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

• Court: Court of Appeals of Kentucky
• Decided: July 13, 2023
• Docket: 2021 CA 001096
• Status: Unknown

Opinion

RENDERED: JULY 14, 2023; 10:00 A.M. NOT TO BE PUBLISHED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

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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

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