FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73DR-08-163]
HONORABLE CRAIG HANNAH, JUDGE
Kidd & Ryan, by: Catherine A. Ryan, for appellant.
Hudgins, for appellee.
BRANDON J. HARRISON, Judge
Mason appeals the circuit court's order setting
visitation and child support. She argues that the circuit
court erred in (1) finding that she is required to have a
nanny present for visitation with her son, L.R.; (2) limiting
her to one additional visitation per month with her son; and
(3) finding that her ex-husband, Jonathan Robertson, expends
$3900 per month in extraordinary expenses for L.R. We affirm.
parties divorced in August 2008 after an eight-year marriage,
and they have two children: eight-year-old L.R., an autistic
child with special needs, and two-year-old J.R. The parties
were awarded joint legal and physical custody of L.R.; they
were also awarded joint legal custody of J.R., but Mason
received primary physical custody of J.R. Robertson was
ordered to pay $4000 monthly in child support for J.R. He was
also ordered to pay up to $3000 per month for fees associated
with L.R.'s nanny care regardless of which party was
taking care of L.R.
the next several years, the parties continued litigating
issues of custody, child support, and contempt, and in
December 2012, an agreed order was entered establishing
Robertson as L.R.'s primary physical custodian. Mason was
awarded visitation with L.R. on alternating weekends from
12:30 p.m. to 4:30 p.m. on Saturday or Sunday. The order
provided that Robertson "will provide services of his
Nanny for the visitation and will pay for the cost, including
transportation. If for some reason there is an emergency and
their Nanny is unavailable, [Robertson] will promptly notify
[Mason] and will reschedule the visitation[.]" Regarding
child support, the parties agreed to deviate from the
child-support chart "based on the extraordinary medical
expenses incurred on behalf of [L.R.]." Mason's
child-support obligation was $487 per month; however, this
was offset against Robertson's child-support obligation,
leaving him responsible for child support in the amount of
$2200 per month.
current round of litigation began in January 2015, when
Robertson petitioned to modify his child-support obligation.
Over the next thirteen months, the parties filed multiple
petitions for contempt, motions to compel, and requests for
modification of visitation and child support. The circuit
court held a hearing in March 2016, and after receiving
testimony and arguments from counsel, the court found,
[W]e're going to reduce [Robertson's] monthly income
by $3, 900 because of the extraordinary expenses that he
incurs with the parties' autistic son, which included
such expenses as the nanny expenses, the pull-ups, the money
spent driving him around, some Sunshine School expenses, some
positive reinforcers, sensory supplies, the insurance
expense, a small allowance for repairs that are going to have
to be made periodically to the home because of the son's
disability, and a small allowance for some additional
expenses for vacation.
court also found that Mason could request additional
visitation, with two weeks' prior notice, but advised her
to exercise her visitation on schedule as much as possible.
The court stated several times that the parties "have
got to learn how to communicate. You have got to follow the
order." Mason also raised the possibility of hiring her
own nanny instead of relying on the availability of
Robertson's nanny for visitation, and the court stated,
"If you can show me that it won't harm this child to
do that, then I won't have a problem with it."
court entered a written order in August 2016 that included
the following findings:
8. That Defendant must provide two (2) weeks advance notice
to Plaintiff when requesting additional visitation. In the
event a nanny is unavailable for Defendant's requested
date, Plaintiff must make the minor child and nanny available
at the soonest available time. Defendant may only exercise
one (1) additional visitation per month and that visitation
is not to be used to replace a missed visitation.
10. From the testimony taken in Court has found [sic] that
the Plaintiff expends an average of $3, 900.00 each month for
extraordinary expenses regarding the minor child, [L.R.].
Those expenses are for the payments to nannies, pull-ups,
Sunshine Academy tuition, gas for driving the minor child
around to soothe him, positive reinforcement tools, medical
insurance, medical costs, repairs to the home caused by the
minor child and cost of additional care for vacation. The
Court arrived at this number by taking an average of those
expenses over the last three (3) years. The Court finds that
the Plaintiff is entitled to a reduction in his child support
of forty-five percent (45%) of said amount.
Going forward, the Parties should use a rolling three (3)
year average dropping off the latest year and adding the
current year to adjust the $3, 900.00 amount. The $3, 900.00
a month cannot exceed or be lowered by six percent (6%)
increase annually ...