Bruce Hollis v. Kelly Hollis ( 2021 )

RENDERED: SEPTEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0654-MR
BRUCE HOLLIS APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 14-CI-503516
KELLY HOLLIS APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND
REMANDING
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BEFORE: JONES, MAZE, AND L. THOMPSON, JUDGES.
MAZE, JUDGE: Bruce Hollis appeals from those portions of the decree
dissolving his marriage to appellee Kelly Hollis which awarded her permanent
maintenance and denied his motion for reimbursement of child support paid
following the emancipation of the parties’ younger child. We affirm as to the
award of maintenance, reverse on the issue of child support, and remand for further
proceedings in Jefferson Family Court.
Bruce and Kelly were married on October 24, 1990, in New Mexico
and have separated several times over the course of their marriage. Although this
dissolution proceeding was filed in 2014, the parties’ final separation did not occur
until February 2018. They have two adult children, Rachel, born in December
1997, and Sarah, born in December 1999. Bruce owns and operates Custom
Overhead Door Service, Inc., a business he established just prior to the parties’
marriage. Over the course of the marriage, Bruce worked and performed daily
labor operations at the business and Kelly worked as the company’s office
manager and bookkeeper.
Both parties currently suffer from chronic health issues. Rheumatoid
arthritis causes severe swelling and disfigurement in Bruce’s joints and he
underwent knee and foot surgery in recent years. He testified that a 2019 car
accident had exacerbated his chronic pain. Kelly, on the other hand, suffers from
cardiomyopathy and congestive heart failure, and she was adjudicated disabled in
2005 for which she receives Social Security Disability benefits. Kelly testified that
she was able to continue working part-time until 2018 because the business
operated out of the parties’ home and she was able to keep a bed in her office
where she could rest as needed.
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Because the parties were able to reach a pre-trial agreement on
numerous issues, only the issues of maintenance, overpayment of child support,
and valuation of the business remained for decision by the family court. After
hearing testimony from Bruce and Kelly, the family court ultimately awarded
Kelly permanent maintenance in the amount of $1000 per month. Concerning the
alleged overpayment of child support, the family court found that Bruce had failed
to make a timely motion to modify his support obligation after the younger child’s
emancipation and had also failed to provide proof that he had actually paid support
between the date of her emancipation and the filing of his motion for credit of the
alleged overpayment. Bruce alleges in this appeal that the family court erred in its
conclusions on both issues.
The well-established standard of review for determinations of
maintenance and child support is abuse of discretion. Stipp v. St. Charles, 291
S.W.3d 720, 727 (Ky. App. 2009) (concerning maintenance awards) and Downing
v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001) (concerning child support). The
familiar test for determining abuse of discretion “is whether the trial judge’s
decision was arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). As an
appellate court, we are not free to substitute our own judgment for that of the trial
court where that judgment is supported by substantial evidence. Reichle v. Reichle,
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719 S.W.2d 442 (Ky. 1986). With these principles in mind, we turn to Bruce’s
arguments for reversal.
1. Maintenance
Citing the dictates of KRS1 403.200(1), Bruce contends that the
family court erred in awarding Kelly permanent maintenance and in failing to
credit him for the period of almost eight years in which he made maintenance
payments prior to trial. Bruce correctly posits that the maintenance statute
provides for an award only upon findings that the party seeking maintenance:
(a) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs;
and
(b) Is unable to support himself through appropriate
employment or is the custodian of a child whose
condition or circumstances make it appropriate that the
custodian not be required to seek employment outside the
home.
Bruce insists that the evidence before the trial court precludes a finding that either
prong of the statute has been satisfied. With regard to subsection (a), Bruce points
to the equitable division of the marital estate, focusing in particular upon his
buyout of Kelly’s share of the marital residence from which she received the sum
of $146,500.00. Concerning subsection (b), Bruce argues that Kelly’s marketable
skill set and experience enable her to find well-paid work in a similar field. He
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Kentucky Revised Statute.
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further argues that, given the fact that many bookkeeping and administrative
positions lend themselves to a remote work environment, Kelly’s health issues
could be accommodated. Thus, Bruce maintains that Kelly is indisputably able to
support herself.
As this Court noted in Shafizadeh v. Shafizadeh, KRS 403.200
requires family courts to engage in a two-step process prior to granting a party
maintenance:
First, the family court must determine whether the party
seeking maintenance is entitled to it by ascertaining
whether that party is able to meet his or her reasonable
needs. KRS 403.200(1). Second, if the family court
concludes maintenance is warranted, the family court
must then establish the amount and duration of the
maintenance award by considering several factors set
forth in KRS 403.200(2). While, of course, mere lip
service is insufficient, the family court is not required to
render explicit findings of fact as to each relevant KRS
403.200(2) factor. McGregor v. McGregor, 334 S.W.3d
113, 118 (Ky. App. 2011).
444 S.W.3d 437, 446 (Ky. App. 2012).
Concerning the first of these factors, the family court specifically
found that Kelly’s health issues and adjudication of full disability render her
incapable of engaging in substantial gainful employment and entitle her to an
award of maintenance. As to the second prong of KRS 403.200, the family court
noted that the statute allows it to consider several factors including the length of
the marriage; the standard of living established during the marriage; and the
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financial resources and ability of each party to meet his or her needs. In support of
its conclusion that Kelly is entitled to permanent maintenance in amount of $1000
per month, the family court found that the parties had been married for nearly
thirty years, although they had been separated intermittently over the past ten
years. In addition, the court entered the following findings:
[Bruce] owns and operates a successful business, which
affords him consistent income of around $6,200 per
month. [Bruce’s] reasonable monthly living expenses are
no more than $3,000. He has the ability to pay his
expenses, with money to spare.
[Kelly] has been adjudicated fully disabled, and as
such, she is incapable of engaging in substantial gainful
activity. In fact, she cannot engage in any activity for
more than two hours at a time. [Kelly’s] total income
consists of Social Security benefits of $646.75 per
month. Her monthly living expenses are $1,750,
exclusive of clothing, personal care items, household
goods, and vehicle maintenance. [Kelly] has a
significant shortfall, but some of that will be mitigated by
the division of the marital estate.
The parties maintained a modest but comfortable
lifestyle during their marriage. They owned a home, a
small business, numerous older cars, a boat, and
recreational vehicles. They took frequent vacations and
owned two timeshares.
However, Bruce insists that the requirements of KRS 403.200(1)
cannot be satisfied because Kelly was “made whole” by the equitable division of
marital property which included his buyout of her share of the marital residence.
In light of that division, coupled with Kelly’s relatively young age and work
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experience, Bruce argues that Kelly is indisputably able to provide for her
reasonable needs.
As the former Court of Appeals reiterated in Colley v. Colley, a
spouse is not required to deplete her share of the marital estate to qualify for an
award of maintenance:
The next necessary determination is, even though she is
entitled to a divorce, does she have ‘sufficient estate of
her own’? Whether she has sufficient estate of her own
depends upon what she owns and what she has been
awarded as her part of the division of property acquired
by the joint efforts of the parties. Her estate as thus
determined is insufficient unless it will yield income or
profits sufficient for her comfortable maintenance in a
style suitable to the social standing established by the
parties during marriage without her being required to
consume the principal.
460 S.W.2d 821, 827 (Ky. 1970) (emphasis added). Because the family court’s
findings concerning the KRS 403.200 factors are supported by evidence in the
record and adduced at the hearing, we find absolutely no basis upon which we
might disturb its conclusion concerning Kelly’s entitlement to permanent
maintenance in the amount of $1000 per month.
2. Reimbursement for Payment of Temporary Child Support
Bruce’s second allegation of error centers on his contention that he is
entitled to a credit for “overpayments” he made pursuant to a temporary child
support order. Not only does Bruce argue that his continued payments under the
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order benefited Kelly alone, entitling him to a credit for post-emancipation
payments, he also maintains a credit for overpayments is required by the plain
language of KRS 403.213(3). That statute provides in pertinent part:
Unless otherwise agreed in writing or expressly provided
in the decree, provisions for the support of a child shall
be terminated by emancipation of the child unless the
child is a high school student when he reaches the age of
eighteen (18).
Citing Price v. Price, 912 S.W.2d 44 (Ky. 1995), the family court held
that it had no power to relieve parents of their support obligation concerning
payments which accrued prior to the filing of a motion to modify support. The
family court also found that Bruce failed to provide proof that he had in fact paid
child support pursuant to the temporary order between the date of the youngest
child’s emancipation and the filing of his motion.
Our review of the propriety of the family court’s determination
requires a detailed recitation of the procedurally complex facts regarding support
orders and payments. As previously noted, the parties’ path to the dissolution
decree and the issues disputed in this appeal has been circuitous at best, involving
DVOs, dissolution proceedings, and attempts at reconciliation. Although there
appear to have been previous interactions with family court and the entry of
domestic violence orders, the record on appeal commences with Bruce’s
November 2014 petition for dissolution of marriage. In his petition, Bruce
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references another action, 99-D-501790-002, in which Kelly was awarded
temporary custody of their two children. Appended to the record in this appeal is a
copy of a no-contact DVO entered October 27, 2014, which bears the same action
number and awards child support in the amount of $576 per month. That order
states that it was effective until October 26, 2017.
On January 19, 2016, Bruce’s former counsel filed a motion to reduce
child support on the basis that the older child had turned 18 years of age and would
graduate from high school in May 2016. It does not appear from review of the
record that the motion was ever ruled upon. A limited decree of dissolution was
entered on October 28, 2016, which restored the parties to the status of single
persons and reserved the issues of child support and maintenance. Shortly
thereafter, Bruce filed a motion to set aside the limited decree on the basis that the
parties were attempting to reconcile. In December 2016, the family court entered
an agreed order setting aside the limited decree.
Another agreed order was entered by the family court in January
2017, containing the following specific provisions pertinent to issues concerning
support of the children:
1. Bruce will abide by all court orders;
2. make child support and maintenance payments in a
timely manner;
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3. continue to abide by the terms of the DVO which
includes not entering the marital residence or having
contact with the children without the entry of a court
order concerning therapeutic counseling or reunification
therapy;
4. maintain health insurance on children to age 25;
5. provide transportation expenses for Kelly and children
to have exclusive use of the parties’ timeshare one week
per year; and
6. maintain yearly regional convention expenses for
Kelly and the children.
A subsequent DVO entered October 17, 2017, extended the previous DVO to
continue child support until April 17, 2018.
Pursuant to Kelly’s motion, the family court entered an order in
February 2018, adopting and incorporating the October 17, 2017 temporary child
support order of the DVO into the dissolution proceeding. The next event related
to child support was the entry on February 4, 2019, of the parties’ mediated
agreement which included the following pertinent provisions:
1. Bruce shall pay Kelly the sum of $7500 in three
$2500 installments due on February 4, 2019, March 1,
2019, and April 1, 2019;
2. Bruce may argue that the $7500 paid herein is a credit
for anything he can argue;
3. The $2500 monthly payment includes current orders
for child support and/or maintenance;
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5. All other orders not inconsistent herewith shall remain
in full force and effect; and
6. The DVO remains in force and applies to the
residence if Kelly moves back in.
On August 30, 2019, Bruce received a notice from the Cabinet for
Health and Family Services that his $445 Kentucky tax refund had been transferred
to the Department for Income Support/Child Support and applied to his child
support arrearage of $7,614. He subsequently filed a September 10, 2019 motion
to terminate child support on the basis that his older child is now 21 and had
graduated high school and his younger child is now 19 and had graduated high
school. The motion alleged that despite the emancipation of the children, the
division of child support continues to show an active support obligation to be paid
through the Office of the Jefferson County Attorney. Appended to that motion was
a proposed order entitling Bruce to a credit for any overpayment. On September
16, 2019, the family court ordered that “[c]hild support is terminated effective
9/10/19, the date of plaintiff’s motion. The issue of any arrearages is hereby
reserved.”
Which brings us back to the findings and conclusions concerning
child support which are the focus of this appeal:
The parties’ younger child, Sarah, turned 18 years
of age in December 2017 and graduated from high school
in May 2018. Mr. Hollis did not file a motion to
terminate child support until September 10, 2019. The
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Court granted his motion, effective with the date of
filing. Mr. Hollis would like to be reimbursed for his
“overpayment,” but it does not appear that he routinely
paid child support after Sarah’s emancipation. In fact, he
testified that he did not know child support was ongoing
until his tax return was intercepted.
....
The emancipation of a child for whom a prior
support order was issued triggers the review of the child
support obligation. Seay v. Seay, 404 S.W.3d 215 (Ky.
App. 2013); Dickens v. Dickens, 401 S.W.3d 489, 491
(Ky. App. 2013). However, the provisions of any child
support order may be modified only as to installments
accruing after the filing of a motion for modification.
KRS § 403.212(1). Trial courts have no power to relieve
parents of their child support obligation that become due
prior to the filing of a motion for modification. Price v.
Price, 912 S.W.2d 44 (Ky. 1995)[.]
In this case, Mr. Hollis not only failed to file a
timely motion to modify his support obligation after
Sarah’s emancipation, but he also failed to provide proof
that he had paid support between the date of her
emancipation and the filing of his motion. Accordingly,
his request for reimbursement is denied.
The family court again addressed the reimbursement of child support in a May
2020 order denying Bruce’s motion to alter, amend, or vacate the April 8, 2020
judgment:
Lastly, [Bruce] argues that his child support
obligation should be modified and then terminated as of
the date of the children’s respective emancipations. As
detailed in the Judgment, the Petitioner took no steps to
request a child support modification in a timely manner;
there is nothing of record to show that he would have
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been entitled to a reduction after the older child’s
emancipation; and there is no proof that he continued to
pay support, aside from a single tax intercept, after the
younger child’s emancipation. The [c]ourt finds no merit
in the Petitioner’s argument. To the extent that he
continued to overpay support after either child’s
emancipation, such overpayment was voluntary.
With this procedural history in mind, we analyze Bruce’s contentions that his
support obligation terminated as a matter of law upon the emancipation of the
younger child and that he is therefore entitled to a credit for any support payments
made after that date.
We reiterate that the unequivocal language of KRS 403.213(3)
mandates termination of support upon the emancipation of a child unless the child
remains a high school student when he reaches the age of eighteen. We thus agree
with Bruce’s contention his child support obligation terminated as a matter of law
upon his younger child’s graduation from high school in May 2018 and that the
family court erred in refusing to terminate child support as of that date. The cases
cited by the family court, Price, Seay, and Dickens, limiting authority to modify
child support payments to prospective payments only, simply cannot be construed
as applying to payments accruing after the date when a party’s child support
obligation has terminated as a matter of law and which he therefore has no legal
obligation to make. Regardless of the date of a motion to terminate support, the
statute itself provides the date upon which a party’s support obligation ceases.
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Thus, we hold that as a matter of law Bruce’s support obligation terminated as of
May 2018, the date his younger eighteen-year-old daughter graduated from high
school. The family court’s conclusion that it lacked authority to credit Bruce for
payments made after that date is therefore erroneous as a matter of law.
However, our holding as to the proper application of KRS 403.213(3)
does not necessarily entitle Bruce to a credit for all payments made after the date of
Sarah’s emancipation. As the family court correctly found, this record is
essentially devoid of evidence concerning the amount of child support payments
made, or the dates of those payments. Furthermore, if, as Kelly alleges, Bruce had
a significant child support arrearage prior to the younger child’s emancipation, any
payments he made after Sarah’s emancipation may be applicable to that arrearage.
Ultimately, we view it to be the province of the family court, not an appellate
court, to determine on the basis of the child support orders and agreements of
record the actual extent of Bruce’s child support obligation and the amount of any
payments he made toward that obligation. The case is therefore remanded for the
conduct of a hearing at which Bruce is to be afforded an opportunity to prove the
extent of his support obligation and the amount of payments he made both prior to
and after Sarah’s emancipation.
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Accordingly, we affirm the decision of the family court as to
maintenance. Concerning child support, we reverse the family court’s decision and
remand for additional proceedings consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
John H. Helmers, Jr. Stephanie C. Willis
Louisville, Kentucky Louisville, Kentucky
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