Divorce Law Journal

Stipp v. Charles, Ky COA, Venue, Division Of Marital Property, Amount Of Maintenance

STIPP V. CHARLES

TO BE PUBLISHED:  AFFIRMED

PANEL:  ACREE PRESIDING; NICKELL AND KNOPF CONCUR

COUNTY: JEFFERSON
DATE RENDERED: 7/2/2009

 

Ex-Husband appealed TC’s order finding that he waived his objection to improper venue and dividing marital assets and awarding maintenance, claiming error.   

 

FACTS:

 

The parties separated after 20 years of marriage.  They had one teenage child.  At the time of separation, the parties resided in Oldham County near the Jefferson County line.  The most Ex-Husband earned in one year was about $35,000, while Ex-Wife was earning $235,000 at the time of separation in addition to receiving bonuses, stocks, and stock options.  Ex-Husband did not work and provided primary care for the parties’ son for a period of time. 

 

Ex-Wife filed for divorce in Jefferson County.  Subsequently, she filed a domestic violence petition in Oldham County and an emergency protection order was entered.  Ex-Husband filed his response to the divorce petition in Jefferson County, noting that neither party resided in Jefferson County and that the proper venue was Oldham County; but rather than objecting to the venue, stated that he “reserves the right to ask [the] court to transfer [the] case to the Oldham Circuit Court.”  He then filed his mandatory case disclosure in Jefferson County. 

A case management conference was scheduled by the Jefferson family court and mediation was also scheduled.  Both parties also filed other motions with the Jefferson court, as well as an Agreed Order dismissing the Oldham County domestic violence order.  Only after these filings did Ex-Husband then file a motion requesting a transfer of the case from Jefferson County to Oldham County on grounds of improper venue. The Jefferson family court proceeded with the case management conference, finding the motion for transfer to be untimely and denied it on that basis.  After final hearing, the Jefferson family court awarded Ex-Wife 57% of the marital assets and 43% to Ex-Husband, awarded Ex-Husband maintenance of $2,000 per month for a period of six Years, and required Ex-Wife to continue providing health insurance coverage for Ex-Husband through COBRA for three years, which the court reduced to eighteen months in response to Ex-Wife’s motion to alter, amend or vacate, as this was the period of allowable coverage under Ex-Wife’s health insurance plan.

Ex-Husband then appealed.

 

ANALYSIS:

 

Venue.  At the time the case was filed, Oldham County was the proper venue. 

“Improper venue” is a defense, CR 12.02(c), which a party must assert, either in a responsive pleading or by motion, within 20 days after service

of the summons upon him/her.  If the defense is not so asserted, it is waived.   As Ex-Husband did not timely raise his objection under the Rules, he waived the objection. 

Furthermore, Ex-Husband availed himself of the Jefferson family court’s time and judicial resources by filing documents with the court and entry of Agreed Orders with that court.   Were the court to allow Ex-Husband’s “reservation” as an assertion of the improper venue defense beyond the time allotted by the Civil Rules, the court would enable a form of forum shopping, allowing a party to subjectively assess how the litigation is progressing before seeking a different venue. If Ex-Husband wanted the case transferred to another county after failing to object to improper venue in his responsive pleading, the legal basis of such a post-pleading motion was the doctrine of forum non conveniens. Even if Ex-Husband’s motion were viewed under this doctrine, the Jefferson family court did not err in denial of the motion, as it had already expended judicial resources in the case and the parties’ residence was far from inconvenient.

 

Distribution Of Marital Assets.  Ex-Husband also claims TC erred by failing to distribute the marital assets equally. CA found that, in determining the division, TC followed the statute and considered “all relevant factors,” including those listed in KRS 403.190(1)(a)-(d), and found no error. 

 

Award Of Maintenance.  Ex-Husband also contended TC abused its discretion by awarding him maintenance of only $2,000 per month for six years. He argued the

CA found that TC properly considered the nature of Ex-Wife’s financial resources, the standard of living established by the parties during the marriage, the duration of the marriage, and the ability of Ex-Husband to meet his own reasonable needs, and found no error.      

 

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

 

 

No Ky COA Family Law To Be Published Opinions July 10, 2009

One To Be Published COA Opinion Rendered Today

Stipp v. St. Charles, re venue, division of marital property, maintenance. Digest to follow.

Holland v. Holland, Motion Required Before Child Support May Be Modified

Holland v. Holland, __ S.W.3d __ (Ky. App. 2009), 2008-CA-002115-ME

       At the time the parties divorced in 2007, the father was living in Hardin County, Kentucky and the mother was living in Jefferson County, Kentucky.  The trial court entered an order outlining various contingencies regarding parenting time and child support.  If the father moved to Louisville within ninety days of entry of the court’s order, the parties would share equal parenting time and determine an appropriate child support obligation.  If the parties could not agree on child support within 30 days of his relocation, the father could file a motion for modification of child support.  When the father actually relocated to Louisville, the parties could not agree on child support.  A hearing was scheduled on the matter on December 4, 2007, but the father never filed a written motion for modification.  Following the hearing, the trial court entered an order requiring that the new parenting schedule begin on December 8, 2007.  Then the court entered an order in May 2008 reducing his child support obligation.  The father asked the trial court to make the reduction retroactive to December 8, 2007, the date the new parenting schedule began.  The trial court denied his request since no written motion for modification of child support had been filed.     

The COA affirmed.  No oral or written motion for modification of child support had been filed.  The mother cannot be divested of child support payments that have already been accrued.  Since a court speaks through its written orders, no child support modification occurred until May 2008.  Pursuant to KRS 403.213(1), a written motion for modification is required before a trial court may change a child support award. 

Digested by Sarah Jost  Nielsen, Diana L. Skaggs + Associates

Ky COA Decides Child Support Modification Case Today

Holland v. Holland, digest to follow.

Howard v. Howard, Ky COA, Child Support Modification, Discharge Of Debt In Bankruptcy

HOWARD V. HOWARD

CHILD SUPPORT MODIFICATION; DISCHARGE OF MARITAL DEBT IN BANKRUPTCY
TO BE PUBLISHED:  AFFIRMED

PANEL:  SENIOR JUDGE LAMBERT PRESIDING; CLAYTON AND THOMPSON CONCUR

COUNTY: LAUREL
DATE RENDERED: 6/12/2009

Dad appealed TC’s finding that he was voluntarily underemployed and corollary order denying his motion for modification of child support, as well as TC’s finding that Dad was in contempt for his failure to pay a deficiency judgment related to a marital debt. 

Motion for Modification of Child Support:  While parties’ divorce was pending, Dad quit federal job, claiming medical grounds, but TC found after trial that Dad was voluntarily underemployed and imputed income to him based on his prior earnings.  The following year, Dad filed his Motion for Modification of Child Support, claiming that his income had dropped to less than half that of his former employment.  TC reiterated its previous finding that Dad was voluntarily underemployed and held that he had presented no new evidence since the prior determination.

CA held that Dad failed to make a showing of a substantial and continuing material change in circumstance, as required by statute for child support modification, as the circumstance he presented to the court at the modification hearing was not materially different than that presented to the court at the trial. 

Finding of Contempt regarding failure to pay Debt:  The parties’ divorce decree provided that Dad was to pay a deficiency judgment arising from repossession of an automobile.  Dad subsequently sought bankruptcy protection, listing the automobile debt as an obligation.  At the modification hearing, Dad was held in contempt for failure to pay this debt.  Dad appealed the finding of contempt, claiming discharge in bankruptcy, in part because Mom did not object in bankruptcy court.  Mom argued that Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 precludes bankruptcy discharge of all marital and domestic relations obligations. 

After noting that state courts have concurrent jurisdiction with federal courts over whether a debt has been discharged, CA held that because the automobile debt was agreed to by the parties and imposed on Dad by decree, it was “in connection with a divorce decree” and was therefore non-dischargeable in bankruptcy.  Thus, TC used its power of contempt to enforce its orders, and did so without error. 

TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

One To Be Published Family Law Opinion Issued By Ky COA June 12, 2009

Howard v. Howard The issues presented here are whether the trial court was clearly erroneous in its determination that Appellant was voluntarily underemployed, thereby justifying the trial court’s refusal to modify its prior child support order; and whether the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 U.S.C. Sections 523(a)(5) and (15), precludes discharge in bankruptcy of Appellant’s obligation to pay for the Dodge Durango automobile as required by the court’s final decree. Digest to follow.

Kessler v. Switzer, Ky COA, No Hearing Required For Extension of DVO

Kessler v. Switzer, __ S.W.3d __ (Ky. App. 2009); 2008-CA-002083-ME

Switzer filed a motion to extend a domestic violence order (DVO) and attached an affidavit stating that she had filed charges against Kessler for violation of the DVO and that she was still in fear of Kessler. When the matter came before the court, Switzer’s counsel informed the court that the charges had been dismissed. Kessler objected to the court ordering the extension without holding a hearing in which Switzer could testify and be cross-examined. He also objected to the extension on the grounds that there was no legal standard for granting such extensions. The trial court granted the extension and this appeal followed.

The COA affirmed. The statute does not require that a hearing be held or that evidence of additional acts of domestic violence be presented in order for the court to grant an extension of a DVO. The trial court properly considered the facts and circumstances of the case. COA also found that Kessler waived his constitutional claims since he failed to follow the proper procedure pursuant to KRS 418.075.

Judge Caperton’s dissent: The trial court should not have accepted the allegations made in Switzer’s affidavit without the test of cross-examination.

Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Lichtenstein v. Barbanel, Child Support Enforcement

Since the Kentucky Supreme Court has accepted discretionary review, here is a digest of the Court of Appeals Opinion:

LICHTENSTEIN V. BARBANEL CHILD SUPPORT ENFORCEMENT 2007-CA-000509 NOT TO BE PUBLISHED: AFFIRMED PANEL: VANMETER PRESIDING; CLAYTON AND SPECIAL JUDGE KNOPF CONCUR COUNTY: JEFFERSON DATE RENDERED: 8/15/2008

Dad appealed TC’s entry of two income withholding orders, primarily arguing that TC had not resolved child support issue prior to entry of the Orders.

FACTS: When Mom and Dad initially separated, Mom had custody of kids and Dad was under order to pay child support. Six years later, Dad was ordered to pay Mom almost $180,000 in child support arrearages, temporary maintenance, property division payments, medical expenses and insurance arrearages, marital debt and attorney fees (these expenses were itemized by TC.) Around the same time, Dad received custody of kids. He was no longer obligated to pay child support to Mom. Mom’s obligation to pay child support to him was reserved, but the parties agreed that the amount she owed would be offset against his arrearages, though he was still required to pay the arrearages. Six and a half years after that, Mom filed a motion for contempt against Dad for his failure to pay his arrearages. Kids were no longer minors at this time. Dad only then asked TC to establish the child support Mom owed to him while kids had lived with him. TC found that the setoff of Dad’s arrearages applied only to the child support arrearage, and bifurcated the contempt issue between the child support and maintenance issues and the property division issues. TC denied Dad’s motion to establish Mom’s child support obligation, but permitted discovery to continue on the child support arrearage contempt issue with a continuance as to any show cause hearing on that issue.

TC found that Dad had gone to extreme efforts to avoid paying the money he owed to Mom, that he never intended to pay her that money, and that he was in contempt. TC issued an arrest warrant for Dad until the judgment was paid. [TC apparently also issued income withholding orders on Mom’s motion to enforce the amounts due under the judgment, but it is unclear from the opinion when they were issued and for how much.]

Analysis: Dad argued that Income Withholding Orders should not have issued until TC resolved child support issue, and that he was denied due process by TC’s refusal to hear him on child support setoff issue. Mom argued that other than the one Motion made by Dad six and a half years after the issue was reserved, a motion that was denied and bifurcated, Dad made no steps towards establishing Mom’s child support obligation. CA agreed with Mom, and found that Dad’s full effort and focus had been to avoid his obligations. CA noted that a failure to insist on a ruling from TC when an objection is made operates as waiver of that issue on appeal. Dad took no action specifically to establish Mom’s child support obligation, and this constituted a waiver of the issue. With regard to Dad’s due process argument, CA found that Dad had ample opportunity to be heard over the ten years since the child support issue was reserved but instead engaged in “fraudulent and calculated shell games” to evade collection of money owed to Mom. Finally, Dad argued that TC erred in entering an Income Withholding Order under the Uniform Interstate Family Support Act for amounts due for property or debt-related issues. CA found that definition of a support order under the Act was sufficiently broad to cover the property and debt-related issues.

TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

Gaskill v. Robbins Now Final

Here is the final opinion, which was not modified.

Discretionary Review Granted In Lichtenstein v. Barbanel

The Kentucky Supreme Court granted discretionary review in Lichenstein v. Barbanel, a child support enforcement case. The Court of Appeals opinion was designated not to be published. We will digest that opinion soon.

Nelson v. Nelson, Ky COA, Support For Adult Dependant Child

Nelson v. Nelson, _ S.W.3d _ (Ky. App. 2009); 2008-CA-001861-ME

The parties divorced in 2004. Their property settlement agreement provided that the mother would not request financial assistance from the father for their adult dependent daughter for a period of two years. After two years, the father would provide financial assistance, not to exceed $150 per month, if necessary. In 2008, the mother requested that the father contribute to their daughter’s support. The daughter was only able to work six to nine hours per week at Ponderosa due to multiple disabilities, but did not qualify for disability benefits. Her reasonable expenses were found to exceed $740 per month. The family court ordered the father to contribute $729 per month towards the daughter’s support pursuant to KRS 405.020(2). Father appealed.
The COA affirmed. Although the agreement stated that the father’s contribution would not exceed $150 per month, the daughter’s need for support changed when she was denied disability benefits. Pursuant to KRS 405.020(2), both parents share a joint obligation to support children who are wholly dependent because of a permanent physical or mental disability. Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Ky COA Publishes One Family Law Decision Yesterday

Nelson v. Nelson, support of adult child. Digest to follow

Conn v. Ingram, Ky COA, Adult Adoption, Residency

CONN v. INGRAM ADOPTION RESIDENCY REQUIREMENTS 2007-CA-002255 PUBLISHED: AFFIRMED PANEL: NICKELL PRESIDING; CAPERTON AND KELLER CONCUR COUNTY: MENIFEE DATE RENDERED: 4/24/2009

Dad appealed from TC order dismissing his petition to adopt his adult natural born Daughter because he failed to satisfy the residency requirement stated in KRS 199.470(1). Dad claimed that the statute’s residency requirement applied to Daughter, not to him.

Dad’s petition for adoption stated that he was a resident of Missouri and Daughter a resident of Kentucky. An adult may be adopted in Kentucky under the same laws for adoption of a child, with the exception that only the adult’s consent is needed. Kentucky’s adoption law provides that the person filing the petition must be a resident of Kentucky for one year prior to filing the adoption petition. Dad argued that this residency requirement is relevant only to the adoption of minors. CA disagreed, holding that the residency requirement stated in KRS 199.470(1) applies to all adoptions and recognizing that the Kentucky Supreme Court had previously stated that the residency requirement of the adoption statute must be strictly enforced.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates

New Ky Ethics Rules Online

Here is the link to the sweeping new ethical rules issued by the Kentucky Supreme Court last week. We all will have to study them carefully. They become effective July 15, 2009.