No. 2016-CA-001198-ME.

DAVID TALLEY, Appellant, v. IMELDA CRUZ, Appellee.

Court of Appeals of Kentucky.

Attorney(s) appearing for the Case

Richard M. Guarnieri , Frankfort, Kentucky, Briefs for Appellant.

Ethyle Noel , Georgetown, Kentucky, Brief for Appellee.





David Talley has appealed from two orders in which the Franklin Family Court declined to include his straight-line business depreciation as an expense in calculating his gross income for child support purposes. This matter involves the interpretation and application of Kentucky Revised Statutes (KRS) 403.212(2)(c), addressing income for self-employment and the operation of a business. Finding no error or abuse of discretion, we affirm.

This action began with the filing of a petition for custody in Franklin Family Court by David on November 19, 2014. At that time, he and Imelda Cruz had been in a relationship for thirteen years, during which time two children were born, namely: Brittany, born February 14, 2002; and Douglas, born October 8, 2003. In the petition, David asked the court to grant joint custody and set a reasonable timesharing schedule. Both David and Imelda were self-employed. David owned a farm as well as rental properties, and Imelda cleaned houses. The parties mediated the contested issues, and they were able to agree on joint legal custody of the children and a 50/50 timesharing schedule. However, they were unable to agree on child support, the children's expenses, or tax exemptions. The joint stipulation setting forth their agreement was entered by the court on January 14, 2016, and a trial date was later set for the contested issues. In a separate action filed a year earlier by the Scott County Attorney, Imelda sought a declaration of paternity and child support from David. A judgment of paternity was entered on July 13, 2015, and the parties were ordered to provide copies of their most recent tax returns for calculating child support.

Turning back to the custody action, rather than proceeding with a trial, the parties entered into a joint stipulation and submitted their 2014 federal income tax returns and proposed child support worksheets to the court. They agreed that the court would decide the proper amount of child support, which would be effective February 1, 2015, based upon the filing date of Imelda's paternity and child support action. David's tax records showed that he claimed $17,625.00 in straight-line business depreciation expenses in 20141 and $29,273.00 in business depreciation expenses the prior year. Imelda's tax records established that she earned income from her business in the amount of $29,980.00 and that her expenses totaled $1,955.00. She also claimed $5,461.00 in expenses for the business use of her home. That brought the net business profit to $22,564.00.

The parties were in agreement as to Imelda's gross monthly income of $1,747.50. However, they disagreed as to David's gross income. In his child support worksheet, David claimed a gross monthly income of $2,281.50, or 56.6% of their combined incomes, for a total obligation of $477.70. Imelda listed David's gross monthly income as $20,105.00, which she based on his gross income with deductions at 75% of gross. With that amount, David's child support obligation was $1,735.12. Imelda indicated that she had extrapolated from the worksheet because his gross income was in excess of the chart.

On July 15, 2016, the court entered an order setting child support. The court carefully considered David's tax records and determined that his "income figures reflect deductions that may not be appropriate for purposes of child support calculations. The court is concerned only with the deductions for expenses that were actually paid out of income." While the court deemed many of David's deductions as reflective of money actually paid, which it deemed "legitimate expenses for doing business[,]" the court rejected the amount of depreciation David claimed as a business expense because that did "not reflect expenses actually paid out of income for the year." The court set David's annual income for child support purposes at $100,096.00 (or $8,341.33 per month) and Imelda's at $1,747.50 per their agreement. The court ordered David to pay child support in the amount of $999.90 per month.

David moved the court to alter, amend, or vacate its judgment, arguing that the court erred in excluding straight-line depreciation as a deduction from his gross income. Imelda, while she had argued for a higher monthly income for David, asserted that the court's judgment was sound and well-reasoned. In a supplemental motion, David argued that the court failed to deduct the deductible part of the self-employment tax, which amounted to $3,982.00, and that his gross monthly income, under the court's calculation, totaled $8,009.50 and his child support obligation totaled $957.44. By order entered August 10, 2016, the court granted the supplemental motion and applied the self-employment tax deduction, but denied the original motion regarding the business depreciation expense. The court set his child support obligation at $957.44. This appeal by David now follows.

On appeal, David continues to argue that the family court erred as a matter of law in failing to include the straight-line depreciation deduction in calculating his gross monthly income, asserting that it is mandatory for the court to do so. In the alternative, David argues that the court abused its discretion. Imelda argues that whether or not to include the straight-line depreciation deduction in the calculation is discretionary.

David's first argument — that KRS 403.212(2)(c) mandates that a court include straight-line depreciation deductions in a child support calculation — involves a matter of statutory interpretation. Because statutory interpretation is a question of law, we shall review this matter de novo. Commonwealth v. Gamble, 453 S.W.3d 716, 718 (Ky. 2015); Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998).

It is well-settled in Kentucky that "[t]he primary purpose of judicial construction is to carry out the intent of the legislature. In construing a statute, the courts must consider the intended purpose of the statute — and the mischief intended to be remedied. A court may not interpret a statute at variance with its stated language." Monumental Life Ins. Co. v. Dep't of Revenue, 294 S.W.3d 10, 19 (Ky. App. 2008) (internal quotation marks omitted), citing SmithKline Beecham Corp. v. Revenue Cabinet, 40 S.W.3d 883, 885 (Ky. App. 2001). "The courts should reject a construction that is unreasonable and absurd, in preference for one that is reasonable, rational, sensible and intelligent[.]" Monumental Life Ins. Co., 294 S.W.3d at 19 (internal quotation marks omitted), citing Commonwealth v. Kerr, 136 S.W.3d 783, 785 (Ky. App. 2004); Commonwealth v. Kash, 967 S.W.2d 37, 43-44 (Ky. App. 1997). "[T]he courts have a duty to accord statutory language its literal meaning unless to do so would lead to an absurd or wholly unreasonable result." Commonwealth v. Rhodes, 308 S.W.3d 720, 723 (Ky. App. 2010) (internal quotation marks omitted), quoting Holbrook v. Kentucky Unemployment Ins. Com'n, 290 S.W.3d 81, 86 (Ky. App. 2009). "[S]tatutes must be given their literal interpretation unless they are ambiguous and if the words are not ambiguous, no statutory construction is required. We lend words of a statute their normal, ordinary, everyday meaning." Stephenson v. Woodward, 182 S.W.3d 162, 170 (Ky. 2005) (internal citations and quotation marks omitted), quoting Commonwealth v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).

KRS 403.211 provides for the establishment of child support, and through this statute the General Assembly provided for both a rebuttable presumption in KRS 403.212 to establish the amount as well as the court's ability to deviate from those guidelines in certain circumstances. KRS 403.212(2) provides guidelines that courts must follow in calculating child support pursuant to KRS 403.211. To determine the appropriate amount of income for a self-employed party, the statute dictates:

For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, "gross income" means gross receipts minus ordinary and necessary expenses required for self-employment or business operation. Straight-line depreciation, using Internal Revenue Service (IRS) guidelines, shall be the only allowable method of calculating depreciation expense in determining gross income. Specifically excluded from ordinary and necessary expenses for purposes of this guideline shall be investment tax credits or any other business expenses inappropriate for determining gross income for purposes of calculating child support. Income and expenses from self-employment or operation of a business shall be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes. Expense reimbursement or in-kind payments received by a parent in the course of employment, self-employment, or operation of a business or personal use of business property or payments of expenses by a business, shall be counted as income if they are significant and reduce personal living expenses such as a company or business car, free housing, reimbursed meals, or club dues.

KRS 402.212(2)(c).

David contends that the legislature intended the straight-line depreciation deduction to be mandatory based upon the unambiguous language in the statute, noting that this is an ordinary and necessary business expense and that the purpose of this deduction "is to account for the wear and tear and exhaustion of the items of tangible property that a business operator makes use of in the operation of their business." We disagree and hold that the decision to include straight-line business deductions is a matter for the trial court's discretion.

David cites to four opinions from this Court, three of them unpublished, that he claims indirectly address the issue of whether the inclusion of the depreciation deduction is mandatory or discretionary. In Gripshover v. Gripshover, 246 S.W.3d 460, 468 (Ky. 2008), the Supreme Court of Kentucky addressed the two methods by which a taxpayer may deduct depreciation expenses:

26 U.S.C. § 179, a section of the United States Tax Code, permits business tax payers to take an expense deduction for certain capital items up to a fixed maximum per year. Otherwise the taxpayer would need to create a capital account for the items and gradually depreciate them. Accordingly, George has appropriately used section 179 expense deductions in calculating his income for federal income tax purposes.

The trial court in Gripshover used § 179 (or accelerated) deductions in calculating the party's income for child support purposes. The Supreme Court held that this was error, stating, "On its face, section 179 provides an alternative to standard, straight line depreciation, which KRS 403.212(2)(c) expressly identifies as the `only allowable method of calculating depreciation expense.'" Id. Neither this case nor the unpublished cases cited by David support his argument that a court is required to include the depreciation deduction. Rather, if the court in its discretion decides to include the depreciation deduction in its calculation of gross income for child support purposes, it may only use straight-line depreciation, not accelerated depreciation.

The statute specifically states that "[i]ncome and expenses from self-employment or operation of a business shall be carefully reviewed to determine an appropriate level of gross income available to the parent to satisfy a child support obligation. In most cases, this amount will differ from a determination of business income for tax purposes." KRS 403.212(2)(c). Therefore, the plain language of the statute establishes that the legislature contemplated that the trial court would have to review the self-employment income and expenses to decide upon a proper gross income amount, which requires the court to use its discretion.

Accordingly, we hold that the trial court was not mandatorily required to apply David's straight-line business deductions to his gross income and did not err as a matter of law in failing to include that deduction in the calculation.

Next, David argues that the family court abused its discretion in failing to include his straight-line depreciation deduction as a business expense. Our standard of review in an award of child support is well-settled:

Kentucky trial courts have been given broad discretion in considering a parent's assets and setting correspondingly appropriate child support. A reviewing court should defer to the lower court's discretion in child support matters whenever possible. As long as the trial court's discretion 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. However, a trial court's discretion is not unlimited. 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) (footnotes omitted).

David contends that the family court's decision to exclude his depreciation expense because it was not actually paid out of his income was both flawed and illogical because it ignored the purposes of this deduction. We disagree. The court carefully considered the expenses listed on David's tax return, keeping in mind that "[t]he real world result of applying the depreciations at issue is that [David] was afforded a higher available annual income which should benefit his child." We find no abuse of discretion in the court's decision to exclude David's depreciation expenses from his gross income for child support purposes.

For the foregoing reasons, the orders of the Franklin Family Court are affirmed.



1. David's farm income that year totaled $808,025.00 and his expenses — including depreciation — totaled $751,665.00 for a total farm profit of $56,360.00. He also claimed a $25,000.00 loss on his rental income.


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