Digest of Shafizadeh, multiple issues, Ky Court of Appeals

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Shafizadeh v. Shafizadeh, 2010-CA-000758-MR

Issue:  jurisdiction, findings of fact, imputation of income, attorney fees, modification of child custody and timesharing, garnishments, CR 60.02

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

County:  Jefferson

In three separate appeals, Ex-Husband appealed numerous orders of FC.

FACTS:

Parties were married for twenty-six years, and at time that Wife filed for dissolution, they had two minor children and two adult children.  Wife worked as a bank manager during the marriage but left that employment in 2005 to provide full-time care for the parties’ children.  Husband is a businessman and a licensed attorney. During the marriage, Husband incorporated three different businesses, including his law firm.  In 2007, his income from the businesses was $40,000.  The parties entered a Marital Settlement Agreement dividing these assets, and Husband was required to make a cash equalization payment to Wife as a result.  They also entered a custody agreement in which they shared joint custody and a parenting schedule.  A trial was held on child support, maintenance, and division of the remaining marital property.  FC divided the value of the remaining marital assets equally between the parties, restored two nonmarital assets to Wife, and allocated debt.  FC also awarded Wife $750 “open-ended” monthly maintenance and attorney’s fees of $6,412.  Lastly, FC concluded Husband was voluntarily under-employed, imputed earnings to him of $60,000 per year, and set child support at $859 per month. 

ISSUES AND ANALYSIS:

Jurisdiction: 

Before FC issued its opinion, Husband filed petition to disqualify judge.  FC subsequently entered its opinion, and SC later denied Husband’s petition.  Husband claimed because petition for disqualification was pending when FC issued its opinion, FC had no jurisdiction at that time.  CA held that while petition was pending, FC lacked jurisdiction over the particular case (but not subject matter jurisdiction), rendering FC’s opinion premature, and voidable, depending on the outcome of SC’s opinion.  As SC denied the petition, the opinion and order was given full force and effect. 

Dissipation and Request for Findings of Fact:

Husband claimed FC failed to consider and issue findings regarding funds Wife spent on Christmas gifts, in loans to relatives, and for household expenses and maintenance.  Wife contended FC adequately addressed all issues in its order, and even if not, Husband failed to address this complaint in his Motion to Alter, Amend or Vacate.  CA agreed with Wife that because Husband failed to raise the issue in his CR 59 motion, he could not raise it on appeal. 

Maintenance:

Husband claimed that because Wife received $529,301 in marital assets plus her nonmarital assets, she did not lack sufficient property to provide for her reasonable needs; furthermore, he claimed that she is able to support herself through reasonable employment; therefore, she should not be awarded maintenance.  CA found FC’s findings were supported by substantial evidence regarding the entitlement to and the amount of maintenance, but agreed with Husband that FC erred in awarding  “open-ended” maintenance, holding that such an award thwarts the goal of severing all ties between the parties.  This issue was remanded to FC.

Child Support and Imputation of Income:

FC found that Husband operated businesses that do not appear to make a profit and that he earned more than was reflected on his tax returns, and also took note of his earning capacity as an attorney.  Husband claimed that FC erred by basing its opinion on the business’ profitability in the past.  Wife countered that Husband chose not to use his skills and education and concentrated his efforts on non-profitable businesses and chose not to accept legal clients.  CA held that although Husband’s businesses may not be currently profitable due to the economy, he was not fully using his entrepreneurial and business skills and could earn more in the legal industry. 

Attorney Fees:

Husband claimed no imbalance of financial resources existed to support attorney fee award.  CA disagreed, noting difference in incomes and distribution of debt. 

Modification of Child Custody and Timesharing:

1. Wife sought to relocate to Louisiana with minor children and filed Motion to modify parenting time schedule.  FC granted Wife’s motion.  Husband filed writ petition with SC claiming Wife’s motion was actually motion for change of custody that lacked requisite affidavits, relying on Brockman v. Craig, though SC overruled Brockman to the extent it was inconsistent with Pennington.  SC rejected Husband’s writ and CA did as well. 

2.  Husband filed motion to modify joint custody or, alternatively, modify time-sharing, while Wife’s motion regarding relocation was pending.  Attached to Husband’s motion were 4 affidavits and 2 declarations.  FC denied his motion, finding that it was filed in less than 2 years from the original order and was missing the requisite 2 affidavits.  CA held that declarations could not meet the affidavit requirement because they were not sworn testimony.  CA held that FC erred in dismissing the motion for lack of jurisdiction, however, as at least 2 affidavits were submitted.  CA directed FC, on remand, to determine whether affidavits state sufficient facts to justify a hearing on the motion. 

Garnishments:

Wife sought garnishments for attorney fee award.  Husband claimed his bank account could not be garnished because it held only his wages.  CA disagreed, holding there is no statutory protection for wages placed in the debtor’s control/possession.  Husband also requested and was denied sanctions and attorney fees because his social security number was included on the garnishment orders.  CA held this decision was within FC’s wide discretion, and FC did not abuse such discretion.  Lastly, as Husband filed his motion pro se, there were no attorney fees to recoup. 

CR 60.02:

Husband filed CR 60.02 motion to correct attorney fee award, claiming $945 of the award was incurred by Wife’s attorney in responding to Husband’s EPO appeal, in which CA did not grant Wife’s request for sanctions; therefore, Husband claimed, FC could not award attorney fees to Wife related to that appeal.  CA noted that a chief factor guiding the grant of CR 60.02 relief is the moving party’s inability to present his claim prior to the entry of the order sought to be set aside.  CA held that Husband could have and should have raised this issue in his direct appeal of the order awarding attorney fees. 

Affirmed in Part, Reversed in Part, and Remanded.

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

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