McIntosh v. Landrum

377 S.W.3d 574, 2012 WL 3630347, 2012 Ky. App. LEXIS 160
CourtCourt of Appeals of Kentucky
DecidedAugust 24, 2012
DocketNo. 2012-CA-000161-ME
StatusPublished
Cited by3 cases

This text of 377 S.W.3d 574 (McIntosh v. Landrum) 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
McIntosh v. Landrum, 377 S.W.3d 574, 2012 WL 3630347, 2012 Ky. App. LEXIS 160 (Ky. Ct. App. 2012).

Opinions

OPINION

STUMBO, Judge:

In this appeal, Willard McIntosh appeals from two orders of the Kenton Circuit Court requiring him to pay, as part of his child support, amounts for respite care and work-related childcare to Beverly Land-rum. He was also ordered to pay a part of Ms. Landrum’s attorney fees and court costs. We find that the trial court did not err in awarding Ms. Landrum payments for respite care, work-related childcare, and attorney fees. We therefore affirm.

The parties were married in 1994 and have two children, L.L.M. (Daughter) and 1.P.M. (Son).1 Son is autistic and requires extra care. The parties were divorced on February 8, 2007, and they entered into a detailed separation agreement. They have joint custody, with Ms. Landrum being the primary residential parent. Mr. McIntosh would have parenting time every Wednesday and every other weekend. The parties’ total monthly gross income exceeded the child support guidelines set in KRS2 403.212. Mr. McIntosh agreed to pay $2,400 in monthly child support for the two children. He also agreed to pay Daughter’s private school tuition, Son’s therapeutic special needs school tuition, uninsured medical expenses, and extracurricular expenses. Mr. McIntosh also agreed to pay Ms. Landrum $3,100 in maintenance for 36 months.

At the time of the divorce, Mr. McIntosh lived in Cincinnati, Ohio and Ms. Landrum lived in Ft. Mitchell, Kentucky. Ms. Landrum was a stay-at-home mother and Mr. McIntosh worked at the University of Cincinnati making around $23,000 a month. In January of 2011, Mr. McIntosh took a job in Abu Dhabi, United Arab Emirates, making approximately $32,000 a month. Ms. Landrum also began seeking employment when her spousal maintenance ceased, leading her to a job with Pepsi, making $46,000 a year.

On March 22, 2011, Ms. Landrum filed the motions that are the subject matter of this appeal. Part of the reason for Ms. [576]*576Landrum filing her motions is that when Mr. McIntosh moved to Abu Dhabi, he was unable to exercise his regular parenting time. He was only able to see the children a few times. Because of Son’s disability, he requires constant supervision. When Mr. McIntosh stopped regularly exercising his parenting time, it was left up to Ms. Landrum to care for the children 24/7. Her motions requested that when Mr. McIntosh was unable to visit the children, he should pay for her to- hire a babysitter so she could have some time off from caring for the children, a.k.a., respite care. She also later requested he pay his share for work-related childcare and her attorney fees.

Right before a hearing on the matter, Mr. McIntosh revealed that he was leaving his position in Abu Dhabi and taking a position in San Antonio, Texas, making approximately $20,000 a month. According to Mr. McIntosh, this relocation will allow him to once again exercise his parenting time on the weekends.

During the hearing, Ms. Landrum testified that she must be at work before the children get up for school and does not return home until around 5 or 6 p.m. This means someone has to get the children up for school, drive them to school,3 and pick them up after school. Ms. Landrum testified that she relied on her father, other family members, and sometimes actual babysitters to care for the children while she was at work. She testified that she would reimburse her father for gas money whenever she could afford it. In addition, when her father began having medical problems and was unable to care for the children, she would pay her niece $350 a week to care for the children while she was at work. She also introduced an exhibit at the hearing detailing her childcare and transportation expenses.

The trial court ordered Mr. McIntosh to pay 100% of any childcare costs Ms. Land-rum incurred when he did not exercise his parenting time. This is what was designated as respite care. It was also made clear by the trial court that this was not an increase in Mr. McIntosh’s general child support, but that it was in addition to his child support, similar to work-related childcare expenses. The court also granted Ms. Landrum’s request for work-related childcare expenses, requiring Mr. McIntosh to pay 87% of these expenses. The court also awarded Ms. Landrum $3,500 in attorney fees due to the great disparity of income between the two parties. Mr. McIntosh was also required to pay for any mediation sessions and court costs. Mr. McIntosh then filed a motion to alter, amend, or vacate, which was denied. This appeal followed.

Mr. McIntosh’s first argument is that the trial court erred when it awarded respite care because it is not authorized under Kentucky law. “As are most other aspects of domestic relations law, the establishment, modification, and enforcement of child support are prescribed in their general contours by statute and are largely left, within the statutory parameters, to the sound discretion of the trial court.” Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.App.2000) (citations omitted). “The test for abuse of discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App.2001) (citations omitted).

In the case at hand, the trial court specifically stated that it was not increasing Mr. McIntosh’s general child support obligation. The court characterized its award [577]*577of respite care as something similar to work-related childcare.

As it currently stands, Ms. Land-rum sometimes incurs childcare costs when she is not at work due to Son’s disability and his constant need for supervision. She pays for this non work-related childcare. When Mr. McIntosh does not exercise his parenting time, an extra burden is put on Ms. Landrum, one not contemplated by the parties’ separation agreement. When Mr. McIntosh exercises his parenting time, Ms. Landrum has time for herself, to “recharge her batteries.” It is also time when she does not have to pay for extra childcare.

There are few matters over which the trial court has more discretion than cases involving domestic relations issues. Even after the enactment of the Family Support Act in 1988, our statutory scheme for the establishment and modification of child support, the trial court still retains considerable discretion. However, that discretion is not unlimited. Our Legislature has created general guidelines and presumptions, and the trial court may only deviate from these parameters if it gives appropriate written reasons. As long as the trial court’s decision comports with the guidelines, or any deviation is adequately justified in writing, this Court will not disturb the trial court’s ruling in this regard.

Com. ex rel. Marshall v. Marshall, 15 S.W.3d 396, 400-401 (Ky.App.2000) (citations omitted). We find that the trial court did not abuse its discretion in awarding Ms. Landrum reimbursement for respite care. The trial court specifically and adequately justified this extra expense. When Mr. McIntosh lived in Abu Dhabi, he hardly exercised his parenting time. Mr. McIntosh now lives in Texas and it is reasonable to assume he may miss more parenting time. These missed parenting times cause Ms.

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Bluebook (online)
377 S.W.3d 574, 2012 WL 3630347, 2012 Ky. App. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-landrum-kyctapp-2012.