Digest of Shafizadeh, multiple issues, Ky Court of Appeals

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