Edwin O. Torres Hernandez v. Sarah Jane Muffett (Now Bellamy) ( 2023 )

RENDERED: JULY 14, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1096-MR
EDWIN O. TORRES HERNANDEZ APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE PAMELA ADDINGTON, SPECIAL JUDGE
ACTION NO. 14-CI-01123
SARAH JANE MUFFETT (NOW APPELLEE
BELLAMY)
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
ACREE, JUDGE: Appellant, Edwin Torres, appeals the Daviess Circuit Court’s
Order denying Appellant’s Motion to Modify Child Support. Having reviewed the
record, we affirm.
Appellant and Appellee have one child together; they were never
married. On September 19, 2017, the Daviess Circuit Court entered a final order
concerning Appellant’s child support obligations. However, on February 8, 2019,
Appellant filed a Motion to Modify Child Support, which the circuit court denied
on February 12, 2020. Appellant then filed a motion to reconsider modifying child
support. On May 26, 2021, the circuit court heard evidence concerning whether
child support payments should be modified. The circuit court’s denial of this
motion is the only decision under review, although the motion is but one of several
filed in that court by both parties.
On the issue of child support payments, the circuit court heard the
following testimony and accompanying evidence: (1) Appellant is an
undocumented immigrant who worked under several aliases and social security
numbers; and (2) he produced various W-2 forms, tax returns, and bank statements,
all of which showed different amounts earned, deposited, or claimed as income.
Based on this evidence, the circuit court concluded Appellant failed to properly
document his income for the court’s analysis of whether to modify Appellant’s
child support payments. Accordingly, the circuit court denied the motion.
This appeal now follows.
On appeal, Appellant first argues the circuit court erred by failing to
consider evidence the parties share parenting time. Second, Appellant argues the
circuit court erred by rejecting Appellant’s income evidence because evidence of
the same nature formed the basis of the initial award of support.
-2-
Appellate courts review any challenge to modify child support
obligations for abuse of discretion. Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky.
App. 2007). “The test for abuse of discretion is whether the trial court’s decision
was ‘arbitrary, unreasonable, unfair, or unsupported by sound legal principles.’”
Wilson v. Inglis, 554 S.W.3d 377, 381 (Ky. App. 2018) (quoting Downing v.
Downing, 45 S.W.3d 449, 454 (Ky. App. 2001) (citing Goodyear Tire & Rubber
Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000))). Thus, “generally, as long as
the trial court gives due consideration to the parties’ financial circumstances and
the child’s needs, and either conforms to the statutory prescriptions or adequately
justifies deviating therefrom, this Court will not disturb its rulings.” Van Meter v.
Smith, 14 S.W.3d 569, 572 (Ky. App. 2000) (citation omitted).
We are not persuaded that the circuit court failed to properly consider
the parties’ shared parenting time. The record does not indicate the issue was
preserved or that the circuit court addressed the issue in any way. Such a record
supports our conclusion the circuit court did not believe the shared parenting
justified deviation from the child support guidelines. Bronk v. Commonwealth, 58
S.W.3d 482, 484 n.1 (Ky. 2001) (“the silent record supports the action of the trial
court”).
Appellant claims the error is in the court’s failure to address the
possibility of deviation from the guidelines. But that is not our focus on appellate
-3-
review. Instead, we consider whether the circuit court abused its discretion when it
denied Appellant’s motion, despite the parties sharing co-parenting time. Nothing
presented by Appellant, nor anything in the record demonstrates the circuit court
abused its discretion. The circuit court did not deviate from the applicable
guidelines. Whether the reason was because the issue never came up or because it
was the court’s conscious decision is irrelevant. We find no basis for claiming the
failure to deviate was an abuse of discretion because failing to do so was not
arbitrary, unreasonable, unfair, or unsupported by sound legal principles.
Appellant’s second argument fails because “[a] party seeking
modification of child support must demonstrate ‘a material change in
circumstances that is substantial and continuing.’” Wilson, 554 S.W.3d at 382(quoting KRS1 403.213(1)); see also Tilley v. Tilley, 947 S.W.2d 63, 65 (Ky. App.
1997). The argument that the evidence presented for modification is the same
evidence that supported the circuit court’s determination of the original child
support obligation impliedly shows no material change in circumstances. Nor does
Appellant make an express claim that his circumstances have changed.
For the foregoing reasons, we affirm.
ALL CONCUR.
1
Kentucky Revised Statutes.
-4-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Steven L. Boling Tyler H. Johnson
Owensboro, Kentucky Owensboro, Kentucky
-5-