                                                       RENDERED: MAY 5, 2016
                                                           TO BE PUBLISHED

                 oi5uprrtur     (Court            Tfirtifurliv
                             2015-SC-000212-DGE


MICHELLE CARVER (BUTLER)                                              APPELLANT


                   ON REVIEW FROM COURT OF APPEALS
V.                    CASE NO. 2014-CA-000991-ME
                   BOYD CIRCUIT COURT NO. 12-CI-00841


LANCE G. CARVER                                                        APPELLEE


                 OPINION OF THE COURT BY JUSTICE NOBLE

       AFFIRMING IN PART, REVERSING IN PART, AND REMANDING


      In this case, the Court of Appeals affirmed the Boyd Circuit Court, which

deviated from the statutory guidelines support amount by setting the child-

support obligation of Appellee, Lance Carver, at $60 per month, based on his

living expenses. Appellant, Michelle Carver (Butler), asks this Court to reverse

that holding as an abuse of discretion. We affirm in part and reverse in part,

address deviations from the statutory guidelines, and remand to the Boyd

Circuit Court.

                                 I. Background

      Michelle and Lance were married on June 23, 2011, in Boyd County,

Kentucky, one month after the birth of their son, Dennis. Dennis has Down

syndrome and several other serious health issues. By August 2012, Lance had
filed for divorce. Thereafter, the parties litigated the divorce and acknowledged

Dennis as a child of the marriage.

      The parties were ordered to mediation, where they settled the division of

their property, and custody, support, and visitation. The property settlement

agreement, which was incorporated into the decree on April 23, 2013, stated

that the parties would have joint custody of their child, with Michelle to be the

"primary physical custodian" and Lance to have "parenting time" according to

an agreed-upon schedule. Further, Lance agreed that he would "pay child

support to the Respondent based upon the child support guidelines and the

case law." Neither the decree nor the property settlement agreement stated a

specific amount of child support. So Lance simply did not pay any.

      Almost immediately, the parties began disputing time sharing and

medical care for the child. In February 2014, Lance filed a verified motion

asking the court to order Michelle to show cause why she should not be held in

contempt for various claimed violations of the court's orders. In her response to

that motion, Michelle addressed Lance's complaints, but also informed the

court that he had never paid the agreed-upon support, asked the court to set a

specific amount according to the statutory guidelines, and asked for that

amount to be retroactive to the date of the decree.

      While Lance had agreed to pay child support under the guidelines, the

court had never set a specific amount of child support, as noted above.

Consequently, Michelle offered two versions of the child support worksheet,

asking that the court order either $265 or $245 per month. In addition to

various matters relating to time sharing and care for the child, this request to
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set child support was sent to the Boyd County Domestic Relations

Commissioner (DRC) to make a report and recommendations to the circuit

court.

         At a hearing on these matters, the DRC heard testimony about the

income of each party and the income Michelle received on behalf of the child.

The DRC found that Michelle received disability payments of $938 per month

and $489 per month for the benefit of the child. Lance received $689 per

month disability and $702 per month, on average, from permissible

employment for a total of $1,391 per month. She did not include the child's

income in making the child support worksheet computations, concluding that

the $489 was due to the child's disability and not the disability of either

parent. However, the written record of the hearing consisting of the DRC's

notes (contained in the record in lieu of a missing video recording) does not

support this finding, but rather indicates that the child's income was from

Social Security, which perforce had to derive from one of the parents as

dependent benefits. The DRC thus arrived at a joint monthly adjusted gross

income of the parties of $2,329. Lance's proportionate support under the

guidelines, based on each party's income, was determined to be $232 per

month and Michelle's proportionate share was $157 per month.

         However, the DRC then considered Lance's evidence of his monthly living

expenses, including his mortgage, utilities, groceries, insurance, taxes, and

expenses for travelling to work and to the child's medical appointments. No

testimony was taken regarding Michelle's living expenses. At that point, the

DRC appears to have added the child's income back in to Michelle's gross
                                         3
monthly income, concluding that Michelle had a monthly amount of "$1,407

total income into her home." (The actual amount is $1427 per month, plus the

ordered $60 per month in support from Lance for a total of $1487 per month.)

The DRC concluded: "Based on all of the foregoing, the Commissioner finds

that it is appropriate to deviate from the guidelines in this matter, setting the

Petitioner's child support obligation at $60.00 per month."

      Michelle filed exceptions to the Commissioner's Report and

Recommendations with the Boyd Circuit Court. Specifically, she noted that the

Commissioner found that the child received "a social security check for his

disability, when in fact the parties' minor child receives a disability payment

because of Respondent's disability, not the minor child's disability." Citing

Artrip v. Noe, 311 S.W.3d 229 (Ky. 2010), Michelle pointed out that when

money is allocated to a child because of a parent's disability, the money cannot

be counted as income to either parent when calculating child support but is

instead a credit against the support owed by the party whose disability lead to

income for the child. This argument derived from the fact that the DRC

apparently did consider that income in deviating from the guidelines, by

including it in Michelle's total monthly income. The circuit court overruled the

exceptions and accepted the DRC's report as final. Michelle filed a motion to

alter, vacate, or amend, which the circuit court also overruled.

      On appeal, the Court of Appeals affirmed the Boyd Circuit Court. This

Court granted discretionary review to address the role of the statutory support

guidelines and the factors which should be considered when a deviation from



                                         4
the guidelines is necessary because the guidelines amount is unjust or

inappropriate.

                                   II. Analysis

      Family courts and litigants have placed widespread reliance on KRS

403.212, better known as the Child Support Guidelines statute, to fix support

payments since its enactment in 1990. These guidelines were developed in

accordance with the Family Support Act of 1988, which directed the various

states to implement such guidelines. The guidelines were established by a

statutory Commission consisting of persons appointed by the governor. KRS

403.213(4). The Commission was charged with making a recommendation to

the General Assembly "to ensure the child support guidelines table results in a

determination of appropriate child support amounts." KRS 403.213(5). Further,

the Commission was charged with reviewing the guidelines "at least once every

four (4) years" to determine whether the stated guidelines amounts remain

appropriate. KRS 403.213(4). However, the child support amounts have not

been significantly changed since their initial enactment.

      But as the statute itself states, "the child support guidelines in KRS

403.212 shall serve as a rebuttable presumption for the establishment or

modification of the amount of child support." KRS 403.211(2) (emphasis

added). That same section further provides that "[c]ourts may deviate from the

guidelines where their application would be unjust or inappropriate," provided

the court makes a finding specifying reasons for deviation.

      Given that plain language, it should be unnecessary for an appellate

court to continue to explain that the guidelines amounts specified in KRS
                                        5
403.212 are just that—guides—and not black letter law. Nonetheless, courts

and litigants often adhere to the guidelines amounts as mandatory, which

leads to arguments such as those before the Court in this case. Instead, courts

have broad discretion to deviate from the presumptive guidelines, limited only

by reasonableness and actually making a record of the reason for deviation.

KRS 403.211(2). Possibly this issue frequently arises because the ease and

certainty of using guidelines amounts appeals to litigants and courts. But the

guidelines do not necessarily dictate the ultimate result because of allowable

deviations. As in many instances, rote application of any law effectively nullifies

a primary reason courts exist—to make personalized decisions within the law

when discretion is required—because one size does not fit all.

      In describing the guidelines as a presumption, the General Assembly

clearly recognized that the passage of time, "extraordinary circumstances" of

the parties or the child, or other economic factors, could cause application of

the guidelines to be "unjust or inappropriate in a particular case," and

specifically granted courts the power to deviate in that event. KRS 403.211(2).

And while much of our family statutory and case law focuses generally on the

best interests of the child, the support statutes focus on the needs or standard

of living of the child, whichever is greater. KRS 403.211(5).

      Sadly, this case presents a situation where the needs of the child of this

marriage almost certainly exceed the capability of the parents to pay for them,

with the government likely providing for some of those needs, especially the

extensive medical care. It is likewise obvious that this case is one which cannot

fall cleanly under the guidelines tables. Certainly, this case demonstrates that
                                         6
reading the guidelines too literally could cause an absurd, draconian result

when, as here, there is likely not enough money in the entire family pool to

fully support two households of disabled adults with a disabled child.

        Nonetheless, the guidelines are the starting point in arriving at an

appropriate amount of child support each party is legally responsible for. The

DRC began this process through completing a "Commonwealth of Kentucky

Worksheet for Monthly Child Support Obligation."

        Michelle has a monthly gross income of $938 from disability income.

Even though the child receives a disability benefit in the sum of $489, this

amount cannot be included in determining Michelle's income for child support

purposes since it appears to derive from her Social Security disability award

rather than the child's own disability, based on the written record of the

testimony given about income. KRS 403.211(15). Instead, the Worksheet must

be completed using only Michelle's income to arrive at her child support

obligation, which the DRC correctly did. And, to the extent Michelle is

responsible for child support under the guidelines, here $157, the statute

requires that the disability income for the child be credited against that

obligation.

        Lance has a monthly gross income of $1,391 from disability benefits and

allowable work. Since the child's disability income does not derive from him, he

gets no credit toward his guidelines child support amount of $232. The base

monthly support, adding Michelle's and Lance's support obligation together, is

$389.



                                          7
       But the DRC considered Lance's living expenses, and concluded that he

could not pay that amount. Instead, she reduced his support obligation to $60

per month, but stated no reasons why that was an appropriate amount. In so

doing, no consideration was given to Michelle's living expenses. This highlights

how child support is often viewed: as if the support obligation only applies to

the payor parent. This is clearly not correct. Under the statutes and through

the worksheets, the financial obligation of each parent toward the child is

established. While the residential parent does not make a child support

payment, that parent does have a support obligation. Both parents have living

expenses they must pay.

       Here, the DRC did not consider Michelle's expenses when deviating on

the amount of support she set for Lance. A good record was made for Lance as

to how his money was spent each month, through the help of his sister. No

proof was taken regarding the same kind of expense for Michelle, or if any was,

it was not considered in deviating from the guidelines amount in setting

Lance's support obligation. If families lived on the page of a child support

guidelines worksheet, this would not matter so much. But Michelle is the

residential parent for this child. It is left to her to pay for the shortfall in

support expenses left from granting Lance a low support obligation.

      While it is clear that Lance cannot support himself at his present

minimal lifestyle and pay the guidelines amount of support, it is equally

arguable that Michelle, based on her income, cannot be responsible for the

amount of support assigned to her, and the shortfall that comes with Lance

paying less than his assigned support amount. Even if the deviation is a
                                           8
sympathetic, reasonable result for Lance, the DRC's deviation results in an

extremely lopsided result for Michelle. It can also undercut the intent of the

child support legislation—that the parents bear their fair share of supporting

their child. Under this deviation, Michelle has three-fourths of the

responsibility for supporting the minor child.

      So what should the DRC have done?

      First, because both Lance and Michelle are disabled, there is little

avenue for them to increase their incomes. The disability of both parents is a

factor that takes them outside the "ordinary persons" upon which the

guidelines are premised. If the DRC had considered the expenses of both

parents and then concluded that the guideline amount was sufficiently unjust

to allow for a deviation down from the total support owed for the child, in turn

reducing the support of each parent, then there would have been an

appropriate finding to support such deviation. Here, basing Lance's support

obligation on his expenses alone, is error.

      And, because this child is "extraordinary," his needs are likely greater

that those of the average child at this income level, and the guidelines amount,

because of the child's greater needs, is likely an inappropriate amount. This is

another reason why deviation can be appropriate in this case. The record does

not contain evidence as to how much of the child's needs are being met by

governmental or other social services. But it is not too difficult a burden for the

two parents to arrive at the reasonable monthly needs of this child that are not

covered by other sources. If the guidelines amount is not appropriate, then the

court must determine what an appropriate amount of support would be. When
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the guidelines amount is not adequate for a child's needs or is otherwise unjust

or is inappropriate, it may be that more of the combined family income is

necessary to provide for extraordinary child support needs. In this event, there

could be reason to deviate upward. Or, should the proof demonstrate that the

child's extraordinary needs are, in fact, being mostly if not entirely covered by

various other sources of governmental support—i.e., Medicaid, WIC benefits,

etc.—then such a deviation would not be called for. But in addition to the

child's needs, the amount of deviation will necessarily be defined by what the

parents actually have as available income to support their child.

      Here, the combined family income is $2,329 per month. Lance

contributes 59.73% of that income, and Michelle contributes 40.27%. The

court must examine what the child's actual need for support is, considering

what part of the child's needs are being met from sources other than the

parents. Whatever that amount is, then that amount of support would

ordinarily be apportioned between the parents based on the respective income

share of each. But these are income-restricted parents. In the event the need

for support is greater than the financial resources of the parents, then the

court should assign how much of the support each must be responsible for on

a reasonable and equitable basis, taking into account the child's needs as well

as the reasonable living needs of both parents.

      Thus, it may simply be either that a parent might have some

determinable inability to pay, or the extraordinary need for support of a given

child, that makes the guidelines application inappropriate. Whatever the basis,

a court must be able to state a reason for the deviation from the guidelines
                                        10
support amount. While the thrust of our statutes and case law is that the

child's needs must be met first, the reality is that some consideration must still

be given to a parent's ability to pay. There can be no clear-cut rule for making

the determination to deviate nor for how much the deviation should be. When

the guidelines amounts are articulably unjust or inappropriate, the trial court,

who is best informed of the circumstances of a case, is in the best position to

make the equitable determination of an appropriate amount of support to be

assigned to each parent on a case-by-case basis. It is simple fact that when

cases are outside the guidelines, courts are left with the difficult

determinations they had to make before the enactment of presumptive

guidelines.

      That is actually, to some extent, what the DRC did here. She looked at

the income available in both homes, and since Michelle had her disability

income, the income for the child, and $60 in child support, the DRC concluded

that Michelle's household could function on that net amount of $1,487. This

left Lance with $1,331 for his living expenses and to provide a home for the

child during time sharing. On its face, this looks like an equitable result.

      But what this actually does in this case is increase the share of support

for the child attributable to Michelle. If $389 is the total guidelines amount for

base monthly support, then Michelle ends up being responsible for roughly

75% of the necessary support for their child, when Lance, under the guidelines,

was responsible for nearly 60% before this deviation reduced his support

obligation to approximately 25%.



                                         11
      But the question remains: Is this an unreasonable deviation from the

guidelines amount? Once a court determines that the guidelines are unjust or

inappropriate, then the statute requires the court to make a specific finding for

the deviation. Here, all the DRC noted was Lance's living expenses, based the

deviation on those expenses, and arbitrarily set his support obligation at $60.

(Presumably this is because that is the statutory minimum under the

guidelines statute. See KRS 403.312(4).) But no real rationale was given for

reducing Lance's support obligation under the guidelines by roughly 75%.

      However, the record does indicate that the DRC considered income other

than that attributable to Michelle. The amount of $489 per month is available

for the child's benefit, based on Michelle's disability benefits. This amount of

money subsumes Michelle's portion of any support obligation; she is given a

credit against her obligation. The entire amount of the money is indeed coming

into her household for the care of the child. The statute recognizes, however,

that there is a benefit conferred on the parent responsible for generating the

child's income by allowing it to offset that parent's support obligation. This

benefit is less apparent to Michelle, since the child lives with her. Even so, as

she makes provisions for the child's shelter and daily needs, she also receives

some benefit from that money going toward shared living expenses.

      The child's needs are being met, at least to some degree, through these

funds (and apparently other outside sources, such as for his medical care).

Having decided that Lance's income is insufficient to support himself and pay

the guidelines support amount, in then determining how much the deviation

should be, it is not unreasonable to decrease the amount of support that Lance
                                        12
must pay because the support is being at least partially paid from another

source, provided that the child's full reasonable needs are being met. While the

funds for the child's benefit cannot be the reason for a deviation standing

alone, Artrip, 311 S.W.3d at 233, they do have a bearing on what the child's

support needs actually are when there is another reason to deviate from the

guidelines.

      We do not know what the child's reasonable need for support is here.

There is no record of the child's living expenses so that a court could make a

determination of what reasonable support is for this child based on the child's

needs and the combined family income. While it is possible that a child's

reasonable support needs could exceed the parent's ability to pay all of them,

there is no justification for the parents failing to pay a reasonable amount of

those needs, their "fair share," in light of the funds available.

                                  III. Conclusion

      Thus, we affirm in part and reverse in part in this case. We affirm the

Court of Appeals' conclusion that a deviation from the guidelines was

appropriate under the facts of this case. But we reverse the part of their

opinion holding that the DRC did not abuse her discretion in setting Lance's

child support at $60 per month based on his living expenses. That was simply

not the proper inquiry. On remand, the trial court should first ascertain what

is a reasonable amount of support for this child and then determine how much

of that support should be the responsibility of each parent. It is possible that

the parents simply do not have enough income to meet all of the child's

support needs. But based on the reasonable support needs of the child, and
                                         13
each parent's reasonable ability to pay a portion or all of that support need, a

reasonable amount of support obligation for each parent can be determined.

And, in extremely low income cases such as this one, the reasonable ability of

each parent to pay support need not include a support payment so great that

the parent cannot maintain his or her own reasonable living expenses, so long

as both parents are considered in apportioning support responsibility in light of

all the financial resources available. 1

       All sitting. Minton, C.J.; Cunningham, Hughes, Venters and Wright, JJ.,

concur. Keller, J., concurs in result only.


COUNSEL FOR APPELLANT:

Glenda Harrison
Legal Aid of the Bluegrass
104 East Seventh Street
Covington, Kentucky 41011


COUNSEL FOR APPELLEE:

Richard A. Hughes
Law Office of Richard A. Hughes
PO Box 1139
Ashland, Kentucky 41105




       1 We do caution, however, that the principles applied in this case only apply
when a deviation from the guidelines is appropriate, which is generally going to be a
deviation downward. Unless parents have sufficient income to adequately maintain
their own support, as well as support greater than the guidelines amount based on the
reasonable needs of the child, then there cannot be a departure upward.
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