Josh Boggs v. Andrea Boggs ( 2023 )

RENDERED: JUNE 16, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0129-MR
JOSH BOGGS APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
v. HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 16-CI-00042
ANDREA BOGGS APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
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BEFORE: ECKERLE, KAREM, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Appellant, Josh Boggs (Josh), and Appellee, Andrea Boggs
(Andrea), had their marriage dissolved by a Decree of Dissolution entered by the
Greenup Circuit Court, Family Division, on June 17, 2016. The parties were
awarded joint custody of their three children. Josh was ordered to pay child
support in a monthly amount of $671.93. He made no payments after June of
2016.
In 2021, Andrea filed a motion for contempt and Josh filed a motion
for modification of timesharing/custody. The court held a hearing during which
the parties, their eldest daughter, and Josh’s mother testified. Josh testified that the
parties informally agreed that in lieu of child support payments, Andrea lived rent
free at their former marital residence (the Residence), which was owned solely by
Josh’s mother.
In an order entered on December 16, 2021, the court determined that
Josh failed to pay child support for 32 months at the rate of $629.62 per month.
This included a discount for the number of months that Andrea lived rent free at
the Residence. The court ordered Josh to pay the total amount due within six
months, and that he also pay $1,000.00 in attorney’s fees. Based on his current
income, the court ordered Josh to pay $1,173.83 per month moving forward. Josh
filed a motion to alter, amend, or vacate the court’s order, which was denied. He
appeals to this Court as a matter of right. For the following reasons, we affirm in
part, reverse in part, and remand.
“We review the establishment, modification, and enforcement of child
support obligations for abuse of discretion.” Wilson v. Inglis, 554 S.W.3d 377, 381
(Ky. App. 2018) (citation omitted). “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (quoting
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Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). With this standard
in mind, we now return to the record in the present case.
Josh generally argues that the family court’s findings concerning child
support and attorney’s fees were erroneous and/or inaccurate. He raises additional
concerns that are either insufficiently preserved or are otherwise unpersuasive.
Therefore, we need not address those matters further. We will instead address the
merits of the issues properly before us – whether the court abused its discretion in
awarding the unpaid child support payments and attorney’s fees.
Testimony indicates that Andrea lived in the Residence for some
period of time, possibly in lieu of receiving child support payments. And while the
details remain unclear, it is undisputed that this alleged agreement was not reduced
to writing. In addressing this issue, the court determined that it “does not accept
the allegation that there was an agreement between [Josh and Andrea] to live in the
[Residence] in lieu of paying child support. However, the [c]ourt does give [Josh]
credit for not paying child support for the 27 months that [Andrea] lived in the
home rent free.” The court’s remedy here is based on the evidence, equitable, and
is certainly not an abuse of its discretion.
However, there does appear to be a discrepancy between the language
of the court’s order regarding Josh’s modified child support payment, and the
actual calculation of that amount on a monthly basis. The difference equates to
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approximately $538.66 per month. This issue was raised in Josh’s motion to alter,
amend, or vacate. Therefore, remand is necessary. To be clear, we are not taking
issue with the result of the court’s discretion in modifying child support, or the
methodology upon which the court relied. Rather, we remand for the court to
clarify the amount owed.
We also remand for the court to consider Adams-Smyrichinsky v.
Smyrichinsky, 467 S.W.3d 767 (Ky. 2015) (requiring specific findings concerning
the allocation of the child tax exemption). That standard was not satisfied here.
See Bankston v. Mattingly, 661 S.W.3d 755, 759 (Ky. App. 2023) (“[F]or the
foregoing reasons, the order . . . awarding the dependent-child tax deduction to the
parties on alternating years is reversed, and this matter is remanded to the circuit
court for entry of any and all appropriate orders.”). See also Howard v. Howard,
Nos. 2021-CA-0865-MR and 2021-CA-0965-MR, 2022 WL 17838398, at *2 (Ky.
App. Dec. 22, 2022).
Josh’s final claim of error concerns the attorney’s fees award. The
statute governing attorney’s fees is KRS 403.220. It has been summarized and
applied as follows:
Under this statute, a trial court may order one party
to a divorce action to pay a reasonable amount for the
attorney’s fees of the other party, but only if there exists
a disparity in the relative financial resources of the
parties in favor of the payor. But even if a disparity
exists, whether to make such an assignment and, if so, the
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amount to be assigned is within the discretion of the trial
judge. There is nothing mandatory about it. Thus, a trial
court’s ruling on attorney fees is subject to review only
for an abuse of discretion.
Sexton, 125 S.W.3d at 272 (internal quotation marks and footnotes omitted).
Furthermore, “[the trial court] is in the best position to observe conduct and tactics
which waste the court’s and attorneys’ time and must be given wide latitude to
sanction or discourage such conduct.” Gentry v. Gentry, 798 S.W.2d 928, 938
(Ky. 1990). In the present case, the court ordered Josh to pay $1,000.00 in
attorney’s fees as a “sanction for . . . failing to pay the child support when it was
due.” The court also assessed the parties’ most recent income for purposes of
awarding child support. The order indicates that Josh’s income is in excess of
Andrea’s. Therefore, we believe that the court sufficiently considered the financial
resources of the parties for purposes of KRS 403.220. There was certainly no
abuse of discretion.
CONCLUSION
For the forgoing reasons, we AFFIRM in part and REVERSE in part.
We REMAND with instructions that the court enter a new order consistent with
this decision. Any additional hearings may be ordered at the discretion of the
circuit court.
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ECKERLE, JUDGE, CONCURS.
KAREM, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
KAREM, JUDGE, DISSENTING: Respectfully, I dissent and would reverse the
trial court’s order as to the amount of arrearages owed by Appellant. I agree in the
majority’s Opinion assessing the proper issues before the court but disagree with
the ultimate conclusion that the trial court did not abuse its discretion or act
arbitrarily.
The trial judge held a hearing on the Appellee’s Motion for Contempt
and to Assess Arrearages. During the hearing the testimony is clear that the home
in which the Appellee lived, rent free, with the children following the divorce was
owned by Appellant’s mother. While no written document exists memorializing
any type of agreement with reference to rent, Appellee asserts that she made a deal
with Appellant’s mother that she would be allowed to move into the home rent free
to improve her credit, to eventually purchase the home for $35,000. Appellant
asserts that the deal was made with his mother that the Appellee could live there in
lieu of child support, although at this point he had already failed to make payments
for over two years after the divorce. After assessing all of the evidence, the trial
court did not accept the allegation that there was an agreement between the parties
for the Appellee to live in the home in lieu of paying child support. However, the
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trial judge went on to give Appellant credit for 27 months in which the Appellee
lived in the home rent free.
In a similar case, this Court outlined when oral agreements to modify
child support obligations are enforceable.
(1) [S]uch agreements may be proved with reasonable
certainty, and (2) the court finds that the agreement is fair
and equitable under the circumstances. In order to
enforce such agreements, a court must find that
modification might reasonably have been granted, had a
proper motion to modify been brought before the court
pursuant to KRS 403.250 at the time such oral
modification was originally agreed to by the parties.
Furthermore, in keeping with prior decisions, such
private agreements are enforceable only prospectively,
and will not apply to support payments which had
already become vested at the time the agreement was
made. See Dalton v. Dalton, Ky., 367 S.W.2d 840, 842
(1963).
Whicker v. Whicker, 711 S.W.2d 857, 859 (Ky. App. 1986).
In the case at bar, the first prong of the analysis fails. The trial court
found no oral agreement existed therefore the question ends there. The Appellant
owes child support as dictated in the original order and he must pay all arrearages
owed. To do otherwise fails to take into consideration the interest of the children.
Appellant therefore should not get any offset for the time Appellee lived in the
house rent free and granting the offset was completely arbitrary. As such, I would
reverse as to the amount of arrearages owed and remand for a calculation which
does not grant an offset.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Robert T. Renfroe Tracy D. Frye
Greenup, Kentucky Marie E. Troxler
Nikki Burke
Russell, Kentucky
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