author: BUCKINGHAM, Judge.

text:
    Steven G. BARKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 1999-CA-000500-MR.
    Court of Appeals of Kentucky.
    Sept. 29, 2000.
    R. Mitchell Berryman, Winchester, for Appellant.
    A.B. Chandler, III, Attorney General, Todd D. Ferguson, Assistant Attorney General, Frankfort, for Appellee.
    Before: BUCKINGHAM, EMBERTON, and SCHRODER, Judges.
   OPINION

BUCKINGHAM, Judge.

As the result of an arrest for operating a motor vehicle under the influence of alcohol (DUI), Steven Barker was convicted in the Clark County Circuit Court of DUI, third offense (DUI III), which, by virtue of his blood alcohol level exceeding 0.18, is a Class D felony. KRS 189A.010(4)(e). Barker argues that the operative statute is unconstitutionally vague and hence must be rendered void and that his conviction therefore must be vacated. Having reviewed and analyzed the applicable law, we affirm.

On October 18, 1998, Barker was arrested for suspected DUI and transported to the Clark County jail. He was administered a blood alcohol test which indicated a blood alcohol concentration of 0.26. Thereafter, Barker was indicted for DUI III, over 0.18, a felony.

Barker moved to suppress the blood alcohol results or to amend the charge to a misdemeanor. Following a hearing on the matter, the trial court denied Barker’s motion, finding nothing vague respecting the contents of KRS 189A.010 nor that the consent statute, KRS 189A.105, required a DUI suspect to be informed about the consequences of submitting to a blood alcohol test which results in a reading of 0.18 or greater. Thereafter, Barker entered a conditional guilty plea to the charge of DUI III over 0.18, which plea was accepted by the court. Barker was sentenced to one year of imprisonment, and this appeal followed.

Barker argues that when KRS 189A.010, the DUI presumptions and penalties statute, is construed with KRS 189A.105, the implied consent statute, an irreconcilable conflict results rendering the statutory scheme void-for-vagueness. Specifically, Barker points to KRS 189A.010(4)(c) which provides, in pertinent part:

If the alcohol concentration is below 0.18, for a third offense within a five (5) year period, [he or she shall] ... be imprisoned in the county jail for not less than thirty (30) days nor more than twelve (12) months.... If the alcohol concentration is 0.18 or above, he or she shall be guilty of a Class D felony.

Under the statute, a third time DUI offender with a blood alcohol concentration of 0.18 or more is subject to a felony conviction whereas a misdemeanor conviction is imposed upon an equal recidivist whose blood alcohol concentration is below 0.18.

Barker contends that this subsection is incompatible with the consent statute as provided in KRS 189A.105. The essence of Barker’s contention is that since KRS 189A.105 requires a person to be informed of the repercussion of refusing to submit to a blood alcohol test, it is equally necessary that he or she be apprised of the consequence that submitting to the test can result in a felony offense for a third time offender should the results read 0.18 or above. The sum of Barker’s argument is that, under the statutory terms, the DUI suspect is not adequately informed of the consequences should the test results exceed 0.18, hence the statute is vague, rendering its enforcement arbitrary and capricious in violation of the United States and Kentucky Constitutions. We disagree.

Rather, the void-for-vagueness doctrine requires the penal statute to define the offense with such clarity as to inform persons of ordinary sense as to what conduct is prohibited while not leading to arbitrary or subjective enforcement. Covington v. Commonwealth, Ky.App., 849 S.W.2d 560, 563 (1992). In construing a statute, this court must consider “the purpose which the statute is intended to accomplish — the reason and spirit of the statute — the mischief intended to be remedied.” City of Louisville v. Helman, Ky., 253 S.W.2d 598, 600 (1952).

Unquestionably, KRS 189A.010 provides that driving under the influence of alcohol or any other impairing substance or a combination thereof is prohibited. Specifically, subsection (4) operates as a recidivist provision in that it designates an enhanced penalty for each subsequent DUI offense committed within a five-year period. We believe this statute is sufficiently definite that it can be understood by ordinary persons.

Regarding the arbitrary enforcement prong, the legislature is required to provide “ ‘minimal guidelines’ to prevent a ‘standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.’ ” Commonwealth v. Kash, Ky.App., 967 S.W.2d 37, 45 (1997) (quoting Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citation omitted)). It is this prong, we believe, that Barker claims to be triggered by the conjunction of KRS 189A.010(4)(c) and KRS 189A.105, that is, failure to adequately inform a third offense DUI suspect that acquiescing to the blood alcohol test can result in a felony conviction. We disagree.

KRS 189A.105 is part and parcel of a comprehensive statutory system, otherwise known as the “implied consent law.” Our legislature, like those of sister states, has addressed the serious problem of drinking and driving which is ever present throughout society. The scheme of the law is to provide an effective and efficacious method by which law enforcement can ascertain those DUI suspects who are or are not within the limits of the law and punish the violators. Beach v. Commonwealth, Ky., 927 S.W.2d 826, 827-28 (1996). In order to aid in the administration of the statute, the legislature incorporated an “implied” consent to submission of a blood, breath, or urine test for the purpose of determining alcohol/other impairing substance concentration. KRS 189A.103(1). This method allows for the best evidence of a suspect’s blood alcohol concentration and preservation thereof.

For those recalcitrant to the notion, the legislature enacted KRS 189A.105 directing, inter alia, that although “[n]o person shall be compelled to submit to any test ... his refusal to submit to such tests shall result in revocation of his driving privilege as provided in this chapter.” KRS 189A.105(1). Barker insists that this warning is insufficient to inform a third time offender that he may be subject to a felony conviction and that additional warnings should be supplemented. Additionally, Barker, analogizes the statutory “right” to refuse the blood alcohol test with the “rights” provided by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

However, it is our opinion that Commonwealth v. Wirth, Ky., 936 S.W.2d 78 (1996), lends insight to this issue. In Wirth, our supreme court addressed a challenge to KRS 189A.105 as being insufficient and requiring additional warnings “so as to avoid any misleading and achieve greater accuracy.” Id. at 81. As the court noted:

If such a warning is inaccurate, only the Legislature possesses power to modify it to achieve greater accuracy except where the inaccuracy would be so grave as to amount to a constitutional violation .... In the context of a defendant’s constitutional rights ..., this Court has held that one pleading guilty need not be informed of every possible consequence of the guilty plea. We observed that a multitude of events occur in a criminal proceeding which might influence a defendant to plead guilty or stand trial and that it would be impossible to inform a defendant of all facts and law which might affect his decision. The same reasoning applies here.

Id. at 81-82 (citations omitted).

Similarly, we believe the warning contained in KRS 189A.105 regarding the consequences of failure to abide by the implied consent rule does not rise to the level of a fundamental or constitutional right, but merely informs the suspect of the repercussion that flows from the refusal. See Wirth, 986 S.W.2d at 82, wherein the court held that “[a] more reasonable interpretation of the language used is that one who refuses will not be physically forced to submit to a chemical test. It does not mean that such person has a lawful right to refuse such testing.” The statute addresses strictly the notion of implied consent and the penalty for noncompliance therewith. In this regard, we believe, the statute provides the minimal guidance necessary to avoid arbitrary or discriminatory enforcement.

In short, we reject Barker’s constitutional challenge to the statute, and the judgment of the Clark Circuit Court is affirmed.

ALL CONCUR.

      . Kentucky Revised Statutes.

      . In KRS 189A.005, "alcohol concentration” is defined as "either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.”

      . See Kentucky Rules of Criminal Procedure (RCr) 8.09.

      . The third offense must be committed within a five (5) year period.

      . Specifically, the provision which states "no person shall be compelled to submit to any test or tests” was challenged as inaccurate and inadequate.

      . This court rejected a constitutional challenge to KRS 189A.010(4)(c) in Comelison v. Commonwealth, 1999-CA-001825-MR, 2000 WL 896099, motion for discretionary review pending. Therein the court rejected challenges that the statute was arbitrary, violated equal protection rights, constituted civil and unusual punishment, and violated the ex post facto clause in that case.


source: Caselaw Access Project

author: COMBS, Judge:

license: Public Domain

text:
    Eric M. LAMB, Appellant, v. Catherine FULLER; W. Bruce Cowden, Jr., General Electric; Special Fund; and Workers’ Compensation Board, Appellees.
    No. 1999-CA-001832-W C.
    Court of Appeals of Kentucky.
    Oct. 6, 2000.
    Eric M. Lamb, Louisville, KY, Brief and Oral Argument for Appellant.
    Joel Zakem, Frankfort, ICY, Brief and Oral Argument for Appellee Special Fund.
    Before BARBER, COMBS, and McANULTY, Judges.
   OPINION

COMBS, Judge:

Eric M. Lamb, an attorney, appeals an opinion of the Workers’ Compensation Board (Board) affirming the decision of an Administrative Law Judge (ALJ). The Board concluded that an attorney who handles separate claims consolidated for procedural purposes is limited to a single fee pursuant to Kentucky Revised Statute (KRS) 342.320. After reviewing the arguments, we reverse and remand.

Catherine Fuller began working for General Electric Company in August 1973. On February 23, 1994, she filed a Form 101 (Application for Adjustment of Claim) with the Department of Workers Claims. Fuller alleged that she had sustained injuries to her shoulders, arms, neck, back, and hands arising from incidents occurring in October 1988, February 1989, February 1992, and January 1993; she also claimed injury from cumulative trauma. In September 1998, Fuller’s claims were settled with the employer and the Special Fund. By agreement, she received $55,000.00 for her total disability resulting from incidents that had occurred in February 1992 and January 1993. The settlement agreement indicated that the two claims had been compromised to a value of $27,500.00 each.

Following the settlement, Eric Lamb, Fuller’s attorney, filed a motion for attorney fees. Lamb submitted separately executed professional service contracts for the two compromised claims and requested that separate attorney fees be approved. Lamb itemized a total of 76.70 hours spent in securing the settlement and sought a fee of $5,375.00, for each claim.

The ALJ approved an attorney fee in the total amount of $7,500.00. The ALJ stated:

Pursuant to KRS 342.320(1), an Administrative Law Judge is required to consider certain factors in fixing a reasonable fee for the legal service rendered. These factors include the nature, scope, and quality of legal services, level of skill and competence exhibited by the attorney, the result achieved, and the contingent nature of the case. In the instant case, it is found that the plaintiffs claim has been practiced with a high level of skill and competence and an excellent result has been achieved. These factors, together with recognition that the attorney’s fee was contingent in nature and no fee would have been payable in the event an Award were not rendered, all mitigate in favor of the approval of the maximum attorney’s fee allowable.
Therefore, after full review of the above factors and of the record in this claim, and further exercising the discretion afforded an Administrative Law Judge to balance the competing interests of the injured worker and those of his legal counsel, an attorney’s fee in the amount of $7,500.00 is hereby approved for the services rendered.

(Emphasis added).

Lamb filed a timely petition for reconsideration requesting that the ALJ award him a total fee of $10,750.00. In denying the petition, the ALJ stated:

This matter comes before the ALJ on the plaintiffs attorney’s petition for reconsideration of an order entered on September 30, 1998 approving an attorney fee in the above styled case in the 'amount of $7,500.00. In said petition the plaintiffs attorney points out that the two injuries which are the subject matter of the settlement have separate claim numbers. Plaintiffs attorney then argues that truly there are two separate claims for which the plaintiff received compensation being the claims of February 12, 1992 and January 13, 1993. It should be pointed out however that only one claim as reflected with the filing of the Form 101 (File no. 93-46717) contains the two injury dates in question which comprise the settlement agreement. Pursuant to KRS 342.320 the ALJ finds that he has no other recourse than to approve the attorney fee as set out in KRS 342.320 which specifies the percentages which must be taken into account for the approval said of [sic] attorney fee. For this reason, the ALJ DENIES the plaintiffs attorney’s petition for reconsideration and hereby approves the attorney fee in the amount as specified in the September 30, 1998 order.

On appeal to the Board, Lamb contended that the ALJ erred by finding that an award of two separate fees was precluded by the provisions of KRS 342.320. The Board disagreed, concluding as follows:

The law in effect on Fuller’s dates of injuries contained the language in KRS 342.320(1) which states in part, as follows:
In an original claim, no attorney’s fees shall be allowed or approved ... exceeding an amount equal to twenty percent (20%) of the first twenty-five thousand ($25,000.00), fifteen percent (15%) of the next ten thousand dollars ($10,000.00) and five percent (5%) of the remainder of the amount recovered ....
Based upon the total recovery by Lamb in the amount of $55,000.00, the ALJ ... appropriately calculated Lamb’s attorney fee to be $7,500.00.
Lamb argues that the language in Section 320(1) “in an original claim ...” requires a construction that the word “claim” is not used collectively to refer to all claims a particular individual has arising from different incidents on different dates. Lamb points out that even the Department of Workers Claims assigned the injuries in 1992 and in 1993 with different claim numbers. Lamb reasons, merely because these claims were consolidated for adjudication before ALJ Cowden, that should not preclude separate attorney fees being approved. We disagree. Fuller only filed one Application for Adjustment of Claims in which were noted various injuries which were appropriately consolidated by order of the Chief Administrative Law Judge.
Although the statute and case law do not specifically address an issue such as this, we believe and conclude that since Fuller’s claim was pursued as a single original action, the most logical approach is the one followed by the ALJ.

The ALJ’s opinion and order were affirmed by the Board, and this appeal followed.

Lamb argues that the Board has misconstrued the relevant provision and that its opinion elevates form over substance. According to Lamb, the Board’s opinion implies that had he simply filed separate Application for Adjustment of Claim forms, he would have been eligible to receive separate attorney fee awards following settlement of Fuller’s claims. We agree that the decision to file a single Application for Adjustment of Claim form should not foreclose an award of separate attorney fees in a case where the claimant has prosecuted and has been compensated for multiple claims.

The version of KRS 342.320 at issue here contains no explicit provision limiting attorney fees in consolidated cases. We are not persuaded that the provision should be read broadly to limit fee awards to satisfy “public policy” concerns. Public policy concerns, obviously focused on saving public monies wherever possible, should be equally intent on encouraging skilled and diligent legal representation for injured workers. The record in this case indicates that Lamb expended more than seventy-six hours preparing Fuller’s case. The employer’s responsibility for Fuller’s medical bills and her entitlement to temporary total disability benefits were contested issues-as was the extent of any prior, active disability. Fuller’s deposition was taken twice; multiple independent medical evaluations were scheduled and performed. The record also demonstrates that the apportionment of Fuller’s settlement in the amount of 50% to each compromised claim was logical and fair. The ALJ specifically noted that Lamb had served his client very well on these complicated claims.

Having reviewed the statute in light of Lamb’s arguments, we conclude that he was not limited-as a matter of law — to a single attorney fee award. Therefore, we reverse the Board. Since the ALJ has indicated that the extent and quality of the services Lamb rendered in this case entitled him to the maximum fee award allowed by law, we remand for entry of an order awarding him the sum of $10,750.00, representing compensation for the two separately prosecuted claims.

All concur.

      . Lamb acknowledges that his first request for $11,000.00 in fees was erroneous.


author: KNOPF, Judge.

text:
    Kevin DRURY, Appellant, v. Kimberly DRURY, Appellee.
    No. 1999-CA-001638-MR.
    Court of Appeals of Kentucky.
    Oct. 27, 2000.

      Patricia Tierney Kidd, Louisville, KY., for appellant.
    Danny Butler, Butler, Butler <& Hudson, Greensburg, KY., for appellee.
    Before BARBER, EMBERTON, and KNOPF, Judges.
   OPINION

KNOPF, Judge.

This is an appeal from a custody and visitation determination by the Taylor Circuit Court in a dissolution action. The appellant contends that the trial court’s use of the standard visitation schedule did not comply with the requirements of KRS 403.820. Finding that the trial court did not abuse its discretion in applying the visitation schedule, we affirm.

The appellant, Kevin Drury, and the appellee, Kimberly Drury, were married on February 1, 1986. Two children were born of the marriage: Cody, born January 23, 1990; and Tyler, born June 12, 1994. The parties separated in October 1996, and Kimberly filed a petition for dissolution of marriage shortly thereafter.

The only matter at issue in this appeal concerns the trial court’s determinations as to Kevin’s visitation with the children. During the separation period, the parties worked out a temporary shared custody arrangement whereby each parent had the children half of the time. While both parties agreed that joint custody was appropriate, they could not agree as to visitation or who would be the residential custodian. The issue was submitted to the trial court based upon the depositions of both parties and several other witnesses.

On February 26, 1999, the trial court entered findings of fact, conclusions of law, and a decree of dissolution of marriage. The court found that both parties should have joint custody of the children, and it designated Kimberly as the residential custodian. The trial court awarded Kevin visitation with the children based upon the visitation schedule adopted in that circuit. The standard visitation schedule adopted in the 11th Judicial Circuit sets out typical visitation provisions. Essentially, the noncustodial or non-residential parent has visitation with the children on alternate weekends, and one evening visitation during the week. In addition, the non-residential custodian is entitled to two two-week vacation periods with the children during the summer. The standard visitation schedule also provides for holiday and birthday visits, as well as visitation during other school holidays.

Thereafter, Kevin filed a motion pursuant to CR 59.05 to alter, amend or vacate the visitation order. Specifically, he requested that the visitation schedule be altered to reflect the fact that the parties live approximately 40 miles apart, rather than the 30 miles stated in the order. In addition, Kevin asked the trial court to grant him an additional overnight visitation on Sunday nights of his alternate weekend visitation, and to extend his Wednesday evening visitation to allow the children to stay with him overnight. The motion was submitted to the trial court following a brief hearing on June 4, 1999. In an order entered on July 14, the trial court denied the motion to modify visitation, but did amend the order to reflect the actual distance between the parties’ residences. Kevin now appeals.

Primarily, Kevin argues that the trial court failed to make a visitation determination based upon the facts of the case. He takes great issue with the trial court’s reliance on its standard visitation schedule. Pursuant to SCR 1.040, the 11th Judicial Circuit has adopted local rules of practice and procedure. Local Rule 14 D provides as follows:

The Standard Visitation Schedule has been adopted in the 11th Judicial Circuit. When specific visitation is requested by either party, and the parties live within 100 miles of each other, the Court shall order visitation according to the Schedule, unless the parties, by agreement, or the Court, after hearing evidence, determines that such visitation should be modified. Attorneys may contact the Secretary of the Judge for a copy.

Kevin asserts that the trial court gave undue weight to the terms of the standard visitation schedule, and failed to award visitation in accord with KRS 403.320. We disagree with Kevin that the trial court’s use of the standard visitation schedule constituted an abuse of discretion in this case. However, the trial court’s use of the standard visitation schedule raises a significant issue which we shall address at some length.

A trial court may not adopt a practice which contradicts any substantive rule of law or any rule of practice and procedure promulgated by the Supreme Court. Abernathy v. Nicholson, Ky., 899 S.W.2d 85, 87 (1995). Any local rules placed into effect by the Chief Judge must be in accordance with SCR 1.040 and consistent with the Rules of Civil Procedure, Rules of Criminal Procedure, and Rules of the Supreme Court. Brutley v. Commonwealth, Ky., 967 S.W.2d 20, 23 (1998). Furthermore, it should go without saying that local rules must be consistent with statutes enacted by the General Assembly.

The language of the local rule is problematic because it suggests that the standard visitation schedule should be deemed to be reasonable visitation unless a parent shows grounds for modifying it. Such an interpretation conflicts with KRS 403.320, which requires the trial court to make findings regarding visitation based upon the facts of the particular case. Furthermore, a standard visitation order, even to the extent that it has been adopted as a local rule, is not binding until it has been entered as an order in a particular case. Thus, the local rule can not be interpreted as requiring a parent to prove grounds for modifying an existing visitation order, as under KRS 403.340.

Nevertheless, we do not find that the local rule inherently conflicts with KRS 403.320, although we recognize that the potential for conflict exists. Under KRS 403.320(1), a non-eustodial parent is entitled to:

reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral, or emotional health. Upon request of either party, the court shall issue orders which are specific as to the frequency, timing, duration, conditions, and method of scheduling visitation and which reflect the development age of the child.

What constitutes “reasonable visitation” is a matter which must be decided based upon the circumstances of each parent and the children, rather than any set formula. When the trial court decides to award joint custody, an individualized determination of reasonable visitation is even more important. A joint custody award envisions shared decision-making and extensive parental involvement in the child’s upbringing, and in general serves the child’s best interest. Squires v. Squires, Ky., 854 S.W.2d 765, 769 (1993). Thus, both parents are considered to be the “custodial” parent, although the trial court may designate where the child shall usually reside. Aton v. Aton, Ky.App., 911 S.W.2d 612 (1995). The “residential” parent does not have superior authority to determine how the child will be raised, and major decisions concerning the child’s upbringing must be made by both parents. Burchell v. Burchell, Ky.App., 684 S.W.2d 296, 299 (1984). A visitation schedule should be crafted to allow both parents as much involvement in their children’s lives as is possible under the circumstances.

We further emphasize that trial courts should not give undue weight to the terms of a “standard” visitation order. Frequently, judicial circuits or trial courts prepare these documents to aid the trial court in drafting visitation orders. As in the present case, these documents contain “typical” visitation schedules, as well as recitations of common conditions for managing visitation. However, the use of a standard visitation order should not supplant the trial court’s obligation to make its own findings of fact as required by CR 52.01. See also Bingham v. Bingham, Ky., 628 S.W.2d 628 (1982).

Therefore, we hold that when either party requests specific findings regarding visitation, the trial court must make a de novo determination of what amount of visitation is appropriate, and enter a visitation order accordingly. The terms of a standard visitation schedule may be considered among all other options. However, the trial court should not .make any presumption in favor of a standard visitation schedule.

At the same time, we recognize that, in the absence of an agreement between the parties, the trial court has considerable discretion to determine the living arrangements which will best serve the interests of the children. Furthermore, joint custody does not require an equal division of residential custody of the children. Squires, 854 S.W.2d at 769. As with the standard visitation schedule, the trial court may consider whether continuation of a shared custody arrangement would be in the best interests of the children. On the other hand, the trial court was not obligated to continue the temporary shared custody arrangement which Kevin and Kimberly had been following.

Consequently, we do not hold that a trial court’s use of a standardized visitation schedule is automatically grounds for reversal, even in a ease involving an award of joint custody. Rather, this Court will only reverse a trial court’s determinations as to visitation if they constitute a manifest abuse of discretion, or were clearly erroneous in light of the facts and circumstances of the case. Wilhelm v. Wilhelm, Ky., 504 S.W.2d 699, 700 (1973). We would consider it an abuse of discretion for a trial court to give presumptive weight to a standard visitation schedule, requiring the non-residential parent to prove why that schedule should not be applicable. We do not perceive that such is the case here.

Kevin criticizes the trial court for not taking any additional evidence at the hearing regarding his motion to increase visitation. However, he did not attempt to offer any such evidence at the June 4, 1999 hearing. The trial judge specifically stated that he would take the motion under submission and render a decision after reviewing the record. Kevin did not object at that point or ask for an evidentiary hearing. Therefore, we find that the visitation issue was properly submitted on the evidence and depositions which were already of record.

After reviewing the record in this case, we are not convinced that the trial court made an improper presumption in favor of the standard visitation schedule, or that it abused its discretion regarding the amount of visitation. It is undisputed that both Kevin and Kimberly are good, loving, and devoted parents. The trial judge acknowledged that allocating residential custody and visitation among two such deserving parents is always difficult. The court also assured the parties that it would thoroughly review the record and the depositions prior to ruling on Kevin’s motion to modify visitation.

We are satisfied that the trial court considered the facts and circumstances of the particular case in reaching its conclusion to substantially follow the standard visitation schedule. Although Kevin’s request for additional visitation appears reasonable, we cannot find that the trial court abused its discretion in denying the motion. In particular, Kimberly objected to the additional early morning travel which Kevin’s requested visitation would entail. The trial court’s apparent agreement with this argument was well within its discretion.

Lastly, Kevin complains that the trial court’s use of the standardized schedule makes it difficult to schedule his summer visitations without either “piggy-backing” onto his regular weekend visitation, or foregoing a weekend visitation altogether. See Kulas v. Kulas, Ky.App., 898 S.W.2d 529 (1995). Although the visitation order is somewhat ambiguous in this regard, we find that this issue is not properly presented in this appeal. The issue arose after Kevin filed a notice of appeal from the trial court’s order denying his motion to modify visitation. On August 17, 1999, approximately two months after the filing of the notice of appeal, Kimberly filed a motion to hold Kevin in contempt, apparently because he attempted to overlap an alternate weekend visitation with a summer vacation visitation. Kevin responded with a motion to sanction Kimberly for filing a frivolous motion. On August 23, 1999, the trial court denied both motions.

The “piggy-backing” issue was not part of the order from which this appeal was brought. Since the issue was not raised in the proceeding below prior to the filing of the notice of appeal, we conclude that it is not properly presented on appeal. Moreover, we find nothing in the record showing that the trial court has formally interpreted the disputed provisions of the visitation order. Consequently, the issue of whether Kevin is permitted to “piggyback” his alternate weekend visitation period onto the summer visitation period is not ripe for our review.

In conclusion, we certainly encourage Kevin’s desire to be involved actively in his children’s lives. A trial court’s visitation orders should attempt to provide the nonresidential parent with the greatest amount of visitation which is reasonable under the circumstances. Unfortunately, in custody proceedings it is seldom possible for a trial court to impose a visitation regime which makes both parties happy. For this reason, matters involving visitation rights are held to be peculiarly within the discretion of the trial court. Standard visitation schedules are a tool which the trial court may use to aid in the exercise of this discretion. Nonetheless, trial courts should take care not to use the standard schedule as a substitute for its statutory obligation to determine the most appropriate visitation. In this case, however, we find no indication that the trial court failed to adequately consider the circumstances of both parents and the children.

Accordingly, the judgment of the Taylor Circuit Court is affirmed.

ALL CONCUR.

      . The visitation order gives Kevin a four-week visitation period with the children during the summer, "provided there shall be no continuous visitation period longer than two weeks at one time”. Nonetheless, there is nothing in the visitation schedule which would require Kevin to forego a regular alternate weekend visitation should it coincide with the beginning or the end of a summer visitation period. In contrast, the visitation order sets out clearly how holiday and birthday visitation will affect a regular alternate weekend visitation. Thus, if the trial court has concerns about "piggy-backing”, then the visitation order may need to be clarified.


author: HOLSTEIN, Judge. PRICE, Chief Justice,

text:
    FIDELITY SECURITY LIFE INSURANCE COMPANY, Appellant, v. DIRECTOR OF REVENUE and Director of Insurance, Respondents.
    No. SC 82427.
    Supreme Court of Missouri, En Banc.
    Dec. 5, 2000.

      John C. Cozad, James Donley, Steven C. Krueger, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Mark W. Stahlhuth, Sp. Asst. Atty. Gen., Alana M. Barragan-Seott, Associate Sol., Jefferson City, for Respondents.
   HOLSTEIN, Judge.

Appellant, Fidelity Security Life Insurance Company (Fidelity), seeks review of an Administrative Hearing Commission (AHC) decision affirming the director of revenue’s assessment of its insurance premium tax for 1996. Fidelity also named the director of insurance as a party respondent. Review of a decision of the AHC involving the construction of revenue law falls within the jurisdiction of this Court. Mo. Const, art. V, sec. 3. The decision of the AHC is affirmed in part and reversed in part.

The AHC’s decision is upheld when authorized by law, when supported by competent and substantial evidence upon the whole record, and when the decision is not clearly contrary to the reasonable expectations of the General Assembly. Whitehead v. Director of Revenue, 962 S.W.2d 884, 885 (Mo. banc 1998); sec. 621.193. With respect to questions of law, this Court conducts a de novo review. Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995).

I.

Fidelity is a life insurance company with its principal place of business in Kansas City, Missouri. The state of Missouri taxes, at a rate of 2 percent per annum, the premiums that insurance companies receive from their policyholders. Sec. 1⅛8.370. From this premium tax, certain deductions and credits are allowed. Insurers may, for example, deduct the fees that they pay toward their yearly examination by the department of insurance. Sec. H8.400. In 1995, Fidelity’s 2 percent premium tax was $96,677.66. It incurred $168,822.55 in deductible fees resulting from its insurance examination that year, an amount reducing its net premium tax to zero. The first point on appeal is whether Fidelity may carry forward the unused deduction into 1996.

Section 148.400 states in relevant part, “All insurance companies or associations organized in or admitted to this state may deduct from premium taxes payable to this state, in addition to all other .credits allowed by law ... registration fees and examination fees paid.... ” Fidelity argues that the 1995 deduction surplus should be applied against the tax owing in 1996 because section 148.400 does not specifically limit the deduction to examination fees paid during the year. The critical statutory term is “taxes payable.” Statutory terms are considered in their plain or ordinary and usual sense. Ryder Student Transp. Serv., Inc. v. Director of Revenue, 896 S.W.2d 633, 636 (Mo. banc 1995); sec. 1.090. “Payable” is defined as “due” or “requiring to be paid.” Webster’s Third New International Dictionary 1659 (1981). Arguably, taxes that are “required] to be paid” in 1995 do not include taxes due and owing in later years, as Fidelity suggests. But the phrase’s precise meaning is less than perfectly clear. Where there is an ambiguity, statutes creating exemptions from taxation are strictly construed against the taxpayer. Hyde Park Hous. P’ship v. Director of Revenue, 850 S.W.2d 82, 84 (Mo. banc 1993). Reading the ambiguous phrase in a light favorable to the taxing authority, the Court concludes that the deductions found in section 148.400 may only be taken in the current year, and unused amounts may not be carried forward.

This result is supported by the premise that tax deductions and credits are matters of legislative grace and are available only to the extent authorized by statute. Herschend v. Director of Revenue, 896 S.W.2d 458, 461 (Mo. banc 1995); Brown Group, Inc. v. Administrative Hearing Comm’n, 649 S.W.2d 874, 877 (Mo. banc 1983). The General Assembly authorizes the carry-over of a deduction, exemption or credit by including language to that effect. See, e.g., sec. 135.503.3, RSMo Supp.1999 (“All such [certified capital investment] credits against state premium tax liability may be carried forward indefinitely until the credits are utilized.”); sec. 32.115.1, RSMo Supp.1999 (“Any [Neighborhood Assistance Act] tax credit not used in the period for which the credit was approved may be carried over the next ten succeeding ... years until the full credit has been allowed.”); sec. 135.515, RSMo Supp.1999 (“A taxpayer may carry forward any unused [transportation investment] tax credit for up to ten years .... ”); sec. 135.750.3, RSMo Supp.1999 (“Taxpayers may carry forward unused credits for up to five tax periods ....”); sec. 620.1039.3 (tax credit for research expenses); sec. 620.195.12(2) (small business incubator program tax credit); sec. 135.110.11(2 ), RSMo Supp.1999 (credit for new or expanded business facility).

Reading “taxes payable” in a light most favorable to the taxing authority, and because the legislature knows how to provide for a carry-over if such is its intent but did not do so here, this Court finds that Fidelity is not entitled to carry forward the unused deduction.

II.

Similar reasoning applies to Fidelity’s second point on appeal, concerning its attempt to carry forward its unused deduction for assessment fees paid to the Missouri Life and Health Insurance Guaranty Association (MOLHIGA) in the amount of $23,956. This time with respect to section 376,745.1, allowing the guaranty association assessments as an “offset against ... premium tax liability,” Fidelity again argues that this section contains no express limitation on the deduction and that its purpose, to reimburse insurance companies for the amount of the assessments, should not be frustrated. As with Fidelity’s first point, the Court rejects these arguments. The legislative purpose that Fidelity suggests is not apparent. When the General Assembly intends a carry-over of a deduction, exemption or credit, it includes language to that effect, and no such language is present in section 376.745.1.

Furthermore, it is clear that the deduction is only allowed “to the extent of twenty percent of the amount of [the MOLHI-GA] for each of the five calendar years following the year in which such assessment was paid.” Sec. 876.745.1. That is, in 1995 Fidelity may deduct twenty percent of the fees paid from 1990 to 1994. In 1996, Fidelity may deduct the same percentage of fees paid from 1991 to 1995. Construing the section as Fidelity suggests, allowing the carry-over of unused 1995 deduction into 1996, would undermine this provision and essentially permit the deduction of MOLHIGA assessment fees outside the five-year period allowed by the statute.

III.

Fidelity’s third point challenges the AHC’s ruling that amounts paid by Fidelity under stop-loss insurance plans are not deductible under section 148.390. Fidelity’s claim has merit, and the AHC decision is reversed with respect to this claim.

Section 148.390 allows insurers to deduct “the entire amount of benefit payments actually made” from the “gross amount of premiums received on policies or contracts providing health insurance benefits for the benefit of some or all of the employees of one or more employers....” The section, in other words, allows insurers to deduct the benefits they pay on policies providing health insurance benefits to employees from the gross premiums they receive on the same policies. On its 1996 return, Fidelity included a deduction in the amount of $1,488,113.41 that consisted of benefits paid under stop-loss policies. The question is whether benefit payments made under stop-loss policies qualify as health insurance benefits to employees under section 148.390.

Stop-loss coverage is defined as “indemnity coverage issued to an employer maintaining, a self-funded health plan to reimburse the employer for large medical expense losses incurred by the employees protected by the plan.” Associated Indus. of Missouri v. Angoff 937 S.W.2d 277, 278 (Mo.App.1996). Key to the analysis is whether these stop-loss policies provide “health insurance benefits” that are “for the benefit of some or all of the employees ...” as section 148.390.2 requires. By definition, stop-loss coverage is a form of health insurance. Employers are directly reimbursed under stop-loss policies for employee healthcare expenses above the expected amount of claims. Stop-loss policies also benefit employees, however, satisfying the second requirement of section 148.390.2 that policies be for the benefit of employees. Stop-loss coverage prevents employees from bearing the burden of large healthcare claims that could plunge an employer, especially a small employer, into financial devastation. Employers who self-fund healthcare insurance use this coverage not only to protect themselves but also to protect the jobs and healthcare benefits due their employees in the event of a catastrophic loss.

In another context, the court of appeals found that stop-loss insurance was not “group health insurance” subject to regulation by the department of insurance under section 376.421. Angoff, 937 S.W.2d at 283. This was due in part to the fact that the stop-loss policies provide “no direct benefits” to any employee. Id. Unlike in the regulatory scheme of section 376.421, however, nothing in the text of section 148.390.2 expressly or implicitly limits the deductions to. premiums that result in direct benefits to employees. Also relied upon was section 376.421.1(1) defining group health insurance as a policy insuring employees of an employer issued “for the benefit of persons other than the employer.” Section 148.329.2, unlike section 376.421, does not limit the health insurance premium subject to the tax exemption to policies that pay benefits to persons “other than the employer.” Section 148.329.2 requires that some or all employees benefit from the coverage but does not directly rule out employer benefit as does section 376.421.

While it is true that ambiguities in a tax deduction statute are construed favorably to the taxing authority, it is equally true that the primary rule of statutory construction requires the Court to determine the meaning of a statute based on the words used in the statute. Hadlock v. Director of Revenue, 860 S.W.2d 835, 337 (Mo. banc 1993). Because nothing in the text of section 148.390.2 requires that the healthcare benefits to the employee be direct or that no benefit inure to the employer under the policy, the Court will not read into the statute words or provisions that do not appear there. State of Missouri v. SKC Elec., Inc., 936 S.W.2d 802, 804 (Mo. banc 1997). In the limited context of section 148.390.2, the payment of premiums for stop-loss insurance is deductible.

IV.

Fidelity’s final point concerns the fees charged by third-party administrators (TPAs) who manage certain policies issued by Fidelity; specifically, whether these fees constitute premiums subject to tax. The AHC held that administrative fees charged by TPAs are direct premiums for purposes of Fidelity’s tax assessment. Fidelity argues that such fees charged by TPAs are not in the nature of premiums because they are not consideration paid to indemnify a risk. The AHC’s finding was correct.

The term “premiums” is not defined in section 148.320. But in context, the plain and ordinary meaning of the word premium is the consideration paid by an insured to an insurer for a contract of insurance. Black’s Law Dictionary 1181 (6th ed.1990); Webster’s Third New International Dictionary 1789 (1981). The record shows that Fidelity requires some insureds to pay charges directly to certain TPAs, including some Fidelity affiliates, as part of the consideration for Fidelity issuing a contract of insurance. The record also supports the conclusion that these fees for administrative services provided by TPAs are in lieu of the normal administrative expenses borne by the insurer. Thus, a TPA charge is simply part of the premium demanded by Fidelity for its contracts of insurance. Because there is no ambiguity, resort to canons of construction is not permitted. Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31 (Mo. banc 1988).

Any lingering doubt that a payment to a TPA is to be treated as a premium is resolved by sec. 376.1080. It provides that if an insurer uses the services of a TPA, “the payment to the administrator of any ... charges for insurance by or on behalf of the insured party shall be deemed to have been received by the insurer....” A charge paid to an insurer as consideration for an insurance contract is a premium. While not dispositive, this statute is certainly indicative of the kind of charges the legislature intended to fall within the ambit of the term “premiums .”

In the course of arguing that TPA charges are not premiums subject to tax, Fidelity claims that the director’s method of calculating non-affiliated TPA charges was flawed. This point was not preserved in a point relied on and need not be addressed. It is sufficient to say there is no plain error.

CONCLUSION

The decision of the AHC is reversed with respect to the stop-loss issue. The remainder of the decision is affirmed.

LIMBAUGH, COVINGTON, WHITE and WOLFF, JJ., concur.

PRICE, C.J., concurs in part and dissents in part in separate opinion filed.

BENTON, J., concurs in opinion of PRICE, C.J.

PRICE, Chief Justice,

Concurring in Part and Dissenting in Part.

I concur with the majority opinion except as it limits the ability of insurance companies to deduct their “examination fees paid” from “premium taxes payable” only in the year of examination. No such limitation is expressly stated in Section 148.400, RSMo 1994. In pertinent part, the language of that section reads:

All insurance companies ... may deduct from premium taxes payable ... examination fees paid ...”

With all due respect to the majority’s attempt to parse the statute and to consider other statutory language, I believe this language is most simply and clearly read to allow the deduction from any premium taxes payable, even in future years.

      . All references to statutes are to RSMo 1994 unless otherwise indicated.

      . MOLHIGA is a non-profit legal entity and insurers must be a member in order to transact insurance business in Missouri. The purpose of MOLHIGA is to protect people against the lapse of life and health insurance coverage due to financial impairment or insolvency of the insurance company. Sec. 3 76.720.