NOT TO BE PUBLISHED

OPINION

ACREE, Chief Judge.

James Desmond appeals from two orders of the Oldham Family Court addressing certain financial issues concerning the parties' two minor children, and Deana "Rae" Desmond (now Smith) has filed a cross-appeal. We affirm in part and reverse in part.

I. Background

The parties married in 1996 and separated in 2007. Prior to dissolution, the parties seemingly were able to reach an agreement on all matters. The separation agreement, entered March 28, 2007, provided in relevant part that the parties would be joint custodians of the two children, but with Rae designated the primary residential parent; James would pay $1,200 in monthly child support; the parties would each pay half of the children's private school tuition;1 and Rae would claim both children as dependents for tax purposes, beginning in 2007.2 The family court incorporated the separation agreement in the decree.

Following a détente of roughly three years, the parties returned to the family court to relitigate custody of the children and various related issues. From 2010 to 2012, there were several rounds of motion practice, most of which were resolved by mediation. Ultimately, and just prior to the matters which are now on appeal, the parties had agreed to continue joint custody, but made James the primary residential parent. Though the children initially spent most of their time with James during this period, they were moving toward a more equal parenting schedule. On two occasions, James sought to reduce or eliminate his child support obligation, but the family court did not address modification until May of 2012. He also sought to enforce the portion of the separation agreement requiring the parties to each pay half of the children's tuition; he claimed Rae had failed to do so for several years.

We turn now to the matters which are directly before us on appeal. In January of 2012, James filed a motion for further mediation on certain parenting matters. Rae opposed the motion for more mediation, requesting instead that the parties be ordered to strictly abide by the most recent recommendations of the custodial evaluator. She also requested that James be ordered to advance $25,000 in attorney fees to litigate these matters. Over James's opposition, the family court ordered him to advance $6,000 of attorney fees to Rae's lawyer. A hearing was scheduled for May 2, 2012.

On April 23, 2012, James filed a motion whereby he requested a continuation of the May 2 hearing and requested additional relief. He requested that the family court permit him to claim the children as dependents for tax purposes, divide the cost of the children's summer activities and other expenditures, and enforce the provision of the marital separation agreement which requires Rae to pay one-half of the children's private school tuition. In this motion, James also demanded that the family court rule on his previous requests for child support, dated October 12, 2012, and February 23, 2011. He made no new motion for modification of child support, but "incorporate[d] by reference the statements from his two previous motions[.]" (Record at 342).

Shortly after the filing of James's motion, and despite not having filed a motion for modification of child support, Rae issued subpoenas to two financial professionals, seeking records of James's income. She claims the records were necessary for proper calculation of James's child support obligation. Having not received the desired response, Rae sought intervention from the family court.

The family court resolved the parties' various motions as follows:3 Rae would be permitted to receive certain of James's financial records; James was entitled to claim a tax exemption for both children for 2012 and 2013, but starting in 2014, each parent would claim one child for tax purposes; James was granted sole authority for making educational decisions regarding the children, but he also was ordered to bear sole responsibility for payment of their tuition; various costs associated with the children were divided between the parties; and James was ordered to pay $400 to Rae in monthly child support. The family court declined to find that either party was entitled to retroactive support and confirmed the award of attorney fees.

James appealed, and Rae cross-appealed. Additional facts will be recounted as necessary.

II. Discussion

The matters on appeal can be divided, broadly, into three categories: those concerning child support, those concerning purported modifications of the separation agreement, and the award of attorney fees.

a. Child support issues

Both parties contest the family court's rulings regarding child support obligations. Rae contends the order was prematurely entered because she did not have the opportunity to discover certain of James's income derived from his business in Indiana. More specifically, she claims James ordered his bookkeeper to disregard the subpoena duces tecum which would have produced evidence of additional income, thereby increasing his child support obligation; she therefore believes the award was an abuse of discretion. Rae asserts, moreover, that the family court never should have entered an order modifying James's obligation because he had filed no motion seeking such relief. James argues the family court abused its discretion in declining to award him child support for the period in which the children had resided primarily with him.4 He also asserts that the family court lacked authority to award child support to Rae because she had not filed a motion for modification.

An order modifying child support is reviewed for abuse of discretion. Artrip v. Noe, 311 S.W.3d 229, 232 (Ky. 2010).

The parties agree that in accordance with KRS5 403.213(1), a family court lacks authority to modify a preexisting order of child support if no party has made such a motion. ("The provisions of any decree respecting child support may be modified only as to installments accruing subsequent to the filing of the motion for modification[.]"); Holland v. Holland, 290 S.W.3d 671, 674 (Ky. App. 2009) (the filing of a written motion for modification is necessary before an award may be modified); see also Combs v. Daugherty, 170 S.W.3d 424, 426 (Ky. App. 2005) (absent filing of a motion to modify custody, the family court is without authority to compel discovery thereupon). The question whether a valid motion for modification of child support was before the family court may therefore be characterized as a threshold matter which must be answered before turning to the parties' substantive arguments concerning the propriety of the family court's award. If there was no motion to modify, the family court's modification was sua sponte and therefore entered in error. It is to that argument that we turn first.

James identifies two instances prior to his April 2012 motion in which he raised the argument that Rae should be paying him child support because the children's living arrangement had changed. The first was October 12, 2010, and the next was February 23, 2011. Rae claims he abandoned both of these motions; although James denies abandonment, he himself admits he did not actively pursue modification, stating, "For more than a year, [James] was willing to forego a hearing on child support, primarily because the parties were negotiating a variety of other issues that directly affected the welfare of the children." (Appellant's brief, p. 11).

The first of these motions was explicitly withdrawn. In an agreed order dated December 27, 2010, the family court found, "[James's] motion for temporary child support is remanded without prejudice, which means [he] can re-file at anytime [sic] he feels necessary to seek child support."6 (R. 104). The family court expressly declared that litigation of modification was concluded unless and until James filed a new motion. The matter was no longer before the family court.

James's second request for modification of child support was not explicitly withdrawn, but was nonetheless incapable of properly raising the matter before the family court in 2012. This motion was filed on February 23, 2011. Following a series of motions and hearings, the family court entered an order on June 17, 2011, resolving many of the issues raised by the parties, but not addressing James's request for modification.7 James did not request resolution of this matter, and indeed never again raised the question of modification at all, until April of 2012.8

When James finally did reassert the question of child support in April 2012, he did so in a perfunctory manner. The motion requested only a ruling on his previous motions for child support, the most recent of which had been filed more than a year earlier. He did not claim in the April 2012 motion that circumstances had changed which would justify modification as required by KRS 403.213. Because of James's inactivity over an extended period of time, neither Rae nor the family court was alerted to the fact that those issues remained outstanding prior to James's attempted renewal. Under these circumstances, we conclude that James waived his February 2011 motion by not pursuing it in a reasonable time. Commonwealth, Department of Highways v. Parker, 388 S.W.2d 366, 368 (Ky. 1965) (finding an issue waived because "the appellant failed to pursue its motion and did not obtain a ruling of the court.").

Therefore, prior to its May 2012 order, there was no motion before the family court which properly raised the matter of modification, and the court was not permitted to modify the existing order of child support. James's last-minute attempt at revival was insufficient to rescue the February 2011 motion from inactivity. Modification of child support in the absence of a proper motion for child support was an abuse of discretion.

We turn next to James's argument that the family court was not permitted to award child support to Rae effective July 1, 2012, because she had not submitted her own motion to modify child support. Rae does not dispute James's assertion that she filed no motion to modify child support.

We agree that the family court was not permitted to modify the existing child support order, but not for the reason James propounds. If James had filed a proper motion for modification, then the family court would have been permitted to modify its award in accordance with the statutory guidelines and in its discretion. KRS 403.213. This authorization includes the ability to award child support to the nonmoving party, if to do so is permitted by law. See id. In this instance, the family court was not permitted to alter Rae's award, not because Rae had not filed her own motion for modification, but because neither party had presented any such motion.

We reverse the family court's modification of child support.9 The remaining related issues, concerning calculation of the parties' respective incomes, the amount of child support, and the sufficiency of discovery, are moot.

b. Modification of the separation agreement

Rae and James both argue the family court impermissibly amended certain provisions of the separation agreement. James believes that in requiring him to pay all of the children's private school tuition, the family court erroneously disturbed the parties' agreement to split the cost equally.10 Rae takes no issue with the family court's tuition ruling, but maintains it erroneously amended the parties' agreement as to tax exemptions for the children.

But as James notes, the issue is not whether the family court permissibly altered the parties' separation agreement; because the agreement was incorporated into the decree of dissolution, its terms became part of a final order. See Burke v. Sexton, 814 S.W.2d 290 (Ky. App. 1991). With the exceptions of custody, visitation, child support, and maintenance, the provisions of a decree may not be altered absent certain extraordinary circumstances. CR 60.02;11 KRS 403.180; KRS 405.250(1). The proper mechanism for challenging the decree, as James argues, is CR 60.02.

Neither party filed a motion pursuant to CR 60.02. In their motions requesting modification of the decree, neither James nor Rae invoked CR 60.02 or offered any of the grounds enumerated therein as the basis of relief. The trial court is not permitted to grant CR 60.02 relief sua sponte. CR 60.02 (permitting relief from a final judgment only "[o]n motion"); Commonwealth v. Sharp, 2007 WL 3406912, *2 (Ky. App. 2007).

We reverse the family court's modification of those portions of the decree establishing payment of the children's tuition and allocation of the tax deduction.

c. Attorney fees

Rae has appealed the family court's award of $6,000 in attorney fees. She claims the amount is inadequate.

KRS 403.220 governs awards of attorney fees in matters of domestic relations:

In making such an award, the family court is required to consider only the parties' respective incomes. Poe v. Poe, 711 S.W.2d 849, 852 (Ky. App. 1986). The degree of acrimony involved in the litigation, however, may be a factor in determining a reasonable amount to award. Broida v. Broida, 388 S.W.2d 617, 622 (Ky. 1964). We are not permitted to disturb an award of attorney fees absent an abuse of discretion. Heltsley v. Frogge, 350 S.W.3d 807, 809-09 (Ky. App. 2011).

Rae contends the award of $6,000 was inadequate because she actually incurred more than $18,000 in attorney fees. We disagree. Rae earns roughly $42,000 per year; while James's income varies due to the nature of his work, he did not report earnings of less than $100,000 per year during the relevant period. Although the issues presented were vigorously contested, the litigation was no more acrimonious than most of its nature. Given these circumstances, it was not an abuse of discretion for the family court to require that James pay roughly one-third of the fees Rae actually incurred.

We affirm the award of attorney fees.

III. Conclusion

The family court erroneously entered an order modifying the parties' respective child support obligations because there was no valid motion before it. Likewise, the family court erroneously modified the decree of dissolution absent the filing of a CR 60.02 motion by either party. The award of attorney fees to Rae was, finally, not an abuse of discretion.

We affirm in part and reverse in part.

ALL CONCUR.