Divorce Law Journal

Non-marital tracing and maintenance - lack of efforts to secure employment does not defeat maintenance claim, published opinion from Ky Court of Appeals October 27, 2016

SMITH V. SMITH

Husband argued Family Court erred in awarding Wife a non-marital interest in the marital residence because she did not produce a copy of the CD with the funds for the basis of the non-marital claim or any other documentation. The Court of Appeals affirms finding no error as there was testimony about the non-marital nature of the CD sufficient to establish Wife’s claim and the Brandenburg formula was properly used to calculate the division of equity due to the home’s increase in value.

Husband also argued that the Family Court erred in awarding Wife spousal maintenance as she had sufficient property to meet her needs and had not attempted to obtain employment. The Court of Appeals again affirms the Family Court finding no error as the Court property considered the KRS 403.200(2) factors noting “efforts to secure employment” are not a part of KRS 403.200(2).

Digested by Elizabeth M. Howell

Full Digest of Grasch v. Grasch, Ky Court of Appeals Published Opinion of September 23, 2016, Now Posted to Our Blog

GRASCH v. GRASCH

Husband, an attorney, and Wife, who managed his law firm, divorced after a thirty year marriage. After four years of litigation, the parties appealed and cross appealed numerous issues for the Appellate Court to review.

Contingency Fees

 

The first issue the Appellate Court addresses is whether contingency fee cases are marital property subject to division.  On appeal, Wife argues that the Trial Court erred by finding contingency contracts were not property and granting summary judgment prematurely. The Court of Appeals holds that contingency fee cases are income-generation devices and do not give an attorney any ownership interest, therefore they are not determinate things. As contingency fee contracts are not determinate things, they are not property subject to division by the terms of KRS 403.190. The Court of Appeals holds the Trial Court did not err in finding the contingency contracts were not divisible property, and did not err in granting summary judgment without a valuation of the contracts, as no material issue of fact existed given the contracts were not property.

Dissipation

Next, Wife argues the Trial Court erred by finding Husband did not dissipate marital property. The Court of Appeals holds the Trial Court did not err as Wife did not show dissipation by preponderance of the evidence. The record clearly showed both parties traveled, spent extravagantly, and spent marital funds as they had during the marriage. Neither party showed a clear intent to deprive the other of marital funds.

Maintenance

 

Wife appealed the Trial Court’s maintenance award arguing the amount was too small and the duration was too short. The Court of Appeals holds the Trial Court did not abuse its discretion and properly analyzed Wife’s monthly expenses and modified certain expenses based on testimony granting reasonable maintenance in consideration of the parties’ lifestyle and the property division.

 

Husband appealed the Trial Court’s maintenance award arguing Wife should not have been granted maintenance as her property generated enough income to meet her reasonable needs. The Court of Appeals again held there was no abuse of discretion as the Trial Court properly considered reasonable needs in light of the parties situation stating, “what constitutes ‘reasonable needs’ varies based on the marital situation” and cannot be determined in a “vacuum.”

Husband also argued it was an error for the Trial Court to award Wife maintenance beyond her retirement age citing the Weldon case. Weldon v. Weldon, 957 S.W.2d 2283 (Ky. App. 1997). The Court of Appeals disagrees holding Weldon supports the Trial Court’s decision as here the Trial Court awarded a modest amount of maintenance for a definite number of years.

Attorney Fees

 

Wife appealed the Trial Court’s decision not to award her additional attorney fees. The Trial Court had considered the financial resources of both parties, noted the marital estate had paid for $14,000 of Wife’s fees and Husband had paid $10,000, and found Wife received significant assets before denying Wife’s request for fees. The Court of Appeals affirms the Trial Court’s order as the Trial Court did not abuse its discretion.

Non-marital Interest in Marital Residence

 

Husband appealed the Trial Court’s calculation of Wife’s non-marital interest in the marital residence. There is no question that Wife invested $125,000 of her nonmarital funds in the parties’ first home. Upon the sale of that home, which increased in value, Wife’s full non-marital share remained. The Court of Appeals did not assign any increase in value to Wife’s nonmarital share, holding that the presumption is that an increase in value is due to marital contributions unless proven otherwise. Wife did not meet her burden of proving the increase in value was due to “general economic conditions rather than marital contributions.”

The parties then purchased land and constructed their second home with $125,000 of Wife’s non-marital funds and the $85,000 of marital funds from the sale of their first home, as well as loans totaling $825,000. The non-marital and marital funds were co-mingled in the construction of the house and the parties ultimately lost money on the home selling it for $878,000, a loss of $157,000. Due to the reduction in the mortgage, the parties received $137,717.02 in proceeds from the sale of the home. The Trial Court award wife her $125,00 non-marital share and order the parties to equally divide the remaining $12,717.02.  

Upon review, the Court of Appeals holds that loss due to general economic circumstances should be shared equally between a marital and nonmarital interest. The court applies the Brandenburg formula to reduce the marital and non-marital shares accordingly. As some factual findings regarding a $50,000 marital contribution were unclear, the Court of Appeals remands the issue to the Trial Court to make the relevant finding and use the Brandenburg formula to reduce the Wife’s non-marital share from $125,000 to $51,386.95 or $44,713.32.

Post-nuptial Agreement

 

Husband and Wife entered into an agreement during the marriage that Wife intended to use $35,000 of her non-marital funds to pay off marital debts. The agreement stated that if the funds could not be clearly traced to a marital asset upon dissolution, Wife would receive the funds from the marital property. Husband, without citing any law, argues on Appeal that the Trial Court erred in awarding Wife the $35,000 because the funds could not be traced. The Court of Appeals holds the Trial Court did not abuse its discretion noting no evidence was offered at trial in support of Husband’s claim other than an expressly refuted assertion by Husband.

Amendment of Findings of Fact and Conclusions of Law

 

Husband argues the Trial Court erred in amending the findings of fact and conclusions of law pursuant to CR 59.05 citing Gullion v. Gullion  which favorably cited the standards set forth for reconsideration of judgment under the Federal Civil Rules. Gullion v. Gullion, 163 S.W.3d 888 (Ky. 2005). The Court of Appeals find no Gullion error holding the Trial Court did not err by granting the CR 59.05 motion.

Mortgage and Property Taxes

 

Husband’s last argument is that the Trial Court erred in ordering him to pay the mortgage and taxes on the marital home while Wife resided in the home post-trial. The Court of Appeals reviews only for manifest injustice as Husband’s brief did not conform with the Civil Rules for Appellate Briefs. The Court of Appeals affirms the Trial Court noting its “yeoman’s effort” to divide the marital property pursuant to KRS 403.190(1).

Digested by Elizabeth M. Howell

Husband's law firm contingency contracts are not marital property; post-nuptial agreement enforced; where marital and nonmarital property were used to purchase a residence that is ultimately worth less than the total contibutions, both funds should share

Grasch v. Grasch . A digest of this published opinion from the Ky Court of Appeals today will follow in a couple of weeks. We are swamped!

Published Child Support Opinion from Ky Court of Appeals August 28, 2015

BOOTES V. BOOTES

Wife argued that the Trial Court erred by failing to include Husband’s income from a second business in its child support calculation. Husband ran a second business and gifted all his proceeds to his father. The Appellate Court held that the Trial Court erred by excluding the income from its child support calculation. Income from a small business, even if given away, is still income pursuant to KRS 403.212(2)(c). The Trial Court should have calculated the gross receipts of the business and subtracted the necessary expenses to determine the gross income to include in its child support calculation.

Wife also argued that the Trial Court erred when calculating the amount of income she was capable of earning. The Appellate Court affirmed the Trial Court, finding the Trial Court took appropriate factors into consideration when imputing income, including work history, prior income, and Wife’s new job. Next  Wife argued that the Trial Court erred by denying her maintenance and attorney fees. The Appellate Court again affirmed the Trial Court finding there was no abuse of discretion.

Digested by Elizabeth M. Howell

Published Family Law Opinion from Ky Court of Appeals Last Week

MCVICKER V. MCVICKER

At trial, husband made several nonmarital claims, and argued for a 70/30 split of marital property in his favor, since he cared for the parties adult disabled child. The Family Court found that Husband had nonmarital claims in the home and in a Morgan Stanley account. It also split the parties’ marital Morgan Stanley savings 70/30, did not award the wife maintenance, and did not consider the parties’ vehicles in division of the marital property. The wife appealed  these findings of fact and conclusions of law, arguing on appeal the Family Court abused its discretion.

The Appellate Court looks to Sexton for guidance in reviewing the Family Court’s award of nonmarital interest. The Appellate Court reverses the decision awarding Husband a nonmarital interest in the marital home, as there was no source of funds evidence, and no tracing of funds from the sale of one house to the purchase of the next house. The Appellate Court held testimony alone is not sufficient to meet the burden of proof to establish a nonmarital claim. The Appellate Court also reverses the Family Court’s award of the Morgan Stanley bank account as nonmarital property, holding there was no tracing from checks given as gifts to the account itself.

Next the Appellate Court looks to the 70/30 split of the marital Morgan Stanley account. The Appellate Court vacates the Family Court’s award because the Family Court ignored the KRS 403.190(1) factors in dividing the marital property. The Appellate Court also notes that there was never any testimony presented that the Morgan Stanley account was used for the benefit of the parties’ disabled adult son.

The Appellate Court orders the Family Court to consider the values of the parties’ vehicles on remand. Because the Appellate Court reversed the family court’s assignment of non-marital interests and division of marital property, they vacate the family court’s decision on maintenance. However, the Appellate Court notes that the family court improperly considered the Wife’s current standard of living in its decision, and orders the court to use the KRS 403.200(2) factors on remand.

Chief Judge Acree writes separately at the end on procedure, stating that to be in compliance with CR 76.13 parties in an appeal must cite to the certified record and not an appendix created by counsel.

Digested by Elizabeth M. Howell.

Ky Published Family Law Opinion from Court of Appeals Today

Lambe v. Weber

The Appellate Court first addresses maintenance, holding that income should not be imputed to a spouse when her underemployment is not voluntary. In this case, the child’s medical needs prevented the mother from working.

The Appellate Court did find error with the Family Court’s conflation of child support and maintenance. The Appellate Court held maintenance is for the reasonable needs of a spouse. Expenses for children do not come within a spouse’s reasonable needs, as the children’s expenses are already included in the court’s child support calculation. Including children’s expenses in maintenance is inappropriate as it would ultimately require the obligor to pay all of the children’s expenses.

The Appellate Court also held that the nine year duration of maintenance was not adequately supported by the lower court’s findings when the marriage was 20 years long, the wife was only 48 years old, the wife had a bachelor’s degree, and expert witnesses found the wife to be employable. The Appellate Court remanded the maintenance decision for recalculating the amount and for additional findings supporting the  duration.

The Appellate Court then dealt with a slew of other issues, upholding all lower court decisions. They found no error with the  court’s consideration of gross vs. net income in setting maintenance, the consideration of gross income in setting child support, and the court’s use of a stock valuation from an expert witness. They held that the lower court had broad authority in assigning attorney fees and did not make an error assigning a portion of wife’s attorney’s fees to husband where the husband was high earning, the wife was unable to seek full time employment, and the court awarded only half the total amount of wife’s attorney’s fees.

The Appellate Court also upheld the lower court’s consideration of future and past earnings in calculating income; and upheld the decision to assign all the residential expenses to the wife, when the obligations were considered in calculating her expenses to determine maintenance. Finally, the Appellate Court affirmed the lower court’s refusal to modify maintenance, as the husband showed no change of circumstances to justify a modification.

 

 

 

 

Three Published Family Law Opinions from Ky Court of Appeals Today

Middleton v. Middleton Interesting 50 page opinion and dissent addressing characterization of distributions from family trust, nonmarital tracing and standard of proof, division of marital personalty, assignment of debt, attorney fees and costs.

 

D.L.B. v. Cabinet for Health and Family Services, et al  Conversion of involuntary termination of parental rights action into a voluntary termination action and concurrent dismissal of father from proceedings was abuse of discretion.

 

Murry v. Murry  Denial of attorney fees in grandparent visitation modification affirmed as there is no fee shifting provision in KRS Chapter 405. Findings that prior visitation order had not been working and presents more problems than it resolves falls short of the requirement that necessary facts be found specifically so case was remanded to trial court to make further factual findings.

Effect of Estate Planning Trust on Division of Property in Divorce Proceedings, Post-judgment Interest, Case Digest, Ensor v. Ensor, Ky Court of Appeals

Larry James Ensor v. Deborah Lynn Ensor, 2010-CA-001660-MR, 2010-CA-001699-MR and 2010-CA-002048-MR

Published: Affirming in part, Reversing in part, and Remanding

County: Oldham

 FACTS:

Husband and Wife were married on June 14, 1980. Husband’s family owned an automotive parts remanufacturing business, which was very successful for many years. When business declined, Husband and his two brothers invested money from the family business into several real estate holdings, which produced significant rental income. Husband and the brothers, in an effort to minimize tax liabilities, utilized the assistance of attorneys and accountants and created a Grantor Retained Annuity Trust (GRAT). A GRAT, according to the Court of Appeals, is an estate planning tool wherein assets are transferred to a trust and ultimately to other beneficiaries so as to avoid estate taxes upon a donor’s death. Husband and his brothers also created a partnership, with all of the brothers and their wives executing general warranty deeds for all of the partnership’s property, which transferred any dower interest the wives had, or might have had, in the properties. Husband created his irrevocable GRAT and transferred his limited partnership interest while retaining a small general partnership interest. Husband received from the GRAT quarterly payments of $72,295 for nine years. The funds were used for the couple’s personal and joint expenditures. Husband’s children were beneficiaries of the GRAT as well, and received their portions of the GRAT; a gift tax return was filed with the IRS. Wife also retained an interest in the GRAT when the annuity payments terminated. Although divorce was not contemplated in the GRAT instrument, Wife would retain an interest in the GRAT if Husband died, until her death or remarriage.This arrangement avoided up to one million dollars in tax liability.

 Husband and Wife initiated divorce proceedings in 2004. A limited divorce decree was entered in January 2005, which reserved rulings on the division of marital assets. Wife argued that she did not fully understand the extent of the assets transferred to the GRAT and would have never agreed to release her share of assets valued at millions of dollars. Wife sought her interest in the property of the GRAT.

 The court held a five day trial of the property division in April and May of 2006. After additional filings and extensive motion practice followed, the court requested calculations consistent with its draft opinion of the issues. The court issued its opinion May 28, 2008, finding that the GRAT was valid and legally created and that Wife was entitled to a one-half interest in her marital portion of the GRAT. The court held additional hearings on the value of the GRAT property. On February 18, 2010, the court entered findings of fact and conclusions of law on the value of the GRAT and ordered Wife’s was entitled to a payment of $1,769,718.00, which was later reduced by the court to $1,410,106.00 plus post-judgment interest calculated at five percent. Husband appealed, alleging multiple errors; Wife filed a cross-appeal and a direct appeal on the issue of post-judgment interest. ANALYSIS:

 The Court of Appeals found that Wife was not defrauded when the GRAT and partnership interests were created. Husband did not defraud Wife into signing any documents or coerce her to release her interest in property, and the trust instrument did not contemplate divorce. Wife also failed to join the GRAT and its trustees, beneficiaries, or contingent beneficiaries, all of whom would have been necessary parties in an action seeking to avoid the trust.

 The Court further found that the funding of the irrevocable trust removed the transferred property from the marital estate. KRS 403.190(1) and other relevant case law define whether an asset is marital or non-marital for purposes of division.  The court must determine whether the asset is marital or non-marital, assign each party his or her non-marital property, assign each party’s interest in property with both marital and non-marital components based on the evidence and equitably divide all marital property. The formation of the GRAT in this case was for a valid estate planning purpose and is nearly identical to the estate planning scheme in Gripshover v. Gripshover, 246 S.W.3d 460 (Ky. 2008). Wife received an adequate benefit from the GRAT income because she and Husband enjoyed the quarterly annuity payments over the years, which exceeded $2,600,000. It was proper that the trial court accepted Wife’s expert in the accounting of the disbursements.

Because the GRAT was improperly included in the marital estate, the Court remanded for further determination concerning the proper valuation of the marital estate and division thereof without reference to the GRAT.  Because property division and equalization payments would be different without inclusion of the GRAT, the issue of maintenance was also remanded, but the Court of Appeals made no finding of whether a maintenance award would be appropriate in this case.

 Husband also argued that $60,000 was erroneously assigned to him in the valuation of marital assets because he used those funds for a marital purpose. Trial courts are given wide discretion in this area, and the court did not find Husband’s testimony that the funds were used for a marital purpose credible. The trial court found that those funds had been used for attorney’s fees, non-marital debts and other personal expenditures, which was not clear error.

 Wife challenged an award to Husband of accounts receivable for loans made during the marriage. Since Wife was awarded one-half of the accrued interest payable to Husband on a particular loan, any further award to Wife would result in a double recovery. Therefore, the court did not err in preventing a second division of this asset. 

 Wife also appealed the trial court’s decision to award her an unfinished vacation home in Gulf Shores, Alabama, valued at $2,050,000, and making Wife responsible for all taxes, claims and costs associated with the property. Wife insisted on retaining the home against the advice of trial counsel and the court. Wife argued that Husband should be responsible for his portion of the taxes and other costs associated with the property before he conveyed the property to her in 2010. The trial court allocated unpaid construction costs, insurance premiums and other costs to each spouse at the time of the divorce decree. Since the other costs were incurred after the divorce decree was entered and was incurred solely for Wife’s benefit, the debts were non-marital, and Wife is responsible for all of the costs associated with the property after that date.

 On the issue of post-judgment interest, the Court of Appeals upheld the trial court’s order award of five percent post-judgment interest.  The trial court concluded that five percent was the rate of return on investments during the litigation and imposing a higher rate would be inequitable. The Court of Appeals agreed, stating that the post-judgment interest rate is mandatory only to money awards containing deferred payments for portions allocated to the non-paying spouse. In this case the trial court weighed the equities, including that Wife’s award was to be paid in a lump sum and Husband was given a relatively short amount of time to make full payment.

Affirmed in part, reversed in part and remanded.

Digested by: McKenzie Cantrell, Attorney, of counsel, Diana L. Skaggs + Associates

Brosnan v. Brosnan, Ky COA, maintenance, division of marital property and debt, attorney fees, qualifications of social worker to give opinion evidence of PTSD.

Timothy M. Brosnan v. Margaret Brosnan

No. 2010-CA-000229-MR, No. 2010-CA-000272-MR, No. 2010-CA-000849-MR

Published: Opinion Affirming

County: Jefferson

Timothy Brosnan appeals and Margaret Brosnan cross-appeals from judgment of Jefferson Family Court dividing marital property and debts and awarding maintenance to Margaret. Margaret also appeals from Jefferson Family Court order denying her motion for attorney fees incurred on appe

Timothy alleges that a social worker was erroneously permitted to offer expert opinion, and that the amount and duration of maintenance awarded to Margaret was an abuse of discretion. Margaret argues the trial court awarded insufficient maintenance, improperly divided parties’ bank accounts, improperly divided credit card debt, failed to require Timothy to keep her on his life insurance policy, and erred when it denied her request to withhold dissolving marriage until January 1, 2010 to permit filing of joint tax returns and denied her request to require Timothy to pay her one half the 2008 tax refund prior to sale of marital residence. She also argues that family court erred when it failed to advance her attorney’s fees on appeal and cross-appeal.

The trial court divided the marital property and ordered Timothy to pay Margaret her share from his half of the proceeds from the sale of the marital residence. The trial court found that Timothy dissipated funds from a joint savings account and ordered him to pay the parties’ entire credit card debt. On the issue of maintenance, the trial court permitted, over Timothy’s objection, the testimony of a social worker who diagnosed Margaret with PTSD and incapable of employment because of a variety of symptoms. Margaret was awarded maintenance for fifteen years and $3000 in attorney’s fees.

Both parties filed motions to alter or amend, both of which were denied. Timothy appealed and Margaret cross-appealed. Margaret also filed a motion in family court for an advance of attorney’s fees for the appeal, which the family court denied.

The Court of Appeals held that family court abused its discretion when it permitted the social worker to opine that Margaret has PTSD. Since the social worker lacks training and education to diagnose psychological disorders, her testimony was inadmissible. The Court concluded, however, that since the trial court did not rely on the social worker’s testimony and based its findings on the factors in KRS 403.200, the error was harmless, not requiring reversal. Margaret’s claims that the maintenance award is inadequate was denied, the Court finding no abuse of discretion. The Court found no abuse of discretion in any of the other issues presented on the appeal or cross-appeal.               

On the issue of Margaret’s attorney’s fees on appeal, the Court of Appeals held that family court retains jurisdiction over this matter after an appeal is filed. Prospective fees may be awarded and the trial court retains jurisdiction to alter its award and order reimbursement of any unjustified amounts. Therefore, Margaret shall be permitted to file a motion for attorney’s fees as a result of this appeal.

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.

Brooks v. Brooks, Ky COA, Division of Marital Property and Maintenance

Brooks v. Brooks

2010-CA-001720-MR

Published:  Affirming

County: Wolfe

Husband and Wife were married for twenty-one years, during which Husband earned his degree, teaching certificate, and Rank 1 teacher status, earning $44,000 annually at the time of divorce.  Husband and Wife married when Wife was pregnant at age 16 with their first child.  Wife never obtained finished high school and worked only six years at the beginning of the marriage as a nursing assistant; she was a homemaker and raised the parties’ children for the remainder of the marriage.  Husband’s retirement account with Kentucky Teachers’ Retirement Services (KTRS) was the only substantial assets of the parties.  FC awarded joint custody to the parties but named Husband as Primary Residential Custodian and ordered Wife to pay Husband child support until children graduated from high school (a total of nine months).  FC ordered Husband to pay Wife maintenance of$360 per month for two and a half years on the basis that this duration would provide Wife time to obtain her GED and job training.  FC gave one car to Wife and two cars to Husband, reasoning that Children needed the second car for transportation to and from school. Lastly, FC held that KTRS account was exempt from division.

CA held that, per KRS 161.700, KTRS accounts are nonmarital property unless the other spouse has a retirement account of her own, which would then trigger the provisions of KRS 403.190(4) allowing the retirement accounts to be equally offset from division.  Without the other retirement account, CA held that KRS 161.700 requires KTRS accounts to be classified as nonmarital property that cannot be divided, nor can such classification be treated as an “economic circumstance” to considered in division of marital property.  Thus, FC did not err in setting the KTRS account aside to Husband or in providing a disproportionate amount of marital estate to Wife. 

CA found no abuse of discretion in maintenance award nor did FC err in providing additional car to Husband for children’s use. 

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

Woodson v. Woodson, Ky Supreme Court, Modification of Lump-Sum Maintenance, overruling Dame

Woodson v. Woodson

2010-SC-000053-DG

Published:  Reversing and Remanding

County: Jefferson

Overruling Dame v. Dame, SC held that “a maintenance award in a fixed amount to be paid out over a definite period of time is subject to modification under KRS 403 .250(1).” 

KRS 403 .250(1) states in part:

"Except as otherwise provided in subsection (6) of KRS 403 .180, the provisions of any decree respecting maintenance may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable." (Emphasis added.)

In giving the statute its obvious meaning, all decrees ‘respecting maintenance’ are modifiable under certain circumstances. This is precisely the point that was made by Justice Clayton in his dissent in Dame.

"In saying farewell to Dame, we do not belittle the compelling need for finality in all divorce cases. The burden of proof to change maintenance orders is sufficiently strict to insure relative stability and finality. It requires the showing of ‘changed circumstances so substantial and continuing as to make the terms unconscionable.’ KRS 403.250(1). However, the statute does not divest trial judges of the discretion to decide when modification outweighs the virtue of finality in seeking fairness and equity in what many times may be dire consequences and complicated options.”

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

McGregor v. McGregor, Ky COA, Parenting Time Schedule, Imputation of Income in Child Support and Maintenance Awards, Division of Debt, Amount and Duration of Maintenance

McGregor v. McGregor

2009-CA-000614-MR and 2009-CA-000632-MR

Published:  Affirmed

County: Jefferson

Mom appealed from FC's order in dissolution action, arguing that FC abused its discretion by setting a shared-custody schedule for the children, by imputing income to her, by awarding an inadequate amount of child support and maintenance, and by its division of the parties’ debts. Dad cross-appealed, asserting that the amount and duration of maintenance was excessive.

 

Facts

After seven and a half years of marriage, Mom, a homemaker, filed a Petition for divorce from Dad, a pilot.  Subsequently, FC entered temporary orders granting joint custody of their 2 children as well as 50/50 parenting time schedule based around Dad’s work schedule.  FC also ordered Dad to pay Children’s expenses and household bills as well as temporary maintenance of $150 per week.

 

In its final order, FC continued parameters of temporary parenting time order; imputed income to Mom of $2,000 per month in its child support and maintenance calculation; deviated from the child support guidelines based on the shared parenting schedule and determined child support to be $275 per month; awarded Mom maintenance of $2,000 per month for seven years; and ordered Mom to pay the home equity Line of Credit on the marital residence and half of the mortgage payment until the home was sold, as well as be responsible for her personal credit cards.  

 

ANALYSIS:

Parenting Schedule

Due to Dad’s occupation, FC concluded that a rigid parenting schedule would prohibit him from having regular contact with the children.   Mom argued that this schedule was unworkable due to Dad’s failure to communicate with her and because Dad’s work schedule changes constantly and with short notice.  CA held that FC’s findings that shared parenting schedule was in Children’s best interests was supported by substantial evidence and thus not clearly erroneous.

 

Imputation of Income

FC imputed income to Mom in child support and maintenance awards  based on her work history prior to Children’s births as a graphic designer, in which she earned $28,000 per year, and her current status operating two concierge businesses from her home, in which she was earning $515 per month but hoped to someday earn $4,000 to $8,000 per month. 

 

CA noted that KRS allows a court to base child support on a parent's potential income if it determines that the parent is voluntarily unemployed or underemployed, without finding that the parent intended to avoid or reduce the child support obligation.  However, the maintenance statute does not explicitly address imputation of income to a voluntarily underemployed or unemployed spouse. CA held that, as a matter of first impression, maintenance statute implicitly allows FC to impute income to a voluntarily unemployed or underemployed spouse to determine both the spouse’s entitlement to maintenance and the amount and duration of maintenance.  Thus, FC committed no error in finding Mom to be capable of earning $2,000 per month and imputing such income to her in its child support and maintenance awards. 

 

Deviation from Child Support Guidelines

CA held that FC justified its deviation from child support guidelines based on the shared-parenting schedule; that the period of time during which children reside with each parent may be considered in determining child support; and a relatively equal division of physical custody may constitute valid grounds for deviating from the guidelines.  CA held that FC committed no error. 

 

Maintenance

Amount and duration of a maintenance award are matters within the sound discretion of FC.  As noted above, FC was authorized by statute to impute income to Mom.  Although CA noted that evidence may have supported Dad’s suggested award of maintenance in declining amounts, such a result was not required.  Because of Mom’s long gap in employment history while caring for Children, parties’ comfortable lifestyle during marriage, and Dad’s current earning ability, FC found seven years was reasonable duration for full amount of maintenance, and CA found no error.

 

Assignment of Debt

FC found that Mom took out the home equity line by forging Dad’s signature on the documents, and that funds were not used for home renovations as Mom testified; FC also found that Mom’s personal credit card debts were non-marital as Mom produced no evidence regarding what items she purchased.  CA found no error in finding these debts to be nonmarital.  FC also noted Mom’s ability to pay for home equity line with proceeds from sale of marital residence and thus found allocation of this debt to not be manifestly unfair. 

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

Age v. Age, Ky COA, Validity of Marriage, CR60, Maintenance, Attorney Fees

Age v. Age, No. 2009-CA-001982-MR

and

Reid (formerly Age) v. Age, et al, No. 2009-CA-002173-MR

Published:  Affirming

County:     Oldham

 

        Reid filed a petition for dissolution of a 33-year marriage in November, 2006.  After entry of the decree in June, 2008 the parties filed a settlement agreement which had been executed in April, 2008.

 

        More than a year after the decree was entered, Age filed a motion to set aside the decree based on Reid’s statements in obtaining a theological annulment by the Roman Catholic Church.  That motion was denied.  In August, 2009, Age filed a CR 60.02 motion to set aside the judgment on the grounds of mistake, fraud, and new evidence.  On September 3, 2009 the TC entered an order denying the post-judgment motion and also denied Age’s subsequent motion to reconsider.

 

        Reid’s cross-appealed on the issues of maintenance and attorney fees.  Reid never earned more than $7,000 annually, while Age earned $188,000 in 2008.  She contended that after consideration of the relevant statutory criteria, the court’s award of maintenance was inadequate.  She further maintained that the court should have made findings before ordering her to pay additional fees to her attorney and also when the TC denied reimbursement by Age to Reid of these attorney fees, which she claimed was an abuse of discretion.

 

        By agreed order, temporary maintenance was set at $750.00 per month.  Under the terms of their settlement agreement, Reid waived maintenance but negotiated for one-half of Age’s pension payment which she expected would be approximately $2,300 per month.  In an addendum to the April, 2008 agreement, Age agreed to pay Reid $2,300 per month until she began to receive pension payments from Abbot Laboratories pension administrator.  The court ordered the parties to enter into a QDRO to facilitate Reid’s receipt of pension benefits. 

 

        At a hearing in January, 2009 it was discovered that Reid’s pension benefits would only be $953.74 per month.  This gave rise to continued dispute about the issue of spousal support.

 

        On October 22, 2009, TC entered an order finding the settlement agreement unconscionable because of the waiver of spousal support and the pension benefit insufficient to meet the minimum needs.  TC awarded maintenance until Age’s retirement when Reid will be entitled to one-half Age’s pension.

 

        Reid’s former counsel filed an attorney’s lien for unpaid fees and TC ordered Reid to pay the fees in installments.  TC denied Reid reimbursement of any fees from Age based upon her assertion that his post-judgment motion was frivolous and vexatious.

 

        Regarding the validity of the divorce decree, the CA found no evidence to suggest the parties were not lawfully married.  The Catholic Church’s determination under ecclesiastical law does not alter the legal effort of a civil marriage.  None of the reasons to invalidate a marriage as set out in KRS 403.120 applied in this case.

 

        CA held that Age’s CR 60.02 motion was not timely filed, there was no evidence of civil fraud and the Constitution prohibits an interface between church and state law.

 

        Reid claimed the TC abused its discretion when it set maintenance at $2,300 per month to be reduced when Reid’s pension benefits commenced.  The CA found that the TC made relevant findings and used the factors enumerated in the statute to determine the maintenance award.

 

        The CA reviewed Reid’s appeal of the issue of reimbursement of attorney fees despite procedural infirmities regarding the notice of appeal.  Holding that a TC’s decision regarding KRS 403.220 may only be overturned if an abuse of discretion occurred, the CA found no indication the TC’s ruling was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.  To Reid’s contention that the TC failed to make adequate findings, the CA disagreed and found that the trial judge exhaustively covered the division of assets and did not omit any findings essential to its judgment.

 

Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

From The Kentucky Supreme Court This Month: Dame v. Dame to be Reviewed

The Court accepted discretionary review in Woodson v. Woodson, in which the Court of Appeals upheld the trial court as it lacked authority to rule contrary to Dame v. Dame. The Court of Appeals' unpublished opinion is here. So, the question is whether fixed payments of maintenance over a fixed period of time remain non-modifiable.

There were no published family law opinions released by the Kentucky Supreme Court today.

Atkisson v. Atkisson, Ky COA, Marital and Nonmarital Property, Fees, Temporary Maintenance, Garnishment and Judgment Lien

Atkisson v. Atkisson and Atkisson v. Atkisson (consolidated appeals, separate opinions) ___S.W.3d____ (Ky App. 2009) and ___S.W.3d____(Ky App. 2009)

Husband appealed the trial court’s division of marital property, award of temporary maintenance, award of attorney fees, and denial of relief to quash garnishment writs and judgment lien.

Marital residence:     Court awarded husband the residence, but awarded all the equity in the residence to the wife as her non-marital property.  Husband argued that the court should have apportioned the equity as set out in Brandenburg.  COA found that while there was marital equity in the residence, even if the husband was credited for that amount, there was insufficient equity to fully reimburse the wife for her non-marital contribution.  Therefore, there was no marital equity to divide under Brandenburg.

Timeshare:    The court ordered that the timeshare be sold.  Wife was to receive $1,522.88 of the proceeds as her non-marital property.  The remaining proceeds were to be divided equally.  Husband argues that the court erred in not taking into consideration the debt associated with the timeshare, which the court assigned to husband.  COA found that debt is part of the current mortgage on the marital residence.  The court deducted the full amount of both mortgages from the value of the residence to determine the equity in the property.  As a result, the court properly considered the debt. 

Temporary maintenance:      Court ordered husband to pay wife temporary maintenance of $2500 per month.  The order included a provision for health insurance and car insurance.  Husband argued that the award was excessive and that wife intentionally remained unemployed.  COA found the trial court had imputed wife with income in calculating temporary maintenance and found no basis to disturb the trial court’s judgment. 

Attorney fees:    Trial court awarded wife $10,000 in attorney fees.  Husband argued that wife not entitled to any fees due to the amount of assets wife received in the judgment.  COA found no abuse of discretion.  Wife only awarded half of the fees she asked for, husband retains a higher earning capacity, and husband received the residence and most of the income producing property. 

Writs of garnishment and judgment lien:  After the trial court ruled on the parties CR 59.05 motions, wife filed non-wage garnishment against three of husband’s accounts and a judgment lien against his real property.  Husband moved to quash the writs and lien as premature, but trial court denied the motion.  COA found that the garnishment writs and judgment lien were not filed prematurely.  The court’s judgment stays in effect until modified, although enforcement is stayed under CR.62.01.  When compliance dates have passed by the time the court denies a CR 59.05 motion, the trial court should allow a reasonable amount of time for the obligor to comply with the original order.  Here, a reasonable amount of time was given. 

Wife’s garnishment of tax-deferred accounts resulted in 10% penalties for early withdrawal, plus taxes and fees.  COA found that the garnishment writs subjected husband to penalties that far outweighed his failure to comply with the court’s orders.  The penalties and taxes imposed on husband changed the overall allocation of marital assets.  COA remanded this issue to the trial court for a determination of the amount of penalties and taxes incurred and an allocation of this amount between the parties. 

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

Daunhauer v. Daunhauer, Ky COA, Modification of Maintenance

DAUNHAUER v. DAUNHAUER, ___S.W.3d___ (Ky. App. 2009)

PUBLISHED: REVERSING
ACREE PRESIDING; NICKELL AND SENIOR JUDGE KNOPF CONCUR
COUNTY:JEFFERSON

Ex-Ex-Husband appealed from TC’s order denying his motion to terminate his maintenance obligation, arguing that Ex-Wife was no longer dependent upon that maintenance to meet her needs. 

FACTS:

Ex-Husband and Ex-Wife were married for 21 years.  At time of divorce, Ex-Husband was 48 and working as a dentist, earning $22,000 per year, and Ex-Wife was 42 and working as a secretary, earning $10,000 per year.  Ex-Wife relocated to California before Decree entered.  Parties entered agreement in which Ex-Husband would pay Ex-Wife maintenance of $400 per month, with such amount being modifiable after two years.  TC reduced maintenance to $200 per month after three years, when Ex-Wife’s income as a medical assistant was $26,000 per year and Ex-Husband’s income as a dentist was $36,000 per year.  Five years after that, TC denied Ex-Husband’s next motion for maintenance reduction, finding insufficient change in circumstances.  In 2006, at age 66, Ex-Husband injured himself and needed surgery and physical therapy, so he decided to sell his dental practice and retire.  He filed a motion to terminate maintenance, and although TC found retirement reasonable, TC denied motion as it found parties’ circumstances had not sufficiently changed.  Ex-Husband appealed.

ANALYSIS:

CA held that goal of maintenance award per KRS 403.200 is to facilitate one’s transition from dependence on a former spouse to independence.  CA held that original maintenance award was rehabilitative, and that the most appropriate reason for modification is Ex-Wife’s ability to live independently of maintenance.  Although it is appropriate in some cases to have maintenance not terminate, that occurs only when the claimant’s prospects of self-sufficiency are dismal.  The policy underlying KRS 403.250, requiring a substantial change of circumstances for modification, is relative stability.  CA found these two policies are not at odds.  Because Ex-Husband’s voluntary retirement was reasonable, TC could consider his resulting change of circumstances.  Ex-Wife earned more income than Ex-Husband at time of hearing.  Both parties had expenses in excess of their income.  CA held that if Ex-Wife achieved self-sufficiency, then post-decree increases in Ex-Husband’s income or assets are irrelevant.  Self-sufficiency is determined with reference to standard of living acquired during marriage, not post-decree.  CA also found that TC erred by considering the “relatively small” amount of maintenance and the higher cost of living in California.  If a claimant has achieved self-sufficiency, any amount of maintenance is inappropriate.  Further, since Ex-Wife has sufficient income to meet her needs, the higher cost of living is irrelevant.  CA reversed and remanded. 

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

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

 

 

Castle v. Castle, Ky COA, Termination Of Open-ended Maintenance

Castle v. Castle, --S.W.3d—(Ky. App. 2008), 2007-CA-001238-MR

The parties were married for twenty-five (25) years. There was no separation agreement between the parties, but a Domestic Relations Commissioner’s report was confirmed by the lower court. However, the court increased the open-ended maintenance award to $750 per month and added a requirement that maintenance would terminate if the wife cohabitated with an individual other than a relative. In 2006 the husband filed a motion to terminate maintenance, alleging the wife was living with her boyfriend. The court granted his motion and denied the wife’s motion to alter, amend, or vacate. Wife appealed.
Open-ended maintenance awards may be modified by only two methods 1) a separation agreement or 2) changed circumstances so substantial and continuing as to make the terms of the award unconscionable pursuant to KRS 403.250(1). The lower court held that the wife’s cohabitation with her boyfriend constituted a changed circumstance sufficient to make the payment of maintenance unconscionable. COA found that the lower court made sufficient findings to support the termination of maintenance.
The wife also argued that the court erred in not awarding her attorney fees. COA found no abuse of discretion.
AFFIRMED.
Digested by Sarah Jost Nielsen, Diana L. Skaggs + Associates

Horvath v. Horvath, Ky S. Ct. Temporary Maintenance Arrearages

HORVATH V. HORVATH
TEMPORARY MAINTENANCE ARREARAGES
2006-SC-000837-DG
PUBLISHED: REVERSING
OPINION OF THE COURT BY JUSTICE SCOTT
COUNTY: KENTON

SC granted discretionary review on the issue of whether monthly payments by Husband to Wife satisfied his temporary maintenance obligation or represented a division of marital property, thus resulting in an arrearage of temporary maintenance payments by Husband.

Facts
While the parties’ dissolution action was pending, they orally agreed that Husband would pay Wife "temporary maintenance" of $1,700 per month. Husband subsequently sold his shares in his business to his partners, for which he was to receive $30,000 in twelve quarterly payments of $2,500 and a consulting fee in the amount of $9,375 per month for three years. When the monthly consulting payments began, Husband increased his payments to Wife up to a monthly amount equal to about half the monthly consulting fee. The trial court subsequently ordered Husband to pay $1,700 per month temporary maintenance as per the parties’ previous agreement. Husband nonetheless continued paying Wife the greater amount, equal to about half of the monthly consulting fee.
TC characterized the sales price as well as the consulting fee for Husband's business interest as a marital asset and treated the increased payments to Wife as a division of marital property, rather than maintenance, and found that Husband owed $1,700 per month in maintenance arrears from the date of the temporary maintenance order to the date of final judgment. CA affirmed.
Analysis
Husband argued that his monthly payments to Wife satisfied his temporary maintenance obligation. SC found that the payments were “undoubtedly” for temporary maintenance as there existed in the record no documentation of any agreement that the increased payments were the result of an agreed division of marital assets, nor did anyone argue that they were gifts. SC found that the fact that the payments were funded by marital property is immaterial. Kentucky law, with few exceptions, presumes that all property acquired subsequent to the marriage and before legal separation is marital property. KRS 403.190(2)-(3). Thus, there is no statutory requirement that temporary maintenance be paid out of non-marital property, so long as each party receives his or her full share of marital property on entry of decree. TC awarded Wife half the value of the consulting fee in its equalization of the marital estate. Thus, of the increased payments Husband made to Wife, Husband was paying Wife $1,700 in temporary maintenance and the remainder as payment towards her half of the consulting fees. Consequently, SC ordered that Husband must now pay Wife her full share of this marital asset, less the amounts she has already received over and above the $1,700 per month she received as temporary maintenance. CA reversed and remanded to TC.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

More From The Kentucky Supreme Court Yesterday

The Kentucky Supreme Court released its opinion yesterday in Horvath v. Horvath, online here, regarding claimed satisfaction of a temporary maintenance obligation from marital property. A digest will follow.

Jones v. Jones (Ky) Income On NonMarital Property, Increase In Value Of Nonmarital Property, Maintenance

Jones v. Jones, ___S.W.3d___ (Ky. App. 2008)

Ex-Husband appealed TC’s orders classifying his Tobacco Transition Payment Program (TTPP) payments and a portion of the increase in value of his life estate as marital and awarding maintenance and attorney’s fees to Ex-Wife in divorce proceeding.

Prior to the parties’ 18 year marriage, Ex-Husband inherited from his grandfather a life estate in a farm consisting of 215 acres. During the marriage, the parties resided in a residence located on the farm, and Ex-Husband conducted farming operations thereupon. The parties entered into a prenuptial agreement prior to marriage.

In its orders regarding division of property, TC treated future TTPP payments to be made to Ex-Husband as owner of the life estate as marital property in order to effectuate an equitable division of property. CA found that TC erred as a matter of law by classifying the TTPP payments as marital property in order to effectuate a fair distribution of property. The classification of property as marital or nonmarital is not discretionary. CA further found that TTPP owner payments should have been classified as Ex-Husband’s nonmarital property. The TTPP owner payments represent compensation from the government for the taking of the property interest in the tobacco grower’s tobacco quotas. As Ex-Husband inherited the tobacco quotas from his grandfather, they were nonmarital, and the compensation received for them is also nonmarital.

CA also found that future TTPP payments to be made to Ex-Husband as a grower of tobacco should also be classified as Ex-Husband’s nonmarital property. Finding that these TTPP payments supplant income traditionally received from the sale of tobacco, CA found these payments to be properly classified as income. As the income from the sale of tobacco would have been classified as Ex-Husband’s nonmarital property pursuant to the parties’ prenuptial agreement, the grower TTPP payments were also his nonmarital property.

TC found that the parties made substantial improvements to the farm with marital assets, thus the life estate in the farm had a marital component. TC found the actual cost of improvements to the farm totaled $67,000.00, that these improvements were paid for with marital assets, and then adjusted the $67,000 by Ex-Husband's “life estate valuation formula” and concluded the marital property interest was $44,648.00. CA noted that under KRS 403.190(2)(e), any increase in value of property acquired before marriage is nonmarital unless the increase in value is attributed to “the efforts of the parties during marriage.” CA found that TC clearly erred when it equated actual cost of improvements to the life estate in the farm with increase in value to the life estate in the farm. To properly calculate the increase in value attributed to marital improvements upon property acquired before marriage, CA provided that the court must subtract the fair market value of the property at the time of dissolution without marital improvements from the fair market value of the property at the time of dissolution with marital improvements. The difference between such fair market values yields the increase in value attributed to marital improvements upon the property. As to a life estate acquired before marriage, a party may be compensated for the increased value attributed to marital improvements thereon, not to exceed the value of the improvements. Furthermore, when determining the fair market value (FMV) of real property with improvements and without improvements, expert opinion is ordinarily necessary. To be qualified to express an opinion upon FMV of real property, a witness, including the owner thereof, must possess some basis for knowledge of market values. The mere ownership of property does not qualify a lay person to give an opinion upon market value. The actual cost of improvements may be considered as evidence bearing upon FMV but should not be the sole factor. CA noted that if the parties come to the end of their proof with grossly insufficient evidence on the value of the property involved, TC should either order this proof to be obtained, appoint his own experts to furnish this value, at the cost of the parties, or direct that the property be sold. CA directed TC, upon remand, to calculate the marital increase in value of the life estate in the farm by subtracting FMV of the farm at the time of dissolution without marital improvements from the FMV of the farm at the time of dissolution with marital improvements, then, adjust this amount by a life estate valuation formula, but in no event shall the compensation for the marital increase in value to a life estate exceed the value of the improvements thereon.

Ex-Husband also contends TC erred by awarding maintenance to Ex-Wife. As entitlement and amount of maintenance are dependent upon the marital and nonmarital property allocated to the party for a determination of whether the claimant has sufficient resources for her support, CA ruled that Ex-Wife’s maintenance award must also be vacated for reconsideration as part of the underlying property award was reversed on appeal.

Ex-Husband finally contends TC abused its discretion by awarding attorney’s fees to Ex-Wife. Based upon the apparent imbalance of financial resources between the parties, CA found no abuse of discretion in TC’s award to Ex-Wife of a portion of her attorney’s fees.

Affirmed in part, reversed in part, and remanded.
Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

Croft v. Croft, KY, Marital/Nonmarital property, Maintenance

Croft v. Croft, ___S.W.3d__(Ky. App. 2007)

Wife appealed an order dividing marital property, denying maintenance, and restoring non-marital property. First, Wife argued that the TC erred in finding that the marital residence was Husband’s non-marital property. CA agreed with Wife and reversed and remanded on this issue. Husband purchased the house and adjoining lot before the couple was married. However, the mortgage was paid off after the marriage, with marital funds. CA reasoned that the TC should have acknowledged this fact and apportioned some of the value of the property as marital. Also, the couple made several, post marriage, improvements to the house. Therefore, Wife claimed the increase in value should be considered marital property. Husband argued that the improvements were just regular maintenance and “were not substantial enough to warrant an increase in value.” CA opined that a TC needs only to determine that the increase in value was due to improvements and not just economic conditions in order for the property to qualify as marital property. Absent clear and convincing evidence that the increased value was due to economic conditions alone the property should be considered marital.
Next, Wife argued it was error for the TC to deny her claim for permanent maintenance. TC held that considering the length of the marriage ( the parties were married in 1997) and the division of property maintenance was not appropriate. CA held that the TC’s decision was not an abuse of discretion because it was supported by substantial evidence.
Finally, Wife argued that the TC erred because it did not divide the property proportionately. CA held that the TC did not err in its division of property. CA opined that husband had presented sufficient evidence that certain items in his possession were his non-marital property. Additionally, wife provided no evidence that any of that property was marital.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates

Clark v. Clark, Maintenance, Marital And Nonmarital Property

Clark v. Clark, ___ S. W. 3d ___ (Ky. App. 2007)

DESIGNATED TO BE PUBLISHED: AFFIRMING IN PART; VACATING AND REMANDING IN PART
PANEL: ACREE PRESIDING; KELLER AND LAMBERT CONCURRING;
COUNTY: JEFFERSON
DATE RENDERED: 9/21/2007

Ex-Wife appealed from TC’s Order assigning value to a 2002 Ford Taurus, not valuing or dividing certain certificates of deposit (CD’s) and reducing her maintenance. Parties separated after eighteen years of marriage. At the time of their divorce, Ex-Wife was 70 years old and Ex-Husband was 78. Prior to their marriage, Ex-Husband owned a home, land and livestock. Ex-Husband sold his livestock shortly after the marriage and purchased CD’s with the proceeds. During their marriage, the parties lived on Ex-Husband's social security and pension benefits and, once Ex-Wife reached 62, her social security benefits.

While Ex-Wife's dissolution petition was pending, Ex-Husband was ordered to pay $300.00 per month pendente lite maintenance. After trial, TC found a Taurus to be marital property and awarded it to Ex-Wife with a value of $12,000.00. The CD’s were neither assigned nor awarded since Ex-Wife failed to present any evidence that they existed at the time of the parties' divorce. After dividing all marital property, TC reduced Ex-Wife's maintenance award to a monthly sum of $100.00. Ex-Wife filed this appeal. Subsequently, Ex-Wife filed a CR 60.02 Motion for TC to consider new evidence reflecting that Ex-Husband had cashed out CD’s prior to dissolution but after separation. TC denied this motion. CA indicated that any appeal of that Motion must be separate from this appeal.

Ex-Wife first argues the trial court abused its discretion when it assumed facts not in evidence about the value of the 2002 Ford Taurus, and further arguing that Ex-Husband had purchased the car as a gift for her and, thus, it was not marital property within the definition of Kentucky Revised Statute (KRS) 403.190(2). At trial, Ex-Husband disputed that the Taurus was purchased as a gift to Ex-Wife and, indeed, the car was titled in both parties' names. At trial, neither party testified as to the current value of the Taurus. TC found that Ex-Wife failed to meet her burden of proving that the car was her nonmarital property. The car was awarded to Ex-Wife and assigned the $12,000.00 value listed as its NADA book value in Ex-Husband's mandatory case disclosure. Ex-Wife contends it was incumbent upon Ex-Husband to introduce evidence of the car's value at trial, since he argued it was a marital asset, citing CR 43.01(1), which states, “The party holding the affirmative of an issue must produce the evidence to prove it.” Ex-Wife claimed Ex-Husband’s failure to introduce evidence of its value at trial deprived her of the opportunity to refute this figure. Thus, she argues the burden of refuting the Taurus' supposed value of $12,000.00 never fell to her. She asked CA to assign a value of zero dollars to the car or, in the alternative, to allow her to present evidence contradicting the value assigned by TC. CA disagreed with Ex-Wife’s contentions. CA noted that Ex-Wife had filed her own MCD but failed to assign any value to the Taurus because she contended it was her nonmarital property value as $12,000.00, was filed in the record on June 30, 2004. Ex-Wife had notice that Ex-Husband was characterizing the car as marital property and also of its asserted value. It appears that, instead of introducing her own evidence regarding the car's value, Ex-Wife relied on her ability to persuade TC of the car's nonmarital character. CA found no error in TC’s decision on this issue.

Ex-Wife next argues that TC’s division should have recognized and divided the CD’s between the parties. At trial, Ex-Wife introduced records showing existence of CD’s in 2001. She did not testify to the source of the funds, and offered no proof that the CD’s still existed. Ex-Husband testified that all of the funds used to purchase the CD’s came from the sale of his nonmarital livestock and that the CD’s were exhausted during the marriage.TC found that it was unable to award or assign an asset whose existence was unproven. Ex-Wife asked CA to consider evidence she presented in support of her CR 60.02 motion that Ex-Husband had cashed out the CD’s shortly after the parties separated. However, CA noted that it had issued a previous order that issues related to this Motion must be contained to a timely appeal of that Motion, and Ex-Wife failed to timely appeal that Motion. CA found no error in TC’s order on this issue.

Finally, Ex-Wife argued TC abused its discretion when it reduced her maintenance award, as it set her permanent maintenance so low that she would be dependent upon others for the means to meet her basic needs. At trial, Ex-Wife told TC that she was currently obliged to live with her daughter, and, as a result, TC subtracted her rent and telephone bills from her monthly living expenses. CA held that a TC’s failure to award a sum sufficient to allow a spouse to meet her needs without requiring that she depend on the generosity of family and friends was plainly an abuse of discretion. CA held that TC clearly erred, as its Order did not address the issue of Ex-Wife's current standard of living versus the lifestyle she shared with Ex-Husband during their marriage. TC’s order affirmed in part, vacated in part, and remanded with instructions to TC to review maintenance award.
As digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates.

To Be Tax Deductible Alimony Must Terminate On Death Of Recipient

You can read Hinson v. Commissioner, US Tax Court Summary Opinion 2007-92 (June 7, 2007) here. The code is quite clear that to be taxable income/tax deductible, alimony (maintenance) must terminate on the dearth of the payee. The Family Law Prof Blog reports:

The tax court, in a recent summary opinion, provides a good example for our students of the importance of careful drafting in light of the interrelationship between the tax code and state law when determining the tax consequences of divorce. In this case, the divorce decree provided that Husband would pay Wife $1200 a month in “rehabilitative alimony” and an additional $72,000 in “lump-sum alimony”, payable in installments of $600 a month. The decree did not indicate whether this lump sum
award would terminate upon Wife’s death.

Under section 71(b) of the tax code, alimony is not deductible if it does not terminate upon the payee spouse’s death. Because the Florida courts have held that an award of lump-sum alimony survives the death of both the obligor and the obligee, the alimony was not properly deductible.

Discretionary Review Granted In Maintenance Case (KY)

Horvath v. Horvath, 2004-CA-002591-MR, designated not to be published, discretionary review granted 4/11/2007
Here's the digest of the Court of Appeals decision:

Issues and Holdings:
1. Whether the trial court erred in finding that the husband owed a maintenance arrearage to wife. The Court held no, the trial court did not err as husband failed to show how he was prejudiced by the court’s order.
2. Whether the trial court erred in awarding prospective maintenance to the wife for life. The Court held yes, the trial court misapplied the criteria set out in KRS 403.200(2) and failed to make appropriate findings of fact.

Facts:
The parties married on December 9, 1963 and separated on March 30, 2001. In November 2002 the parties agreed that the husband would pay the wife $1700.00 a month in temporary maintenance. In February 2003 the husband sold his business interest to his two partners in exchange for $30,000.00. The husband also received a consulting fee of $9375.00 per month for three years. In March 2003, when the consulting payments began, the husband stopped paying the wife $1700.00 per month. Instead, he paid her half the consulting fee, less tax withholding, her health insurance, and half the cost of the parties’ business properties. These payments ranged from $4339.50 to $2921.61 a month. The company also suspended the payments for a couple months in 2004.
The trial court held that these payments were a division of proceeds from the sale marital property, not maintenance. Thus, the court found that the husband still owed the wife $1700.00 per month in maintenance from July 16, 2003 to the date of judgment. The trial court did not hold the husband in contempt, but ordered that the arrearage be paid within 30 days from entry of judgment. The trial court also awarded the wife $1200.00 per month in maintenance for life. Husband appealed.

Analysis:
The Court found that the trial court correctly concluded that the consulting fees were a marital asset to be divided. Therefore, whether the money owed is characterized as maintenance arrearage or marital asset, the husband still owed the wife the money. Since the husband failed to show how he was prejudiced by the trial court’s characterization of the amount as maintenance arrearage, the Court upheld the lower court’s ruling.
Regarding the prospective maintenance award, the Court found that the husband presented no compelling reason to disturb the trial court’s determination that the wife was entitled to maintenance. However, the Court found that the trial court misapplied KRS 403.200(2) in determining the amount and duration of maintenance. The Court agreed that the trial court should have considered the husband’s debts. The husband’s debts should not be excluded from consideration just because they were classified as nonmarital. The fact that the debts were incurred during the parties’ separation and without the wife’s express consent does not render them a dissipation of marital assets. The trial court can find that debts incurred by one party during separation constitute a dissipation only where there was a clear intent by one party to deprive the other of marital assets. Otherwise, the trial court must consider all debts, marital and nonmarital, in determining the husband’s ability to meet his reasonable needs while paying maintenance to the wife. Therefore, the Court remanded this issue for further factual findings and a recalculation of the maintenance award, if appropriate.

Potter, Senior Judge, Dissented in part.
The husband was prejudiced by the trial court’s failure to give him credit against his maintenance obligation for payments made. Husband paid the maintenance twice, once from marital assets during the separation and again from his separate property after the divorce. The trial court’s ruling seemed to hold that because the marital property used to pay the maintenance could be traced to the proceeds of a sale of property and not income, the payments did not count. The law does not recognize such a principal-income distinction.

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

Same Sex Cohabitation Terminates Maintenance Notwithstanding Gay Marriage Ban

One of the questions we pondered as states passed DOMAs and constitutional amendments banning same-sex marriage was what effect such would have on divorces between heterosexuals. Larry O'Dell,
Associated Press Writer, Richmond, Va. wrote about a recent Virginia Court of Appeals ruling, Stroud v. Stroud in which same-sex cohabitation terminated a contractual obligation to pay maintenance. His story is here. Some excerpts:

University of Richmond law professor Carl Tobias said the appeals court seemed to be treating same-sex couples the same as heterosexual couples--but only in the narrow analysis of contract law, not the broader public policy context.

Chris Freund, spokesman for conservative Family Foundation of Virginia, said the ruling proves that opponents of last year's constitutional amendment prohibiting gay marriages and civil unions were wrong in claiming the measure would interfere with private contract rights.

"Today's decision is simply about a contract between two people and has nothing to do with how the Commonwealth of Virginia defines or recognizes marriage," he said.

But David Spratt, former chairman of the Virginia Bar Association's Domestic Relations Section, said the ruling could have more far-reaching consequences depending on how this area of the law evolves.

"The legislature certainly does not recognize same-sex relationships as anything--they don't even recognize the capacity of same-sex couples to contract," said Spratt, now a legal rhetoric professor at American University, Washington College of Law. "So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important."

He noted that Virginia law defines adultery as sexual intercourse between a married person and someone of the opposite sex. By recognizing same-sex cohabitation, the court could provide the impetus to change the adultery law to cover homosexual acts, Spratt suggested. Such legislation died in the session that ended Saturday.

The gay-rights group Equality Virginia, which opposed the so-called "marriage amendment" that was approved by voters in November, had no immediate response to Tuesday's ruling.

Maintenace Modification Only If Wife's Circumstances Improve

Note: This "to be published" case is not final; a motion for discretionary review has been filed:
Massey v. Massey, __ S.W.3d __ (Ky. App. 2006), 2006 WL 2517525 (Ky. App.
Issues and Holdings:
1) Whether a maintenance order that is subject to modification is an open-ended award rather than lump sum. The Court held yes, such an order is an open-ended maintenance award.
2) Whether the family court’s order permitting modification of maintenance only if the former wife’s income increased was authorized by the maintenance modification statute. The Court held no, such an order is not permitted under the statute.
3) Whether the amount of maintenance awarded was adequate. The Court held yes, the award was adequate.
4) Whether the family court’s findings were sufficient to support the five-year duration of the maintenance award. The Court held no, the court’s findings were insufficient.

Facts:

The parties were married on August 21, 1982 and divorced on September 3, 2004. Lisa, the Appellant, was 41-years-old at the time of the divorce. One child was born of the marriage. The court awarded Michael sole custody of the child. Lisa was granted visitation, and ordered to pay $175 per month in child support. Lisa was awarded maintenance of $1200 per month, which was to be offset by her child

Few Men Seek Alimony

Few men seek alimony. That is why it is news that The Miami Herald reports in its story on Sunday, CBS4 anchor asks wife for alimony.

As co-anchor of the 5:30 p.m. newscast and an Emmy-winning reporter, (Eliott)Rodriguez earns $300,000 a year. His wife, Univisión anchor Maria Elena Salinas, 51, earns more: upward of $2 million a year, with $60,000 a month available for expenses, he said in court papers....

Reluctant to be cast as a poster boy for alimony, Rodriguez explained the instructions he gave his attorneys.
"I said `Look, I'm a journalist. What I do for a living is gather information. I've gathered the information in my case and given it to all of you very high-priced lawyers. Now please apply it to my case and let me move on,' '' he said in a telephone interview. ``Instead, I find myself in the middle of this legal battle that I don't want to be a part of.''
Rodriguez says that he is going after the alimony because he is entitled to it because of the difference in salaries and marital lifestyle. If he wasn't entitled to it, Rodriguez says, he would not want it....

Sometimes, men can be their own worst enemy.
Gaetano Ferro, president of the American Academy of Matrimonial Lawyers and an attorney in New Canaan, Conn., once represented a woman who owned a book-publishing company. Her husband was a mechanic and earned far less, but he refused to ask for alimony.
''It's a macho thing,'' said Burton Young, a family law attorney for 57.... Because of the difficulty in winning alimony, he sees it as a better negotiating tool.

Awards of maintenance in Kentucky are supposed to be gender neutral, and in Jefferson County, I believe the law has been applied. I would think the bigger hurdle is convincing a court that one cannot meet his own reasonable needs on $300,000 per year. A spouse with such earnings really cannot live as well as one who earns over $2million per year, but that threshold requirement of being unable to meet one's own reasonable requires some good advocacy to surmount.

Improper Factors in Calculating Maintenance

From The Family law Prof Blog: "The Supreme Court of Connecticut has affirmed the court of appeals ruling in a case in which a couple were married for 11 years, lived together for a number of years and then remarried for six years." (See Family Law Prof Blog post of February 10, 2006) "The court of appeals had found that the trial court, in fixing the term of the maintenance award, improperly took into consideration both the prior marriage and cohabitation and the fact that there were adult children with grandchildren residing in the house."
"The court concludes that 'length of the marriage' criterion prescribed in [statutes governing maintenance awards], as a matter of law, does not include prior marriages or cohabitation preceding the marriage."
My tech learning curve stopped at posting .pdf docs. so here's the not so pretty link to the opinion:http://www.jud.ct.gov/external/supapp/Cases/AROcr/CR280/280cr8.pdf. Maybe early next year I can find a little time with a fire blazing in the fireplace to putter with the tech stuff, much like earlier this year when I gave this site a soft launch.

Sponsor of Immigrant Spouse May Have to Make Good on Financial Affidavit of Support

Sponsor of immigrant may have to make good on affidavit of financial support from FlaDivorceLawBlog.

Wheeler v. Wheeler, 154 SW3 291 (Ky.App., 2005)

Wheeler v. Wheeler, 154 SW3 291 (Ky.App., 2005)
Where first maintenance modification motion was denied,
and no modification resulted, the trial court must look at change
of circumstances since the original agreement or decree.
Res judica does not preclude the court from looking at facts and circumstances
occurring prior to the first motion for modification when no
modification was granted. In modifying an agreement
that is subject to further orders of court, the court must
examine the factors set out in Combs v. Combs to determine
whether cohabitation justifies a reduction in maintenance.

Value of Homemaker Services

Bonnie Brown, a Louisville attorney, AAML fellow and KCFN member, sent this article from the May 3, 2006  Boston Globe quantifying the value of homemaker services. While divorce does not directly provide a vehicle for compensating such services, we remind each other from time to time of a case where she made this argument as part of a spousal support claim. She was delighted to see the article putting a dollar number on the value,and I’m glad to pass it on.

Gomez v. Gomez, 168 SW3d 51 (KY. App., 2005)

Gomez v. Gomez, 168 SW3d 51 (KY. App., 2005)
Hospital based medical practice valuation which included
no goodwill value was reluctantly affirmed because, while
capitalization of excess earnings method is an acceptable
approach, the trial court is not required to use this method
and trial court ruling as to valuation will not be disturbed
unless clearly contrary to the evidence submitted. The
Court of Appeals reversed the maintenance award ($5,000
per month for three years + $2,424 per month for first and
second mortgages where husband grossed $600,000) to
$800,000 per year. Assignment of $52,000 credit card debt to
wife was also reversed because at least $18,000 of the debt
was for two rugs, of which the husband received one and the
debt was in the husband's name. The Court of Appeals also
reversed the attorney fee award of only 22% of wife's attorney
fees as the trial court did not enumerate any of the factors set
out in Sexton v. Sexton.

Notes from Laura Morgan and Guy Ferro's Spousal Support Presentation

Laura Morgan, www.FamLawConsult.com, VA (the “Goddess” and co-author of the Spousal Support Handbook to be published by the ABA in 2007) and Gaetano(“Guy”) Ferro, CT, President-Elect, AAML, presented Alimony, Spousal Support and Maintenance: A Musical in Six Acts at the AAML/LBA Family Law seminar at the LBA April 21, 2006. Here's the general outline and a few notes. Thanks Laura and Guy for permitting me to post about your great presentation.

“Those Were the Days, My Friend”

!. Introduction “Something’s Gotta Give”
What is Spousal Support and what is it supposed to accomplish?

II Traditional View of Alimony “Bbbbbad to the Bbbbone”
“I Know a Little Bit About a Lot of Things But I Don’t Know Enough About You”

III The First Wave “People Get Ready, There’s A Change A Comin”
Uniform Marriage and Divorce Act
“I am Woman, Hear Me Roar”
“I Will Survive”
“Working Nine to Five”

IV The Second Wave “Will You Still Need Me When I’m Sixty-Four”
“What I’ll Do When You Are Far Away And I Am Blue”
“Yip Yip Yip, Mum Mum Mum…Get a Job”
“What’s Goin On?”
“Take This Job and Shove It”

V Unanswered Questions “Time Keeps Slipping, Slipping Into the Future”
“Get Out of Here, and Give Me Some Money, Too”

VI Current Trends “Money, That’s What I Want”
Compensation Based Method of Support
Fault “Your Cheatin Heart”
“Oh, I Believe in Yesterday”

VII Kentucky Law “The Sun Shines Bright in my Old Kentucky Home, ‘Tis Summer, the People are Gay” (unless you want to adopt children)
“Well, You Can Cry Me a River”
Turns away from UMDA, applies principle of the “equal degradation of standard of living of both parties” (not the legal standard, this is the description of the result as communicated by a KY Fellow at last year's seminar)

VIII Alimony Guidelines
Broad discretion in award of alimony is no longer justifiable and should be discarded in favor of guidelines, if not adopted as an outright rule. Bacon v. Bacon, 819 So2d 950 (Fla 4th DCA 2002)
The New Mexico Experiment 38 Family Law Quarterly 29 (2005)
38 June Md. B.J. 46 (2005)
33 U. Louisville J. Family Law 971,972 (1995)
Victoria Ho has also published on guidelines in the Florida Bar Journal and Divorce Litigation
Some Michigan counties use “Alimony Series” software endorsed by the Family Law Council of the Michigan Bar Association (www.marginsoft.net)
Fairfax VA Bar Association has download of guidelines of pendente lite alimony that has been in use since 1981
Arizona: www.azbar.org/sections/family/archives/
Nevada has computer program which gives support result based on historical judicial awards over 30 years with analysis of factors underlying awards.
Johnson County Kansas guidelines distributed. AAML Fellow Ron Nelson is a big supporter of these guidelines. 20% (no children) 25%(with children) of difference in gross income of parties, gross income defined by child support guidelines definition, duration 2 years for first 5 yrs of marriage then 1 year for every 3 yrs, with maximum of 10 years plus 1 month, but there are other factors that may be considered.

There is growing, but guarded support of adoption of guidelines

In short term marriages, support is less problematic. In long term marriages, indeterminate awards are preferred.

IX ALI Principles, Compensating Spousal Payments
Principles of Family Law and Recommendations, 2002, 1100 pages, spousal compensation section, 110 pages. Useful state-by-state statement of the law ; recommendations for spousal support are controversial. They created the policy that spousal support should be compensation to allocate financial losses arising from dissolution that are equitable in application and disregard fault. Compensable loss of earnings include those related to caretaking of children or others to whom moral responsibility arose. The person who earns most of the money should end up with most of it. Comments to the final draft say they are merging concepts of support and property.

X The AAML Response
In response to a survey, most Fellows believed the most important factor should be need, then the length of marriage and earnings and the least important factor is fault. What most Fellows like least about guidelines was the lack of discretion and interestingly, what most Fellows like least about the lack of guidelines is too much discretion resting with the court! A blue ribbon Academy committee is studying the issue and the AAML expects to publish a formal official response

Further Reading:
Starnes, Mothers as Suckers: Pity, Partnership and Divorce Discourse, 90 Iowa L. Rev. 1513 (2005),
Kapalla, Some Assembly Required: Why States Should Not Adopt the ALI’s System of Presumptive Alimony Wards in Its Current Form, 2004 Mich. St. L. Review 207
(2004)

ELVIS HAS LEFT THE BUILDING!