Ashley Layman v. Richard Lee Bohanon Jr ( 2020 )

RENDERED: MARCH 26, 2020
TO BE PUBLISHED
2019-SC-000364-DGE P ATP slul#
ASHLEY LAYMAN APPELLANT
ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2018-CA-001540
BOYD CIRCUIT COURT NO. 16-CI-00255
RICHARD LEE BOHANON, JR. APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
REVERSING
The Boyd Family Court issued an order modifying the parties’
timesharing arrangement and holiday schedule and recalculating child
support. The father, Richard Lee Bohanon, Jr., appealed. The Court of Appeals
affirmed the family court’s modification of the holiday schedule but reversed
that portion of the family court’s order that modified timesharing and child
support. The mother, Ashley Layman, petitioned this Court for discretionary
review, which we granted. Having reviewed the record and the applicable law,
we reverse the decision of the Court of Appeals as to the issues before us.
I. BACKGROUND
Layman and Bohanon divorced on June 14, 2016. They entered into a
settlement agreement in which they shared joint custody and equal parenting
time with their two minor children, then ages four and seven. Under that
agreement, neither parent was listed as the primary residential custodian.
Rather, Layman would keep the children one week and Bohanon would keep
them the following week. This week-on-week-off schedule continued for
approximately two months, until Bohanon’s work schedule changed in August
2016. Under his new schedule, he had two weekdays off each week. As a
result, the parties altered the timesharing arrangement such that the children
stayed with Bohanon two consecutive days during the week (including
overnight) and every other weekend. Under this modified arrangement, the
children stayed with Bohanon on Tuesday and Wednesday of one week, then
Thursday through Sunday of the next week, after which the two-week cycle
would repeat. Thus, the parties still shared equal parenting time.1
The parties’ modified timesharing arrangement was not memorialized in
writing but continued for almost two years. During that time, Bohanon
remarried. He is now a stepfather to his wife’s two children, and he and his
wife also have twins, bom in March 2018. He lives approximately three
minutes from Layman’s home.
On April 13, 2018, Bohanon filed a motion to memorialize the modified
timesharing schedule. He also moved for, among other things,2 modification of
1 Layman testified that the arrangement provided her with slightly more time
with the children, but only about four days total, spread out over the course of the
year.
2 Bohanon also asked the family court to modify certain provisions of the
settlement agreement related to life insurance, health insurance, and unpaid medical
2
the parties’ holiday schedule, arguing that the current schedule allowed
Layman to have the children on almost every holiday. In addition, Bohanon
requested a modification of child support. More specifically, he sought
recalculation of the amount agreed to in the settlement agreement—$400 per
month—because Layman voluntarily quit her previous job and had since been
receiving “gift income” from her parents, including $2,000 a month and a new
automobile.
The family court held a two-day hearing. During the hearing, Layman
requested that the children stay with her Mondays through Fridays. Under her
proposed timesharing schedule, the children would sleep at her house during
the week, but Bohanon could visit with the children and attend extracurricular
activities on his two days off. She argued that this arrangement would be in the
best interest of the children because it would provide consistency and hopefully
help with certain behavioral issues. For example, she testified that the children
struggled to complete their homework during the week, there were issues with
transporting the children to and from their extracurricular activities, and the
parties’ daughter often fought with one of Bohanon’s stepchildren.
On October 3, 2018, the family court entered an order in which it found
that “it is in the best interests of the children for the children to live primarily
with [Layman].” It also ordered that Bohanon’s parenting time follow the
schedule set forth in Plaintiff’s Exhibit # 1, which outlined the timesharing
expenses. He also requested that each party be allowed to claim one child for tax
purposes. None of these issues are before us today.
3
schedule that the parties had been abiding by since August 2016. The court
also adopted the holiday and vacation schedule proposed by Layman, and
recalculated Bohanon’s child support at $925 per month based on the
guidelines but eliminated his obligation to pay for extracurricular activities or
academic expenses.3
Bohanon filed a motion to alter, amend, or vacate. Relevant to this
appeal, Bohanon took issue with the court’s designation of Layman as the
primary residential custodian and its calculation of child support. On the issue
of child support, Bohanon again argued that Layman was voluntarily
underemployed and received gifts from her parents that should be included as
income in the child support calculation.
In response, the family court issued an order on October 15, 2018
amending its previous order. The court explained that it had inadvertently
referenced Plaintiffs Exhibit # 1 and clarified that this would not be the
timesharing schedule going forward. Rather, under the amended order,
Bohanon would keep the children every other weekend and two days per week
for three hours each day, from 5:00 PM to 8:00 PM. The family court explained
that this schedule would allow the children to spend time with Bohanon, while
also addressing Layman’s concerns about homework, academics, and
3 The family court order also addressed other matters not relevant for purposes
of this appeal, including Bohanon’s request that each party be able to claim one child
for tax purposes and his request that the court amend the life insurance provision of
the settlement agreement. The court sustained the motion to claim one child for tax
purposes but found that it lacked the jurisdiction necessary to amend the life
insurance provision. Those rulings are not before this court.
4
extracurricular activities. It would also allow the children to spend the night in
the same home throughout the week.
Bohanon appealed. In his prehearing statement to the Court of Appeals,
Bohanon argued that the family court erred in (1) awarding primary custody to
Layman; (2) reducing Bohanon’s timesharing; and (3) recalculating child
support “without considering all relevant facts and income.” More specifically,
he argued that the family court failed to consider the presumption for joint
custody and equal parenting time set forth in the custody determination
statute, Kentucky Revised Statute (“KRS”) 403.270, and the custody
modification statute, KRS 403.340. He also argued that the family court failed
to consider shared parenting time when calculating child support, and he again
reiterated his argument that Layman was voluntarily underemployed and
receiving gift income.
The Court of Appeals affirmed in part and reversed in part. As explained
in more detail below, the Court of Appeals read KRS 403.270 (the custody
determination statute) in conjunction with KRS 403.320 (the visitation
modification statute). It concluded that that the family court could only modify
the equal timesharing schedule—thereby reducing Bohanon’s parenting time to
less than fifty-percent—if it first found that the children were seriously
endangered. There were no such findings, and the Court of Appeals therefore
reversed the family court’s timesharing modification. The Court of Appeals also
found that the family court erred in failing to impute income to Layman for the
5
gifts she received from her parents. It affirmed the family court’s finding that
Layman was not voluntarily underemployed, however.4
This Court granted Layman’s petition for discretionary review to
determine (1) whether the Court of Appeals correctly interpreted and applied
KRS 403.320 and KRS 403.270; (2) whether the family court erred in modifying
the timesharing arrangement; and (3) whether the family court erred in
declining to impute income to Layman for gifts she received from her parents.
We address each issue in turn.
II. ANALYSIS
A. The Court of Appeals incorrectly interpreted and applied KRS
403.270 and KRS 403.320.
Layman first argues that the Court of Appeals erred in applying KRS
403.270 to a modification of timesharing. The parties requested a modification
of timesharing, not custody, and Layman therefore argues that the court was
bound to the standard set forth in KRS 403.320, not the standard for
determining custody found in KRS 403.270. This issue is one of statutory
interpretation, and we therefore review it de novo. Bob Hook Chevrolet Isuzu,
Inc. v. Com. Transp. Cabinet, 983 S.W.2d 488, 490 (Ky. 1998).
A review of the relevant statutes is necessary. We turn first to KRS
I
403.270, the custody determination statute. Under that statute,
The court shall determine custody in accordance with the best
interests of the child and equal consideration shall be given to each
4 The Court of Appeals also affirmed the family court’s modification of the
parties’ holiday schedule. That issue was not raised in Layman’s petition for
discretionary review and is not before this Court.
6
parent and to any de facto custodian. Subject to KRS 403.315,
there shall be a presumption, rebuttable by a preponderance of
evidence, that joint custody and equally shared parenting time is in
the best interest of the child. If a deviation from equal parenting time
is warranted, the court shall construct a parenting time schedule
which maximizes the time each parent or de facto custodian has
with the child and is consistent with ensuring the child’s welfare.
The court shall consider all relevant factors including: [a list of
factors enumerated in the statute].
KRS 403.270(2) (emphasis added). Prior to July 2018, this subsection included
only the first and last sentence. The remainder of the subsection, emphasized
above, was added and became effective July 14, 2018, shortly before the
hearing in this case.
KRS 403.320(3) governs the modification of visitation. Under that
statute, “The court may modify an order granting or denying visitation rights
whenever modification would serve the best interests of the child; but the court
shall not restrict a parent’s visitation rights unless it finds that the visitation
would endanger seriously the child’s physical, mental, moral, or emotional
health.” The term “visitation” is often used interchangeably with “timesharing.”
Anderson v. Johnson, 350 S.W.3d 453, 455 n.l (Ky. 2011) (citing Pennington v.
Marcum, 266 S.W.3d 759, 765 (Ky. 2008)). Furthermore, “the term ‘restrict’
means to provide [either] parent with something less than ‘reasonable
visitation.’” French v. French, 581 S.W.3d 45, 50 (Ky. App. 2019) (quoting Kulas
v. Kulas, 898 S.W.2d 529, 530 (Ky. App. 1995)). Accordingly, under KRS
403.320(3), a court can modify timesharing if it is in the best interests of the
child, but it can only order a “less than reasonable” timesharing arrangement if
the child’s health is seriously endangered.
7
In the present case, the Court of Appeals considered both KRS
403.320(3) and the recent amendment to KRS 403.270(2) and held:
Reading KRS 403.320(3) in context with the newly applicable
language of KRS 403.270(2), we find there is a rebuttable
presumption that equal parenting time is in the child’s best
interest. Consequently, to modify the current visitation schedule,
the court must find visitation would ‘endanger seriously the child’s
physical, mental, moral, or emotional health.’ See KRS 403.320(3).
Without that specific finding, visitation shall not be restricted. Id. If
it is found that the child’s best interest is not served because of
serious endangerment, the court shall construct a parenting time
schedule which maximizes the time each parent has with [the]
children. See KRS 403.270(2).
In other words, the Court of Appeals held that when a court modifies
timesharing, any deviation from equal timesharing amounts to a restriction
and therefore requires a finding of serious endangerment. We disagree with this
analysis.
We first acknowledge that the equal timesharing presumption of KRS
403.270(2) is new to Kentucky and unique among the custody laws of other
states, thereby limiting the precedent available to us. However, we believe that
our canons of statutory construction, combined with our timesharing
precedent, can resolve this issue. For example, we “must interpret the statute
according to the plain meaning of the act and in accordance with the legislative
intent.” Floyd Cnty. Bd. ofEdu. v. Ratliff, 955 S.W.2d 921, 925 (Ky. 1997).
With these principles in mind, we turn to the plain language of the two
statutes at issue: KRS 403.270 and KRS 403.320. Each addresses a separate
stage of a custody dispute: the initial custody determination and modification
of visitation or timesharing. For each of these stages, a different standard is
8
established. Under KRS 403.270, an initial determination of custody requires
consideration of the best interests of the child, with a rebuttable presumption
that joint custody and equal parenting time is in the child’s best interests. A
modification of visitation or timesharing, governed by KRS 403.320, on the
other hand, requires that the change be in the best interests of the child,
unless the modification is “less than reasonable,” in which case the physical,
mental, moral, or emotional health of the child must be seriously endangered.
Notably, the timesharing modification statute does not impose a
presumption of joint custody and equal parenting time. Of these two statutes,
that language is included only in the custody determination statute, KRS
403.270. Notably, the legislature also added this presumption language to KRS
403.340, the statute governing modifications in custody. Under KRS
403.340(6),
if the court orders a modification of a child custody decree, there
shall be a presumption, rebuttable by a preponderance of evidence,
that it is in the best interest of the child for the parents to have
joint custody and share equally in parenting time. If a deviation
from equal parenting time is warranted, the court shall construct a
parenting time schedule which maximizes the time each parent or
de facto custodian has with the child and is consistent with
ensuring the child’s welfare.
This presumption language was added by amendment in 2018, at the same
time that KRS 403.270 was similarly amended. We assume that the legislature
acted intentionally in excluding such a presumption from KRS 403.320, the
visitation modification statute.
Our case law also clarifies the different and distinct roles that these
custody and visitation statutes play. More specifically, our courts have
9
distinguished between an initial custody determination, which is governed by
KRS 403.270, and a modification of that decree, either under KRS 403.320 or
KRS 403.340. See Pennington, 266 S.W.3d at 765; Frances v. Frances, 266
S.W.3d 754, 756-57 (Ky. 2008); French, 581 S.W.3d at 50. For example, in
Pennington v. Marcum, we considered the effect of one parent’s relocation and
explained,
[WJhen a final custody decree has been entered, as in this case,
and a relocation motion arises, any post-decree determination
made by the court is a modification, either of custody or
timesharing/visitation. If a change in custody is sought, KRS
403.340 governs. If it is only timesharing/visitation for which
modification is sought, then KRS 403.320 either applies directly or
may be construed to do so.
266 S.W.3d at 765.
Similarly, we hold that a modification of visitation or timesharing is
governed by KRS 403.320, rather than the standard for an initial custody
determination as set forth in KRS 403.270. Accordingly, the recently added
presumption of joint custody and equal parenting time in KRS 403.270 applies
to custody determinations, but it does not apply to modifications of visitation
or timesharing.
In the present case, the parties sought and the family court ordered a
modification of timesharing. As a result, KRS 403.320(3) should have applied.
Under that statute, the family court could modify the timesharing arrangement
if it first found that the modification was in the best interests of the children, or
it could restrict timesharing (i.e., order a “less than reasonable” timesharing) if
it first found that the children’s physical, mental, moral or emotional health
10
was seriously endangered. Thus, the Court of Appeals should have considered
whether the modified timesharing arrangement was “less than reasonable.”
Under our case law, less than reasonable does not necessarily mean less than
fifty percent parenting time. See, e.g., French, 581 S.W.3d at 50. Nevertheless,
the Court of Appeals referred to the standard for custody determinations in
KRS 403.270 and concluded that any reduction in a fifty-fifty timesharing
arrangement was less than reasonable or, in other words, a restriction. Stated
another way, the Court of Appeals concluded that any change in the parties’
equal timesharing arrangement required a finding that visitation would
seriously endanger the children’s physical, mental, moral, or emotional health.
We believe that this was an improper conflation of the standards for custody
determination under KRS 403.270 and timesharing modification under KRS
403.320. As noted above, these statutes set forth separate standards for
distinct stages of a custody proceeding.
Accordingly, we conclude that the Court of Appeals incorrectly
interpreted and applied KRS 403.320(3) and KRS 403.270(2).
B. The family court did not err in modifying timesharing.
Having clarified the correct application of KRS 403.320(3) and KRS
403.270(2), we next consider whether the family court erred in modifying the
parties’ timesharing schedule.5 On this point, we note that the family court has
5 In his appeal to the Court of Appeals, Bohanon argued that the family court
modified the joint custody arrangement by designating Layman as the primary
residential custodian. In his briefs to this Court, however, Bohanon does not dispute
that the trial court modified timesharing, rather than custody. For clarity, we note that
a trial court may designate a child’s primary residence, even in joint custody
11
broad discretion in modifying timesharing. Pennington, 266 S.W.3d at 769.
Accordingly, we “will only reverse a circuit court’s determinations as to
visitation if they constitute a manifest abuse of discretion, or were clearly
erroneous in light of the facts and circumstances of the case.” Drury v. Drury,
32 S.W.3d 521, 525 (Ky. App. 2000). Furthermore, “[d]ue regard shall be given
to the opportunity of the trial court to judge the credibility of the witnesses.”
Humphrey v. Humphrey, 326 S.W.3d 460, 463 (Ky. App. 2010) (citing Murphy v.
Murphy, 272 S.W.3d 864 (Ky. App. 2008)).
As noted above, the modification of the timesharing schedule was
governed by KRS 403.320(3). Accordingly, the family court could either (1)
order a reasonable timesharing schedule if it found that it would be in the best
interests of the children to do so or (2) order a “less than reasonable”
timesharing arrangement if it first found that the children’s health was
seriously endangered. Thus, we must first consider whether the timesharing
arrangement, as modified by the family court, was reasonable.
There is no set formula for determining whether a modified timesharing
arrangement is reasonable; rather, it is a matter that must be decided based
upon the unique circumstances of each case. Drury, 32 S.W.3d at 524. For
example, it does not necessarily mean that a parent has less than reasonable
timesharing just because he or she spends less time with the child than under
arrangements. Drury, 32 S.W.3d at 524 (citation omitted). In this case, the trial judge
found that it was in the best interests for the children to live primarily with Layman;
this is not a modification of the parties’joint custody arrangement. Pennington, 266
S.W.3d at 767.
12
the original timesharing arrangement. French, 581 S.W.3d at 50; see also
Kulas, 898 S.W.2d 529.
Under the informal arrangement in place prior to these proceedings, the
parties continued to share parenting time equally, though under a modified
exchange schedule. Layman testified that the modified schedule created certain
problems. For example, she testified that “[i]t’s very difficult for the kids to go
back and forth as much in terms of keeping up with everything,” and she did
not believe that the schedule was good for the children. She testified that they
missed extracurricular activities and had trouble completing their homework
during the week. The parties’ testimony also indicated that their daughter had
trouble sleeping at Bohanon’s house and would cry at bedtime. Their daughter
also had a difficult relationship with one of Bohanon’s stepdaughters. The two
girls are the same age and very competitive with each other. Though Bohanon
testified that the two children “played together every day,” he also
acknowledged that they fought often. Apparently, the parties requested that the
two children be placed into different classes at school. Given these various
issues, Layman proposed that the children stay with her during the week to
provide “more consistency, more structure” to the children and to allow her
time “to make sure their school and extracurricular activities are taken care
of.” She acknowledged that the children needed to see their father and
proposed that he be able to visit with them during the week.
Under the family court’s order, Bohanon received no overnight visits
during the week, six hours of parenting time during the week, and overnight
13
visits every other weekend. Though this reduced the amount of time that
Bohanon kept the children, the family court provided specific reasons why this
change was necessary. For example, the court explained that this schedule
would allow the children to spend time with Bohanon during the week, but
would also address Layman’s concerns about academics, extracurricular
activities, and consistency in the children’s lives. Under these circumstances,
we do not think that the family court ordered less than reasonable timesharing.
Because the family court ordered a reasonable timesharing schedule—in
other words, a modification, not a restriction—we next consider whether the
family court properly found that the arrangement was in the best interests of
the children. On this point, the Court of Appeals noted that, even under a best
interest standard, the modification would fail, as the family court “failed to
analyze any factors to support its decision.” The Court of Appeals held that
“[t]he circuit court failed to consider the relationships with the half-siblings,
the relationship with their parents, the proximity of the children to their home,
school, and community, or the mental and physical health of all parties.” The
Court of Appeals therefore held that “even under a best interest standard, we
could not find it was a proper ruling.” We disagree, however, as the family
court’s initial order and its amended order discussed relevant factors that
support the modification. For example, the October 15, 2018 amended order
stated that the timesharing arrangement “will ensure that the children
continue to spend time with [Bohanon], while also addressing the Court’s
concerns about homework, academics, and school activities and further
14
allowing the children spend [sic] the night in the same place each night
through the school week.” We believe that, in this case, the factors listed in the
family court’s orders are sufficient to satisfy the best interests of the children
standard.
Accordingly, we hold that the family court did not err in modifying the
timesharing schedule as set forth in its October 15, 2018 amended order, and
we therefore reverse the Court of Appeals on this issue.
C. The family court did not err in declining to impute income to
Layman for gifts received from her parents.
Lastly, Layman disagrees with the Court of Appeals’ determination that
certain gifts should have been included in her income for purposes of
calculating child support. She argues that the family court, which did not
impute any income for the gifts, correctly calculated child support based upon
the parties’ stated salaries. The family court “has broad discretion in
determining the appropriate amount of child support owed by a parent.” Jones
v. Hammond, 329 S.W.3d 331, 336 (Ky. App. 2010). Accordingly, “a reviewing
court will uphold the [child support] award if the trial court did not abuse that
discretion or base its decision on findings of fact that are clearly erroneous.”
Penner v. Penner, 411 S.W.3d 775, 779 (Ky. App. 2013) (citing Brooks v.
Brooks, 350 S.W.3d 823, 827 (Ky. App. 2011)). In the context of child support,
“[a]n abuse of discretion has occurred if the family court’s ‘decision was
arbitrary, unreasonable, unfair, or unsupported by sound legal
15
principles.” Jones, 329 S.W.3d at 336 (quoting Downing v. Downing, 45 S.W.3d
449, 454 (Ky. App. 2001)).
KRS 403.212 provides the child support guidelines for the
Commonwealth of Kentucky. The guidelines calculate support payments based
on, among other things, the number of children and the combined monthly
adjusted gross income of the parents. “Gross income” is defined as
income from any source, except as excluded in this subsection,
and includes but is not limited to income from salaries, wages,
retirement and pension funds, commissions, bonuses, dividends,
severance pay, pensions, interest, trust income, annuities, capital
gains, Social Security benefits, workers’ compensation benefits,
unemployment insurance benefits, disability insurance benefits,
Supplemental Security Income (SSI), gifts, prizes, and alimony or
maintenance received.
KRS 403.212(3)(d) (emphasis added). Thus, gifts should typically be included in
gross income for purposes of calculating child support. However, “[t]he trial
court may determine that a gift should not be included in income if it is
inconsequential, nonrecurring or unlikely to provide sufficient funds to pay the
increased child support obligation.” Stewart v. Burton, 108 S.W.3d 647, 648-49
(Ky. App. 2003).
In this case, Bohanon paid approximately $400 a month in child support
under the terms of the parties’ 2016 settlement agreement. This was an agreed
upon deviation from the child support guidelines. At that time, Layman made
approximately $39,000 a year6 working as a purchasing manager at Ashland
6 Layman testified that in 2015, while still working as a purchasing manager for
the family business, she made approximately $39,000.
16
Fabricating and Welding, her family’s business. After the entry of that
settlement agreement, Layman’s salary decreased to $25,657. This reduction
occurred after Layman’s father suffered a traumatic brain injury in November
2018. Her family asked her to switch her duties from purchasing to caring for
her father.
Layman also testified that she has received other forms of compensation
for her work for the family business. For example, she receives health
insurance and a cell phone. Her parents also occasionally pay for her travel
expenses, and they purchased a Cadillac Escalade for her when her previous
car “rusted out.” Her parents also provide $1000 per month per child, for a
total of $2,000 per month. Layman testified that this monthly gift was given to
the children and she “use[s] it on them,” though she did not specify further.
Layman also testified that these various gifts were in exchange for the work she
does for the company, but later clarified that her parents would have provided
the car and the monthly $2000 gifts even if she did not work for the family
business.
The family court calculated the child support amount based on the
guidelines, using Bohanon’s $62,000 salary and Layman’s $25,657 salary. The
family court did not make any specific findings regarding the gifts, but it did
not impute any additional income to Layman. Presumably, then, the family
court did not believe that the gifts should be included as part of Layman’s
17
gross income.7 We see no abuse of discretion in this decision given the facts as
developed at the hearing.
First, we note that “[t]he party who wants the trial court to use a different
income level in applying the child support guidelines bears the burden of
presenting evidence which would support the requested finding.” Keplinger v.
Keplinger, 839 S.W.2d 566, 569 (Ky. App. 1992) (citation omitted). The burden
in this case rested on Bohanon, but he did not present sufficient evidence to
support his requests. For example, the parties did not provide any evidence of
the value of the Cadillac Escalade. Layman testified that her parents purchased
the vehicle for her, but she did not provide any evidence—testimonial or
otherwise—of its value or even the model and condition of the vehicle. Bohanon
did not provide any evidence of the vehicle’s value, either. Though he attempts
to reference the Kelley Blue Book value to this Court, he provided no such
evidence to the trial court, nor is there any evidence of the model or condition
of the vehicle, both of which are necessary to determine its value. More
importantly, however, there is no evidence indicating that this was a recurring
gift. Layman testified that her parents purchased the vehicle for her after her
previous fifteen-year-old vehicle “rusted out”; this would suggest that the gift
was nonrecurring. For these reasons, we do not believe that the family court
7 It would also appear that the family court did not believe that Layman was
voluntarily underemployed. That decision was raised by Bohanon in his appeal to the
Court of Appeals and the Court of Appeals affirmed the family court’s ruling. However,
that issue was not raised in Layman’s petition for discretionary review, and, therefore,
we need not consider it.
18
abused its discretion in declining to include this gift in Layman’s gross income.
In addition, the evidence, though limited, indicates that the $1000
monthly gifts were given to the children, for their use. According to Layman’s
uncontested testimony, her children received the monthly gifts from Layman’s
parents and Layman used the money to purchase things for the children.
Bohanon even referenced this money as the “children’s income” in his filings
with the family court. Given Layman’s testimony that these monthly gifts were
made to the children and the lack of evidence to the contrary, we cannot fault
the family court for declining to include these gifts as income for Layman. On
this point, we again note that Bohanon bore the burden of presenting sufficient
evidence to support a change in Layman’s income level.
We are mindful that KRS 403.211(3) authorizes the family court to
deviate from the child support guidelines if it finds that application of the
guidelines would be unjust or inappropriate based upon an enumerated list of
criteria, including “[t]he independent financial resources, if any, of the child or
children.” KRS 403.2 ll(3)(d). However, that argument was not raised to the
family court, the Court of Appeals, or this Court. Furthermore, at the hearing
before the family court, the parties did not develop the facts necessary to
support such a deviation. As a result, we cannot fault the family court’s
decision to apply the child support guidelines.
In sum, we disagree with the Court of Appeals’ determination that the
monthly gifts and the Escalade should have been imputed to Layman as
income under the facts as developed at the hearing. Based upon the testimony
19
at the hearing, it was not an abuse of discretion to decline to include those gifts
in Layman’s income. We therefore reverse the Court of Appeals on this issue.
III. CONCLUSION
For the reasons set forth above, we hereby reverse the opinion of the
Court of Appeals as to the issues before us and reinstate the orders of the Boyd
Family Court.
Minton, C. J.; Hughes, Keller, Lambert, and Wright, JJ., concur.
VanMeter, J., concurs in result only. Nickell, J., not sitting.
COUNSEL FOR APPELLANT:
Paul E. Craft
COUNSEL FOR APPELLEE:
Tracy Denise Frye
Marie Elizabeth Troxler
Frye Law Offices, P.S.C.
20