MICHAEL J. BARTLETT v. CYNTHIA H. BARTLETT
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RENDERED:
DECEMBER 21, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002766-MR
MICHAEL J. BARTLETT
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOAN BYER, JUDGE
ACTION NO. 96-FC-01743
CYNTHIA H. BARTLETT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER AND SCHRODER, JUDGES.
EMBERTON, JUDGE: The sole issue in this appeal is whether
appellant, Michael J. Bartlett, was denied due process of law
when the trial court entered an order finding his income to be
greater than the amount found in the report of the domestic
relations commissioner.
We affirm.
In November 1997, appellee filed a motion to increase
child support in part because of a reduction in the amount of
maintenance she had been receiving.
The domestic relations
commissioner conducted a hearing and issued findings which paint
the following picture of appellant’s lifestyle and resources:
Respondent testified that he is the sole
owner of M. Joseph and Associates. He
resides in Lake Forest in a home which for purposes of a credit
application produced in July 1997, was valued at $540,000.00,
with a mortgage balance of $395,000.00. At the time of the
credit application he listed his monthly gross income of
$8,000.00, plus “other income” of $40,000.00 annually. M. Joseph
and Associates pays his monthly mortgage payment in the amount of
$2,900.00 on the Lake Forest home as well as the utility bills at
the home; also Respondent’s meals and entertainment. The company
has purchased for Respondent a membership at Lake Forest Country
Club for the sum of $9,500.00, and pays $175.00 in monthly dues.
The company also pays the Respondent’s monthly expenses at the
Country Club which were recently running in the neighborhood of
$700.00 and $800.00 monthly. Respondent testified that Nancy
Schilling, his girlfriend who lives with him in the Lake Forest
home, pays to him the sum of $1,500.00 monthly in rent and pays
the telephone bill at the house. In the past the company has
purchased an $11,000.00 baby grand piano for the house, as well
as an oriental rug of the value of $8,825.00; a clock of the
value of $2,500.00; and approximately $25,000.00 worth of
household furnishings. Respondent states that his own monthly
living expenses, over and above what the company pays on his
behalf, are approximately $1,000.00 monthly. He has no personal
debts.
The commissioner also noted appellant’s claim that his
income from his company’s earnings has been drastically reduced
because of the violation of a non-compete clause by a former
employee to the point that he is currently earning about one-half
of what he had previously been accustomed to earning.
On the
basis of appellant’s testimony and that of his accountant’s, the
commissioner recommended a finding that his monthly income had
been reduced by fifty percent from the $8,000 listed in the 1997
credit report and was therefore currently only $4,000 per month.
The commissioner added to that figure $1,750 per month (again a
50% reduction from appellant’s 1997 income), by reason of the
expenses paid on behalf of his company of which he is sole owner.
Thus, for purposes of calculating child support for the parties’
four children, the commissioner recommended an income figure of
$5,750.
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In ruling on appellee’s exception to the recommended
finding as to appellant’s monthly income, the trial court made
the following finding:
1. The Domestic Relations Commissioner erred
in calculating Respondent’s monthly income to
be $4,000 per month. The Court having
reviewed the Exhibits finds that the
Respondent’s reasonable yearly income to be
at least $136,000 per year. This is
consistent with Respondent’s own information
for purposes of obtaining credit. It is
further consistent with Respondent’s
lifestyle and monthly expenses as set out in
the exhibits to the Commissioner’s Report and
contained within the Court’s file.
Appellant argues in this appeal that the trial court
abused its discretion in ruling upon the exceptions to the
commissioner’s report without reviewing all of the evidence
presented in the case and, that in so doing, deprived him of his
right to procedural due process.
We disagree.
The trial court’s authority with respect to utilization
of the report of the domestic relations commissioner is plainly
set out in Kentucky Rules of Civil Procedure (CR) 53.06(2):
The court after hearing may adopt the report,
or may modify it, or may reject it in whole
or in part, or may receive further evidence,
or may recommit it with instructions.
The Kentucky Supreme Court in Eiland v. Ferrell,1
interpreted the language of the rule as affording trial courts
“the broadest possible discretion with respect to the use it
makes of reports of domestic relations commissioners.”
1
Ky., 937 S.W.2d 713, 716 (1997).
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Furthermore, in Haley v. Haley,2 this court explained that the
“hearing” envisioned by CR 53.06(2), is merely an opportunity for
each party to present his or her position with respect to the
report by oral argument and that a full-blown evidentiary hearing
is not within the contemplation of the rule.
We are convinced that appellant was afforded his right
to be heard and that the decision of the trial court did not
deprive him of the due process guarantee.
It is clear to us that
the trial court had a clear picture of the evidence as a whole in
passing on the exceptions to the commissioner’s report and that
the decision in no way constitutes an abuse of discretion.
A
trial court is not required to comment upon every conceivable
piece of evidence in the case; it is sufficient that evidence of
substance supports its decision.
Our review of the record in
this case confirms the existence of substantial evidence
supporting the trial court’s conclusion with respect to
appellant’s income.
In fact, we find ourselves in agreement with
its assessment based upon the evidence as a whole.
The judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David A. Black
Louisville, Kentucky
J. Michael Smither
Louisville, Kentucky
2
Ky. App., 573 S.W.2d 354 (1978).
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