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Suiter v. Suiter5/27/2005
AFFIRMING
BEFORE: HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.
Terri N. Suiter appeals an order of the Logan Circuit Court that awarded her $750 per month in child support . She asserts that the court erred when it deviated from the child support guidelines and failed to include child care expenses in the support ordered. We affirm.
Terri and Patrick Suiter have three minor children, Kaitlyn, age seven and twins, Alexandria and Nelson, age four.
In June, 2001, Terri filed a petition for dissolution of marriage and a hearing was held on temporary child support and custody. At that time, Terri had not worked outside the home during the past four years. Patrick worked at his business, Bluegrass Recycling, Inc., which was found to produce income of $3,000 per month. Patrick was ordered to pay child support in the amount of $200 per week. He was also ordered to pay $500 per month for temporary maintenance. After Terri was convicted of driving under the influence , in November, 2001, Patrick was designated as the temporary residential custodian under a joint custody arrangement. Child support was abated but Patrick continued to pay maintenance.
In January, 2002, custody was again modified. The children were with Terri at the marital residence from Thursday morning at 8:00 a.m. until 5:00 p.m. on Monday. In March, the parties began alternating equal custody week to week. Since the parties shared custody equally, no support was paid by either.
Terri moved to Tennessee and in June, 2002, filed a motion for temporary custody and child support . She also requested child care expenses because of her recent employment. Although she did not submit any receipts or evidence that the children were enrolled in a day care facility, she submitted day care expenses in the amount of $1,100 per month. Following a hearing on temporary custody, the domestic relations commissioner recommended that the children reside with Terri in Tennessee Monday through Thursday and then with Patrick the remainder of the week.
A hearing was held on the support motion and child support worksheets were submitted by each party. Terri's income was submitted at $1,386 per month and Patrick's was imputed at $3,000 monthly. Prior to a decision, the parties entered into a settlement agreement regarding custody. Under the agreement, the parties had joint custody of the children with Terri the residential custodian as stated in the temporary order. Additionally, custody was equally divided during the summer months and holidays. There was no agreement as to child support.
According to the guidelines set forth in KRS 403.212 the parties' total joint child support obligation is $2,586 per month, and based on the income of each party, Terri is responsible for 31.3% of that amount and Patrick 68.7%. Terri contends that the court erred when it required Patrick to pay only $750 per month instead of $1,436.58, representing Patrick's obligation under the guidelines minus the amount he pays for the children's health insurance premiums.
Pursuant to KRS 403.211(2), the court may deviate from the guidelines where the application would be "unjust or inappropriate." In Brown v. Brown we held that the statute permits the court to consider the period of time the children reside with each parent when determining child support. In this case the court considered that although the children reside primarily with Terri, under the agreement, the children are with Patrick every weekend of the year and on extended visitations at other times throughout the year. The court specifically found that deviation from the guidelines was justified because the children
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