RENDERED: MARCH 12, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0249-ME

AMANDA MARIE RICHARDS APPELLANT 

v. 

APPEAL FROM JEFFERSON CIRCUIT COURT

HONORABLE DENISE DEBERRY BROWN, JUDGE

ACTION NO. 16-CI-502648 

THOMAS IRVIN DRAKE IV APPELLEE 

OPINION

AFFIRMING IN PART,

REVERSING IN PART,

AND REMANDING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; KRAMER AND MCNEILL, JUDGES.

MCNEILL, JUDGE: The appellant, Amanda Marie Richards (hereafter “Mother”) 

and appellee, Thomas Irvin Drake IV, (hereafter “Father”), are the natural parents 

of two minor children, T.D., age six, and T.D., age five.1 Father and Mother were 

never married. Pursuant to an order issued by the Jefferson Circuit Court, Family 

 

1 Abbreviations are being used to protect the anonymity of the children. 
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Court Division on March 30, 2018, the parties share joint custody of the children 

and utilize a shared parenting schedule. Father was ordered to pay $809.00 per 

month in child support. 

Due to a change in his employment and a reduction in wages, Father 

filed a motion to modify child support. The trial court held a hearing on that 

motion on October 11, 2019 and subsequently entered an order granting Father’s 

motion reducing his child support obligation to zero, with both parties equally 

dividing the cost of work-related daycare. The order also sentenced Father to 

thirty days’ incarceration for failure to pay child support arrearages but suspended 

that sentence so long as Father made arrearage payments of $100.00 per week. 

Mother filed a motion to alter, amend, or vacate the modification order, which the 

court denied. Mother now appeals to this Court as a matter of right. Father did not 

file a brief. 

I. STANDARD OF REVIEW

To prevail in obtaining a modification to reduce a child support

obligation, the obligor must demonstrate that “a material, substantial, and 

continuing change of circumstances . . . made him less capable of attaining his 

former income level . . . .” Howard v. Howard, 336 S.W.3d 433, 441 (Ky. 2011). 

We review child support matters under an abuse of discretion standard, i.e., 

“whether the trial judge’s decision was arbitrary, unreasonable, unfair, or 
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unsupported by sound legal principles.” McKinney v. McKinney, 257 S.W.3d 130,

133 (Ky. App. 2008) (citation omitted). With these standards in mind, we now 

turn to the merits of the case. 

II. ANALYSIS

Mother argues on appeal that the trial court abused its discretion by 

granting Father’s motion to modify child support and that the trial court’s order 

granting modification should be reversed. She specifically contends that Father is

voluntarily underemployed pursuant to KRS2 403.212(2)(d). For the following 

reasons, we agree. 

The facts surrounding father’s change in employment are mostly 

undisputed—he was determined to be intoxicated at his previous job at RCS 

Transportation, LLC after being administered a breathalyzer test. His work 

specifically required him to operate motor vehicles. Father testified that he was 

permitted to resign in lieu of termination. However, Mother’s counsel introduced 

an affidavit and accompanying corporate documents into the record indicating that 

Father was discharged for violating the company’s substance abuse policy. Father 

now earns nearly half of what he did previously on a per hour basis. Father further 

testified during the modification hearing that he had filed for bankruptcy; that he 

 

2 Kentucky Revised Statutes. 
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would likely lose his house; that he had no college degree or other specific 

training; and that he was currently looking for higher paying jobs. His previous 

job at RCS Transportation, LLC was a union job. According to Father, the union 

was still assisting him in obtaining a higher paying position. 

As previously noted, to obtain a reduction in child support, a party 

must show a substantial and continuing material change of circumstances. KRS 

403.213(1). Pursuant to KRS 403.213(2), there is a rebuttable presumption of a 

material change in circumstances when application of the Kentucky Child Support 

Guidelines to the finances of the parties at the time of filing of a motion for 

modification would result in a change in the obligation of fifteen percent or more. 

In calculating the amount of support due, trial courts must assess each parent’s 

gross monthly income. KRS 403.212. However, if the court finds a parent-obligor 

to be voluntarily unemployed or underemployed, the calculation is based on KRS 

403.212(2)(d):

If a parent is voluntarily unemployed or underemployed, 

child support shall be calculated based on a 

determination of potential income, except that 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. Potential 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 
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earnings levels in the community. A court may find a 

parent to be voluntarily unemployed or underemployed 

without finding that the parent intended to avoid or 

reduce the child support obligation.

As a practical matter, KRS 403.212(2)(d) is divided into two parts. 

Part (i) requires the trial court to make a finding whether a parent is voluntarily 

unemployed or underemployed and provides three specific classes of people 

exempted from consideration. If an affirmative determination is made under part 

(i), then the court must assess potential income pursuant to part (ii), which includes 

very specific considerations. The issue before this Court is whether the trial court 

abused its discretion in applying both internal provisions of KRS 403.212(2)(d). In 

its order granting Father’s motion to modify child support, the trial court in the 

present case provided the following reasoning supporting its decision:

The court specifically rejects [Mother’s] position that 

being fired for a poor choice is equivalent to being 

voluntarily underemployed. The economic reality is that 

it will be difficult for [Father] to find a position earning 

close to $25.00 per hour. To hold him to this standard 

simply because he lost his previous job would create a 

child support order that is nearly impossible for him to 

meet while meeting his own needs, which would not be 

in the best interest of the child. 

Although the trial court’s reasoning was neither arbitrary nor unreasonable, we 

believe that it was unfair and unsupported by sound legal principles and, therefore, 

constitutes an abuse of discretion for the following reasons. 
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First, it is important to note that the General Assembly amended KRS 

403.212(2)(d) in 1994 to explicitly include that “a court may find a parent to be 

voluntarily unemployed or underemployed without finding that the parent intended 

to avoid or reduce the child support obligation.” The clear legislative intent is to 

broaden what may constitute voluntarily unemployment or underemployment, not 

to constrain it. Case law also proves instructive. 

The most authoritative case relevant to the issues presented is 

Commonwealth ex rel. Marshall v. Marshall, 15 S.W.3d 396 (Ky. App. 2000). 

Therein, the Court generally held, inter alia, the former husband and child support 

obligor voluntarily engaged in conduct that resulted in his incarceration and, thus, 

his income would be imputed to him for child support purposes while he was in 

prison. Id. at 401. More specifically, the Court held that “[w]e align ourselves 

with those jurisdictions that equate incarceration with voluntary unemployment” 

and that “it is apparent that [father] voluntarily engaged in conduct which he 

should have known would impair his ability to support his children.” Id. (emphasis 

added). In so holding, the Court specifically reasoned that “[t]here are few matters

over which the trial court has more discretion than cases involving domestic

relations issues . . . . However, that discretion is not unlimited.” Id. at 400

(emphasis added) (footnotes omitted). 
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It would strain credulity to hold that while an incarcerated parentobligor is considered voluntarily unemployed, a father whose employment was 

terminated due to his on-the-job inebriation is not considered voluntarily 

underemployed.3 Like the incarcerated parent-obligor in Marshall, the Father in 

the present case “voluntarily engaged in conduct which he should have known

would impair his ability to support his children.” Id. at 401 (emphasis added). A 

contrary conclusion would run afoul of the core holding of Marshall and would

require this Court to condone a result that is unfair and unsupported by sound legal 

principles. Therefore, we hold that the trial court abused its discretion in failing to 

find that Father was voluntarily underemployed. 

Furthermore, we cannot discern from the trial court’s order how the 

court arrived at its recalculation of child support benefits. Therefore, we cannot 

determine how the court exercised its discretion in that regard and must conclude 

 

3 We also note several unpublished decisions that, while not binding, are instructive. See Hardy

v. Hardy, No. 2016-CA-001214-ME, 2017 WL 1455059, at *2 (Ky. App. Apr. 21, 2017) 

(applying Marshall and affirming trial court’s ruling that father was voluntarily underemployed 

after his previous employment was terminated for, inter alia, failing to show up at a meeting 

because he was hungover and doing “donuts” in a vehicle rented by his employer) and VonFeldt

v. Beckovich, No. 2016-CA-001095-ME, 2017 WL 2992535, at *1 (Ky. App. Jul. 14, 2017) 

(imputing income to a parent-obligor who argued that he was unable to return to his employment 

in medical device sales to due alcohol abuse disorder, anxiety, and depression). See also

Wardrip v. Wardrip, No. 2009-CA-000092-ME, 2009 WL 3672919, at *1 (Ky. App. Nov. 6, 

2009); Grigsby v. Commonwealth, Cabinet for Families and Children, No. 2006-CA-000313-

ME, 2006 WL 3040063, at *1 (Ky. App. Oct. 27, 2006). 
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that the court lacked substantial evidence for its decision to reduce Father’s support 

child support payments to zero. 

On remand, the trial court shall enter an order finding Father to be 

voluntarily underemployed. The court shall then proceed to the second part of 

KRS 403.212(2)(d) in order to assess potential income with “due consideration of

all of the statutory factors.” Gripshover v. Gripshover, 246 S.W.3d 460, 469 (Ky. 

2008). Thereafter, the amount of income shall be calculated according to the child 

support guidelines table provided in KRS 403.212(7).4 It is noteworthy that, in its 

order granting modification, the trial court also determined that “this case is 

appropriate for a deviation from the child support guidelines . . . .” As previously 

stated, the court re-assessed Father’s and Mother’s monthly child support 

obligations, with neither party paying support to the other. Again, however, the 

trial court did not articulate how it reached the mathematical result that it did. To 

the extent that the trial court deems KRS 403.211(3) to be applicable, it must 

specifically indicate so on remand.

5

 

 

4 Completion of a child support worksheet may prove beneficial. 

5 The previously noted unpublished case of VonFeldt v. Beckovich, proves particularly 

instructive on the issue of the imputation and calculation of potential income. 2017 WL 

2992535, at *4. Again, we do not cite VonFeldt as binding authority. Rather, we cite it as a 

practical guide for the parties and the trial court in re-assessing Father’s potential income on 

remand. 
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Lastly, Mother requests that we reverse and remand to “reconsider the 

sentencing on contempt to include incarceration of not less than 180 days, which 

under the circumstances, is quite reasonable.” We are cognizant of the difficulties 

in obtaining timely payments from child support obligors and are confident that the 

trial court will continue to exercise its sound discretion including consideration of 

whether incarceration is appropriate in the event of future delinquencies. 

Nevertheless, for purposes of the present case, we cannot say that the trial court 

abused its discretion in suspending Father’s sentencing for contempt so long as he 

makes arrearage payments of $100.00 per week. 

III. CONCLUSION

For the foregoing reasons, we hereby affirm the judgment of the 

Jefferson Circuit Court in part and reverse in part. We remand for additional 

proceedings consistent with this Opinion. 

CLAYTON, CHIEF JUDGE, CONCURS.

KRAMER, JUDGE, CONCURS IN RESULT ONLY.

BRIEF FOR APPELLANT:

David B. Mour

Louisville, Kentucky

NO BRIEF FOR FILED APPELLEE