RENDERED: MARCH 22, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0785-MR

RUSSELL LEBERECHT APPELLANT 

v. 

APPEAL FROM CAMPBELL CIRCUIT COURT

HONORABLE ABIGAIL E. VOELKER, JUDGE

ACTION NO. 15-CI-01054

KARA BISHOP LEBERECHT APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.

THOMPSON, CHIEF JUDGE: Russell Leberecht appeals from orders of the 

Campbell Circuit Court, Family Division, which ordered him to pay Kara 

Leberecht $308.52 per month in child support. The trial court believed Appellant 

was voluntarily underemployed and imputed income to him. We find no error and 

affirm.
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FACTS AND PROCEDURAL HISTORY

The parties were divorced in September of 2017. As part of the 

divorce, Appellant was ordered to pay Appellee child support. At the time of the 

divorce, Appellant was working as a police officer. On May 3, 2022, Appellant 

filed a motion to modify his child support due to a change in his income. He had 

retired from the police force, was collecting a full retirement from the police force, 

and was also working a lower paying job. 

Prior to his retirement, Appellant was making around $84,000 a year. 

After retirement, Appellant was receiving $3,075 a month from his retirement plan 

and earning $1,950 a month from his new job. This equals $60,300 a year. The 

court believed Appellant was underemployed and should be required to pay child 

support based on the pre-retirement income of $84,000 a year, or $7,000 a month. 

The court ordered Appellant to pay $308.52 a month in child support. This appeal 

follows.

STANDARD OF REVIEW

“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. This discretion is far from 

unlimited.” Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000) (citations 
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omitted). “The test for abuse of discretion is whether the trial judge’s decision was 

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” 

Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 

ANALYSIS

Appellant argues on appeal that the trial court erred in finding him 

voluntarily underemployed and by imputing income to him. Appellant argues that 

his retirement from the police force was reasonable due to the inherent dangers of 

such a job. Furthermore, Appellant worked for the police force for over twenty 

years and was eligible to receive his full retirement package. Finally, he claims 

that the work hours of his previous job were long and unpredictable; therefore, he 

was not able to parent his children as much as he would have liked. 

Kentucky Revised Statutes (KRS) 403.212(3)(e) states:

1. If there is a finding that a parent is voluntarily 

unemployed or underemployed, child support shall be 

calculated based on a determination of potential income, 

except that a finding of voluntary unemployment or 

underemployment and a determination of potential 

income shall not be made for a parent who is 

incarcerated, physically or mentally incapacitated, or is 

caring for a very young child, age three (3) or younger, 

for whom the parents owe a joint legal responsibility;

2. A court may find a parent is voluntarily unemployed or 

underemployed without finding that the parent intended 

to avoid or reduce the child support obligation; and
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3. Imputation of potential income, when applicable, shall 

include consideration of the following circumstances of 

the parents, to the extent known:

a. Assets and residence;

b. Employment, earning history, and job skills;

c. Educational level, literacy, age, health, and criminal 

record that could impair the ability to gain or continue 

employment;

d. Record of seeking work;

e. Local labor market, including availability of 

employment for which the parent may be qualified 

and employable;

f. Prevailing earnings in the local labor market; and

g. Other relevant background factors, including 

employment barriers[.]

“[I]f the court finds that earnings are reduced as a matter of choice and not for 

reasonable cause, the court may attribute income to a parent up to his or her 

earning capacity.” Snow v. Snow, 24 S.W.3d 668, 673 (Ky. App. 2000) (internal 

quotation marks and citation omitted). 

[T]he court must consider the totality of the 

circumstances in deciding whether to impute income to a 

parent. Indeed, KRS 403.212[] specifies that [p]otential 

income shall be determined based upon employment 

potential and probable earnings level based on the 

obligor’s or obligee’s recent work history, occupational 

qualifications, and prevailing job opportunities and 

earnings levels in the community.
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Polley v. Allen, 132 S.W.3d 223, 227 (Ky. App. 2004) (internal quotation marks 

omitted).

Appellant cites to the case of Bottoms v. Bottoms, No. 2017-CA000568-ME, 2018 WL 565819 (Ky. App. Jan. 26, 2018), in support of his 

argument. In Bottoms, Shawnta and Rodney Bottoms were married and had three 

children. At the time of their divorce, only one child was still a minor. A 

dissolution decree was entered on February 17, 2016. A previously entered into 

settlement agreement was incorporated into the decree. The agreement stated that 

Rodney would pay Shawnta $466 per month in child support. In November of 

2016, Rodney moved to modify his child support. During the marriage, Rodney 

was employed by the United States military; however, he had recently retired and 

his income had decreased from over $8,000 per month to around $2,300 per 

month. Shawnta opposed the motion.

A hearing was held on the motion. Appellant testified that he was 

forty-six years old and had retired from the military after twenty-eight years of 

service. He testified that he was currently suffering from a multitude of health

problems and was unable to work. Based on Rodney’s testimony, the trial court 

held that his child support payment was no longer appropriate and terminated his 

child support obligation. 
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On appeal, Shawnta argued that Rodney voluntarily reduced his 

income by retiring at forty-six years of age, long before the usual American 

retirement age. She argued his retirement was unreasonable and he should be held 

to be voluntarily underemployed. The Court of Appeals held that it believed 

Rodney’s decision to retire was reasonable. Id. at *3. The Court held that he 

retired at an age that the United States Congress deemed appropriate to receive 

retirement pay, even though it was before the traditional age of retirement. In 

addition, the Court took into consideration Rodney’s physical condition and 

concluded that his retirement was reasonable and he was not underemployed. Id.

at *4.

We believe the case at hand is distinguishable from Bottoms. Here, 

there was no evidence that Appellant is physically disabled or unable to find 

additional employment. In fact, he is receiving a salary from another job along 

with his retirement benefits. We believe this case more resembles the case of 

Blicharz v. Hillard, No. 2018-CA-000163-ME, 2018 WL 6721319 (Ky. App. Dec. 

21, 2018). In Blicharz, Robert Blicharz moved to modify his child support 

payments upon his retirement from the Illinois Transit Authority. At the time of 

his retirement, he was forty-five years old, had no physical or medical limitations, 

and had no intention to work again. In addition, at the time of his retirement, he 

was making $5,914.43 per month. After his retirement, Robert began receiving 
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$3,265.88 per month from his pension. He also unilaterally reduced his child 

support payments from around $970 a month to around $750 a month. 

Deana Hillard, the mother of the children, then moved to increase 

Robert’s child support. After a hearing, the trial court found that Robert was 

voluntarily unemployed and imputed to him his full pre-retirement income and set 

his child support at over $1,000 per month. On appeal, Robert argued that the trial 

court erred in finding him voluntarily unemployed. The Court of Appeals affirmed 

and held that Robert’s retirement was not reasonable under the circumstances. The 

Court stated:

Robert was forty-five years old when he took his early 

retirement. He did not suffer from any disabilities or 

physical limitations. At the time, he had two minor 

children – one was sixteen years old and the other was 

fifteen. Robert was otherwise capable of continuing his 

employment until all his children had become 

emancipated. As the trial court suggested at the last 

hearing, even a part-time job with a minimal skill 

requirement would give Robert supplemental income to 

make up the difference between his retirement and 

imputed income for a few remaining years. By Robert’s 

own admission, his current pension income is about the 

same as his take-home pay was before he retired. 

Although the trial court also noted Robert has the right to 

retire, and there is no evidence of bad faith, it is 

uncommon for people with minor children to retire

because the obligation to support them continues until 

they become emancipated.

Id. at *4.
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In Bottoms, the parent who retired was physically unable to return to 

work and the Court held that his retirement was reasonable. In Blicharz, the parent

who retired could continue to work and his retirement was unreasonable. In the

case at hand, Appellant is capable of employment and has found additional

employment; however, he receives less income overall. There was no evidence

presented to the trial court that Appellant could not continue to be a police officer

or was physically incapable of other work. Appellant is commended for finding

additional employment after his retirement, but the trial court did not abuse its

discretion in concluding he was underemployed based on these circumstances. We

find no error.

Appellant also argues on appeal that the trial court erred in not making 

specific findings of fact. Appellant argues that the court found him to be 

underemployed, but did not explain why. Although not specifically stated by 

Appellant, it appears as though he is arguing that the trial court did not discuss the 

imputation of potential income factors set forth in KRS 403.212(3)(e)3. 

We find that this issue was waived by Appellant because the alleged 

lack of findings was not raised in the court below. Kentucky Rules of Civil 

Procedure (CR) 52.04 states:

A final judgment shall not be reversed or remanded 

because of the failure of the trial court to make a finding 

of fact on an issue essential to the judgment unless such 

failure is brought to the attention of the trial court by a 
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written request for a finding on that issue or by a motion 

pursuant to Rule 52.02.

Here, the trial court’s order set forth Appellant’s previous income and the income 

he receives post-retirement. The court held that Appellant was underemployed 

based on the difference in his pre- and post-retirement income. These findings 

would show that that court did consider KRS 403.212(3)(e)3.b. and d. It is unclear 

if the court considered the rest of the KRS 403.212(3)(e)3. factors, but that is 

because Appellant did not seek additional findings. We conclude that the court’s 

findings in this case were sufficient and that Appellant should have moved for 

additional findings if he believed they were inadequate.

CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Jennifer B. Landry

Ft. Mitchell, Kentucky

BRIEF FOR APPELLEE:

Rene B. Heinrich

Newport, Kentucky