Brantley Dunaway v. Misti Madison Cork
2019 CA 001908
| Ky. Ct. App. | Jun 17, 2021Background
- Parties divorced in 2015; joint custody of two daughters with primary residence awarded to Misti Cork in Louisville; Dunaway relocated to Georgia.
- Parenting schedule: children primarily with Cork; Dunaway had one weekend per month during school year, liberal summer time, and most holidays.
- Original child support set at $1,483.52/month, reduced in 2016 to $1,298.34; after post-decree proceedings the family court reduced support again to $1,021.27 and allocated $500/month for health insurance to Cork while considering $750/month childcare.
- Post-divorce litigation was extensive: Cork moved to require Dunaway to provide all interstate transportation due to his harassment of third-party drivers; Dunaway sought primary residence for the children in Georgia and a credit for alleged overpayments.
- Evidentiary hearings held July 19 and Sept 27, 2019; family court (Nov 15, 2019) denied Dunaway’s timesharing modification, found him in contempt for child support/insurance failures, ordered him to provide transportation, awarded Cork $877 in attorney fees, and denied Dunaway’s request for a credit for alleged overpayments.
Issues
| Issue | Dunaway's Argument | Cork's Argument | Held |
|---|---|---|---|
| Whether to modify timesharing so children primarily reside with Dunaway in Georgia | Change is in children’s best interests (father’s home, family, better schools) and KRS presumption of equal parenting supports move | Children are well-established, high-achieving in Louisville; disruption would harm them; father’s claims lack merit | Denied. Court found no best-interest basis to relocate children; no equal-timesharing presumption on modification; decision not an abuse of discretion |
| Whether Dunaway is entitled to recoup $9,833.72 in alleged overpaid support | Overpayment occurred between Nov 2018–Nov 2019 and Cork should reimburse or credit him | Child support belongs to the children; no evidence Cork accumulated unused support funds | Denied. No evidence of unconsumed accumulation; support belongs to the children |
| Whether contempt finding for failure to pay support and maintain insurance was improper | He overpaid support elsewhere, lacked funds, and provided insurance evidence | Dunaway unilaterally reduced payments, admitted noncompliance; insurance lapsed per Cork’s evidence | Upheld. Court found willful, repeated violations and Dunaway failed to prove inability to comply; contempt and $877 attorney fee award affirmed |
| Whether child care expense award ($750/mo) was improper or undisclosed | Cork did not disclose request in discovery and $50/hr for two children is excessive; inadequate documentation | Cork presented paid invoices and testimony that $50/hr is reasonable in Louisville and used ~4.5 hrs/wk | Upheld. Family court credited Cork’s testimony and evidence; award not an abuse of discretion; discovery-preservation issue not shown |
| Whether transportation responsibility should be shared between parents | It is unreasonable and unsafe to require father to bear all interstate transport | Cork sought sole-driver requirement due to prior harassment of third-party drivers by father | Upheld. Court continued to require Dunaway to provide transportation because his harassing conduct made shared exchanges untenable |
Key Cases Cited
- Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011) (modification motions require evidentiary hearing and factfinding)
- Layman v. Bohanon, 599 S.W.3d 423 (Ky. 2020) (no presumption of equal timesharing on modification)
- Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) (family court has broad discretion in timesharing modification)
- Gibson v. Gibson, 211 S.W.3d 601 (Ky. App. 2006) (child support belongs to the child, not the parents)
- Hempel v. Hempel, 432 S.W.3d 730 (Ky. 2014) (recoupment of excess child support improper absent unconsumed accumulation)
- Commonwealth, Cabinet for Health & Family Servs. v. Ivy, 353 S.W.3d 324 (Ky. 2011) (civil contempt requires ability to purge; contemnor must show inability to comply)
- Olson v. Olson, 108 S.W.3d 650 (Ky. App. 2003) (child-care cost allocation is reimbursement/prepayment of actual costs)