 5:00 PM to 8:00 PM,” which, Family Court explained, would allow the child to spend time with Father, while also addressing Mother’s concerns about homework, academics, and extracurricular activities. Father appealed.
On appeal, Father argued that Family Court erred in (1) awarding primary custody to Mother; (2) reducing Father’s parenting time; and (3) recalculating child support without considering all relevant facts and income. The Court of Appeals affirmed in part and reversed in part, holding that Family Court could only reduce Father’s parenting time to less than fifty percent if it first found that the children were seriously endangered; Family Court erred in not considering the gift income; and (3) Family Court did not err in not finding Mother underemployed. Mother sought discretionary review.
First, the Supreme Court held that the Court of Appeals incorrectly applied a presumption of equally shared parenting time to a modification of parenting time. It reasoned that the presumption of joint custody and equally shared parenting time were added by amendment to KRS 403.270—the initial custody determination statute—and KRS 403.340—the statute governing modification of custody. However, the language is specifically excluded from KRS 403.320, the modification of parenting time statute, and the Supreme Court assumed that the legislature acted intentionally in this exclusion. Thus, the presumption of joint custody and equally shared parenting time applies to initial custody and parenting time determinations and modifications of custody, but not to modifications of parenting time.
Mother then argued that the Court of Appeals erred in holding that a trial court can only reduce parenting time to less than fifty percent if it first found that a child was seriously endangered. The Supreme Court held that the Court of Appeals did so err. It reasoned that, as the presumption of equally shared parenting time does not apply to parenting time modifications, a trial court may grant parenting time that is in a child’s best interest or restrict a parent’s parenting time if the child would be seriously endangered. The term, restrict, it stated, means to provide either parent with something less than “reasonable visitation,” which does not mean less than fifty percent, but there is no set formula for this determination, and one parent having less parenting time is not necessarily unreasonable.
The Supreme Court then held that Family Court did not abuse its discretion in its modification of parenting time, because although Family Court reduced Father’s parenting time, it provided specific reasons why the change was necessary and properly found the modification to be in the best interest of the children.
Finally, the Supreme Court held that Family Court did not err in declining to impute income to Mother for gifts received from her parents. Regarding the gift of a vehicle, the Supreme Court reasoned that Family Court did not err, because there was no testimony that this was a recurring gift. Regarding a gift from Mother’s parents of $2,000 per month, the Supreme Court reasoned that Family Court did not err, because the evidence showed that the monthly cash gifts were gifts to the children, for their use, and Mother used the money to purchase things for the children.
Digested by Nathan R. Hardymon
