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Roper v. Roper

Court of Appeals of Kentucky

November 8, 2019



          BRIEFS FOR APPELLANT: Tasha K. Schaffner Crestview Hills, Kentucky

          BRIEF FOR APPELLEE: Melissa Thompson Millard Cincinnati, Ohio



          JONES, JUDGE:

         Craig Roper appeals from the Boone Circuit Court's supplemental findings of fact, conclusions of law, and decree of dissolution dissolving his marriage with the Appellee, Erin Roper. The supplemental decree decided issues of child support, spousal maintenance, and marital property. In addition to contesting the trial court's findings of fact and conclusions in the supplemental decree, Craig contends that the trial court lacked subject matter jurisdiction due to the fact that he, Erin, and their four minor children were all residing in Texas at the time the decree was entered. Following a review of the record and applicable law, we affirm in part, reverse in part, vacate in part, and remand for further proceedings consistent with this opinion.

         I. Background

         Craig and Erin were married on November 20, 1999. Four children resulted from the marriage. On May 25, 2016, Erin filed a petition for dissolution of marriage, in which she sought joint custody of the parties' minor children, child support, and spousal maintenance.

         From the start, the divorce proceedings were contentious. In July of 2016, Erin moved the trial court to order Craig to be cooperative with her attempts to enroll the parties' oldest two children in professional counseling. Erin contended that since learning of the divorce proceedings, the two oldest children had been extremely disrespectful to her and that her relationship with them had deteriorated. Erin additionally requested that the trial court order Craig to refrain from making disparaging remarks about her in front of their children and that Craig refrain from undermining Erin's attempts to discipline the children. Craig filed a response to Erin's motion in which he denied that he made disparaging remarks about Erin in front of the children and denied that the parties' oldest two children had any behavioral problems. Craig did agree, however, that Erin's relationship with the oldest two children was very strained and stated that he had enrolled those children in a counseling program. On September 1, 2016, Craig filed a motion with the trial court requesting temporary custody of the parties' children with a set parenting schedule for the parties' youngest two children, sole and exclusive possession of the marital residence, and an order requiring Erin to provide her preliminary verified disclosure statement. As grounds for his motion, Craig stated that Erin had voluntarily moved out of the marital residence in July but had been coming into the home without notice to remove items. Craig additionally alleged that Erin had not seen the parties' oldest two children since she had moved out of the marital residence, and he requested that the children continue to receive counseling until their relationship with Erin was rehabilitated enough for her to exercise parenting time. On November 16, 2016, Erin filed a motion for child support, temporary maintenance, and for an order that Craig cooperate in selling the parties' Cadillac Escalade.

         In February of 2017, Craig moved the trial court for an order permitting him to move the children with him to Texas that coming May. Craig informed the court that he was employed by Toyota and that his job was being relocated; he and Erin had both been made aware of the fact that the relocation would happen when they moved to Kentucky two years earlier. Craig stated that their family had no ties to Kentucky and that nothing was keeping Erin from moving to Texas to be closer to the parties' children if she wished to do so. In his motion, Craig additionally requested the court order Erin to cooperate with the sale of the marital residence through the Toyota Relocation Program. Craig again requested that the trial court restrain Erin from entering the marital home and requested an order that Erin return all marital and personal property that she had removed from the home. The parties entered an agreed order appointing a guardian ad litem for their minor children on February 13, 2017. On February 22, 2017, the parties filed an agreed order agreeing to cooperate with the sale of the marital residence and with the Toyota Relocation Program.

         On March 9, 2017, the trial court held a hearing on all pending motions except for Erin's motion for temporary maintenance, which was reserved. At the outset of the hearing, Craig and Erin agreed that Craig would have sole and exclusive use of the marital residence, that neither would make disparaging remarks about the other in the presence of the children, that they would not share "adult information" about the divorce with their children, and that they would agree on a different counselor for the oldest two children. Craig testified that he had worked for Toyota for the past nineteen years and that the family had voluntarily relocated to Kentucky for his job. He stated that a month after moving to Kentucky, he found out that Toyota was relocating its headquarters to Dallas, Texas, which would require him to transfer again. While he had tried to be moved into a different division of Toyota so that he could stay in Kentucky, he was unsuccessful. Craig stated that he and Erin had discussed and planned on moving the family to Texas; they had even made trips to Texas together to look at subdivisions and school districts. Since the separation, however, Erin had informed him that she no longer wished to move to Texas. Craig stated that he and Erin share parenting time with the youngest two children, but that he has the oldest two children full time. Craig testified that this arrangement was due to the strained relationship between Erin and the oldest two children. He agreed that it was in the children's best interest that the relationship with Erin be repaired. Craig stated that his average gross income was $90, 000 per year and that he paid all expenses for the children.

         Erin testified that after vacating the marital residence, she initially lived in a friend's condominium, but later moved to a rented apartment. She testified that she has a bachelor's degree in Christian care and counseling but had not used that degree in any professional capacity. Until January of 2016, Erin had stayed at home with the children and homeschooled them. Erin testified that she was now working part-time as a secretary at a church where she makes $14 per hour. She stated that she had tried to apply for other jobs but had been unsuccessful. Erin testified that Craig had only provided her with $580 since their separation and that she had been unable to collect any items from the marital residence. She testified that she had inherited a matured IRA from her grandmother from which she was required to take yearly withdrawals. Erin believed that the parties had about $140, 000 in equity in the marital home, which they would divide evenly when it was sold. The parties' oldest child testified about the issues between him and Erin and his desire that he and his siblings move to Texas. The parties stipulated that the second oldest child wished to move to Texas with Craig.

         The next day, the trial court entered findings of fact and conclusions of law and a temporary order addressing the move to Texas, custody of the children, and temporary child support. The trial court found that it was in the best interest of the children for the parties to share joint legal custody and for Craig to be named the primary residential parent and move with the children to Texas. Until the move to Texas, the parties were ordered to have equal parenting time with the youngest two children. The trial court found that Craig had a gross monthly income of $7, 660 and, after imputing income to Erin in the amount of $14 per hour for a forty-hour week, found that Erin had a gross monthly income of $2, 427. The trial court concluded that it should deviate from the standard child support guidelines until Craig and the children moved to Texas, as Craig had the oldest two children 100% of the time. Accordingly, Craig was ordered to pay Erin $399.08 per month in child support, effective November 10, 2016. Once Craig moved to Texas, Erin was ordered to pay him $402.32 per month in child support. It was additionally ordered that any documented daycare expenses and uncovered medical, dental, optical, copay, or prescription expenses be split between the parties, with Erin paying 24% of those expenses and Craig paying 76%.

         On April 5, 2017, an agreed order was entered concerning the equity in the parties' marital residence. Therein, it was agreed that Erin would cooperate with Craig's election to take a $70, 000 equity advance from the marital residence. In return, it was agreed that the first $70, 000 in profit from the sale of the marital residence would go to Erin with the parties to divide evenly any remaining profit. The parties also agreed to divide the costs of any repairs needed to prepare the marital residence for sale.

         Erin moved to Texas in late April of 2017, with Craig and the children following at the end of May. On August 10, 2017, the parties entered into a partial settlement agreement, which dealt only with custody and parenting time. In that agreement, the parties agreed to continue with joint custody of the children and set forth specific terms as to medical, educational, and extracurricular decision making. As to parenting time, the parties agreed to continue with an equal parenting time schedule with the youngest two children. The oldest two children were to work closely with a counselor to resolve their issues with Erin. Erin and Craig agreed to a "phase in" process with respect to the oldest two children whereby the parties agreed that Erin was to eventually receive equal timesharing, and that this process would be guided by the recommendations of the children's counselor.

         In August of 2017, Erin filed a motion with the trial court requesting it determine whether it continued to have jurisdiction to order child support in light of the fact that she, Craig, and the children were no longer residents of Kentucky. In that motion, Erin noted that under KRS[1] 407.5205(1), the trial court would no longer have jurisdiction to modify any child support orders. However, she contended that it was unclear as to whether the trial court had jurisdiction to make a permanent child support order, incorporated into a decree, when none of the interested parties resided in Kentucky. In the event that the trial court determined it did have jurisdiction to order child support, Erin requested that it take judicial notice of the Texas child support guidelines. Erin additionally filed a motion for the trial court to establish permanent maintenance of $1, 000 per month.

         In his response to Erin's motion concerning jurisdiction, Craig argued that KRS 407.5205 was inapplicable as the trial court's entry of a permanent child support order would not constitute a modification of the temporary child support order. Craig contended that the trial court retained jurisdiction until a final decree was entered. He argued that, under Erin's interpretation of the law, no court would have jurisdiction over child support issues as the children had not yet lived in Texas long enough for it to be considered their "home state" under the Uniform Interstate Family Support Act. Finally, Craig contended that it would be inappropriate for the trial court to apply the Texas child support guidelines. As to Erin's motion for spousal maintenance, Craig contended that it had not been timely filed and was not in compliance with the local rules.

         The trial court heard testimony on the issues of marital property, child support, and maintenance over the course of three days: August 21, 2017; December 1, 2017; and April 12, 2018. Erin and Craig were the only testifying witnesses. On the first day of the hearing the trial court concluded that it did have jurisdiction to enter a permanent child support order and that it was not appropriate to follow the Texas child support guidelines. In February of 2018, the parties agreed to bifurcate the issues pending before the trial court; the court entered a decree dissolving the parties' marriage, but reserving all other issues, on February 28, 2018.

         On June 11, 2018, the trial court entered supplemental findings of fact and conclusions of law and a supplemental decree of dissolution. Therein, the trial court found that the partial settlement agreement executed by the parties was not unconscionable and incorporated it into the supplemental decree. Concerning maintenance, the trial court found that Erin had a bone tumor in her arm that required medical care and physical therapy but was otherwise in good mental and physical health. The trial court found that Erin had a college degree but had stayed at home caring for and homeschooling the children until January of 2016. Erin currently had a full-time job as a youth pastor earning $45, 000 per year.

         The trial court noted that each party received $70, 000 from the sale of the marital residence and that the parties were evenly dividing Craig's Toyota retirement, which would amount to Erin receiving approximately $215, 000. The trial court found that Craig had worked at Toyota for 19 years, had a base salary of $91, 717 per year, and had received bonuses of $10, 000 so far in 2018. The trial court found that Craig had been able to advance his career during the parties' marriage, due in part to Erin's contributions to their family.

         Erin listed monthly expenses of $5, 869 and Craig listed monthly expenses of $7, 826.66; the trial court concluded that these expenses were supported by the testimony and exhibits presented at the hearing. The trial court additionally found that, while Craig's lifestyle had not changed since the parties moved to Texas, Erin's standard of living had drastically changed. Based on these findings, the trial court ordered Craig to pay spousal maintenance of $1, 000 per month for the next four years.

         The trial court next considered child support and the children's expenses. At the outset of that discussion, the trial court determined that it was in the best interest of the children to modify the parenting time schedule so that all children would have equal parenting time with both parents effective July 1, 2018. This determination was based on the fact that the parties had entered into the "phase in" agreement almost one year ago, with no improvement. The trial court then determined that, based on its findings concerning Erin's and Craig's respective monthly salaries and the change in parenting time, Craig would owe Erin child support in the sum of $521.84 per month effective July 1, 2016. Expenses for the children's agreed-on extracurricular activity expenses and uncovered medical, dental, optical, prescription, and copay expenses were to be divided with Craig paying 61% and Erin paying 39% of the expenses. Additionally, Erin was to be responsible for 39% of the $138 per month Craig spent on the children's insurance coverage. The trial court concluded that Erin was under no requirement to reimburse Craig for any past expenses for the children related to clothing, childcare, food, or activities that he had incurred since the parties' separation.

         The trial court next addressed the issue of marital property. The main point of contention between the parties was how to categorize the multiple bonuses Craig had received from Toyota as a result of his relocation. Craig testified that these bonuses had been deposited into a bank account to which Erin did not have access, and that he had not given her any portion of what he received. The trial court categorized a $27, 227 net relocation bonus that Craig had received in December of 2016 as marital property; however, because Craig had used $15, 000 of that bonus to pay off marital debt, the trial court concluded that only the remaining $12, 227 should be divided equally between the parties. A $40, 000 gross relocation bonus that Craig is scheduled to receive in August of 2019 was categorized as Craig's nonmarital property. All other bonuses that Craig had received were classified as marital property and the trial court ordered Craig to pay half of all amounts to Erin within ninety days. The trial court ordered that Craig would receive the 2007 Cadillac Escalade and that Erin would retain the 2007 Ford Escape that she had purchased after moving to Texas. Erin's IRA was deemed to be her nonmarital property. The trial court found that Craig had a retirement account with Toyota with a balance of $435, 923.15, of which Craig had a nonmarital interest of $3, 101.50. Finally, the trial court denied Craig's request that Erin be ordered to reimburse him for certain expenses that he had made on her behalf after the parties had separated. The trial court found that, due to the disparity in the parties' income, Craig should pay $4, 000 of Erin's attorney fees.

         This appeal followed.

         II. Analysis

         On appeal, Craig contends that the trial court erred: (1) in hearing the case after he, Erin, and the children moved to Texas as it no longer had jurisdiction; (2) in the way it divided his and Erin's property; (3) in awarding Erin spousal maintenance; (4) in modifying the parties' partial separation agreement; (5) in awarding Erin attorney fees; and (6) in refusing to allow him to testify as to interest earned on his nonmarital retirement funds. We consider each argument in turn.

         A. Trial Court's Jurisdiction

         Craig first contends that the trial court lost subject matter jurisdiction over child support, custody, and parenting time issues once the parties ceased to reside in Kentucky. These contentions are based on Craig's interpretation of the Uniform Interstate Family Support Act ("UIFSA")[2] and the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA").[3] Craig additionally argues that the trial court could not have made reliable determinations as to related issues-such as maintenance and marital property-as all issues considered in the dissolution proceeding are intricately intertwined. Craig contends that all orders entered after May of 2017 must be vacated due to the trial court's lack of subject matter jurisdiction. As the jurisdiction of the trial court in this instance is resolved by interpreting statutory provisions, we review it de novo. Wahlke v. Pierce, 392 S.W.3d 426, 429-30 (Ky. App. 2013) (citing City of Worthington Hills v. Worthington Fire Prot. Dist., 140 S.W.3d 584 (Ky. App. 2004)). "When interpreting a statute, the intent of the legislature is paramount and controls. And, words are afforded their ordinary meaning unless a contrary intent is apparent." Id. at 430 (citing Old Lewis Hunter Distillery Co. v. Ky. Tax Comm'n, 302 Ky. 68, 193 S.W.2d 464 (1945)).

         Before delving into interpretation of the relevant statutes, some additional background information concerning the jurisdictional question is required. Craig filed his notice of appeal on June 28, 2018. In early August of 2018, Erin moved the trial court to compel Craig to pay her the moneys due to her under the supplemental decree and to hold Craig in contempt of court. On September 14, 2018, as part of a standard briefing schedule order, this Court, on its own motion, ordered the parties to include in their briefs the issue of Kentucky's jurisdiction.[4]

         Apparently inspired by this Court's briefing order, Craig filed a CR[5]60.02 motion with the trial court on October 4, 2018. In that motion, Craig sought to set aside all portions of any order entered after May 26, 2017, relating to child and spousal support, parenting time, or custody of the parties' children. Craig additionally contended that the supplemental findings of fact and decree-from which he brings the present appeal-should be vacated. As grounds, Craig argued that the trial court was without subject matter jurisdiction to enter those orders. Craig contended that the trial court lost subject matter jurisdiction over any child support, custody, or visitation issues when all parties were no longer residing in the Commonwealth of Kentucky. Additionally, he argued that because the remaining issues addressed in the supplemental decree-i.e., maintenance and marital property-were intertwined with the child support issue, the trial court could not sever them and decide only those issues.

         On October 25, 2018, Craig filed with this Court a petition for a writ of mandamus staying further enforcement proceedings in the trial court until this Court ruled on the present appeal. As grounds for the grant of the writ, Craig argued that the trial court lacked subject matter jurisdiction. A panel of this Court denied Craig's writ by order entered December 11, 2018. That order explained as follows:

[Craig's] argument is two-fold. One, the circuit court lost subject matter jurisdiction when the parties and the children left the state after commencement of the proceedings but prior to the entry of the decree, and two, the circuit court does not have jurisdiction over the pending motions. [Craig's] claims fail as he has failed to demonstrate that the circuit court is without subject matter jurisdiction.
Subject matter jurisdiction is the court's authority, either by statute or constitutional provision, to hear and decide the type of case presented to it. Daughtery v. Terek, 366 S.W.3d 463, 466 (Ky. 2012). A court is to review the pleadings and determine if, when taken at face value, the pleadings reveal a type of action that is assigned to the court by statute or constitutional provision. Id. "Once a court has acquired subject matter and personal jurisdiction, challenges to its subsequent rulings and judgment are questions incident to the exercise of jurisdiction rather than to the existence of jurisdiction." Hisle v. Lexington-Fayette Urban Cty. Gov't, 258 S.W.3d 422, 429-30 (Ky. App. 2008).
The fact that both parties and the children were residents of Kentucky at the time the dissolution proceedings commenced and at least six months prior is determinative in resolving the issue of whether the circuit court had subject matter jurisdiction to render the decree. Dissolution actions, including therein child custody and support, between two individuals who, with their children, were residents of the Commonwealth for at least six months prior to commencing the action is the type of case the circuit court is vested with the authority to hear and decide. KRS 403.140; 403.211; 403.822. Therefore, the circuit court had jurisdiction to enter the decree.

         Order Denying Extraordinary Writ at 3-5, Roper v. Bramlage, No. 2018-CA-001557-OA (Ky. App. Dec. 11, 2018).

         Erin contends that this Court's order denying Craig's writ petition is dispositive of the question of the trial court's jurisdiction, thereby obviating the need for any further analysis on the issue. Erin's contention appears to be based on the law of the case doctrine, which is "an iron rule, universally recognized, that an opinion or decision of an appellate court in the same cause is the law of the case for a subsequent trial or appeal however erroneous the opinion or decision may have been." Union Light, Heat & Power Co. v. Blackwell's Adm'r, 291 S.W.2d 539, 542 (Ky. 1956). We disagree. The law of the case "doctrine is predicated upon the principle of finality." Brooks v. Lexington-Fayette Urban Cty. Housing Authority, 244 S.W.3d 747, 751 (Ky. App. 2007). Indeed, the doctrine has been described as follows: "A final ...

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