Bootes v. Bootes

470 S.W.3d 351, 2015 Ky. App. LEXIS 126, 2015 WL 5089905
CourtCourt of Appeals of Kentucky
DecidedAugust 28, 2015
DocketNO. 2014-CA-000816-MR
StatusPublished
Cited by8 cases

This text of 470 S.W.3d 351 (Bootes v. Bootes) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bootes v. Bootes, 470 S.W.3d 351, 2015 Ky. App. LEXIS 126, 2015 WL 5089905 (Ky. Ct. App. 2015).

Opinion

OPINION

VANMETER, JUDGE:

Michelle Bootes appeals from the Jefferson Circuit Court’s order denying her motion to alter, amend or vacate the trial court’s judgment concerning child support and maintenance. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

Michelle and Damon Bootes were married in 1997 and divorced by a limited decree of dissolution entered on February 28, 2014. The parties have four children born of the marriage, ranging in age from 9 to 13. Following entry of the decree of dissolution, the court entered an order on March 21, 2014 addressing division of property and expenses, including child support, attorney’s fees and maintenance.

On appeal, Michelle makes four arguments. First, she claims the trial court erred by failing to include Damon’s income from his secondary employment, a tax planning business, in its child support calculations. Next, she argues the trial court erred when calculating the amount of income she is capable of earning for purposes of child support and maintenance. Thirdly, Michelle alleges that the trial court erred by denying her maintenance. Finally, she claims the trial court should have awarded her attorney’s fees. Each argument is addressed below, with additional facts as necessary.

[354]*354CR1 59.05 states: “A motion to alter or amend a judgment, or to vacate a judgment and enter a new one, shall be served not later than 10 days after entry of the final judgment.” In general, a trial court has unlimited power to alter, amend, or vacate its judgments. Gullion v. Gullion, 163 S.W.3d 888, 891-92 (Ky.2005). The Supreme Court of Kentucky has limited the grounds for relief under CR 59.05 to those established by its federal counterpart, Federal Rule of Civil Procedure 59(e). Id. at 893.

There are four basic grounds upon which a Rule 59(e) motion may be granted. First, the movant may demonstrate that the motion is necessary to correct manifest errors of law or fact upon which the judgment is based. Second, the motion may be granted so that the moving party may present newly discovered or previously unavailable evidence. Third, the motion will be granted if necessary to prevent .manifest injustice. Serious misconduct of counsel may justify relief under.this theory. Fourth, a Rule 59(e) motion may be justified by an intervening change in controlling law.

/¿.(internal footnote omitted). A trial court’s ruling -on a CR 59.05 motion- is reviewed under an abuse of discretion ' standard. Bowling v. Kentucky Dep’t. of Corr., 301 S.W.3d 478, 483 (Ky.2009).

First, Michelle argues that the trial court improperly determined Damon’s gross income for purposes of child support calculations. Damon testified at trial that he operates a tax preparation business with his father, at which he. prepares all of the tax returns completed by the company. Damon’s father handles all of the administrative duties for the business, and Damon further, testified that the purpose of the tax preparation business is to supplement his parents’ social security benefits and improve their standard of living. In 2013, Damon had gross-receipts from the business totaling $47,458, but he testified that he gave all of the money from the business to his father.' Michelle argues that giving all of the income to Damon’s father constitutes more than just “administrative costs” or “ordinary and necessary expenses” of . the business and without findings as to the legitimate expenses of the business, the trial court should have considered all of the income from the business “gross income” for child support calculation purposes. ■

Generally speaking, a trial court enjoys “broad discretion in the establishment, enforcement, and modification of child support.” Accordingly, we review a trial court’s decision in this context for an abuse of discretion. An abuse of discretion-will only be found when a trial - court’s decision is arbitrary, unreasonable, unfair, or -.unsupported by sound legal principles.

Bell v. Bell, 423 S.W.3d 219, 222 (Ky.2014)'.

Child support is calculated based upon a parent’s income, or “actual gross income of the parent if employed to full capacity or potential income if unemployed or underemployed.” See KRS ' 403.211; KRS 403.212(2)(a). KRS 403.212(2)(b) states: “ ‘Gross income’ includes income from any source, except as excluded in this subsection[.]” KRS 403.212(2)(c) gives further guidance on income received from self-employment or proprietorship of a business, and describes gross income as “gross receipts minus ordinary and necessary expenses required for self-employment or business operation.” Here, the trial court found that since Damon has never claimed income from the tax preparation business on his personal income tax ’returns, that [355]*355money was not part of his “gross income” for child support purposes.

“[I]n making child support determinations, courts must consider all income proven by substantial evidence, regardless of whether that income is documented.” Schoenbachler v. Minyard, 110 S.W.3d 776, 778 (Ky.2003). Although Damon chose not to report the income-from the tax planning business on his personal income tax returns, and chose to give all of the proceeds of the business to his father, such income is still gross income pursuant to KRS - 403.212(2)(c). In our view, Michelle provided the appropriate documentation to show that Damon was earning income from the tax preparation business. The burden then fell on Damon to prove that the amount paid to his father constituted an “ordinary and necessary business expense” required to operate the business pursuant to KRS 403.212(2)(c). The record is devoid of any such evidence. Accordingly, we believe the trial court erred by excluding this income from Damon’s income for purposes of child support calculations. We remand this matter to the trial court to determine how much of the $47,458 in gross receipts from the business is paid out as an ordinary and necessary business expense via a reasonable salary'to Damon’s father for his administrative work. The remainder constitutes gross income to be included in calculating Damon’s child support obligation.

Next, Michelle claims the trial court erred in calculating the amount she is able to earn. The court found. that Michelle is capable of earning $60,000 per year, given her earning history, education and experience in the pharmaceutical sales field. KRS 403.212(2)(d) states in pertinent part:

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Bluebook (online)
470 S.W.3d 351, 2015 Ky. App. LEXIS 126, 2015 WL 5089905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bootes-v-bootes-kyctapp-2015.