author: Justice VENTERS.

text:
    James Ricky OWENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2009-SC-000511-MR.
    Supreme Court of Kentucky.
    Jan. 20, 2011.

      V. Gene Lewter, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, William Bryan Jones, Office of the Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice VENTERS.

Appellant, James Ricky Owens, was convicted by a Simpson Circuit Court jury of first-degree assault, tampering with physical evidence, and of being a first-degree persistent felony offender (PFO). For these crimes, Appellant received an enhanced sentence of thirty years’ imprisonment for the first-degree assault conviction, based on the jury’s contemporaneous finding that he was a first-degree PFO, and an enhanced sentence of ten years for the tampering with physical evidence conviction, based also on the first-degree PFO finding, with the two sentences to be served concurrently. Appellant now appeals to this Court as a matter of right. Ky. Const. § 110.

Appellant asserts five arguments on appeal: 1) that the trial court erred by denying his motion for a directed verdict on the first-degree assault charge; 2) that the trial court erred by allowing the Commonwealth to amend the indictment to change the basis for the first-degree assault charge from intentional conduct to wanton conduct which led to improper jury instructions and lack of a unanimous verdict; 3) that the jury instruction for tampering with physical evidence failed to identify any specific item of evidence allegedly tampered with; 4) that the trial court erred by admitting into evidence during the penalty phase the fact that Appellant was previously convicted as a second-degree PFO; and 5) that the trial court erred in failing to give penalty phase jury instructions in accordance with Commonwealth v. Reneer, 734 S.W.2d 794 (Ky.1987). For the reasons set forth herein, we affirm Appellant’s conviction and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

Thelma Sorrells was assaulted at her home in Franklin, Kentucky. Based on evidence collected by the police, Appellant was indicted by the Simpson County Grand Jury for one count of first-degree assault, one count of tampering with physical evidence, and one count of first-degree PFO.

At trial, Sorrells testified that on the night of the assault, August 25, 2007, Appellant knocked on her door around 9:30 p.m. and asked if they could talk. Sorrells recognized Appellant as a friend of her recently deceased husband, and she agreed. She testified that they sat outside on her patio where Appellant offered her one of the two beers he had brought with him. She declined. Appellant told Sor-rells that he thought she was a “beautiful lady.” Sorrells replied that she was still dealing with her husband’s death and that she was not interested in him. Sorrells then said she, needed to go inside the house to check on her dog. Her next memory was waking up at Vanderbilt Hospital having no idea of how or why she was there.

Sorrells remained in Vanderbilt Hospital for several days. She then went to live with her son. Sorrells testified that as a result of the assault she experienced leg pain, dizzy spells, vision problems, and was unable to walk without holding on to items for support. Because of the injuries, she was unable to return to work for two or three months. Sorrells testified that at the time of the trial she had a scar on the back of her head, persistent weakness in her arms, and that her lost memories of that night had not returned.

Dr. Robert Wesley was working at the Franklin Emergency Center the night of the assault and treated Sorrells. He testified that her condition was critical and that she had respiratory problems. She had bruising around her eyes and a skull fracture. Dr. Wesley said he could feel Sor-rells’s brain in the rear of her head and suspected she was experiencing potentially fatal brain swelling. Dr. Wesley testified that he did not believe Sorrells would survive.

Sorrells likely would not have survived if not for the fact that someone saw the altercation and called the police. Franklin Police Officer Benjamin Brown testified that he was dispatched to Sorrells’s house on August 25, 2007, around 10:30 p.m. Upon arriving he saw a white male lift a female (Sorrells) up in the air and slam her down against the ground twice. As the man lifted the woman in the air a third time, Officer Brown called out to the suspect identifying himself as a police officer. The man then dropped the woman and ran off. Officer Brown gave chase to the suspect through some heavy brush but could not catch him. Officer Brown described the suspect as a white male, with blond hair, wearing a white t-shirt and jeans.

Franklin Police Officer Justin Toth arrived at Sorrells’s house soon after Officer Brown and also began to chase the suspect. Officer Toth later saw the suspect at a nearby house, near a swimming pool, dripping wet and wearing only underwear. He arrested the suspect, who later was identified as Appellant. Officer Toth testified that Appellant was intoxicated when arrested. Officer Brown arrived at the scene of the arrest and saw scratches on Appellant’s legs and arms consistent with running through heavy brush. However, another witness at trial testified that Appellant received the scratches earlier that day.

Franklin Police Officer Ben Harper testified that the day after the assault he found a gray t-shirt between a driveway and a hedge at a property near Sorrells’s home. The t-shirt was turned inside out and appeared to have blood on the sleeve. Testing conducted by the Kentucky State Police Crime Laboratory linked DNA from the t-shirt to both Appellant and Sorrells.

Franklin Police Captain Dallas Wiles processed the crime scene. There he found a wallet containing Appellant’s social security card and driver’s license, a hat that Appellant admitted to owning, and two beer cans. Captain Wiles stated that Appellant was Mirandized and gave a written statement in which he admitted to being at Sorrells’s house the night of the assault, but denied assaulting her. Appellant stated that he left the patio to use the bathroom, and as he returned, he heard someone talking to Sorrells. He then left Sorrells’s house and went to his cousin’s house, where he was found by police and taken into custody.

The jury convicted Appellant of first-degree assault, tampering with physical evidence, and of being a first-degree PFO, and sentenced him to a total of thirty years’ imprisonment. This appeal followed.

1. THE TRIAL COURT CORRECTLY DENIED APPELLANT’S MOTION FOR A DIRECTED VERDICT ON THE FIRST-DEGREE ASSAULT CHARGE

Appellant first argues that the trial court erred by denying his motion for a directed verdict on the first-degree assault charge. The Simpson County Grand Jury indicted Appellant for first-degree assault under the theory that he acted intentionally. On the first day of trial, the Commonwealth made a motion to amend the Indictment to charge Appellant with committing first-degree assault wantonly instead of intentionally. The trial court granted the motion. The jury was ultimately instructed on first-degree assault committed through wanton conduct, KRS 508.010(l)(b), but not first-degree assault committed through intentional conduct, KRS 508.010(l)(a). KRS 508.010(1) states:

(1) A person is guilty of assault in the first degree when:
(a) He intentionally causes serious physical injury to another person by means of a deadly weapon or dangerous instrument; or
(b) Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.

We will review the trial court’s ruling on Appellant’s motion for a directed verdict using the standard outlined in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991):

On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.
On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal.

Appellant argues that he was entitled to a directed verdict on the first-degree assault charge because the evidence presented at trial established only an intentional assault, not a wanton assault. Appellant bases this argument on Officer Brown’s testimony that the assailant lifted Sorrells into the air several times and slammed her to the ground. Appellant argues that Officer Brown’s testimony made it unreasonable for a juror to believe that the assailant’s conduct was anything other than intentional because the repeated action indicated an intent to harm Sorrells. See Boulder v. Commonwealth, 610 S.W.2d 615 (Ky.1980) (overruled on other grounds by Dale v. Commonwealth, 715 S.W.2d 227 (Ky.1986)) (holding that a defendant who shot his victim five times in the back acted intentionally and thus it was error to provide a jury instruction based on wanton conduct). Thus, Appellant argues that a juror could not have reasonably believed he was guilty of first-degree assault committed wantonly and he was therefore entitled to a directed verdict on that charge. We disagree.

KRS 501.020(3) defines wantonly as follows:

A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.

(emphasis added). This definition was provided to the jury as Instruction No. 7.

Sufficient evidence was presented to support a reasonable juror’s belief that Appellant was intoxicated and therefore acted wantonly while assaulting Sorrells. This evidence included testimony that Appellant drank beer while talking with Sor-rells, beer cans found at the crime scene, the arresting police officer’s testimony that Appellant was drunk when arrested and was charged with alcohol intoxication, as well as Appellant’s own statement that he did not think he assaulted Sorrells, but if “I done it, I don’t remember it.” Further, sufficient evidence was presented to place Appellant at the scene of the assault, including his wallet which was found at the crime scene and his own admission he visited with Sorrells. Based on this evidence a reasonable juror could conclude that Appellant was voluntarily intoxicated at the time of the assault and acted in a manner which created a substantial and unjustifiable risk of serious physical injury to Sorrells.

Thus, reviewing “the evidence as a whole,” we cannot say “it would be clearly unreasonable for a jury to find guilt” on the first-degree assault charge based on wanton conduct and the trial court correctly denied Appellant’s motion for a directed verdict. Benham, 816 S.W.2d at 187.

II. THE AMENDMENT OF THE INDICTMENT PRIOR TO THE START OF TRIAL WAS NOT ERROR "

Appellant next argues a series of errors occurred due to the Commonwealth’s amendment of the indictment at the start of trial. We will review each one of these allegations in the order they are argued.

A. The Amendment of the Indictment was Proper

Appellant first argues that the trial court erred by allowing the Commonwealth to amend the indictment for first-degree assault the morning of the first day of trial. The amendment changed the mental state for the first-degree assault charge from “intentionally” to “wantonly.” Appellant did not object to the amendment. In fact, Appellant’s counsel assented to the amendment. Nevertheless, Appellant requests that we review this for palpable error. RCr 10.26.

RCr 6.16 states:

The court may permit an indictment, information, complaint, or citation to be amended at any time before the verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If justice requires, however, the court shall grant the defendant a continuance when such an amendment is permitted.

The amendment of the indictment satisfies RCr 6.16 because it was made before the trial began and did not charge Appellant with a new or different offense. Appellant had ample notice of the nature of the assault charge to prepare and present an effective defense. See Basham v. Commonwealth, 703 S.W.2d 480 (Ky.App.1985) (holding that an indictment which was amended to include the element of intent at the close of the Commonwealth’s case was not prejudicial to the defendant). The appropriate relief when “justice requires” is a continuance, which Appellant never requested. RCr 6.16. We discern no prejudice arising out the amendment. There is no error here.

B. The Jury Instruct ion for FirsL-De-gree Assault Committed Due to Wanton Conduct was Proper

Appellant next argues that the jury instruction on first-degree assault committed wantonly was error because a conviction on that offense was unsupported- by the evidence. However, as we stated in Part I, supra, the evidence was sufficient to support a conviction for first-degree assault, and hence the giving of a jury instruction was proper.

C. The Jury Verdict on First-Degree As-saultwas Unanimous

Appellant next argues that the evidence presented by the Commonwealth on the first-degree assault charge might induce some jurors to believe that Sor-rells’s injuries were inflicted intentionally, while other jurors might believe they were inflicted wantonly, and therefore the possibility of a non-unanimous verdict has arisen. Appellant argues that there is no way we could know what mens rea the jury believed he acted with because there was no instruction on first-degree assault committed intentionally. This argument has no merit. The instruction on first-degree assault did not present any alternative theories of criminal responsibility to create a risk of non-unanimity. The jury is presumed to follow any instruction given to them. Johnson v. Commonwealth, 105 S.W.3d 430, 436 (Ky.2003). We must presume that any juror not satisfied beyond a reasonable doubt that Appellant was guilty under the instruction would have so voted. The single theory of liability contained in the assault instruction allowed for no unanimity concern. We perceive no error in the instruction.

D. The Failure to Provide a Secondr-De-gree Assault Committed Intentionally Instruction Was Not Error

Appellant next argues that he was entitled to receive a jury instruction for second-degree assault committed intentionally under KRS 508.020(l)(a). This alleged error was not preserved, so we review for palpable error. RCr 10.26. Again, Appellant argues that the evidence presented by the Commonwealth proved that any assault committed against Sor-rells was committed intentionally. Thus, he argues that had the jury been instructed on second-degree assault committed intentionally, the jury would not have found him guilty of first-degree assault committed wantonly.

However, Appellant did receive a jury instruction on second-degree assault committed wantonly under KRS 508.020(l)(c) and that instruction was supported by the evidence. Appellant fails to demonstrate that another jury instruction on second-degree assault would have aided him. Had the jury not believed the assault against Sorrells was committed wantonly, it would have acquitted Appellant of the assault. An additional instruction on intentional assault would have worked to his detriment because it would have given the jury an alternative basis under which to convict him, if it did not believe he acted wantonly. There is no error here.

III. THE ERRONEOUS JURY INSTRUCTION ON TAMPERING WITH PHYSICAL EVIDENCE WAS NOT PALPABLE ERROR

Appellant next argues that the jury instruction for tampering with physical evidence was prejudicially deficient because it failed to describe any specific item or items of physical evidence that he allegedly either concealed or destroyed. He contends .that this deficiency enabled the jury to speculate about what may be “evidence,” and to convict upon insufficient evidence. Appellant argues that he preserved the alleged instructional error by moving for a directed verdict at the close of the evidence and arguing that the Commonwealth had failed to introduce sufficient proof of what the tampering charge referred .to. We do not regard that motion as sufficient to call the trial court’s attention to the error Appellant now perceives in the instructions. RCr 9.54 provides:

No party may assign as error the giving or the failure to give an instruction unless the party’s position has been fairly and adequately presented to the trial judge by an offered instruction or by motion, or unless the party makes objection before the court instructs the jury, stating specifically the matter to which the party objects and the ground or grounds of the objection.

Because Appellant failed to specifically object to the instruction at trial, and failed to offer an instruction or motion indicating with particularity his objection to the tampering instruction sufficient to inform the court of his concern, we regard the issue as unpreserved, and review this matter for palpable error. RCr 10.26.

The tampering with physical evidence instruction given in this case was erroneous. The jury was instructed on the tampering with physical evidence charge as follows:

Under Count Two of the indictment, you will find [Appellant] guilty of Tampering with Physical Evidence under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in Simpson County, Kentucky on or about August 25, 2007, and before the finding of the Indictment herein, [Appellant] 'concealed and/or destroyed evidence which he believed was about to be produced or used in an official proceeding;
AND
B. That he did so with the intent to impair its availability in an official proceeding. (Emphasis added.)

As is readily apparent, the instruction provided did not specify for the jury what they must consider as the “evidence” that was concealed or destroyed. By way of comparison, Cooper, Kentucky Instructions to Juries, § 7.63 provides the following model jury instruction for tampering with physical evidence:

You will find the Defendant guilty of Tampering with Physical Evidence under this Instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about _ (date) and before the finding of the Indictment herein, he [altered] [destroyed] [concealed] [removed] _(ID evidence) which he believed was about to be produced or used in_(ID proceeding);
AND
B. That he did so with the intent to impair its [accuracy] [availability in the proceeding].

We find no fault with this model instruction and commend its use. It requires, as it should, identification of the particular item or items which, according to the proof, would qualify as physical evidence supporting the charge.

In Olfice, Inc. v. Wilkey, 173 S.W.3d 226, 229 (Ky.2005) we reiterated our longstanding philosophy:

The basic function of instructions in Kentucky is to tell the jury what it must believe from the evidence in order to resolve each dispositive factual issue in favor of the party who bears the burden of proof on that issue. In other jurisdictions, as at common law, it may be appropriate to say that the purpose of instructions is to advise the jury on the law of the case, but not in this state.

The mere reference in the instructions given here to “evidence,” without identifying the particular items about which evidence was presented, was not adequate to fully inform the jury what it must believe in order return a verdict. The instructions, therefore, do not adequately constrain the jury’s verdict to items meeting the statutory definition of “physical evidence,” and about which sufficient proof was presented to support a verdict. However, while we recognize that an erroneous jury instruction is presumed to be prejudicial, Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky.2008), our review of this matter compels the conclusion that the error affected no substantial rights of Appellant and resulted in no manifest injustice. RCr 10.26.

Ample evidence was presented to the jury to support a finding of guilt on the tampering charge based on the concealed t-shirt, and the missing pants and shoes. The jury could quite reasonably believe that Appellant hid his t-shirt (albeit poorly) by throwing it in a neighboring yard, and otherwise adequately hid or destroyed the pants and shoes, which Officer Toth testified Appellant wore as he assaulted Sorrells. We find nothing in the record to reasonably support the suggestion that the jury considered anything other than the above mentioned items as it determined whether Appellant had concealed or destroyed evidence.

At the close of the evidence, Appellant moved for a directed verdict, claiming that the proof was not sufficient to establish that Appellant had concealed or destroyed anything. In overruling his motion, the trial court noted that the evidence sufficiently supported the theory that, in an attempt to conceal his shirt, Appellant discarded it in a neighboring yard as he left the crime scene. Appellant now concedes that the evidence was sufficient to support a conviction for tampering with physical evidence consisting of his shoes and his pants. The Commonwealth submits that there is no mystery about what “evidence” was tampered with, stating, “the only such evidence was the Appellant’s clothes,” which we take to mean collectively as Appellant’s t-shirt, pants, and shoes.

Appellant suggests further that the failure of the instructions to reference specific items of evidence fostered the possibility of a non-unanimous verdict, in that some jurors may have voted to convict based on different items of evidence. That argument, too, is unpreserved. In recognizing that the proof presented at trial was sufficient to sustain Appellant’s conviction based upon any or all of the clothing items involved, we reiterate our conclusion that the instructions, while defective, affected no substantial rights of Appellant and resulted in no manifest injustice. RCr 10.26.

IV. THE INTRODUCTION OF APPELLANT’S PRIOR PERSISTENT FELONY OFFENDER STATUS INTO THE PENALTY PHASE OF TRIAL WAS HARMLESS ERROR

Appellant next argues that the introduction of his prior status as a second-degree PFO into evidence during the penalty phase was error. During the penalty phase, a deputy circuit court clerk testified that Appellant had previously been convicted of theft by unlawful taking “as a persistent felony offender, second degree” and possession of anhydrous ammonia “as a persistent felony offender, second degree.” Appellant’s objection to the reference to his prior PFO status was overruled. The PFO jury instruction ultimately stated that, to find Appellant to be a first-degree PFO, the jury must believe that Appellant was previously convicted of “knowingly possessing anhydrous ammonia, committed as a persistent felony offender, second-degree ” and “theft by unlawful taking, committed as a persistent felony offender, second-degree.” He now argues that the admission into evidence of the reference to his prior second-degree PFO status, and its inclusion in the jury instructions violated due process.

A persistent felony offender in the first degree is a person who is more than twenty-one years of age and who stands convicted of a felony after having been convicted of two or more felonies, or one or more felony sex crimes against a minor as defined in KRS 17.500, and now stands convicted of any one or more felonies.

KRS 532.080(3) (emphasis added). “Conviction as a persistent felony offender is not a charge of an independent criminal offense but rather a particular criminal status ... Persistent Felony Offender proceedings involves the status of the offender and the length of the punishment, not a separate or independent criminal offense.” White v. Commonwealth, 770 S.W.2d 222, 224 (Ky.1989). Both parties acknowledge that we have no reported case law holding that the inclusion of a defendant’s prior PFO status in a jury instruction or in the penalty phase hearing is error.

We first address the evidentiary question. KRS 532.055(2)(a), part of the “Truth In Sentencing” legislation that established our bifurcated method of trying felony cases, provides that in the sentencing phase of the trial “evidence may be offered by the Commonwealth relevant to sentencing including: ... (2) The nature of prior offenses for which he was convicted.” As established in White, a prior PFO conviction is not itself a “prior offense.” In Robinson v. Commonwealth, 926 S.W.2d 853, 855 (Ky.1996), we held “all that is admissible [under KRS 532.055(2)(a) ] as to the nature of a prior conviction is a general description of the crime. In this case, it would be sufficient to introduce the judgment with testimony that defendant assaulted the woman with whom he had been living.” However, in Cuzick v. Commonwealth, 276 S.W.3d 260, 264 (Ky.2009), we cautiously held, consistent with Robinson, that the Commonwealth could read into evidence from the arrest record prepared by the arresting officer on the prior charge, a “description of the nature of the prior offense [that] was limited solely to the information contained on the citation, namely that Appellant utilized a bat to commit the breaking aspect of the burglary.” The dissenting opinion in Cuzick reminded us that “[i]n Robinson this Court noted that the purpose of truth in sentencing in regard to a[PFO] conviction was simply to inform the jury that the defendant had prior convictions, and what their general nature was, so that the jury could determine whether the defendant had the status of a persistent felon.” Id. at 269 (J. Noble, concurring in part, dissenting in part) (emphasis added).

The concern voiced in Robinson, and echoed in the Cuzick dissent, was that an expansive interpretation of phrase “the nature of the prior offense” might lead to protracted and potentially prejudicial “retrying” of contested details of the prior crime during the penalty phase of the later crime, especially if the “general description” of the prior offense , included disputed gruesome or heinous details of the prior offense. Appellant’s previous second-degree PFO status is not an aspect of the earlier crime that would lend itself to such controversy. Moreover, if not a part of the prior criminal act itself, it is an aspect of the “nature of the prior offense” that informs the jury’s determination on the first-degree PFO issue and the appropriate penalty. We therefore conclude that the limited reference to Appellant’s previous PFO status, presented to the jury simply as part of the descriptive name of his prior felony offense, did not violate the evidentiary restriction of KRS 532.055, and hence it did not violate his due process right to a fair trial.

With respect to the PFO instruction, we simply state that requiring the prior offenses to have been “committed as a persistent felony offender, second-degree” is an incorrect statement of law, and is error. Whether Appellant had PFO status at the time of those convictions is immaterial to the first-degree PFO charge. However, we see no likelihood the error affected the jury verdict or substantially swayed the jury. It was, therefore, harmless and affords Appellant no grounds for relief. See Winstead v. Commonwealth, 283 S.W.3d 678, 688-689.

V. THE PENALTY PHASE INSTRUCTION PROCESS DID NOT DENY APPELLANT DUE PROCESS

Lastly, Appellant argues that he was denied due process by the trial court’s failure to follow Reneer, 734 S.W.2d 794, regarding the penalty phase PFO sentencing instructions. Appellant failed to object to the trial court’s penalty phase procedure, and he requests palpable error review. RCr 10.26. Reneer states:

If the accused is also charged as a persistent felony offender, the penalty phase and a persistent felony offender phase can be combined and the jury in the combined bifurcated hearing could be instructed to (1) fix a penalty on the basic charge in the indictment; (2) determine then whether the defendant is guilty as a persistent felony offender, and if so; (3) fix the enhanced penalty as a persistent felony offender.

Id. at 798. We stated in Sanders v. Commonwealth, 301 S.W.3d 497, 500 (Ky.2010) that the process suggested by Reneer is the “better practice” for trial courts to follow during the penalty phase.

In the present matter, the trial court did not instruct the jury to fix a punishment for the underlying felonies before determining Appellant’s guilt as a PFO. Instead the jury found Appellant guilty of being a PFO, then set an enhanced sentence for the underlying felony convictions based on the PFO status. No sentence was fixed for the underlying offense, thus, Appellant correctly asserts that Reneer was not followed.

While we continue to cite Reneer as the required practice for trial courts to follow for PFO sentencing, we have not yet held that the failure to do so is palpable error. See Miller v. Commonwealth, 283 S.W.3d 690, 704 (Ky.2009) (holding that the failure to instruct according to Reneer is a procedural issue which we need not review without a contemporaneous objection). We also note that in Montgomery v. Commonwealth, 819 S.W.2d 713 (Ky.1991), we stated that a jury’s failure to set a penalty for the underlying offense before finding PFO status does not violate the provisions of the PFO statute. Nonetheless we strongly encourage trial courts to follow the Re-neer procedure, and while the failure to do so here is not palpable error, such may not always be the case.

CONCLUSION

Thus, for the foregoing reasons, Appellant’s convictions and sentences are affirmed.

All sitting. All concur.

      . Appellant correctly points out that the Indictment incorrectly merged the elements of first-degree assault committed under KRS 508.010(l)(a) (acting intentionally) with first-degree assault committed under KRS 508.010(l)(b) (acting wantonly). However, any harm due to this error was cured by the Commonwealth’s amendment on the first day of trial.

      . Appellant argues that the Commonwealth's motion to amend the Indictment incorrectly stated that first-degree assault by wanton conduct is a lesser-included mental state of intent to first-degree assault by intentional conduct. While Appellant is correct that "wantonness” is not a lesser-included mental state to "intentional" under first-degree assault, the Commonwealth's error in so describing it was not prejudicial to Appellant.

      . KRS 524.100 criminalizes the tampering with "physical evidence," not "evidence.” Given that the evidence at trial on this charge dealt only with items that clearly meet the definition of "physical evidence” contained in KRS 524.010(6), the reference to "evidence” instead of "physical evidence” would alone not be prejudicial.

      . We do, however, find fault in the Comment accompanying Cooper’s model instruction, § 7.63, wherein it advises “if factual issues exist [about whether the item alleged qualifies as 'physical evidence’ under the statutory definition] substitute the phrase 'physical evidence’ in place of the specific item in question and supply the statutory definition of ‘physical evidence.’ " In the unusual circumstance that a question of fact arises about whether an item is "physical evidence,” the instruction should still identify the item in question, and simply add an element to the above model instruction that requires the jury to determine if that item is "any article, object, document, record, or other thing of physical substance.” KRS 524.010(6).

      . The statutory definition of “physical evidence” is found in KRS 524.010(6).


source: Caselaw Access Project

author: Justice SCOTT.

license: Public Domain

text:
    PROGRESSIVE MAX INSURANCE COMPANY, Appellant, v. NATIONAL CAR RENTAL SYSTEMS, INC., Appellee.
    No. 2009-SC-000577-DG.
    Supreme Court of Kentucky.
    Jan. 20, 2011.

      Robert Leo Steinmetz, Christopher M. Mussler, Gwin Steinmetz & Baird, PLLC, Louisville, KY, Counsel for Appellant.
    Michael Freeman Lawrence, Louisville, KY, Counsel for Appellee.
   Opinion of the Court by

Justice SCOTT.

This appeal arises from a subrogation dispute regarding basic reparations benefits (BRB) paid by Appellee, National Car Rental Systems, Inc. (National) to a passenger of one of its rental vehicles. After payment, National sought full reimbursement against Appellant, Progressive Max (Progressive), the insurer of the driver of National’s vehicle.

After the Jefferson Circuit Court granted summary judgment in National’s favor, the Kentucky Court of Appeals affirmed, holding that (1) Progressive was primarily liable for BRB; and (2) National may pursue its claim via KRS 304.39-050. We granted discretionary review to determine the correctness of that opinion and now reverse.

I. Background

On October 26, 2001, Ed Jones rented a vehicle from National, but declined to purchase any extended insurance coverage for the use of the rental vehicle from the réntal company. Approximately six days later, Jones was involved in a motor vehicle accident while driving National’s vehicle, injuring his passenger, Shannon Wilkerson. Wilkerson sought recovery from Jones and Progressive (which provided coverage for Jones’s liability for both the use of his vehicle and the use of a rental vehicle). At some point, Wilkerson received BRB from National (the vehicle owner) in the amount of ten-thousand dollars.

Approximately thirty days after Wilkerson filed suit against Jones and Progressive, Wilkerson moved to dismiss her suit. She did not provide National with notice regarding the existence of her suit or her motion to dismiss. After learning that Wilkerson’s claim had been dismissed, National filed suit against Progressive under KRS 304.39-070, seeking reimbursement of the BRB that it paid to Wilkerson as a result of the injury caused by Jones. Progressive defended on grounds that, under the clear dictates of KRS 304.39-070, National was required to either join in an existing action or submit to arbitration. National later moved for summary judgment, alternatively asserting its right to sue and recover under KRS 304.39-050. Ruling on National’s motion for summary judgment, the trial court held that, as a matter of law, National was entitled to recover the BRB paid to Wilkerson and awarded ten-thousand dollars, plus costs and post judgment interest to National.

On direct appeal, Progressive unsuccessfully argued that the trial court erred in granting summary judgment because: (1) National did not pursue its reimbursement claim via the authorized avenues outlined in KRS 304.39-070(3), i.e., to join in an existing action by the injured person or to submit its claim to arbitration; and (2) because Progressive was not a reparations obligor.

The Court of Appeals, applying Affiliated FM Ins. Companies v. Grange Mut. Cas. Co., 641 S.W.2d 49, 50 (Ky.App.1982), reasoned that National could bring its action pursuant to KRS 304.39-050 and held that the procedures outlined in KRS 304.39-070(3) did not apply to an action brought pursuant to KRS 304.39-050. The court further held that because Jones refused to purchase the coverage from National when he rented the vehicle, and because his policy with Progressive covered his liability-while using a rental vehicle, the primary obligor in this case was indeed Progressive.

Progressive then petitioned this Court for discretionary review, arguing that the Court of Appeals erred in determining that: (1) Progressive was a reparations obligor; and (2) that National’s claim could proceed under KRS 304.39-050 regardless of the fact that it did not avail itself of the procedures outlined in KRS 304.39-070.

II. Analysis

A. Primary Basic Reparations Obligor

In 1974, the General Assembly of Kentucky enacted the Motor Vehicle Reparations Act (MVRA) in an attempt to effect, inter alia, the following purposes:

(2) To provide prompt payment to victims of motor vehicle accidents without regard to whose negligence caused the accident in order to eliminate the inequities which fault-determination has created;
(3) To encourage prompt medical treatment and rehabilitation of the motor vehicle accident victim by providing for prompt payment of needed medical care and rehabilitation;
(5) To reduce the need to resort to bargaining and litigation through a system which can pay victims of motor vehicle accidents without the delay, expense, aggravation, inconvenience, inequities and uncertainties of the liability system;
(8) To correct the inadequacies of the present reparation system, recognizing that it was devised and our present Constitution adopted prior to the development of the internal combustion motor vehicle.

KRS 304.39-010. Given these straight-forward purposes, it is apparent that the General Assembly was principally concerned with the ability of motor-vehicle-accident victims to promptly recover reparations. With this principle in mind, this Court recently interpreted the MVRA so as to give effect to the Legislature’s desire that motor vehicle tort victims receive prompt payment in the event that two insurance companies become entangled in a priority dispute. Kentucky Farm Bureau Mut. Ins. Co. v. Shelter Mut. Ins. Co., 326 S.W.3d 803, 806-07 (Ky.2010). In Shelter, we held that where both policies (one covering the vehicle and one covering the driver) claim to provide only excess coverage, the spirit and intent of the MVRA mandates that the policy covering the vehicle and vehicle owner take priority over that of the permissive driver. Id. Our holding there reflected this Court’s concern with “uncertainty and potential delays” and more importantly the possibility that a tort victim would not receive prompt reparations when two insurance companies become embroiled in a priority dispute. Id. To hold otherwise in that case would have confounded the clear legislative purpose of the MVRA.

Here, once again, we are asked to determine an is sue of priority, but, under different circumstances. Rather than addressing two excess clauses as we did in Shelter, this Court now faces the question of whether the vehicle owner’s insurance should take priority over the driver’s insurance when BRB are owed to an injured third party. We again hold that, per the policies established in the MVRA, priority lies with the vehicle owner.

This Court has consistently adhered to the maxim that a statute should be read according to its plain meaning. Spencer v. Estate of Spencer, 313 S.W.3d 534, 541 (Ky.2010). Applying this rule to the case at bar, we conclude that a plain reading of the MVRA — particularly a provision specifically relating to priority (KRS 304.39-050) — compels the conclusion that National is indeed the primary obligor of basic reparations benefits. KRS 304.39-050 provides in pertinent part:

Priority of applicability of security for payment of basic reparations benefits The basic reparation insurance applicable to bodily injury to which this subtitle applies is the security covering the vehicle occupied by the injured person at the time of the accident or, if the injured person is a pedestrian, the security covering the vehicle which struck such pedestrian. If the reparation obligor providing such insurance fails to make payment for loss within thirty (30) days after receipt of reasonable proof of the fact and the amount of loss sustained, the injured person shall be entitled to payment under any contract of basic reparation insurance under which he is a basic reparation insured and the insurer making such payments shall be entitled to full reimbursement from the reparation obligor providing the secwity covering the vehicle, (emphasis added).

As is clear, KRS 304.39-050 contemplates the possibility of two insurers: (1) those covering the vehicle; and (2) all others. It is also clear that where a vehicle is secured by an insurance policy, but operated at the time of injury by a driver who is insured by a second policy — separate and apart from the vehicle’s insurance — the insurance “covering the vehicle occupied by the injured person at the time of the accident” will take priority over other insurance. Id.; see Roth v. Old Republic Ins. Co., 269 So.2d 3, 5 (Fla.1972); U.S. Fidelity & Guaranty Co. v. Safeco Ins. Co. of America, 522 S.W.2d 809, 821 (Mo.1975) (stating that the general rule places primary liability on the insurer of the owner of the automobile). Therefore, in this case, because National was the insurer of “the vehicle occupied by the injured person at the time of the accident,” we hold that National was indeed the primary obligor of BRB per the plain instructions of KRS 304.39-050.

B. Subrogation

Notwithstanding the determination that National is the primary obligor in this case, that is not to say that it may not recover the monies paid to Wilkerson. Rather, what is next to be decided is how National may seek reimbursement, i.e., whether and how National may pursue its subrogation rights under KRS 304.39-070 or KRS 304.39-050.

As stated above, the purpose and policy section of the MVRA evinces the General Assembly’s concern with a motor vehicle accident victim’s ability to recover in a timely fashion. In an obvious attempt to further hasten and encourage insurance companies to provide a victim’s reparations, the Legislature included in the MVRA two provisions equipping insurance companies with the ability to seek reimbursement of BRB paid to injured parties. These provisions, found in KRS 304.39-070 and KRS 304.39-050, provide in pertinent part:

“Secured person”; obligor’s rights to recovery
A reparation obligor shall have the right to recover basic reparation benefits paid to or for the benefit of a person suffering the injury from the reparation obli-gor of a secured person as provided in this subsection, except as provided in KRS 304.39-140(3). The reparation ob-ligor shall elect to assert its claim (i) by joining as a paHy in an action that may be commenced by the person suffering the injury, or (ii) to reimbursement, pursuant to KRS SOU.39-030, sixty (60) days after said claim has been presented to the reparation obligor of secured persons. The right to recover basic reparation benefits paid under (ii) shall be limited to those instances established as applicable by the Kentucky Insurance Arbitration Association as provided in KRS 304.39-290.

KRS 304.39-070 (emphasis added);

Priority of applicability of security for payment of basic reparations benefits The basic reparation insurance applicable to bodily injury to which this subtitle applies is the security covering the vehicle occupied by the injured person at the time of the accident or, if the injured person is a pedestrian, the security covering the vehicle which struck such pedestrian. If the reparation obligor providing such insurance fails to make payment for loss within thirty (30) days after receipt of reasonable proof of the fact and the amount of loss sustained, the injured person shall be entitled to payment under any contract of basic reparation insurance under which he is a basic reparation insured and the insurer making such payments shall be entitled to fall reimbursement from the reparation obligor providing the security covering the vehicle.

KRS 304.39-050. (emphasis added).

As is clear from a plain reading of these statutes, both KRS 304.39-070 and KRS 304.39-050 allow for a reparations obligor to seek reimbursement of BRB paid to an injured party, but vary in that each statute has specific limitations controlling how and by whom an action may be brought. As discussed below, KRS 304.39-070, while more liberal on who may bring an action, limits the forum in which the claim may be pursued. In contrast, KRS 304.39-050 does not apply to all insurance companies, but rather only to secondary insurers who have stepped forward and paid BRB in the place of the vehicle insurer. Applying these obvious restrictions, we turn to the case at bar and determine whether National may pursue its claim via KRS 304.39-070 or 304.39-050.

1. KRS 304.39-070

We first address the question of whether National may pursue its claim via KRS 304.39-070, which provides in pertinent part:

A reparation obligor shall have the right to recover basic reparation benefits paid to or for the benefit of a person suffering the injury from the reparation obli-gor of a secured person as provided in this subsection....
The reparation obligor shall elect to assert its claim, (i) by joining as a party in an action that may be commenced by the person suffering the injury, or (ii) to reimbursement, pursuant to KRS 30Jp.39-080 [Arbitration]....

A plain reading of KRS 304.39-070 reveals that in order for an insurer to employ this statute for reimbursement it must have paid BRB to an injured party and it must have either joined in an existing action by the person suffering the injury or submitted its claim to arbitration. Applying these rules to this case, we conclude that National, as a reparations obligor having paid BRB, was entitled to employ this statute as a vehicle for recovery. However, because National did not comply with the constraints on how an action under KRS 304.39-070 maybe brought — through joinder or under arbitration — we hold that its action must be dismissed.

In Progressive Cas. Ins. Co. v. Kidd, 602 S.W.2d 416, 417 (Ky.1980), this Court held that where a subrogation action is brought under KRS 304.39-070, a claimant’s options “only include joinder as a party plaintiff and arbitration.” We further opined that the statute plainly says that the “reparation obligor shall elect to assert its claim in one of the two specified ways.” Id. Applying this rule to the case at bar, it is clear that National did not comply with the dictates of KRS 304.39-070.

Here, National pursued its claim in an independent action outside the lawsuit brought by Wilkerson, and did not pursue an action in arbitration. Thus, because it defied the procedural dictates of KRS 304.39-070, we hold that its claim was not properly asserted, and the case should be dismissed.

We are mindful, however, of National’s argument that it never received notice regarding Wilkerson’s lawsuit, and further the challenge faced by subrogees in similar circumstances. However, KRS 304.39-070 did not entirely foreclose National’s ability to pursue its claim. The arbitration route was at all times available. And with regard to National’s argument that it is not a member of the Kentucky Insurance Arbitration Association, and therefore unable to bring an arbitration action, we consider that argument meritless. As required by KRS 304.39-290(2), “all basic reparation obligors shall be and remain members of the association as a condition of them authority to transact business in this Commonwealth.” As the record reveals, “the events which are the subject of this action occurred in Jefferson County, Kentucky,” and National is a self-insured corporation registered with the Kentucky Department of Insurance. Thus, National as a basic reparations obligor in this state, was required to register under KRS 304.39-290(2). By neglecting to become a member of the Kentucky Insurance Arbitration Association, National defied the law of this Commonwealth. As a result, we hold that it may not now cry foul because it is precluded from an avenue of recovery as a result of its own inaction.

2. KRS 304.39-050

Having determined that National’s claim may no longer be pursued under KRS 304.39-070 due to its failure to comply with the mandates of that statute, we next turn to whether National may pursue its claim via KRS 304.39-050 and conclude that it cannot.

A perusal of KRS 304.39-050 reveals that the Legislature simply did not provide vehicle insurers with the ability to recover BRB under this subsection. The plain language of KRS 304.39-050 provides,

The basic reparation insurance applicable to bodily injury to which this subtitle applies is the security covering the vehicle occupied by the injured person at the time of the accident.... If the reparation obligor providing such insurance fails to make payment for loss within thirty (30) days after receipt of reasonable proof of the fact and the amount of loss sustained, the injured person shall be entitled to payment under any contract of basic reparation insurance under which he is a basic reparation insured and the insurer making such payments shall be entitled to full reimbursement from the reparation obligor providing the security covering the vehicle, (emphasis added).

Per the plain language of the statute, KRS 304.39-050 only permits the secondary insurer to employ KRS 304.39-050 to recover BRB from the security covering the vehicle (vehicle insurer). That scenario, however, is in stark contrast to the case sub judice. Here, National provided the security covering the vehicle and now seeks reimbursement for BRB from a secondary insurer, Progressive. This statute simply does not provide for such an action and no reading of this subsection supports the proposition that the insurer of the vehicle has a separate and independent right to bring the action to recover fees that is has paid to an injured party.

National’s reliance on Affiliated, 641 S.W.2d 49, for the opposite proposition is misplaced. In Affiliated, the Court of Appeals addressed whether the procedural mandates of KRS 304.39-070 (to join in an existing action or to arbitrate) applied to a subrogation action brought pursuant to KRS 304.39-050. In distinguishing KRS 304.39-050 from KRS 304.39-070, the court aptly held,

KRS 304.39-050 sets forth a remedy as well as a right. We do not construe the statute [KRS 304.39-050] as limiting a reparation obligor’s right to full reimbursement to situations in which it has either intervened or submitted its claim to arbitration under the guidelines set forth in KRS 304.39-070(3). Intervention may be impossible if — as is the instant case — no separate action has been filed. And, if the insurer were required to submit its claim for reimbursement to the arbitration procedures set forth in KRS 304.39-070(3), it would not obtain full reimbursement given the minimum deductible requirement set forth in KRS 304.39-290. Accordingly, the trial court acted correctly in ruling that the appel-lee’s claim was not barred by the provisions of KRS 304.39-070(3). Cf. Riverside Insurance Co. v. McDowell, Ky. App., 576 S.W.2d 268 (1979).

641 S.W.2d at 51. However, the facts before us are quite different than those faced in Affiliated. In this case, National, the primary obligor argues its right to subrogation under the auspices of KRS 304.39-050. Affiliated., on the other hand, addressed whether a secondary insurer who asserts a claim under KRS 304.39-050 is required to submit to the procedural requirements of KRS 304.39-070. Id. As stated above, KRS 304.39-050 provides that opportunity to a secondary insurer against a primary insurer, not vice versa.

We do, however, agree with Affiliated’s proposition that KRS 304.39-050 creates a separate and independent right outside the procedural mandates of KRS 304.39-070. Furthermore, we agree that KRS 304.39-050 is not confined by the procedural dictates of KRS 304.39-070, i.e., to arbitrate or join in an existing action. However, we do not agree with the Court of Appeals in this case that Affiliated supports the proposition that a vehicle insurer may employ KRS 304.39-050 to assert a subrogation claim. A close reading of Affiliated reveals that the question of whether the vehicle insurer may institute a subrogation claim via KRS 304.39-050 was simply not at issue in that ease. Rather, that court answered whether the procedural mandates in KRS 304.39-070 should be included in an action brought by a secondary insurer seeking reimbursement from the vehicle insurer via KRS 304.39-050. Here, the Court of Appeals erred in interpreting Affiliated as holding otherwise.

III. Conclusion

For the foregoing reasons, the Court of Appeals is reversed and this case is remanded to the Jefferson Circuit Court with instruction to enter summary judgment in favor of Progressive.

All sitting. All concur.

      . National is a self-insured rental car company-

      . KRS 304.39-070 provides in pertinent part: A reparation obligor shall have the right to recover basic reparation benefits paid to or for the benefit of a person suffering the injury from the reparation obligor of a secured person as provided in this subsection, except as provided in KRS 304.39-140(3). The reparation obligor shall elect to assert its claim (i) by joining as a party in an action that may be commenced by the person suffering the injury, or (ii) to reimbursement, pursuant to KRS 304.39-030, sixty (60) days after said claim has been presented to the reparation obligor of secured persons. The right to recover basic reparation benefits paid under (ii) shall be limited to those instances established as applicable by the Kentucky Insurance Arbitration Association as provided in KRS 304.39-290.

      .KRS 304.39-050 provides, in pertinent part:
      The basic reparation insurance applicable to bodily injury to which this subtitle applies is the security covering the vehicle occupied by the injured person at the time of the accident or, if the injured person is a pedestrian, the security covering the vehicle which struck such pedestrian, if the reparation obligor providing such insurance fails to make payment for loss within thirty (30) days after receipt of reasonable proof of the fact and the amount of loss sustained, the injured person shall be entitled to payment under any contract of basic reparation insurance under which he is a basic reparation insured and the insurer making such payments shall be entitled to full reimbursement from the reparation obligor providing the security covering the vehicle, (emphasis added)

      . The trial court cited no authority in its decision.

      . See KRS 304.39-030.


author: /s/ John D. Minton, Jr. Chief Justice

text:
    KENTUCKY BAR ASSOCIATION, Movant, v. James E. ISENBERG, Respondent.
    No. 2010-SC-000691-KB.
    Supreme Court of Kentucky.
    Jan. 20, 2011.
   OPINION AND ORDER

The Board of Governors of the Kentucky Bar Association (KBA) has recommended that James E. Isenberg (KBA Member No. 35270), who was admitted to the practice of law in 1976 and whose bar roster address is 429 W. Muhammad Ali Blvd., Suite 404, Louisville, KY 40202, be suspended from the practice of law for five years. We adopt the Board’s recommendation.

The Board heard oral argument on this ease following Isenberg’s filing of a Notice of Appeal and the KBA’s filing a Notice of Cross-Appeal from the Trial Commissioner’s Report and Recommendation. The Board voted unanimously to recommend finding Isenberg guilty of violating Kentucky Rules of Supreme Court (SCR) 3.130(1.4)(a), SCR 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR 3.130(8.3)(c) (now SCR 3.130(8.4)(c)). The Board also stated that “[t]he consensus of the Board’s voting members acceptfs] the Trial Commissioner’s finding that Isenberg carried his burden in establishing a causal connection between his mental illness and his unethical conduct, such that his mental illness can be considered a mitigating factor.”

The Board noted that the Trial Commissioner had recommended a three-year suspension from the practice of law with conditions, but twelve Board members voted for a five-year suspension “with the additional requirement that Isenberg submit to permanent monitoring by KYLAP [Kentucky Lawyers’ Assistance Program] of Is-enberg’s continued successful treatment and compliance with his medication and therapy” and payment of costs. Four other Board members cast votes for permanent disbarment and payment of costs.

Isenberg has not challenged the Board’s Findings of Fact, Conclusions of Law, and Recommendations. So we find Isenberg guilty of the aforementioned violations and order that he be sanctioned in the manner recommended by a majority of the voting Board members, and we further adopt verbatim the Board’s Findings of Fact and Conclusions of Law as follows:

FINDINGS OF FACT
Isenberg was admitted to the practice of law in Kentucky on May 1, 1976. Initially, he began working in the Louisville law firm in which his father was a partner, but left this firm in 2000. Thereafter, he practiced law in “office sharing” arrangements with other attorneys in Louisville. In approximately March, 2005, Isenberg began representing Mr. Randy Finley in a Workers Compensation claim: in July, 2006, a settlement agreement was entered for a lump sum payment of $20,394.20. The Workers Compensation carrier, Zurich, issued its settlement check which Isen-berg received; Isenberg then sent the settlement check to Finley with a cover letter dated August 3, 2006, asking Finley to endorse and return the check to Isenberg. On August 11, 2006, Isenberg deposited the entire settlement check in an account with BB&T styled “James E. Isenberg, 6710 Foxcroft Rd., Prospect, KY 40059-9420.” This account is neither a trust nor escrow account.
At this point, Isenberg made a series of misrepresentations to Finley, who never received his share of the settlement. Isenberg initially told Finley it would take ten days to two weeks for the settlement check to “clear.” After two weeks, Isenberg told Finley that the payment on the check was stopped by the carrier, and they would have to sue to recover the funds. On March 21, 2007, Isenberg wrote to Finley and asked Finley to sign an affidavit so Isen-berg could “... present it to the Kentucky Bar Association in order to get their approval to pay you the monies due to you under the settlement agreement, and I will then file suit against the insurance carrier to recovery [sic] my money.” Ultimately, in December, 2007, Finley contacted Zurich and learned that no stop payment order was ever issued on the check, and the check had cleared in August, 2006. Finley contacted Isenberg by telephone in December, 2007, and confronted him with this information: the call was disconnected, and Finley’s subsequent attempts to contact Isenberg were unsuccessful. On December 28, 2007, Finley prepared a Complaint against Isenberg, which was filed with the KBA on January 7, 2008.
In January, 2008, Isenberg was taken to University of Louisville Hospital for psychiatric care and treatment; he was transferred to Wellspring, Crisis Stabilization Unit, where he was admitted on January 25, 2008 and discharged on February 4, 2008 for inpatient treatment. While Isenberg received counseling and treatment periodically for a number of years for anxiety and depression, in 2008 his initial diagnosis was • major depressive disorder, moderate-severe. Outpatient treatment and counseling on an ongoing basis was pursued at Bridgehaven, an affiliate of Seven Counties Services, Inc. Gloria Everidge, LCSW, at Bridgehaven, counseled Isen-berg on an outpatient basis and confirmed, by letter dated March 27, 2008, to the Louisville Bar Association, and in testimony given by deposition on February 24, 2010, that Isenberg’s true diagnosis is bipolar disorder, also known as manic-depressive illness. Patients in a manic stage have inflated feelings of power, greatness, or importance and will do reckless things without concern about the consequences. Other features of the manic phase include poor judgment, reckless behavior such as spending sprees, and a denial that anything is wrong. At the hearing before the Trial Commissioner, Isenberg testified that, when he took Finley’s settlement proceeds, Isenberg knew “what I was doing was wrong, but at the time I did not care.” Ms. Everidge confirmed this behavior was consistent with the manic phase of bipolar disorder.
From the time of his hospitalization in 2008 through the present time, Isenberg voluntarily ceased practicing law. On March 28, 2008, on behalf of Isenberg, attorney Stuart Pearlman sent Finley a cashier’s check in the amount of [approximately $18,000] representing gross settlement of $20,394.20 less $4,078.84 (attorney’s fee approved by Workers Compensation Board) plus 8% interest thereon from August 17, 2006 through March 31, 2008. This payment was made unconditionally, and was provided by Isenberg’s longtime friend, Joseph Fadell.
With his diagnosis of bipolar disorder, Isenberg received new medication, Seroquel, (an antipsychotic) and has pursued regular, ongoing outpatient cognitive therapy. Ramona Johnson, president and CEO of Bridgehaven Mental Health Services, testified to Is-enberg’s progress and assumption of responsibility and accountability for his recovery and moving on with his life. He has worked as a substitute teacher since January, 2009. Ms. Everidge testified that Isenberg’s illness is currently well managed and does not present a threat so long a[s] he remains compliant with medication and support treatment. She verified that Isenberg will need continued monitoring support for his bipolar condition forever, and that he will have to manage his illness carefully to limit his practice of law to fields that are not stressful.
Throughout these proceedings, from his answer to the charge, his testimony at the hearing before the Trial Commissioner, and in briefs on appeal, Isenberg has never denied the facts giving rise to his unethical conduct. Isenberg has explained that his actions resulted from his undiagnosed and untreated bipolar disorder.
CONCLUSIONS OF LAW
On December 18, 2008, the Inquiry Commission issued a Charge containing four counts charging violations of the following KRPC [Kentucky Rules of Professional Conduct]:

• Count I: SCR 3.130-1.4(a) — failing to keep Finley informed about the status of his Workers Compensation claim and failing to promptly respond to Finley’s numerous requests for information about his claim;

• Count II: SCR 3.130-1.15(a) — depositing Finley’s settlement proceeds into Isenberg’s general account and failing to deposit these funds into an escrow or trust account;

• Count III: SCR 3.130-1.15(b) — failing to promptly [deliver] Finley’s portion of the settlement proceeds which Finley was entitled to receive;

• Count IV: SCR 3.130-8.3(c) — engaging in dishonesty, fraud, deceit, or misrepresentation by misleading Finley with respect to the status of his settlement proceeds, claiming that Zurich stopped payment thereon, and by failing to provide the settlement proceeds to Finley in a timely manner.

The Trial Commissioner accurately assessed this as a “particularly difficult case” with respect to discipline. Likewise, the consensus of the voting members agrees that the case of KBA v. Steiner, 157 S.W.3d 209 (Ky.2005), provides the framework for analyzing appropriate discipline in the context of mental illness. Appealing from the Trial Commissioner’s report, Isenberg advocates a one-year suspension, while the KBA advocates permanent disbarment. The consensus of the Board’s voting members accept the Trial Commissioner’s finding that Isenberg carried his burden in establishing a causal connection between his mental illness and his unethical conduct, such that his mental illness can be considered a mitigating factor. Unlike Steiner, who committed over 100 instances of theft from clients over a 6-year period, Isenberg has no record of prior discipline. While the Trial Commissioner recommended a three-year suspension from the practice of law, together with fulfillment of additional conditions, the voting members of the Board of Governors recommend discipline as follows:
[12 votes for five-year suspension with permanent KYLAP monitoring and payment of costs; 4 votes for permanent disbarment and payment of costs].

Neither Isenberg nor Bar Counsel has filed a notice of review under SCR 3.370(8), nor do we independently elect to review the decision of the Board under SCR 3.370(9), meaning that the decision of the Board is hereby adopted under SCR 3.370(10).

Accordingly, the Court ORDERS:

1) James E. Isenberg is guilty of violating SCR 3.130(1.4)(a), SCR 3.130(1.15)(a), SCR 3.130(1.15)(b), and SCR 3.130(8.3)(c) (now SCR 3.130(8.4)(c)), for which he is suspended from the practice of law for five years from the date of this Opinion and Order;

2) During this suspension, Isenberg must submit to monitoring by the Kentucky Lawyers Assistance Program;

3) Isenberg must notify all courts and clients of his suspension in accordance with SCR 3.390. Those notifications must be made by letter placed in the United States mail within ten days from the date of entry of this Opinion and Order. Isenberg must also simultaneously provide a copy of all notification letters to the Director of the Kentucky Bar Association. Also, to the extent possible, Isenberg must cancel and cease any advertising activities in which he is engaged; AND

4) In accordance with SCR 3.450, Isen-berg is directed to pay all costs associated with these disciplinary proceedings, the sum of $2,335.13, for which execution may issue from this Court upon finality of this Opinion and Order.

. All sitting. All concur.

ENTERED: January 20, 2011.

/s/ John D. Minton, Jr.

Chief Justice

      . Sixteen members of the Board participated in hearing this case.

      2. The prohibition against engaging in dishonest)', fraud, deceit, or misrepresentation is now contained in SCR 3.130(8.4)(c). Currently, SCR 3.130(8.3)(c) pertains to reporting other attorneys' professional misconduct.

      3. Footnote omitted.


author: CLAYTON, Judge:

text:
    Allison JONES, Appellant, v. Matthew Jones HAMMOND, Appellee.
    No. 2009-CA-000546-MR.
    Court of Appeals of Kentucky.
    Aug. 20, 2010.
    Rehearing Denied Nov. 17, 2010.

      John H. Helmers, Jr., Troy DeMuth, Louisville, KY, for Appellant.
    Patricia Van Houten, Louisville, KY, for Appellee.
    Before TAYLOR, Chief Judge; CLAYTON and THOMPSON, Judges.
   OPINION

CLAYTON, Judge:

Allison Jones (formerly Hammond) appeals from an order of the Jefferson Family Court entered on October 1, 2008, which terminated Matthew Jones Hammond’s child support obligation. For the reasons stated below, we affirm in part, reverse in part, and remand.

Jones and Hammond were married on September 11, 1999, and divorced on March 28, 2006. While married, they had two children, Christopher (d.o.b. 11/21/2000) and Catherine (d.o.b. 10/11/2003). On April 5, 2006, the family court entered an order in which Hammond agreed to pay Jones $872.90 per month or $203.00 per week in child support.

In March 2008, Hammond filed a motion to terminate his child support obligation based on any or all of the following reasons: the independent financial resources of the children, the parenting schedule, and Jones’s financial resources. Further, he also requested that the court impute income to Jones. After Hammond had filed this motion, Jones then filed a motion requesting an increase in child support.

The family court held a hearing on September 3, 2008. At the hearing, Hammond testified that he was employed as director of the Mechanical Contractors Association of Kentucky. His annual salary at the time he filed the motion to reduce or terminate child support was approximately $67,000. Since then, he had received a raise in salary and now has an annual salary of approximately $73,892.

Jones is a clinical psychologist with a doctorate degree. At the time of the marriage, she was working and continued working until 2001. Initially, Jones stopped working because of the birth of her first child. At the time of the dissolution Jones was and remains a stay-at-home mom. Because of medical problems associated with that birth, Jones had to have a complete hysterectomy in 2007. As a result of this surgery, the doctors advised Jones to never lift over ten pounds.

In addition, according to Jones’s testimony, she suffers from many medical problems including gastroparesis, interstitial cystitis, restless leg syndrome, and scoliosis. Based on these medical conditions, Jones has had multiple invasive procedures and takes regular prescriptions. The symptoms of the gastroparesis include frequent vomiting, diarrhea, constant nausea, plus frequent urination and bladder complications. Jones supplemented the record with copies of her medical records and documentation of her illness and a list of eighteen prescribed drugs. One drug requires administration through bladder catheterization.

Based on the debilitating nature of the symptoms, Jones contends that these medical problems prevent her from being employed. Moreover, because of her illness and the possibility that she may never work again, Jones applied for social security disability. Her initial claim was denied but she is appealing the decision.

Despite her inability to procure employment, Jones has income, which derives from family gifts and trusts. In 2007 and 2008, she received $24,000 in gift income from her parents and grandmother. In addition, her 2007 tax return shows that besides the gift income, she reported taxable interest of $12,488, ordinary dividends of $4,493, and capital gains of $2,076. When these amounts are added to her gift income, Jones’s gross income appears to be at least $43,057 for 2007.

Furthermore, the children have also received distributions from trust accounts as well as ordinary gifts from relatives. Jones’s uncontested testimony was that the trust income is used for the children’s private school tuition and ancillary expenses like books and school fees. And she testified that any additional income from these sources is reinvested and added to the principal of the respective funds. Jones stated that the income from the children’s trust funds is never spent privately on her behalf.

Regarding Hammond’s testimony maintaining that he had parenting time with the children every weekend during 2007, Jones testified that, according to her written notes, she had the children on several weekends during that year. Contrary to Hammond’s assertion about his parenting time, in which he claimed that he had the children forty-three percent (43%) of the time, her compilation of the parenting time showed that she had the children sixty-four percent (64%) of the time and Hammond had them thirty-six percent (36%) of the time.

On October 1, 2008, the family court terminated Hammond’s child support obligation and overruled Jones’s motion for an increase in child support. The family court made several findings in this order including that Jones had not met the burden of proof to show that she was disabled, that the children had significant independent financial resources, that Hammond had physical custody of the children forty-three percent (43%) of the time, that Jones had significant financial resources, and that Jones was voluntarily unemployed. Based on its findings, the family court’s order terminated any child support obligation for Hammond.

Subsequently, Jones and Hammond filed motions to alter, amend or vacate the decision or in the alternative to make additional findings based on the record. In the October 3, 2008 motion, Jones stated that the order to terminate child support was a violation of Kentucky common law and public policy. Furthermore, she maintained that the findings are inconsistent with the facts of record from the hearing. Jones appeals from both the October 1, 2008 and the March 13, 2009 orders.

Within statutory parameters, the establishment, modification, and enforcement of child support obligations are left to the sound discretion of the trial court. Van Meter v. Smith, 14 S.W.3d 569 (Ky.App.2000). However, this discretion is not unlimited. Keplinger v. Keplinger, 839 S.W.2d 566 (Ky.App.1992). It must be fair, reasonable, and supported by sound legal principles. Downing v. Downing, 45 S.W.3d 449 (Ky.App.2001).

For the purposes of the standard of review, in reviewing family court cases, we acknowledge that a family court judge has extremely broad discretion in ascertaining the reliability of the evidence presented. Moreover, a reviewing Court is not permitted to substitute its judgment for that of the family court unless its findings are clearly erroneous. Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.2002). Factual findings are not clearly erroneous if they are supported by substantial evidence. Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky.1964). “The test for substantiality of evidence is whether when taken alone, or in the light of all the evidence, it has sufficient probative value to induce conviction in the minds of reasonable men.” Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky.App.1999). Furthermore, due regard shall be given to the family court judge’s opportunity to judge the credibility of the witnesses. Kentucky Rules of Civil Procedure (CR) 52.01. Lastly, we review questions of law de novo. Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743 (Ky.App.2003). Keeping these standards in mind, we turn our attention to the case herein.

The issues on appeal are whether it is appropriate to terminate the child support of a non-custodial parent (as designated in the child support formula), whether the evidence was sufficient to impute income based on unemployment, and whether the facts of this case allow for deviation from the child support guidelines. Jones argues that the trial court erred when it determined that she was voluntarily unemployed, when it decided that the trust income and the percentage of parenting time allowed it to deviate from the child support guidelines, when it considered gifts from the grandparents as assets or income for Jones and the children, and when it terminated Hammond’s child support obligation.

Hammond counters that the trial court had ample reason to determine that Jones failed to meet her burden of proof to establish her disability, that the family court correctly imputed income to Jones, and that the children’s independent financial resources and the timesharing arrangement properly allowed for a deviation from the child support guidelines.

Under Kentucky Revised Statutes (KRS) 403.213(1), “[t]he provisions of any decree respecting child support may be modified ... only upon a showing of a material change in circumstances that is substantial and continuing.” The statute later describes “material change” as an “[ajpplication of the Kentucky child support guidelines to the circumstances of the parties at the time of the filing of a motion or petition for modification of the child support order which results in equal to or greater than a fifteen percent (15%) change in the amount of support due per month[.]” KRS 403.213(2). Significantly, neither the family court nor Hammond ever addressed, in particular, the change in circumstance which allowed for a modification, that is, a termination of Hammond’s child support obligation. Since the entry of the 2006 agreed order concerning child support, Hammond still has the same job, Jones is still unemployed, and the parenting schedule is still the same.

Looking at the evidence presented and the family court’s order, we surmise that the only possible “material” change in circumstances might be the $30,000 in annual income imputed to Jones. But, even if the Court uses the family court computation for child support, which includes the aforementioned income imputed to Jones, Hammond’s statutory child support obligation is then presumptively $778.54. The difference between original monthly child support obligation of $872.90 and $778.54 does not, pursuant to KRS 403.213(2), result in a fifteen percent change in the child support obligation, and therefore, is not re-buttably presumed to be substantial change in circumstance. Thus, the family court, without deviation from the guidelines, did not meet the statutory definition for a material change in circumstances. Thus, the family court must find, in writing, statutory factors allowing for a deviation from the guidelines to modify child support.

Before moving on to address the family court’s holding that allowed for a deviation from the child support guidelines, we will examine the issue of voluntary unemployment or underemployment. KRS 403.212(2)(d) states:

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 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 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.

First, we note that Jones has been unemployed for a significant period of time, including during her marriage. During the marriage and after the birth of the children, she cared for them full-time. Apparently, this decision was a mutual decision by the then married couple. Additionally, Hammond was aware of her medical problems. So, we must address whether Jones is voluntarily unemployed. Jones established by testimony, written and spoken, and by medical records, that she suffers from several illnesses that cause vomiting, diarrhea, nausea, and frequent urination. Management of these illness has required eight surgeries, with more likely, and numerous medical prescriptions.

In contrast, we observe that Jones is a clinical psychologist, which is not a physically demanding occupation. Testimony was also given that prior to the birth of her first child in 2001, she worked for the social security administration doing evaluations, for which she earned roughly $20,000.00 per year. Moreover, at that time, Jones was also performing child custody evaluations, for which she earned about $200.00 to $300.00 per month. At the hearing, she testified that she had worked since she was fifteen years old at a variety of jobs. Finally, we note that, notwithstanding her medical problems, Jones was able to participate in the court proceedings.

It has long been the law in Kentucky that the family court has broad discretion in determining the appropriate amount of child support owed by a parent. Accordingly, an appellate court will not disturb its findings unless the family court abused its discretion. An abuse of discretion has occurred if the family court’s “decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” Downing v. Downing, 45 S.W.3d 449, 454 (Ky.App.2001) (footnote omitted).

Here, we deem that the family court’s decision was not “arbitrary, unreasonable, unfair, or unsupported by sound legal principles,” and hence, it did not abuse its discretion by finding that Jones is voluntarily unemployed. Although, Jones’s application for security disability may be considered a piece of the analysis, it is not dispositive on this issue. While the Court acknowledges the difficulties encountered by Jones with regard to her medical problems, we do not believe that she provided sufficient evidence that she is completely unable to work in her profession. Regardless, the family court has the discretion to weigh the testimony and make that decision.

Next, we will consider the family court’s findings that based on KRS 408.21l(3)(d) and (g), grounds existed for the family court to deviate from the child support guidelines because application of the guidelines would have been “unjust or inappropriate.” The family court based its decision on the disparity in available resources between the parties, the independent financial resources of the parties’ children, and the timesharing arrangement.

The statutory scheme allowing for deviation from the child support guidelines is found in KRS 403.211, which provides, in part:

(3) A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case shall be sufficient to rebut the presumption and allow for an appropriate adjustment of the guideline award if based upon one (1) or more of the following criteria:
(d) The independent financial resources, if any, of the child or children;
(g) Any similar factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.

To begin with, we will discuss the independent financial resources of the children. KRS 403.211(d). The family court explained in its findings of fact that the evidence showed that the children had independent financial resources. The family court referred to the fact that in both 2007 and 2008, the children had received gift income from Jones’s relatives. At the hearing, this information was explicated in Respondent’s Exhibit 8, which was entered into the record. The document is entitled “Documentation of Allison Jones’s, Christopher Hammond’s and Catherine Hammond’s Gift Income for 2008.” The document shows that each child received $12,000 from Jones’s parents and $12,000 from Jones’s grandmother in 2007 and 2008. Jones testified at the hearing, however, that the children would no longer be receiving gift income from her parents due to the effect of the economy on their assets. Flowing from the children’s trust funds, was interest income, which in 2007 was $7,447.00. Jones explained that the children’s trust funds were used for educational and school-related expenses. And contributions from any source were always re-invested in the trust fund principal of each child’s respective trust fund. Yet, she confirmed that the trust funds had been used to pay for summer activities and nanny services.

In analyzing the children’s independent resources, it appears to us that the family court did not address the fact that the primary use of the children’s income from the trust fund was to pay for the tuition at a private school. Further, Hammond never contradicted the use of the funds for education or objected to its use for the children’s education. In fact, Hammond testified at the hearing that he made a donation to the children’s school funds, which indicates some approval as to the children’s school.

In addition, while we recognize that statutory authority does allow for courts to deviate from the guidelines based on the independent resources of a child or children, we have reservations about whether the legislature so intended such deviation in a case where the children’s joint annual income for the year discussed, 2007, was $7,447.00 and used primarily for educational purposes. Hammond cites to Rainwater v. Williams, 930 S.W.2d 896(sic) [405] (Ky.App.1996), wherein our Court determined that a court may deviate from the guidelines where application would be “unjust or inappropriate.” But we see a considerable difference between the facts of Rainwater and the situation here. In Rainwater, the child received a structured settlement, to be paid through his mother, the legal guardian, which amounted to the cumulative sum of $13,381,000.00. Further, the parents’ income was such that his father (Rainwater) earned $1,800.00 per month and the child’s mother was- unemployed. Thus, not only were the child’s independent resources extremely large, but also the child’s parents had limited resources. Finally, we observe that the Court’s holding therein did not terminate a child support obligation but only remanded it for a determination of child support outside the guidelines after a consideration of the child’s independent resources.

Clearly, a decision on whether to deviate from the guidelines is within the trial court’s discretion. Redmion v. Red-man, 823 S.W.2d 463 (Ky.App.1992). Furthermore, according to KRS 403.211, the family court is allowed to deviate from the table amount of child support when it finds that “application of the guidelines would be unjust or inappropriate[.]” Specifically, KRS 403.211(3)(d) provides that the financial resources of the child can be considered in deviating from the guidelines. In this case, we do not find that the family court abused its discretion in determining that the children’s independent financial resources permit a deviation from the child support guidelines.

But, we also note that, in taking into account the children’s independent income, the family court must adjust each parent’s child support obligation. As Justice Noble explained in her concurrence in result only in Artrip v. Noe, 311 S.W.3d 229, 235 (Ky.2010):

The trial court is allowed to deviate from the table amount of child support when it finds that “application of the guidelines would be unjust or inappropriate,” KRS 403.211(3), or when the adjusted parental gross income exceeds “the uppermost levels of the guideline table.” KRS 403.212(5). It is the total amount of support (table amount) from which the court can deviate, not the individual support obligation of one parent.
In application, this means that if the table amount for child support is $600 from both parents, the trial court can consider the child’s independent income to reduce the table amount to $500, for example, if that would be just and appropriate. Then each parent would still pay his or her proportionate share of that amount based on his or her share of the combined gross parental income. In this manner, the court can make an equitable reduction that relieves both parents of some amount of table support which is offset by the children’s independent income to some degree.

In essence, the family court must deviate from the child support guidelines by adjusting each parent’s child support obligation.

In addition to the children’s trust and gift income, the family court discussed other resources that Jones and they received. Jones had a credit card in her mother’s name for which she was allowed to make purchases of clothing for the children. Jones described these purchases as “grandmother gifts,” and said that she was limited in the use of the credit card to $500 or less per year. And, since the divorce, Jones’s family has paid for travel and some of the children’s medical expenses, which were not covered by insurance. With regard to gifts from grandparents, we are not persuaded that such items were ever intended to be part of the child support calculus. Jones and her mother provided the billing records for the credit card, which revealed no unusual purchases. We are of the opinion that typical, normal, and expected gifts from grandparents do not abrogate a parent’s duty to provide for children.

Next, we discuss the family court’s holding that a second criteria justified deviation from the child support guidelines. As noted above, the family court also held that, under KRS 403.211(3)(g), which allows for deviation from the guidelines for “[a]ny similar factor of an extraordinary nature[,]” facts existed to support a deviation from the guidelines. Citing Downey v. Rogers, 847 S.W.2d 63 (Ky.App.1993), the family court reasoned that the amount of time that children reside with a parent may allow for deviation from the child support guidelines. The family court opined that whether to deviate is based on the actual sharing of expenses and relatively equal parenting time.

In Downey, this Court held that KRS 403.21l(3)(g) allows the trial court to consider the period of time the children reside with each parent in determining child support as a basis for deviating from the guidelines. Downey, 847 S.W.2d at 64-65. The Court, however, said that, while expenses for daily, necessary items are substantially reduced for the parent without possession of the children, many of these expenses continue throughout the month, regardless of where the children reside. Consequently, although the Court in Dow-ney allowed that the time spent with each parent could be used as a basis for deviation, it rejected the contention that no support should automatically be ordered where the parties have equal physical possession of the children. Id.

We agree with Jones that the family court failed to make sufficient findings to justify its deviation from the guidelines on this issue. The family court described the parenting schedule in detail. But, the court then inferred from this schedule that the parties have substantially equal parenting time. And the family court also suggested that because Hammond buys the children clothes to wear during his parenting time that a substantial shift of expenses between the parents occurred. The family court went on to say that such a shift had not been contemplated by the guidelines. It is our belief, however, that these findings, standing alone, are not sufficient to warrant such a significant deviation from the child support guidelines.

First, we observe that the child sharing arrangement is the same one established in 2006. The mediated agreement, which was entered on January 20, 2006, states as follows:

Custody and Parenting Time: The parties shall share the joint care, custody, and control of their infant children. The Respondent [Hammond] shall have parenting time with the children each weekend from Friday at 7:00 p.m. until Monday morning when he will deliver the children to school. The Respondent shall have the children every Tuesday, Wednesday, or Thursday evening, depending on his schedule. The Petitioner [Jones] shall have the children on all other days under the regular visitation schedule. The Respondent shall provide the Petitioner with a copy of his work schedule as soon as he receives it, so that the parties will have advance notice as to which weekends the Respondent will not be available to take the children .... The Petitioner shall be enti-tied to have four (4) weekends per year with the children....

Thus, other than Hammond having the children regularly on Wednesday evenings and a slight accommodation to the Friday pick-up time, no shift in timesharing has occurred. In fact, the timesharing is fairly traditional. Jones has the children Monday, after school, through Friday, after school. Hammond has them Friday afternoon/evening through Monday morning plus Wednesday evening for dinner. Furthermore, Jones disputes Hammond’s child sharing percentages and proffers that she had the children on some weekends.

We are somewhat perplexed by the family court’s conclusion that this parenting arrangement indicates a substantial shift in expenses not anticipated by the child support guidelines. The only expense enumerated is clothing, which does not indicate a significant shift in expenses. Thus, under the particular facts, we do not discern, from the record or the order, any “factor of an extraordinary nature specifically identified by the court which would make application of the guidelines inappropriate.” KRS 403.211(3)(g). And, even though we are cognizant of the court’s discretion in using the term “extraordinary,” we are unable to find any substantial evidence that an extraordinary factor existed. Hence, we find that the court erred in finding such a factor, which would allow for deviation from the child support guidelines under KRS 403.211(3)(g).

Parents not only have a universal duty to support and maintain their minor children, they also have a statutory duty to support them. KRS 405.020. Although KRS 403.212, the Kentucky child support guidelines, supersedes this statute when a parent or an agency seeks support from the other parent, the duty to support one’s child remains. Moreover, child support is a statutory duty intended to benefit the children, rather than the parents. Clay v. Clay, 707 S.W.2d 352 (Ky.App.1986).

Because parents have a duty to support their minor children, the family court’s decision to terminate all Hammond’s child support for his children is difficult to reconcile with public policy. This obligation is so sacrosanct that it may not be waived by contract between the parties. Whicker v. Whicker, 711 S.W.2d 857 (Ky.App.1986). We recognize that the family court has discretion with regard to the establishment and modification of child support, but such discretion must be exercised within the statutory parameters. Van Meter v. Smith, 14 S.W.3d 569 (Ky.App.2000). Therefore, it seems not only improper but also unfair in this situation to deviate from the child support guidelines by abolishing Hammond’s entire child support obligation. As our Court held in Plattner v. Plattner, 228 S.W.3d 577, 579 (Ky.App.2007), “[w]hile Kentucky’s child support guidelines do not contemplate such a shared custody arrangement, they do reflect the equal duty of both parents to contribute to the support of their children in proportion to their respective net incomes:”

The statutory guidelines offer sufficient flexibility to allow trial courts to fashion appropriate and just child support orders. While we recognize and commend the family court’s diligence in fashioning a considered opinion, we believe that this particular order, which terminated Hammond’s child support obligation completely, does not fall within the statutory parameters, which define the child support obligation. Under the unique circumstances of this case, we conclude that the trial court erred by eliminating any obligation by Hammond to pay child support to Jones.

Having concluded that the family court did not abuse its discretion in imputing income to Jones or in finding that the children’s independent financial resources permitted deviation from the child support guidelines, we affirm in part. Having concluded, however, that the family court erred in completely eliminating Hammond’s child support obligation, we reverse in part. And we remand to the family court so that it can calculate child support according to the child support guidelines with the imputation of income to Jones. Then, the family court shall use the children’s income to deviate from the guidelines per each parent’s proportionate child support responsibility. For the foregoing reasons, we affirm in part, reverse in part, and remand the judgment of the Jefferson Circuit Court for entry of an order consistent with this opinion.

ALL CONCUR.