Opinion modified 1/17/2020
On appeal in a dissolution action, Husband argues that Trial Court erred (1) in hearing the case after Husband, Wife, and Children moved to Texas, as it no longer had jurisdiction; (2) in the way it divided the parties’ property; (3) in awarding Wife maintenance; (4) in modifying the parties’ partial separation agreement; (5) in awarding Wife attorney fees; and (6) in refusing to allow Husband to testify as to interest earned on his non-marital retirement funds.
Husband first argued that Trial Court lost subject matter jurisdiction to modify child support in a final decree of dissolution of marriage once the parties and the children moved to Texas, which was not in dispute. The Court of Appeals held that Trial Court retained jurisdiction to modify child support, because the parties consented to Trial Court’s retention of jurisdiction. It reasoned that jurisdiction to modify child support is governed by the Uniform Interstate Family Support Act, which vests a Kentucky trial court “continuing, exclusive jurisdiction to modify its child support order” if Kentucky “is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued” or the “parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.” KRS 407.5205(1). Furthermore, it reasoned that a temporary support order is a support order, which makes the modification statute the appropriate statute. Wife filed a motion for Trial Court to determine whether it had jurisdiction, which Trial Court answered in the affirmative, prompting a writ of prohibition by Husband. Pending the writ proceeding, the parties continued litigation in the trial court. At a motion hour, the parties agreed that the outstanding issues reserved by Trial Court included child support issues. Thus, the Court of Appeals found that the parties agreed to Trial Court retaining jurisdiction for child support under KRS 407.5205(1)(b).
Second, Husband argues that Trial Court lost jurisdiction to modify custody or parenting time under the Uniform Child Custody Jurisdiction and Enforcement Act, as neither party nor the children resided in Kentucky. The Court of Appeals held that Trial Court lacked jurisdiction to modify custody and parenting time, because neither party nor the children presently resided in Kentucky, which would not allow Kentucky to retain “exclusive, continuing jurisdiction” over custody and parenting time issues. KRS 403.824(1)(b). It reasoned that temporary custody orders are initial custody orders, which make all subsequent orders modifications, if the order is changed. Trial Court, sua sponte, modified parenting time in its final decree and no interested party resided in Kentucky. Thus, Trial Court lacked jurisdiction.
Third, Husband argued that Trial Court lacked jurisdiction to consider maintenance and marital property issues, because the parties had moved to Texas and those issues are tied to support and custody issues. The Court of Appeals held that Trial Court retained jurisdiction, because there are no statutory provisions governing jurisdictional issues related to maintenance and marital property when the parties move out of the state.
Fourth, Husband argued that Trial Court erred in failing to classify a Relocation Incentive as non-marital property. The Court of Appeals held that Trial Court properly classified the Relocation Incentive as marital property. It reasoned that the test to determine the classification of employee benefits is not whether the benefit had vested during the marriage but whether the right to participate in the plan was earned during the marriage, and should be classified as marital property if earned during the marriage unless it is a “mere expectancy.” It found that Husband earned the right to receive the Relocation Incentive during the marriage, because Husband was entitled to it as a result of moving to Texas, which he had done, and the benefits were more than a “mere expectancy,” because Husband had received all the funds during the marriage. Thus, the Relocation Incentive was marital property.
Fifth, Husband argued that Trial Court erred by failing to require Wife to reimburse him for all child-related expense he incurred during the marriage but after separation. The Court of Appeals held that Trial Court did not err, because the only expenses the parties were ordered to share were medical, dental, optical, prescription, and copay expenses, and Husband paid the other expenses out of marital funds.
Sixth, Husband argued that Trial Court erred by awarding him an Escalade. Wife requested the vehicle be awarded to her and that Husband be required to transfer title to her, but Trial Court did not enter such an order. The Escalade remained in Wife’s possession pending the divorce. She continuously requested that Husband transfer title to her so she could sell the vehicle or that Husband sell it himself, which Husband refused. Husband failed to register the vehicle in Texas after the parties moved, which resulted in Wife being unable to drive the Escalade and it being towed from her apartment complex for lacking valid registration. After telling Husband of this, he told Wife to move the vehicle or fix the issue, which Wife did not have the ability to do. The Court of Appeals held that Trial Court did not err in awarding Husband the vehicle, which neither party wanted at the final hearing, because Trial Court’s finding that Husband’s actions were in bad faith was supported by the record.
Seventh, Husband agreed that Trial Court erred by not allowing him to testify about interest earned on the non-marital portion of his retirement account. Husband had testified that he was missing approximately six years’ worth of statements. The Court of Appeals held that Trial Court did not err, because Husband “all but outright admitted that he could not meet [his] burden” of tracing the non-marital interest, because he was missing six years’ worth of statements.
Eighth, Husband argued that Trial Court erred in awarding Wife any maintenance. Trial Court ordered Husband to pay $1,000.00 per month for four years. It did not consider a non-marital IRA of Wife’s. It found that Husband earned $8,476.00 per month and had monthly expenses of $7,826.66. Trial Court did not consider fault in the breakdown of the marriage when considering the amount of maintenance. The Court of Appeals held that Trial Court did err in its maintenance award, because it did not consider the IRA, and because it ordered Husband to pay maintenance in excess of his ability to support himself. However, the Court of Appeals held that Trial Court did not err by not considering fault in the breakdown of the marriage, because Chapman v. Chapman, 498 S.W.2d 134 (Ky. 1973), merely allows trial courts to consider fault as a factor in maintenance, but does not require it.
Finally, Husband argued that Trial Court erred in awarding Wife attorney fees under KRS 403.220, because Trial Court did not consider the IRA. The Court of Appeals held that Trial Court did not err, because it considered the inequity in the parties’ incomes, [d]isparity between the parties’ incomes is . . . “a viable factor for trial courts to consider in following [KRS 403.220] and looking at the parties’ total financial picture.’ Smith v. McGill, 556 S.W.3d 552, 556 (Ky. 2018),” and even considering the IRA, Husband is in a much better financial position than Wife.
Digested by Nathan R. Hardymon