RICK LEE PIPPIN v. MICHELLE LENE PIPPIN AND VICTORIA ANN OGDEN
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RENDERED: AUGUST 31, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002087-MR
RICK LEE PIPPIN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JOSEPH W. O'REILLY, JUDGE
ACTION NO. 99-FC-001684
MICHELLE LENE PIPPIN AND
VICTORIA ANN OGDEN
APPELLEES
OPINION
AFFIRMING IN PART,
VACATING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: ABRAMSON, ACREE, AND WINE, JUDGES.
ABRAMSON, JUDGE: Rick Pippin appeals from several May 20, 2005 and September
8, 2005 orders of the Jefferson Family Court addressing issues arising in the aftermath of
Rick’s 2002 divorce from Michelle Pippin. Rick challenges rulings requiring him to pay
child support and spousal maintenance, assigning a tax liability entirely to him, ordering
him to pay Michelle a portion of property insurance proceeds, ordering him to pay her for
some furniture she was awarded in the 2002 decree but which he ended up receiving, and
awarding Michelle a portion of her attorney fees.1 With the exception of Michelle’s
claim for maintenance arrearages, which requires vacation of that portion of the court’s
order and a remand for additional factual findings, we are convinced that the trial court
addressed the parties’ claims based on sufficient evidence and sound discretion.
Accordingly, with the one exception, we affirm.
The parties married in June 1975, and their union produced six children, the
eldest born in August 1978 and the youngest in October 1992. During the marriage the
parties acquired and successfully managed car wash businesses and acquired investment
assets that included interests in oil and gas leases; a BP filling station; and Pippin
Ridgeway LLC, which apparently acquires and leases commercial realty. Income from
the car washes and their other investments afforded the Pippins a comfortable lifestyle.
They vacationed regularly; provided their children with parochial school educations; and
lived in a large, comfortably furnished home, worth, according to Rick, some $1.5
million. The parties separated in January 1999. In March of that year Michelle
petitioned for dissolution, and the matter was eventually tried by an arbitrator in January
2002. Pursuant to the arbitration agreement, the trial court adopted the arbitrator’s
findings as its decree, which was entered April 23, 2002.
1
The “statement of the case” portion of Rick's brief complains of the trial court's refusal to hold
Michelle in contempt for a visitation violation and of its order requiring Rick to provide health
insurance for the children. Neither of these issues is pursued in the “argument” section of his
brief, however, so we shall deem them waived and shall not otherwise address them.
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Because the parties had recently sold one of their car washes and planned to
sell the other--the major sources of marital income--the arbitrator was obliged to
estimate, for child support and maintenance purposes, their likely post-dissolution
earnings. Noting that Michelle’s schooling had ceased with high school and that she had
devoted the nearly twenty-six years of the marriage to raising the parties’ children, he
imputed to her the ability to earn income at the rate of $1,500.00 per month ($9.00 per
hour) and found that she was apt to receive another $1,200.00 per month from her share
of the parties’ other assets, including half of the $1,543.00 monthly payment they were to
receive for a time as part of the already completed car wash sale. This income, even in
light of the substantial proceeds Michelle would eventually receive from the sale of the
two car washes, was not sufficient, the arbitrator found, to meet her reasonable expenses.
Although Rick, too, had no formal education beyond high school, the
arbitrator found that his experience during the early years of the marriage as an employee
of Frito-Lay and his business experience managing the car washes made it likely that he
would continue to earn a substantial income and so imputed to him the ability to earn at
the rate of $5,000.00 per month, supplemented, as was Michelle’s income, by $1,200.00
per month from his share of the parties’ assets. Based on these estimated incomes, the
Kentucky Child Support Guidelines, the standard of living the parties had enjoyed during
the marriage, and the expenses Michelle would incur providing the children’s primary
residence, the arbitrator made, among others, these three rulings: He awarded Michelle
child support in the amount of $1,384.00 per month until the second child graduated from
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high school (the oldest child was already an adult), at which time the award would
decrease to $1,268.00 per month. He ordered Rick to procure health insurance for the
children, with the cost to be divided in proportion to the parties’ incomes, and he awarded
Michelle maintenance of $650.00 per month. The child support and maintenance awards
were made effective as of January 2002.
Almost immediately disputes arose. The parties had agreed to sell their
residence, and the decree envisioned that the parties would pay a long list of credit card
and other debts from their homeowners’ equity. As it happened, Rick purchased the
allegedly $1.5 million residence at a foreclosure sale on the day the decree was entered
for the principal mortgage amount of about $753,000.00 plus various other liens on the
property bringing the total cost to about $802,000.00. By virtue of this sale, Rick in
effect appropriated whatever equity there was. This sale necessitated a new plan for
paying the debts. Rick also refused to make the ordered child support payments,
eventually necessitating criminal proceedings to compel them; he refused to procure
health insurance coverage for his children, necessitating Michelle’s resort to Passport, a
public assistance health-insurance program; and he refused to pay Michelle her $1,400.00
share of insurance proceeds for vandalism to one of their vehicles and about $990.00 for
one child’s furniture, which the decree awarded to Michelle but which ended up with
Rick when the child decided to live with him. Michelle sought relief from all of these
alleged violations of departures from the 2002 decree.
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Other disputes followed. Michelle alleged that Rick was not making
maintenance payments and that his misapplication of insurance proceeds had resulted in
her being wrongfully charged about $4,500.00 for repair work on the former marital
residence. She eventually moved for increases in child support and maintenance and
moved to have Rick compelled to contribute his proportionate share to the children’s
parochial school educations. Rick countered by moving for termination of Michelle’s
maintenance, for a reduction in child support, and for the assignment of a portion of a
$36,000.00 car wash related tax bill to Michelle.
Following hearings in February and September 2004, the trial court entered
a series of orders on May 20 and September 8, 2005 attempting to address this barrage of
post-dissolution litigation. The court held Rick in contempt for his violations of the
decree’s child support, maintenance, and health insurance provisions. The court did not
impose sanctions, as it might have done, but did order Rick to make prompt arrangements
for health insurance and otherwise ordered him to comply with his obligations in a timely
manner. If, at the end of the year Rick was not current with his child support payments,
the trial court ruled that Michelle would be entitled to list the children as dependents for
income tax purposes.
The court noted that since the 2002 decree Michelle had obtained her real
estate agent’s license, but that she had yet to earn any commissions. The court thus
continued to impute to her earned income of about $1,500.00 per month and income from
all sources, including maintenance of $3,333.00 per month. Her reasonable monthly
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expenses, the court found, continued to be $5,500.00 per month. The court also noted
that since the decree a male companion had moved in with Michelle and that this man
contributed $1,164.00 per month to the household, although much of this contribution
would be dedicated to his own expenses. To account for the man’s contribution,
however, the court reduced Michelle’s expenses to $4,500.00 per month, and so found a
shortfall between Michelle’s monthly income and expenses of about $1,200.00.
The court also noted that in May 2004 Rick had successfully applied for a
consumer loan from Irwin Union Bank and had represented on the loan application that
his monthly income was $10,499.00. The court accepted this representation as a more
accurate reflection of Rick’s income than the $6,200.00 per month imputed to him under
the decree. The trial court found that Rick’s reasonable expenses, like Michelle’s, were
$5,500.00 per month, and, also like Michelle’s, that they had been offset, by at least
$1,000.00 per month, by contributions from the female companion who had moved in
with Rick. Accordingly, the court found that Rick enjoyed surplus income of about
$6,000.00 per month, and also found that the parties’ financial circumstances had
substantially changed since the April 2002 decree.
Based on these findings and the child support guidelines, the court
increased Rick’s share of child-support related expenses, including health insurance, to
76 percent, and adjusted his child support obligation to $1,674.00 per month. The court
also ordered Rick to pay a like percentage of the children’s parochial school tuition
through high school. The court found that the parties’ choice of parochial education
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throughout the long marriage made it reasonable to continue that choice in its aftermath.
The court increased Michelle’s maintenance award to $1,500.00 per month. The court
further agreed with Michelle that she was entitled to be reimbursed for her share of
property insurance proceeds and for the one child’s furniture that had remained with
Rick. It ruled that the $36,341.00 delinquent state and local tax liability for one of the car
washes was entirely Rick’s responsibility, noting that the tax had been allowed to
accumulate for several years, during which Rick had had sole control of the pertinent
information. Finally, noting the substantial difference in the parties’ incomes, the court
ordered Rick to pay $1,830.00 toward Michelle’s attorney fees. Rick challenges virtually
all of these awards and findings, but directs the brunt of his attack against the court’s
maintenance and child support awards. It is to those awards, therefore, that we turn first.
Under KRS 403.200, the trial court may grant maintenance for either
spouse only if it finds that the spouse seeking maintenance “(a) Lacks sufficient property,
including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment.” As our Supreme
Court has observed,
[u]nder this statute, the trial court has dual responsibilities:
one, to make relevant findings of fact; and two, to exercise its
discretion in making a determination on maintenance in light
of those facts. In order to reverse the trial court’s decision, a
reviewing court must find either that the findings of fact are
clearly erroneous or that the trial court has abused its
discretion.
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Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992). KRS 403.200(2) further provides
that maintenance orders
shall be in such amounts and for such periods of time as the
court deems just, and after considering all relevant factors
including: (a) The financial resources of the party seeking
maintenance, including marital property apportioned to h[er],
and h[er] ability to meet h[er] needs independently, including
the extent to which a provision for support of a child living
with the party includes a sum for that party as custodian; (b)
The time necessary to acquire sufficient education or training
to enable the party seeking maintenance to find appropriate
employment; (c) The standard of living established during the
marriage; (d) The duration of the marriage; (e) The age, and
the physical and emotional condition of the spouse seeking
maintenance; and (f) The ability of the spouse from whom
maintenance is sought to meet his needs while meeting those
of the spouse seeking maintenance.
Although one of the important principles underlying KRS 403.200 is that
divorced spouses should, if possible, resume their independence, our Supreme Court has
recently explained that that principle must sometimes yield to other considerations:
KRS 403.200 seeks to enable the unemployable spouse to
acquire the skills necessary to support himself or herself in
the current workforce so that he or she does not rely upon the
maintenance of the working spouse indefinitely. . . .
However, in situations where the marriage was long term, the
dependent spouse is near retirement age, the discrepancy in
incomes is great, or the prospects for self-sufficiency appear[]
dismal, our courts have declined to follow that policy and
have instead awarded maintenance for a longer period or in
greater amounts.
Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003) (citations and internal quotation
marks omitted). It is appropriate, moreover, in determining the amount and duration of
maintenance, for the trial court to consider the standard of living enjoyed during the
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marriage. Id. Again, this Court may disturb the amount and duration of the trial court’s
award only if “the trial court abused its discretion or based its decision on findings of fact
that are clearly erroneous.” Powell v. Powell, 107 S.W.3d at 224.
Finally, KRS 403.250(1) provides that the trial court may modify a
maintenance award if, and only if, it finds “changed circumstances so substantial and
continuing as to make the terms [of the prior award] unconscionable.” And under KRS
403.250(2) unless the parties’ written agreement or the decree itself provides otherwise,
“the obligation to pay future maintenance is terminated upon the death of either party or
the remarriage of the party receiving maintenance.”
In this case, the arbitrator and the trial court have determined that
notwithstanding Michelle’s receipt of substantial marital property--her share of the car
washes, in particular, and of Pippin Ridgeway LLC, the combined pre-tax value of which
approaches or exceeds, it appears, one million dollars--that property does not provide for
Michelle’s reasonable needs and otherwise she is unable to support herself through
appropriate employment. We cannot say that these determinations are clearly erroneous.
The record indicates that Michelle was obliged to consume much of her share of the
proceeds from the car washes to provide a suitable residence for herself and the children,
and that all of her other sources of income, including that from employment and from
Pippin Ridgeway, leave her unable to maintain the housing, savings, and educational
standards enjoyed during the marriage.
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Rick argues that the trial court erred by failing to include in Michelle’s
income the capital gains she reported on her income taxes following the sale of one of the
car washes. Clearly, however, for maintenance and child support purposes the court
should identify continuing sources of income, not income, such as this isolated instance
of capital gains, that will not be available in the future. The trial court did not err by
disregarding the car wash capital gains when it calculated Michelle’s reasonably
anticipated income.
Rick also argues that the trial court erred by not reconsidering Michelle’s
maintenance award in light of the fact that in June 2005 she sold her interest in Pippin
Ridgeway LLC to Rick for about $650,000.00. The trial court implicitly denied Rick’s
motion for yet another hearing on maintenance and noted in one of its September 8, 2005,
orders that this sale did not amount to a change in circumstances that would justify
altering or terminating Michelle’s maintenance. We agree with the trial court. The sale
did not add to Michelle’s assets or income; it merely changed the form of an asset the
trial court had already taken into consideration. There was no need for another hearing
for the trial court to conclude that Michelle’s sale of her interest in Pippin Ridgeway LLC
did not constitute a change of circumstances that would justify a modification of her
maintenance award.
Rick’s primary contention is that Michelle’s cohabitation with her male
companion is so significant a change of circumstances as to render Michelle’s
maintenance award unconscionable. In accord with KRS 403.250(2), the April 2002
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decree provides that Michelle’s maintenance is to continue “until the death of either
party, the remarriage of Petitioner [Michelle] or until further order of the Court.” The
trial court’s subsequent orders did not alter this aspect of the decree’s maintenance
award. As Rick concedes, our Supreme Court has held that KRS 403.250(2) effectively
distinguishes between post-divorce cohabitation and remarriage. Whereas under that
section of the statute remarriage generally terminates maintenance, cohabitation by itself
is not grounds for automatic termination. Under KRS 403.250(1), however, “a
maintenance recipient’s cohabitation can render continued maintenance ‘unconscionable’
if the nature of the cohabitation constitutes a new ‘financial resource’ as contemplated in
KRS 403.200(2)(a).” Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990). In Combs, our
Supreme Court identified several factors trial courts should consider when assessing
whether a maintenance recipient’s cohabitation justifies modifying or terminating the
maintenance award. Among those factors, as the trial court noted, is economic benefit:
The relationship must be such to place the cohabitating
spouse in a position which avails that spouse of a substantial
economic benefit. The scope and extent of the economic
benefit should be closely scrutinized. If the “cohabitation”
does not change the cohabitating spouse’s economic position,
then reductions should not be permitted.
Id. at 262.
The trial court found that Michelle’s cohabitation did not provide a
substantial economic benefit that changed her economic position, and this finding is not
clearly erroneous. The record indicates that Michelle’s companion contributes less than
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$1,200.00 per month to the household, and that even allowing for his contribution, as the
trial court did, Michelle’s income is still far less than her reasonable expenses. We
cannot say, therefore, that the trial court either clearly erred or abused its discretion by
refusing to modify Michelle’s maintenance on this ground.
Finally with respect to maintenance, Rick contends that from January 2002,
when under the decree the original maintenance order took effect, until September 2004,
when he admits to have ceased making maintenance payments, he paid Michelle
$7,745.50 more than the maintenance award obliged him to. He seeks to recover the
alleged overpayment and contends that the trial court erred when, instead of awarding to
Rick the alleged overpayment, it awarded maintenance arrearages to Michelle.
It appears that in the summer of 2001 the parties sold one of the car washes
to J. Patrick Mayhall. They agreed to allow Mr. Mayhall to make monthly installment
payments of $1,543.00 for about three years, at which time the outstanding balance
would come due. Mr. Mayhall made the first installment payment in August 2001, and
there is apparently no dispute that with one exception Michelle received each of the
Mayhall payments until they ceased in about September 2004. Rick contends that
Michelle’s receipt of his $771.50 half of these payments more than satisfied her $650.00
per month maintenance award, and that he is entitled to recover his full half of the
payments made during 2001, before the maintenance award went into effect, and the
$121.50 excess each month after the award took effect.
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Unfortunately, with respect to this issue the record is anything but clear. In
one of its May 23, 2005 orders, the court ruled that
[t]he receipt of 100% of the Mayhall monthly payments by
the petitioner [Michelle] was a result of a non-wage
garnishment. Petitioner is entitled to a common law
judgment against the Respondent at the rate of $650.00 per
month for unpaid maintenance. Respondent is entitled to a
credit for all maintenance payments made. He is not entitled
to a credit for sums collected through the efforts of the
Petitioner for amounts other than maintenance. He is also
entitled to a credit for the $6,898.00 owed him by the
Petitioner to equalize the division of the marital estate.
Interest shall run at the rate of 12% per annum from the date
of the judgment until paid.
Certainly, if Michelle was receiving the Mayhall payments in satisfaction of another debt
Rick owed to her, then those payments cannot also satisfy Rick’s maintenance
obligation. Neither the trial court nor Michelle, however, has identified another debt, nor
have they explained on the basis of what order the non-wage garnishment was issued.
Prior to the decree, in December 1999, the trial court issued pendente lite child support
and maintenance orders which did not fix specific amounts for temporary support and
maintenance but required Rick to make available to Michelle and the children sufficient
funds for the ordinary functioning of their household. Michelle alleges that Rick did not
abide by that order and that she was obliged to resort to credit card debt to meet her
family’s expenses. Even absent some other obligation, it is reasonable to assume that
Michelle received Rick’s half of the 2001 Mayhall payments in furtherance of the
pendente lite support and maintenance orders. Rick, therefore, is not entitled to recover
any portion of the August through December 2001 Mayhall payments.
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The pendente lite orders were superseded by the decree, however, effective
as of January 2002, and the arbitrator expressly declined to award any arrearages for
Rick’s alleged non-compliance with them. The arbitrator apparently anticipated that
marital equity from the sale of the parties’ residence could be used to pay Michelle’s
credit card debts, which payment would render the temporary support issues moot. As
noted above, that plan fell through when the sale of the residence yielded no equity.
Nevertheless, as of January 2002, Rick’s obligations were fixed by the decree, and,
absent some showing of a prior obligation that was not superseded by the decree, Rick is
correct that his half of the post-January 2002 Mayhall payments more than satisfied his
$650.00 per month maintenance obligation. The Mayhall payments ceased in September
2004, and Rick concedes that he has made no maintenance payment since then, insisting
that Michelle’s cohabitation relieves him of that obligation. Rick’s refusal to make the
ordered payments is in violation of the decree and the trial court’s May and September
2005 orders, for even if Michelle’s cohabitation entitled Rick to relief, our Supreme
Court held in Combs v. Combs, 787 S.W.2d at 263, that the maintenance obligation
continues until entry of an order modifying it; the obligor is not authorized to cease
making payments in anticipation of modification.
The bottom line is that we must vacate this portion of the trial court’s order
and remand this issue to the trial court. Michelle should be afforded an opportunity to
show that she received Rick’s post-December 2001 Mayhall payments in satisfaction of
some viable obligation other than her maintenance award. If she did, then Rick is entitled
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to no maintenance credit for those payments. Michelle should be given a judgment for a
specified amount of maintenance arrearages, and the trial court should indicate how that
amount was calculated. If Michelle was receiving Rick’s share of the post-December
2001 Mayhall payments in satisfaction of her maintenance award, however, then the trial
court must decide how to account for the difference between the $771.50 payment and
the $650.00 debt. The court could award the difference to Rick; it could apply the
difference to any arrearages Rick owes; or it could simply award the difference to
Michelle as a sanction for Rick’s admitted violation of the maintenance order. We regret
the need for additional proceedings on this issue but find it necessary to remand.
Next, Rick contends that he has been ordered to pay too much child
support. To the extent that this contention is based on the trial court’s alleged failure to
take into account Michelle’s capital gains income or the sale of her interest in Pippin
Ridgeway LLC, we reject it for the reasons discussed above with respect to maintenance.
Michelle does not have a steady source of capital gains, and the sale did not add to her
assets, but merely exchanged one for another.
Rick’s contention is also based on the court’s order requiring him to pay his
proportionate share of the children’s parochial school tuitions. Rick characterizes this
order as a deviation from the child support guidelines and one not authorized absent an
express agreement between the parties to divide the tuitions. As Rick correctly notes, the
child support guidelines set out in KRS 403.212 provide presumptively appropriate
amounts of child support, and trial courts may not deviate from the guidelines without
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making an express finding that their application would result in an unjust or inappropriate
award. Downing v. Downing, 45 S.W.3d 449 (Ky. 2001). This Court reviews child
support awards for abuse of the trial court’s statutorily circumscribed discretion. Id.
In support of his position, Rick relies on Giacalone v. Giacalone, 876
S.W.2d 616 (Ky.App. 1994), but his reliance is misplaced. In Giacalone, this Court held
that divorcing spouses could agree to permit reopening of a child support order on
grounds, such as increased parochial school tuition, that would not otherwise justify
reopening under KRS 403.213(1). Having determined that the parties’ agreement
permitted reopening in that case, the Court then ruled that deviation from the guidelines
to provide for parochial school tuition was justified under KRS 403.211(3)(f) or (g),
because the parties’ history of sending their children to parochial school either implied an
agreement to provide that sort of education or gave rise to an extraordinary educational
need.
In this case, the trial court did not rely on the parties’ agreement to justify
reopening the child support award. It relied rather on the fact that Rick’s income had
proved substantially greater than that imputed to him at the time of the decree, an
increase that amounted to a presumptively material change in circumstances under KRS
403.213(2). Once the child support award was reopened, the trial court was obliged to
consider anew the needs of the children, and we cannot say the trial court abused its
discretion by deviating from the guidelines to provide them with parochial school
tuitions. The deviation is not beyond the parties’ means, and, as in Giacalone, it was
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justified under either KRS 403.211(3)(f) or (g). During the twenty-six year marriage the
parties had consistently chosen parochial school education, implying an agreed
preference for parochial schools. Parochial school education had also become a standard
of the marriage, which the trial court could reasonably deem important for the children to
maintain. Rick is not entitled to relief, therefore, from the May 23, 2005 child support
award increasing his proportionate share of that obligation and deviating from the
guidelines to provide parochial school tuitions.
Rick next contends that the trial court erred and abused its discretion by
assigning to him the entire liability for some $36,341.00 in delinquent state and local
taxes owed by one of the car washes. Rick maintains that this liability should be divided
equally. As he correctly notes, in Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001),
our Supreme Court explained that absent a statute to the contrary there is no presumption
that debts incurred during marriage are marital, that debts incurred after separation are
nonmarital, or that marital debts should be divided equally between divorcing spouses.
The Neidlinger Court noted that
[d]ebts incurred during marriage are traditionally assigned on
the basis of such factors as receipt of benefits and extent of
participation . . . ; whether the debt was incurred to purchase
assets designated as marital property . . . ; and whether the
debt was necessary to provide for the maintenance and
support of the family. . . . Another factor, of course, is the
economic circumstances of the parties bearing on their
respective abilities to assume the indebtedness.
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Id. at 523 (citations omitted). As with the maintenance and support issues discussed
above, this Court reviews “issues pertaining to the assignment of debts incurred during
the marriage . . . under an abuse of discretion standard.” Id. at 523.
Again, we cannot say that the trial court abused its discretion. The trial
court noted that while these taxes were accumulating, Rick had control of the car wash
and so should have known that the taxes were due. Clearly, therefore, he may be held
responsible for any portion of the tax liability attributable to interest or penalties. Cf.
Dobson v. Dobson, 159 S.W.3d 335 (Ky.App. 2004) (noting that result in other
jurisdictions). Under Neidlinger, moreover, it was not an abuse of discretion to assign to
Rick the principal liability as well. Rick received a windfall well in excess of this tax bill
when he was able to purchase the marital residence without having to share the equity
with Michelle. For that reason, and in light of Rick’s disclosures in his Irwin Union Bank
loan application, where in addition to his nearly $10,500.00 per month income he claimed
personal assets worth more than two million dollars, he may reasonably be deemed the
party with the greater ability to assume this liability.
Before the decree was entered, one of the parties’ vehicles was vandalized
and their residence was damaged by lightning. Insurance proceeds were paid to Rick:
about $2,800.00 for the damage to the car and more than $20,000.00 for the lightning
damage. Stipulations incorporated in the decree provided that the parties would divide
the car insurance proceeds evenly. Instead of doing so, however, Rick claims that he
deposited the car insurance money into a joint account which was used for marital
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purposes. Michelle moved to have the decree enforced, and the trial court ordered Rick
to give her the $1,400.00. Rick contends that the trial court erred by not giving him
credit for the alleged joint deposit. The trial court did not err. The decree contemplated
that Michelle would be handed her share of the car insurance proceeds, not that Rick
would take it upon himself to decide how her share would be used. Even if Rick
deposited the insurance proceeds as he alleges, his failure to abide by the decree justifies
the trial court’s ruling.
Rick also took control of the house insurance proceeds and failed to pay
one of the repair services, a company called Purofirst. Apparently Michelle had hired
Purofirst, and when it was not paid it attached a $4,571.33 lien to Michelle’s interest in
one of the car washes. When the car wash was sold, the Purofirst debt was collected
from Michelle’s portion of the sales proceeds. She later moved to recover the $4,571.33
on the grounds that Rick had misapplied the insurance proceeds and that as purchaser of
the residence he should be responsible for the repair. The trial court agreed with
Michelle and ordered Rick to pay her the amount of the Purofirst debt. Rick again
contends that he deposited the insurance proceeds in a marital account, and he observes
that the trial court mistakenly described the Purofirst lien as having attached to the
residence rather than the car wash. The court erred, he contends, by not giving him credit
for the joint deposit and by opining that the Purofirst lien was one of the residence liens
Rick assumed when he purchased the residence.
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At the hearing on Michelle’s motion, she presented evidence tending to
show that Rick had indeed initially deposited the house insurance check in a joint
account, but that almost immediately thereafter had withdrawn $20,000.00 from that
account and placed it in an account he controlled. This evidence adequately supports the
trial court’s finding that not only did Rick fail to apply the insurance proceeds to the
Purofirst debt, but also that he did not apply them to any other marital expense.
Moreover, the trial court’s mistake regarding the property to which Purofirst’s lien
attached was not material. While the Purofirst lien did not attach to the residence, clearly
the debt was for the benefit of the residence, and because Rick has obtained that benefit
the trial court did not abuse its discretion by assigning the debt to him.
Shortly after Rick’s foreclosure purchase of the marital residence, Rick
apparently had Michelle and the children evicted. In the turmoil of the eviction, one of
the children sought to remain in the residence and to live with Rick. Michelle acceded to
the child’s wish and so did not remove the child’s furniture, furniture the decree awarded
to Michelle. Michelle later moved to recover the stipulated value of that furniture, about
$990.00. Rick contends that the trial court erred by granting Michelle’s motion. He
maintains, apparently, that, by agreeing to permit the child to stay with Rick, Michelle
also agreed to give Rick the child’s furniture. Michelle’s testimony was to the contrary.
The trial court did not clearly err by finding that Michelle had neither implicitly nor
explicitly agreed to give Rick the furniture, and thus its award to Michelle of the
furniture’s value was not an abuse of discretion.
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Rick complains about the trial court’s contempt findings, but as our
discussion to this point has made clear, Rick has repeatedly disregarded the court’s orders
and awards and has taken into his own hands matters over which the court has control.
There is no dispute that Rick resisted the decree’s child support award until criminal
proceedings were initiated to compel his compliance, and Rick acknowledges that he
disregarded the decree’s provision regarding health insurance even after Michelle had
resorted to public assistance. Although Rick asserts that the record reflects no proof in
support of the trial court's finding that he failed to provide Michelle with an accounting of
the Atlas and Viking oil lease payments, the court's contempt finding is apparently based
on a hearing held January 31, 2003, which, absent citation to the record showing
otherwise, we must presume supports the trial court. We may note, moreover, that Rick
does not deny the violation. Whether, finally, Rick initially violated the decree’s
maintenance provision has become a moot point given his admitted violation once the
Mayhall car wash payments ceased. These patently contemptuous violations more than
justify the trial court’s contempt findings. Divorces are often bitter, of course, and
divorcing spouses are frequently loath to make even the smallest concessions to one
another, but divorce does not justify contempt of court. If Rick continues his practice of
disregarding or otherwise attempting to frustrate court orders, sanctions may become
appropriate.
Finally, the trial court awarded Michelle $1,830.00 toward her attorney
fees. As our Supreme Court observed in Niedlinger v. Niedlinger, supra,
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KRS 403.220 authorizes a trial court to order one party to a
divorce action to pay a “reasonable amount” for the attorney’s
fees of the other party, but only if there exists a disparity in
the relative financial resources of the parties in favor of the
payor.
52 S.W.3d at 519 (citations omitted). Rick contends that there is no real disparity in the
parties’ resources, and thus that the award of fees was not authorized. This contention is
based on Rick’s assertion, discussed above, that Michelle’s income should be deemed to
include the capital gains realized from the car wash sales. Again, we reject Rick’s
contention because Michelle does not have continuing income from capital gains. The
trial court found a disparity of more than $7,000.00 per month between Michelle’s
income and Rick’s. This finding was not clearly erroneous. Even taking Michelle's child
support and maintenance into account, the income disparity is still about $1,000.00 per
month, and the property disparity, which includes the residence equity, is substantial.
These disparities adequately justified the trial court’s award of attorney fees to Michelle.
In sum, these bitterly contested proceedings have clearly taken a financial
toll on the parties and have no doubt taken a heavy emotional toll on all concerned. With
one exception, the trial court’s rulings and awards, including those increasing Rick’s
child support and maintenance obligations, ordering him to contribute to the children’s
parochial school tuitions, and assigning solely to him the delinquent tax liability for one
of the car washes, were all based on adequate evidentiary support and were all within the
court’s broad discretion. The exception is the trial court’s award of maintenance
arrearages, which does not adequately explain why Rick should not be given maintenance
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credit for his share of the Mayhall payments and fails otherwise to indicate how the
arrearage amount is to be calculated. Accordingly, we vacate the maintenance arrearage
portion of the trial court’s orders and remand for additional proceedings on that issue.
Rick’s admitted failure to pay maintenance after the Mayhall payments ceased ought also
to be addressed in those proceedings. In all other respects, we affirm the May 20, 2005
and September 8, 2005 orders of the Jefferson Family Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Russell Lloyd
Ryan N. Pogue
Louisville, Kentucky
Victoria Ann Ogden
Ogden & Ogden, PLLC
Louisville, Kentucky
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