BRUCE WILLIAM SCHOENBACHLER V. ANGELA MARIE MINYARD
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RENDERED : APRIL 24, 2003
TO BE PUBLI
1999-SC-0628-DG
BRUCE WILLIAM SCHOENBACHLER
V.
ON REVIEW FROM THE COURT OF APPEALS
1997-CA-0928-MR & 1997-CA-0931-MR
JEFFERSON FAMILY COURT NO . 94-FD-01467
ANGELA MARIE MINYARD
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMI NG IN PARTREVER SING AND REMANDING IN PART
I . ISSUES
The primary issue in this appeal concerns the trial court's calculation of
Appellee's gross income and its decision not to order either party to pay child support to
the other. The trial court awarded the parties joint custody of their minor child .
Although Appellee produced tax returns that reflected a monthly income substantially
smaller than Appellant's, the trial court found that Appellee's "lifestyle and property
exceeded that which could be obtained" from Appellee's claimed monthly income, and
accordingly surmised that Appellee "had some additional income from another source ."
The trial court then imputed additional monthly income to Appellee, found that the
parties had equal monthly incomes, and did not award child support to either party.
The Court of Appeals vacated and remanded with directions for the trial court "to
calculate child support based upon the documented income of the parties ." Appellant
asks this Court to decide whether, in calculating child support obligations, trial courts
must consider only documented income. While we believe that, in such cases, parties
must file documented income statements, we do not interpret "income" so narrowly as
to include only documented income . We therefore hold that, in making child support
determinations, courts must consider all income proven by substantial evidence,
regardless of whether that income is documented. We nonetheless affirm the Court of
Appeals on this issue because we agree that the evidence in the case at bar did not
support the trial court's finding imputing additional monthly income to Appellee .
The other primary issue on appeal concerns the trial court's calculation of
Appellant's nonmarital interest in the parties' marital residence . Appellant contributed
nonmarital funds of $6,188 .00 towards the parties' original purchase of the marital
residence . When the parties later satisfied the original mortgage and refinanced the
marital residence at a lower interest rate, Appellant contributed additional nonmarital
funds of $8,577.61 to reduce the principal balance and pay for closing costs. In
determining Appellant's nonmarital interest in that property, the trial court considered
only Appellant's contribution towards the original purchase of the residence, and not his
contribution at the time of refinancing . The Court of Appeals found no error and
affirmed .
Did Appellant's refinancing contribution give him an additional nonmarital
interest in the marital residence? We hold that, to the extent that Appellant's nonmarital
contribution at the time of refinancing increased the parties' equity in the marital
residence, the contribution shall be considered in determining Appellant's nonmarital
interest in the property . However, to the extent that those nonmarital funds were
applied to closing costs that did not increase the parties' equity, they shall not be
considered in determining Appellant's nonmarital interest in the property .
II. FACTUAL BACKGROUND
The parties were married in 1989 . Approximately four and one-half (4 1/2) years
later, in 1994, and after the birth of one (1) child, the parties separated, and Appellee
filed a petition for dissolution of their marriage . The trial court dissolved the parties'
marriage, and after a contested trial in 1996, the trial court divided the parties' property,
assigned the marital debts, and awarded the parties joint custody of their minor child .
Appellant's income is not disputed . He claimed, and documented, a gross
monthly income of $3,333 .33 from a bi-weekly salary of $1,538.46 from employment in
the construction industry, and he testified that he had no other income. Appellee
claimed total monthly income of $1,740 .00. She produced income tax returns to
substantiate $1,710 .00 of her claimed monthly income, and she testified to additional
monthly income of $30 .00 from the sale of Kentucky Derby tickets . However, after
finding that her "lifestyle and property exceeded that which could be obtained" from her
claimed income, the trial court theorized that Appellee "had some additional income
from another source" and imputed additional monthly income to Appellee in an amount
"at a minimum, the equivalent of [Appellant's] ." Accordingly, and after making the
additional finding that the child's time was to be equally divided between the parties, the
trial court did not order either party to pay child support to the other:
An award of child support shall be made pursuant to KRS
403 .210. KRS 403 .212(2) provides that "gifts" are to be
included in gross income, and Angela has acknowledged the
receipt of substantial gifts from friends and family. In
addition, Angela clearly has cash flow in excess of IRS
reported income, and has admitted to receiving income from
the scalping of tickets and placing bets with bookies. While
she protests that she has never made significant money
from these activities, the testimony that she no longer
engages in these activities is likewise unbelievable . This
Court has a right to impute income to the Petitioner for the
purposes of assigning child support and will do so . Given
however the limited and speculative proof tendered as to the
additional amounts she is given and "earns" however, and
given their relatively equal time sharing afforded each
parent, this Court will impute Petitioner's income to be, at a
minimum, the equivalent of respondent's, thereby negating
any necessity for either party to pay support to the other.
Appellee filed a motion for the trial court to reconsider its findings, and the trial court did
so only to the extent that it clarified its finding that Appellee "admitted to receiving
income from the scalping of tickets and placing bets with bookies." However, the trial
court continued to impute income to Appellee and reaffirmed its finding that the parties
had equal incomes :
Petitioner requests in her Motion to Reconsider that the
Court delete language in its Findings and Conclusions to the
effect that she "told the Court" she had income from
bookmaking and gambling. Petitioner contends that such
was not her testimony . She claims she was never a
bookmaker, and had quit gambling in the Fall of 1994
because she failed to make any money.
To clarify, the Court acknowledges that it is not entirely
accurate to say that Petitioner "told the Court" she made
money from bookmaking and gambling, and will therefore
delete the language . The Court emphasizes, however, that
it still finds that Petitioner had income from other sources
than her waitressing job . While Petitioner did not "tell the
Court" that she made money from bookmaking, gambling,
and scalping tickets, it is evident that she engaged in some,
if not all, of those activities. It is also evident that her
lifestyle and property reflected an income greater than her
W-2's and tax returns indicated . The Court thus inferred that
Petitioner had some income from her gambling and ticket
scalping activities.
Second, in her Motion to Reconsider, Petitioner complains
that this Court incorrectly found her income to be
approximately the same as Respondent's . Rather, she
contends that her gross income is far less than
Respondent's, at $1,740 .00 per month from her waitressing
job. She therefore contends that the Court miscalculated
child support based upon her inflated income. This Court,
however, found that Petitioner's lifestyle and property
exceeded that which could be obtained with a gross income
of $1,740 .00 per month . Petitioner apparently had some
additional income from another source. Whether from gifts
or additional employment, the Court must credit Petitioner
with this income . Therefore, the Court will not disturb its
finding with regard to Petitioner's income .
Both parties appealed, and the Court of Appeals agreed with Appellee that the
trial court should have calculated child support on the basis of Appellee's claimed
monthly income of $1,740 .00:
At trial and in her deposition, Angela admitted that she
gambled and placed bets for friends . She explained that
she had a "system" with some friends whereby she would
contact a bookmaker and place bets for them (and
sometimes herself) . If they won the wager, her friends
would pay her 10% of their winnings ; if they lost, she would
receive nothing. Angela testified that she did not earn any
"income" from this arrangement since her earnings, wins,
and losses balanced out. Additionally, she told the court
that she had ceased placing bets for her friends but that she
did still occasionally gamble herself.
Under the Child Support Guidelines set forth at KRS
403 .212, the amount of child support obligation is
determined by the parents' gross income. "Gross income" is
defined as income "from any source" - including gifts . KRS
403.212(2)(b) . However, the income statements must be
verified by documentation of current and past income . KRS
403.212(2)(f) . Documentation is not limited to income tax
returns, pay-stubs, or receipts .
Angela presented the court with past and current income
tax returns, which supported her statements that her income
on paper was $1,710.00 per month . No other
documentation of her income was introduced by either party.
While Angela admitted that she placed bets for friends and
that she sometimes earned money under this "system," she
claimed that her own gambling losses canceled out her
earnings . There was simply no evidence of record to refute
this admission . Her checking account statements did not
reflect any extra infusion of income . Although Bruce
maintains that Angela earns more than $1,000 a month on
gambling ventures, he has failed to offer any proof beyond
his own speculation to support his bare allegation .
Child support exists for the benefit of the child . Since it is
calculated from the gross income of both parents, the court
must utilize the correct figures as to the gross income of the
parents in order that the child not be deprived of necessary
support . In this case, the record contains no evidence that
Angela earned any income from her gambling ventures ; in
its judgment, the court concluded that the proof as to her
gambling income was "speculative and limited ."
Additionally, we cannot ascertain that Angela derived extra
income from "gifts ." Bruce alleged that she received income
from "gifts" given to her by Dr. Reid . Angela and Dr. Reid
both testified that he had taken her on vacations, that he
often took her to dinner, and that on occasion he would give
her ten or twenty dollars. The record shows that Dr. Reid
had also given Angela a piece of property in Floyd County,
Indiana, as well as interest in a motor home . These facts
alone do not provide a basis for imputing regular income to
Angela . We find, therefore, that the court abused its
discretion by imputing income to Angela .
The Court of Appeals thus vacated the trial court's judgment, in part,' and
remanded the case to the trial court with directions for it to calculate child support
based upon the documented income of the parties.
As to the other primary issue on appeal, the record reflects that, in 1991,
Appellant contributed nonmarital funds of $6,188.00 towards the parties' purchase of
their marital residence . Then, in 1993, he used additional nonmarital funds of
$8,577 .61 in connection with a refinancing of the mortgage against the residence .
$6,294 .61 of that amount was applied directly to the loan balance, and $2,283.00 paid
other costs associated with the closing . Both the trial court and the Court of Appeals
'The Court of Appeals also held that the trial court had erred by: (1) improperly
calculating the marital and nonmarital interests in two parcels of real estate owned by
the parties ; and (2) failing to divide personal property . Accordingly, the Court of
Appeals vacated and remanded for the trial court to recalculate the parties' interests in
the properties in question, equitably divide the parties' personal property, and, after
doing so, to review its previous division of marital debt . Although Appellant raises a
related issue concerning the trial court's allocation of marital debt, Appellee filed no
cross-motion for discretionary review asking us to address these issues decided in
Appellant's favor, and those issues are thus not before this Court .
considered Appellant's original contribution towards the purchase of the residence in
determining his nonmarital interest, but neither court considered his additional
contribution used to refinance the mortgage in calculating Appellant's nonmarital
interest in the residence .
III. DISCUSSION
Appellant raises six (6) separate issues on appeal. Although we have
considered each of Appellant's allegations of error, we find no merit in four (4) of those
allegations . Specifically, we perceive no abuse of discretion by the trial court in its
rulings as to Appellant's claims on appeal concerning Appellee's alleged dissipation of
marital property and the trial court's ruling awarding the marital residence to Appellee .
Further, Appellant has not demonstrated that the trial court's original division of marital
debt constituted an abuse of discretion, and, in any event, the unchallenged portion of
the Court of Appeals opinion directs the trial court to reconsider its allocation of marital
debt after it resolves other issues of property division upon remand . Finally, Appellant
cites no authority to support his allegation that, if this matter is remanded to the trial
court for reexamination of whether to award child support, he should be permitted to
introduce additional evidence regarding Appellee's undocumented income . We
address Appellant's remaining allegations of error in more depth below.
A. APPELLEE'S GROSS INCOME
Since the Kentucky Child Support Guidelines' 2 1990 adoption ,3 Kentucky courts
have, generally, determined parents' child support obligations using these guidelines,
2See KRS 402 .212(6) .
3 1990 Ky. Acts ch . 418, § 1 (eff . 7-13-90) .
which create a rebuttable presumption that the appropriate child support obligation is
that set forth in the guidelines table .4 To apply the guidelines, a court must first
determine the gross income of each party because "[t]he child support obligation set
forth in the child support guidelines table shall be divided between the parents in
proportion to their combined monthly adjusted parental gross income ."5 For purposes
of the guidelines, gross income is broadly defined :
'Gross income' includes income from any source, except as
excluded in this subsection, and includes but is not limited to
income from salaries, wages, retirement and pension funds,
4KRS 403.211(2) ("At the time of initial establishment of a child support order,
whether temporary or permanent, or in any proceeding to modify a support order, the
child support guidelines in KRS 403.212 shall serve as a rebuttable presumption for the
establishment or modification of the amount of child support."). The same subsection
permits trial courts to deviate from the guidelines, but only where "their application
would be unjust or inappropriate . [And] [a]ny deviation shall be accompanied by a
written finding or specific finding on the record by the court, specifying the reason for
the deviation ." Id .
5KRS 403.212(3) . Adjusted gross income is gross income less:
2.
3.
The amount of pre-existing orders for current
maintenance for prior spouses to the extent payment
is actually made and the amount of current
maintenance, if any, ordered paid in the proceeding
before the court;
The amount of pre-existing orders of current child
support for prior-born children to the extent payment
is actually made under those orders ; and
A deduction for the support to the extent payment is
made, if a parent is legally responsible for and is
actually providing support for other prior-born children
who are not the subject of a particular proceeding . If
the prior-born children reside with that parent, an
"imputed child support obligation" shall be allowed in
the amount which would result from application of the
guidelines for the support of the prior-born children .
KRS 403 .212(2)(8)(1)-(3) . These deductions from gross income are not implicated in
this case.
commissions, bonuses, dividends, severance pay, pensions,
interest, trust income, annuities, capital gains, Social
Security benefits, workers' compensation benefits,
unemployment insurance benefits, disability insurance
benefits, Supplemental Security Income (SSI), gifts, prizes,
and alimony or maintenance received . Specifically excluded
are benefits received from means-tested public assistance
programs, including but not limited to public assistance as
defined under Title IV-A of the Federal Social Security Act,
and food stamps.
While "[i]n most cases, gross income will be the actual gross income of each parent,"'
the guidelines make allowance:
For income from self-employment, rent, royalties,
proprietorship of a business, or joint ownership of a
partnership or closely held corporation, "gross income"
means gross receipts minus ordinary and necessary
expenses required for self-employment or business
operation . Straight-line depreciation, using Internal Revenue
Service (IRS) guidelines, shall be the only allowable method
of calculating depreciation expense in determining gross
income. Specifically excluded from ordinary and necessary
expenses for purposes of this guideline shall be investment
tax credits or any other business expenses inappropriate for
determining gross income for purposes of calculating child
support . Income and expenses from self-employment or
operation of a business shall be carefully reviewed to
determine an appropriate level of gross income available to .
the parent to satisfy a child support obligation. In most
cases, this amount will differ from a determination of
business income for tax purposes . Expense reimbursement
or in-kind payments received by a parent in the course of
employment, self-employment, or operation of a business or
personal use of business property or payments of expenses
by a business, shall be counted as income if they are
significant and reduce personal living expenses such as a
company or business car, free housing, reimbursed meals,
or club dues .8
6KRS 403.212(2)(b) .
7Louise E . Graham & James E. Keller, 16 Kentucky Practice (Domestic Relations
Law) § 24.19 (2 nd ed . 1997) .
8KRS 403 .212(2)(c).
In support of its holding that only documented income may be considered by a
trial court in determining child support, the Court of Appeals relied upon subsection (f)
of KRS 403 .212(2):
Income statements of the parents shall be verified by
documentation of both current and past income. Suitable
documentation shall include, but shall not be limited to,
income tax returns, paystubs, employer statements, or
receipts and expenses if self-employed . 9
Although this subsection undoubtedly requires verification by documentation of a party's
income statement,' ° neither this subsection nor any other provision of the guidelines
explicitly requires a party to file an income statement that establishes his or her gross
income ." However, "[n]o rule of statutory construction has been more definitely stated
or more often repeated than the cardinal rule that significance and effect shall, if
'KRS 403.212(2)(f) .
1° "Income statement" is not defined for purposes of the guidelines by statute or
regulation . Generally speaking, however, an "income statement" is "[a] statement of all
the revenues, expenses, gains, and losses that a business incurred during a given
period ." BLACK's LAw DICTIONARY 768 (7th ed . 1999) .
I would additionally observe that Kentucky's administrative regulations relating
to administrative determination and collection of child support similarly do not explicitly
require the filing of income statements by the parties. See 921 KAR Ch. 1 . Other
states, however, have made the filing of such statements a statutory requirement . See
LA. REV . STAT. ANN . § 9 :315 .2(A) (2001) ("[E]ach party shall provide to the court a
verified income statement showing gross income and adjusted gross income, together
with documentation of current and past earnings ."). Additionally, local rules of practice
in certain Kentucky courts require the filing of such statements . See Rule of Fayette
Circuit Court (RFCC) 27.01(C)(1) ("[E]ach party . . . shall serve upon the other party a
Preliminary Verified Disclosure Statement . . . ... ); Uniform Rule of Practice of the
Jefferson Family Court (JFRP) 510(C)(3)(a)&(b) ("a. Petitioner shall complete and sign
the mandatory case disclosure . . . before a notary within fifteen days following the filing
of the petition ." "b. Respondent's mandatory case disclosure shall be filed within thirtyfive (35) days following service upon the Respondent . . . .") .
1
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possible, be accorded to every part of the Act."" Additionally, "[a]II statutes of this
state shall be liberally construed with a view to promote their objects and carry out the
intent of the legislature[] . . . . "13 And, it is axiomatic that, when interpreting a provision
of a statute, a court should not, if possible, adopt a construction that renders a provision
meaningless or ineffectua1 14 or interpret a provision in a manner that brings about an
absurd or unreasonable result. 15 Accordingly, the construction of KRS 403.212(2)(f)
requires us to consider not only that subsection, but the whole statutory scheme
establishing the guidelines .
With the guidelines' adoption, child support determinations shifted "away from an
expense-based process and toward an income-based process . 06 Accordingly, the
determination of "child support under guidelines focuses the process on income of the
parties . . . ,"" and therefore, "an accurate application of a guideline depends upon
obtaining precise income figures" 18 because "[o]nce accurate income figures are
identified for the parties, application of guidelines is usually straightforward . " 19 We
therefore interpret KRS 403.212(2)(f) as a requirement that parties file fully-documented
12George v. Scent, Ky., 346 S.W.2d 784, 789 (1961).
13
KRS 446 .080(1).
14
See Brooks v. Meyers , Ky., 279 S .W.2d 764, 766 (1955).
15
See Estes v. Commonwealth, Ky., 952 S .W .2d 701,703 (1997) .
16
Robert G . Williams, Guidelines for Setting Levels of Child Support Orders, 21
Q . 281, 322 (1987) .
FAM . L.
"Id . at 323 .
' 8 Id .
'9 Id
income statements in dissolution cases that present child custody issues . We find this
requirement not only implicit in the language of KRS 403 .212(2)(f), but also recognize
that, as a practical matter, correct income figures are necessary for trial courts to apply
the guidelines accurately . By filing properly documented income statements, parties
can facilitate and expedite the resolution of child support issues and thereby reduce the
need for expansive and time-and-expense-consuming discovery that would otherwise
be necessary to ascertain the parties' incomes and to determine the proper amount of
child support .2°
Although we interpret KRS 403.212(2)(f) as a requirement that parties file
documented income statements, that statutory requirement does not mean that trial
courts may consider only this documented income when determining child support .
The Kentucky Child Support Guidelines are based on the Income Shares Model ,21
which, in turn, "is based on the precept that the child should receive the same
proportion of parental income that would have been received if the parents lived
together .
,22
To fully accomplish this result, income calculations for guideline purposes
necessarily must include all income of the parents, both documented and
2°This is the express reason that, by local rule, many trial courts mandate the
filing of financial information . See RFCC 27 .01(C)(1) (" To facilitate and expedite the
resolution of domestic relations actions by requiring the parties to make a full and
prompt disclosure of all relevant information, each party . . . shall serve upon the other
a Preliminary Verified Disclosure Statement . . . ." (emphasis added)) .
2'Graham & Keller, supra note 7 at § 24.15 .
22
at 392.
Williams, Guidelines for Setting Levels of Child Support Orders, supra note 16
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undocumented, or as stated in the guidelines, "`[i]ncome,' means actual gross income .
23
In fact, the guidelines themselves recognize the possibility that all of a party's
income may not be documented . For example, the guidelines define income to
"potential income," 24 and such income by its nature is not capable of being documented
under KRS 403.212(2)(f) .25 The same is true with most non-taxable income and
unreported income, especially cash income, because, with few exceptions, it is not
possible to document such income. We thus conclude that, while child support, as a
general rule, shall be based on the parties' documented income, a trial court may
consider income not susceptible to documentation if such income is properly
established by the evidence .
In the present case, the trial court determined Appellee's gross income by
inferring that she had additional income from gifts, her gambling, and ticket scalping
from the court's conclusion that "her lifestyle and property reflected an income greater
than her W-2's and tax returns indicated ." Certainly, these types of undocumented
23
KRS 403 .212(2)(a) .
24 1d .
25 Reuter v. Reuter, 649 A.2d 24,
30 (Md . Ct. Spec . App. 1994):
It should be obvious, however, that a parent's `potential
income' is not the type of fact which is capable of being
'verified' through documentation or otherwise ; hence FL §
12-203 [FL § 12-203(b) is very similar to KRS 403 .212(2)(f)
and provides, "(1) Income statements of the parents shall be
verified with documentation of both current and past actual
income ."] does not apply. . . . [T]he court may consider any
admissible evidence in determining potential income .
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income, while not susceptible to documentation, are nevertheless income which, if
proven, a trial court should consider when determining a party's gross income . As the
Court of Appeals observed, however, the problem here is that the Appellant failed to
prove sufficiently that Appellee actually received the undocumented income that the
trial court imputed to her . Although KRS 403 .212(2)(f) imposes a mandatory obligation
on the parties to report and verify their income and earnings with documentation, if a
party fails to comply with this obligation, the burden remains on the opposing party to
prove such income and earnings . The trial court candidly stated that proof of this
additional income was "limited and speculative ." We agree with the trial court's
characterization, but would add the word "insufficient."
In support of the trial court's finding that Appellee's income approximately
equaled Appellant's, Appellant posits that the trial court employed a "net worth analysis"
akin to that utilized by the Internal Revenue Service to determine whether a taxpayer
has reported all taxable income .
For income tax purposes :
The net worth method calculates income by determining a
taxpayers's net worth at the beginning and end of a period .
The difference is the increase in net worth . An increase in
net worth, plus nondeductible expenditures (such as
personal living expenses), less nontaxable receipts, may be
considered taxable income . If the resulting figure for any
year is substantially greater than the taxable income
reported by the taxpayer for that year, the IRS claims the
excess represents unreported taxable income .,,26
Although a method similar to that described above may be appropriate to determine a
party's income for the purpose of applying the guidelines, the record in this case does
not contain any evidence, much less findings or calculations by the trial court,
26yo on v. Commissioner of Internal
Revenue , 135 F. 3d 1007, 1009-1010
Cir. 1998).
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(5th
supporting the additional monthly income assigned to Appellee . Neither a "windshield
appraisal" that Appellee's "lifestyle and property reflected an income greater than her
W-2's and tax returns indicated" nor Appellant's bare allegations of additional income
are sufficient to support the trial court's finding of additional income. Establishing a
party's income through the net worth method requires additional, reasonably certain
income figures - e .g ., the party's opening net worth
.27
"[L]imited and speculative"
evidence will not suffice .
For the reasons stated, we agree with the Court of Appeals that the trial court
erroneously imputed additional monthly income to the Appellee, that the judgment must
therefore be vacated in part and remanded for the trial court to reexamine the child
support issue based upon the parties' documented income as set forth in the record .
B. APPELLANT'S NONMARITAL INTEREST IN MARITAL RESIDENCE
We agree with Appellant that, in calculating Appellant's nonmarital interest in the
parties' marital residence, the trial court erroneously failed to consider Appellant's
nonmarital contribution to the refinancing of that property .
It is elementary that, when a
party to a marriage acquires property or an interest therein with nonmarital funds, the
property or interest is properly classified as nonmarital property .28 And, "`property'
includes equity in property .
,29
Although a portion of the funds Appellant contributed at
27
See Holland v. United States , 348 U .S. 121, 132, 75 S.Ct. 127, 134, 99 L.Ed.
150, 162-3 (1954) ("We agree with petitioners that an essential condition in cases of
this type is the establishment, with reasonable certainty, of an opening net worth, to
serve as a starting point from which to calculate future increases in the taxpayer's
assets.").
28KRS 403.190(2)(x)&(b) .
29 Newman v. Newman , Ky., 597 S.W.2d 137,138 (1980). See also Travis v .
Travis , Ky., 59 S .W.3d 904, 919 n.6 (2001).
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refinancing ($2,283.00 of the $8,577.61) paid for closing costs and thus were not used
to acquire additional interest in the property, $6,294.61 of Appellant's nonmarital funds
were applied directly to the outstanding loan principal, and thus increased the parties'
equity in the property .
Accordingly, we hold that the trial court erred when calculating
Appellant's nonmarital interest in the marital residence because it failed to consider
Appellant's $6,294 .61 nonmarital contribution in connection with the parties' refinancing
of the property in 1993. We thus reverse the Court of Appeals on this issue, and
remand the case for the trial court to recalculate the marital and nonmarital interests in
the marital residence.
IV. CONCLUSION
For the above reasons, we affirm the opinion of the Court of Appeals as to the
trial court's calculation of child support, but reverse as to the trial court's calculation of
Appellant's nonmarital interest in the marital residence, and remand the case to the trial
court for further proceedings consistent with this opinion .
Lambert, C.J ., concurs as to Part III-B . Graves, Stumbo and Wintersheimer, JJ .,
concur. Cooper, J ., concurs in part and dissents in part by separate opinion in which
Johnstone, J ., joins and in which Lambert, C .J., joins only as to Part I.
COUNSEL FOR APPELLANT :
Peter L. Ostermiller
Haddad Law Office
239 South Fifth Street
500 Kentucky Home Life Building
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE :
Joseph V. Mobley
710 West Main Street
Suite 400
Louisville, Kentucky 40202-2634
J . Russell Lloyd
710 West Main Street
Suite 400
Louisville, Kentucky 40202-2634
RENDERED : APRIL 24, 2003
TO BE PUBLISHED
,*ixpremt 0_11aurf of ~mfurhV
1999-SC-0628-DG
BRUCE WILLIAM SCHOENBACHLER
V.
APPELLANT
ON REVIEW FROM THE COURT OF APPEALS
1997-CA-0928-MR & 1997-CA-0931-MR
JEFFERSON FAMILY COURT NO . 94-FD-01467
ANGELA MARIE MINYARD
APPELLEE
OPINION BY JUSTICE COOPER
CONCURRING IN PART AND DISSENTING IN PART
I concur in the majority's conclusion that only two of the six issues now before us
merit discussion . However, I disagree with the majority's resolution of both issues .
I. CHILD SUPPORT .
The majority opinion homes in on the trial judge's use of the phrase "limited and
speculative" in affirming the Court of Appeals' reversal of the child support award .
However, the trial judge used that phrase only to describe the "amount" of Appellee's
undocumented and unreported gross income. With respect to the "existence" of such
income, the trial judge found that "Angela clearly has cash flow in excess of IRS
reported income," and found her total monthly income "to be, at a minimum , the
equivalent of respondent's [monthly income] ." (Emphasis added.) Although the trial
judge characterized the finding of additional income as "imputed" income, it should
more properly be characterized as "hidden" income. The trial judge examined
Appellee's lifestyle and monthly expenditures and concluded that she must have a
gross income substantially in excess of that to which she admits . Whether her hidden
income results from gambling, bookmaking, gifts, unreported tips, or other sources, it is
"gross income" under KRS 403.212(2)(b) and must be considered for purposes of
calculating child support under KRS 403.212(3) and (6).
I agree with the majority that the Court of Appeals erred in requiring Appellant to
document Appellee's "hidden" income before it could be considered for child support
purposes . The documentation requirement in KRS 403 .212(2)(f) obviously applies to a
party's own income, not to the adverse party's income -- especially if the adverse party
is concealing income. However, I do not agree with the majority's conclusion that the
evidence of the existence of that income was insufficient to support the trial judge's
findings of fact. I believe the trial judge can consider circumstantial evidence, such as
lifestyle and apparent ability to pay extravagant expenditures, in determining
approximate actual income. At one point during the trial, Appellee remarked that she
should be awarded the marital residence because she could afford the $930.00 monthly
mortgage payment, despite her claimed gross income of only $17,000 .00 per year,
whereas Appellant could not afford it, despite his gross income of $37,000 .00 per year.
In a divorce case, the trial judge is the fact-finder with the authority to weigh the
evidence and observe and consider the demeanor of the parties . I am unable to
conclude that the trial judge's finding that Appellee has, "at a minimum," an income
equal to that of Appellant was either clearly erroneous or an abuse of discretion . CR
52 .01 ; Heltsley v. Heltsley , Ky., 242 S .W.2d 973, 974 (1951); cf. Perrine v. Christine,
Ky., 833 S .W .2d 825, 827 (1992) .
11 . NONMARITAL INTEREST IN MARITAL RESIDENCE .
The parties purchased the property at 4004 Stony Brook Drive in November
1991 . The purchase was accomplished by payment of $90,307.00 borrowed from
Bankers Mortgage Corp. and $6,188.00 in cash traceable to Appellant's nonmarital
Individual Retirement Account (IRA). The majority opinion apparently concludes sub
silentio that the $6,188.00 payment was applied to closing costs and did not serve to
increase the equity value of the property. The closing statement reflects that the
closing costs were $6,902 .83 . However, it is clear from both Appellant's discovery
deposition testimony and his testimony at trial that a down payment was made prior to
the closing, and his testimony that $6,188.00 of this payment was made from funds
withdrawn from his nonmarital IRA is unrefuted . (Even if the $6,188 .00 had been
applied only to closing costs, the result should be the same . The property could not
have been purchased without that money . Under the "investment" or "source of funds"
formula for calculating the parties' respective marital and nonmarital interests, all sums
necessarily expended for the purchase or improvement of the property in question are
factored into the equation . Travis v. Travis, Ky., 59 S .W .3d 904, 918-19 (2001)
(Cooper, J., dissenting) .)
Bankers subsequently sold the mortgage to Fleet Mortgage Co . and the parties
thereafter made monthly mortgage payments to Fleet, reducing the mortgage principal
to $87,996 .61 as of November 1993. In November 1993, the parties refinanced the
loan with a new mortgage from Inland Mortgage Corp . at a reduced rate of interest. To
obtain the new mortgage, the parties were required to pay Inland the sum of $8,577.61,
of which $6,294 .61 was applied to the loan balance, immediately reducing that balance
from $87,996 .61 to $81,702.00 . The remaining $2,283 .00 was applied to closing costs .
All of this money was also traced to Appellant's nonmarital IRA . Thus, if the
"investment" or "source of funds" formula is used, Appellant's nonmarital contribution
(nmc) to the Stony Brook Drive residence was $14,765.61 .
$ 6,188 .00 -- down payment, November 1991
+ 8,577 .61 -- costs and reduction of principal, November 1993
$14,765 .61 -- nmc
Even if the Brandenburg formula is applied,' Appellant's nonmarital contribution
was $12,482 .61 .
$ 6,188 .00 -- down payment, November 1991
+ 6.294 .61 -- applied to principal, November 1993
$12,482 .61 -- nmc
By June 3, 1996, the date of divorce, the parties had made sufficient additional
monthly payments to Inland to reduce the mortgage balance to $73,128 .00 . Thus, per
Brandenbura , the marital contribution (mc) was $10,885.00 .2
$90,307 .00 -- original mortgage balance, November 1991
- 87.996 .00 -- mortgage balance, November 1993
$ 2,311 .00 -- mc, equity created, November 1991 - November 1993
' Brandenbura v. Brandenburg, Ky. App ., 617 S .W .2d 871 (1981).
2 The "investment" or "source of funds" approach cannot be used in this case
because the trial record does not contain sufficient information to determine the amount
of actual mortgage payments made by the parties prior to June 3, 1996, the date of
divorce and effective date of the property division. Appellee argued at trial that she
should be credited with all of the mortgage reduction because all of the monthly
payments were made with income from her nonmarital rental properties . However,
income from nonmarital property that is produced during the marriage is marital in
nature . Dotson v. Dotson , Ky., 864 S .W .2d 900, 902 (1993); Marcum v. Marcum , Ky.,
779 S .W .2d 209, 210-11 (1989); Sousley v. Sousley, Ky., 614 S.W .2d 942, 944 (1981).
$81,702 .00 -- refinanced mortgage balance, November 1993
- 73 .128.00 -- mortgage balance, June 3, 1996
$ 8,574 .00 -- mc, equity created after November 1993
$ 2,311,00 -- mc, November 1991 - November 1993
+ 8 .574.00 -- mc, November 1993 - June 3, 1996
$10,885.00 -- total mc
Per Brandenburg , the total contribution (tc) is the sum of the marital (mc) and
nonmarital (nmc) contributions.
$10,885.00 -- me
+ 12 .482.61 -- nmc
$23,367.61 -- tc
The appraised value of the property on June 3, 1996, was $103,000 .00 . Thus,
as found by the trial judge, the equity value (e) of the property was $29,872 .00.
$103,000 .00 -- appraised value
- 73.128 .00 -- mortgage balance
$ 29,872.00 -- equity (e)
Applying the Brandenburg formula, Appellant's nonmarital interest (nmi) in the
equity value of the property as of June 3, 1996, was $15,951 .65 and the marital interest
(mi) was $13,920.35 .
$12,482 .61(nmcL= 53 .4% X $29,872 .00(e) = $15,951 .65(nmi) .
$23,367 .61(tc)
$ 10.885 .00(mc) = 46.6% X $29,872.00(e) = $13,920.35(mi) .
$23,367 .61(tc)
Accordingly, I would reverse the Court of Appeals on both issues . I would
reinstate the judgment of the trial court with respect to child support but would remand
the property division to the trial court with directions to award Appellant his $15,951 .65
nonmarital interest in the Stony Brook Drive property and amend the division of marital
property accordingly . (The Court of Appeals previously ordered a remand for
recalculation of Appellee's nonmarital interest in the property located at 1350 Vim Drive
and that issue has not been raised on discretionary review. The majority opinion of this
Court orders a remand for recalculation of Appellant's nonmarital interest in the Stony
Brook Drive property but erroneously fails to direct the trial court to credit him with the
nonmarital contribution he made to that property at the time of its purchase in
November 1991 .)
Johnstone, J ., joins this opinion, concurring in part and dissenting in part.
Lambert, C.J ., joins this opinion only as to Part I .
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