Joseph Matthew Byrdwell v. Chantele Byrdwell ( 2022 )

RENDERED: JANUARY 28, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1292-MR
JOSEPH MATTHEW BYRDWELL APPELLANT
APPEAL FROM HENRY CIRCUIT COURT
v. HONORABLE S. MARIE HELLARD, SPECIAL JUDGE
ACTION NO. 16-CI-00111
CHANTELE BYRDWELL;
JONATHAN O. WELLS; AND JAMES
& WELLS, P.S.C. A/K/A JAMES AND
WELLS LAW OFFICE APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: ACREE, GOODWINE, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Joseph Byrdwell, pro se, appeals from orders of the
circuit court which decided all issues of a divorce action, including child custody,
property division, and an award of attorney fees. We conclude that the trial court
erred on an issue regarding child custody; therefore, we affirm in part, reverse in
part, and remand for further proceedings in relation to custody of the children.
FACTS AND PROCEDURAL HISTORY
Appellant and Chantele Byrdwell were married on May 17, 2008.
Two children were born of the marriage. During the marriage, Appellant worked
at LGE/KU Energy and Appellee was a stay at home mother. During the divorce
proceedings, Appellee became a student who was working toward a degree to
become a dental hygienist. The parties separated on July 27, 2015, and Appellee
filed a petition for dissolution of marriage on June 9, 2016. A four-day hearing
deciding all issues was held in 2018. On January 30, 2020, the trial court entered
findings of fact and conclusions of law which decided all issues surrounding the
divorce. Additional facts will be discussed as they become relevant to our
analysis.
ANALYSIS
Appellant’s first argument on appeal is that Henry Family Court
Judge, Doreen Goodwin, who presided over the divorce action, erred in not
recusing herself. In May of 2016, Appellee was granted a domestic violence order
against Appellant. On May 8, 2018, Appellee filed a motion to extend the DVO.
The motion was heard by Judge Goodwin. There was no hearing and Appellant
was not served with the motion to extend. Judge Goodwin ultimately extended the
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DVO. Appellant appealed the DVO to a panel of this Court, which held that it
should be vacated because Appellant was not given notice of the motion and had
no opportunity to be heard by the trial court. See Byrdwell v. Byrdwell, Nos. 2018-
CA-000628-ME and 2018-CA-001150-ME, 2019 WL 2896511 (Ky. App. Jul. 5,
2019).
On February 10, 2020, which was after the entry of the trial court’s
findings of fact and conclusions of law, Appellant filed a motion for a new trial.
This motion also argued that Judge Goodwin should have recused herself after
ruling on an ex parte motion filed by Appellee in the DVO action. In other words,
Appellant argues that since Judge Goodwin was given ex parte information that
could be relevant to the divorce proceedings, she should have recused herself and
any orders entered after May 8, 2018, the date the DVO extension motion was
filed, should be vacated.1
Appellant cites to Ice v. Commonwealth, 667 S.W.2d 671 (Ky. 1984),
to support his argument. In Ice, Justice Leibson, in his concurring opinion, stated
that no lawyer or party should have ex parte discussions with a presiding judge and
when such a conversation occurs, prejudice should be presumed and the judge
1
We note that Judge Goodwin did recuse herself after Appellant’s February 10, 2020 motion.
Judge Goodwin did not recuse herself based on the arguments set forth in the motion, but
because Appellant filed a federal action against her and filed a complaint against her with the
Judicial Conduct Commission.
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should recuse himself or herself. Id. at 681 (Leibson, J., concurring). Ice also
discusses Kentucky Revised Statute (KRS) 26A.015(2)(a) which states that a judge
should recuse if he or she has “personal knowledge of disputed evidentiary facts
concerning the proceedings[.]”
We find that issue was not timely brought to the trial court’s attention;
therefore, it was waived. A party “in possession of facts which he believes should
disqualify the judge, must make known these facts at the outset and not wait until
the judge has made a ruling against him before moving for disqualification.”
Harrell v. City of Middlesboro, 287 S.W.2d 614, 615 (Ky. 1956). Here, Appellant
knew of the alleged ex parte communication in 2018, but waited almost two years
before he moved to disqualify Judge Goodwin on those grounds.2 In addition, this
Court’s opinion vacating the renewed DVO was rendered in July of 2019, but
Appellant waited around seven months before raising the ex parte communication
issue. Finally, the ex parte issue was not raised until after the trial court entered its
findings of fact and conclusions of law. Based on the above reasons, and pursuant
to Harrell, this motion to recuse was not timely.
Arguendo, we note that even if this issue were properly preserved, we
would still be unable to rule on the merits. This Court has reviewed the record in
2
During the course of the trial court proceedings, Appellant moved multiple times for Judge
Goodwin’s recusal; however, he did not raise the ex parte communication issue until February of
2020.
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this case and could not find the 2018 motion to renew the DVO or, for that matter,
the original DVO from 2016. Without being able to review the DVO renewal
motion, we would be unable to determine if this ex parte communication contained
disputed evidentiary facts regarding the divorce proceedings which would have
necessitated recusal. Appellant is responsible for ensuring a complete record
before this Court. Gambrel v. Gambrel, 501 S.W.3d 900, 902 (Ky. App. 2016).
Appellant’s second argument on appeal is that the trial court erred in
granting Appellee attorney fees. Specifically, Appellant claims the trial court
relied on his gross income when it should have relied on his net income. Appellant
claims this was error. During the proceedings in this case, Appellee moved for
Appellant to pay some of her attorney fees. A hearing was held on the matter
where evidence was produced showing the parties’ incomes and monthly expenses.
On March 30, 2018, the trial court ordered Appellant to advance Appellee $10,000
for attorney fees. The trial court found that Appellant earned approximately
$9,542.95 a month and had additional income from a side business, and the court
found that Appellee’s only income was $1,413 per month in child support. The
trial court ultimately held that, based on the parties’ financial resources, Appellant
should pay some of Appellee’s attorney fees. In its January 30, 2020 findings of
fact and conclusions of law, the trial court awarded additional attorney fees.
KRS 403.220 states:
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The court from time to time after considering the
financial resources of both parties may order a party to
pay a reasonable amount for the cost to the other party of
maintaining or defending any proceeding under this
chapter and for attorney’s fees, including sums for legal
services rendered and costs incurred prior to the
commencement of the proceeding or after entry of
judgment. The court may order that the amount be paid
directly to the attorney, who may enforce the order in his
name.
The award of attorney fees is reviewed for abuse of discretion. Smith v. McGill,
556 S.W.3d 552, 556 (Ky. 2018).
We conclude that the trial court did not abuse its discretion by
awarding Appellee attorney fees. The trial court considered the evidence produced
during a hearing on the issue and held that Appellant was fully employed and
earned over $100,000 a year. The court also took into consideration the fact that
Appellee was a student whose only income was from child support. We agree with
the trial court that this constitutes a disparity in financial resources. While it may
have been prudent for the trial court to consider Appellant’s net income as opposed
to his gross income, there is such a disparity in the income of Appellant and
Appellee that any error would be harmless.
No error in either the admission or the exclusion of
evidence and no error or defect in any ruling or order or
in anything done or omitted by the court or by any of the
parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying, or otherwise
disturbing a judgment or order, unless refusal to take
such action appears to the court inconsistent with
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substantial justice. The court at every stage of the
proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of
the parties.
Kentucky Rules of Civil Procedure (CR) 61.01. Here, had the trial court utilized
Appellant’s net income, we are confident the court would have still awarded
Appellee substantial attorney fees due to the large disparity in the parties’ incomes.
Appellant’s third argument on appeal is that the trial court erred by
conditioning future discovery on Appellant paying the $10,000 in attorney fees.
Appellant did not timely pay the $10,000 in attorney fees. The trial court ordered
that Appellant was prohibited in moving forward with additional discovery until
the $10,000 was paid. This prohibition included Appellant being unable to depose
some expert witnesses he had retained. Appellant was also prohibited from
deposing a custodial evaluator appointed by the trial court, Dr. Kathryn Berla.
Even after the discovery restrictions, Appellant continued to fail to pay the attorney
fees. Ultimately, he was unable to depose or call any expert witnesses to testify.3
CR 26.03(1) states in pertinent part:
Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the court
in which the action is pending or alternatively, on matters
relating to a deposition, the court in the judicial district
where the deposition is to be taken may make any order
which justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden
3
Appellant did not pay the $10,000 attorney fees until after the trial in this case.
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or expense, including one or more of the following: (a)
that the discovery not be had; (b) that the discovery may
be had only on specified terms and conditions, including
a designation of the time or place; (c) that the discovery
may be had only by a method of discovery other than that
selected by the party seeking discovery[.]
“A trial court’s orders with respect to discovery are reviewed for an abuse of
discretion.” B. Dahlenburg Bonar, P.S.C. v. Waite, Schneider, Bayless & Chesley
Co., L.P.A., 373 S.W.3d 419, 424 (Ky. 2012) (citation omitted).
We find no abuse of discretion in the court’s limiting Appellant’s
ability to conduct discovery until he paid the $10,000 in attorney fees. Appellant’s
income greatly exceeded Appellee’s and he was ordered to pay some of Appellee’s
attorney fees. At the time Appellant was ordered to pay attorney fees, he was
acting pro se and not incurring such fees himself. Appellee’s attorney fees would
increase with every deposition scheduled by Appellant; therefore, she needed the
$10,000 to continue with the discovery process. The trial court felt that limiting
Appellant’s discovery was the best way to ensure his compliance with the attorney
fee order and we find no error with this assessment. See Mickler v. Mickler, Nos.
2007-CA-002329-MR and 2008-CA-000232-MR, 2009 WL 1097966 (Ky. App.
Apr. 24, 2009).
Appellant’s fourth argument on appeal is that the trial court erred in
not allowing him to depose or cross-examine Dr. Berla. Dr. Berla was appointed
by the trial court to conduct a custodial evaluation of Appellant, Appellee, and the
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children. Dr. Berla submitted two reports to the court containing her findings. The
trial court heavily relied on Dr. Berla’s reports in deciding custody issues. Due to
the trial court’s limiting of Appellant’s ability to conduct discovery, Appellant did
not depose Dr. Berla and he argues the court erred in denying him the opportunity
to depose or cross-examine Dr. Berla.4 Discovery and evidentiary issues are
reviewed for an abuse of discretion. B. Dahlenburg Bonar, P.S.C., supra;
Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 577 (Ky. 2000).
As it relates to investigators appointed by the trial court, KRS
403.300(3) states:
The clerk shall mail the investigator’s report to counsel
and to any party not represented by counsel at least 10
days prior to the hearing. The investigator shall make
available to counsel and to any party not represented by
counsel the investigator’s file of underlying data, and
reports, complete texts of diagnostic reports made to the
investigator pursuant to the provisions of subsection (2),
and the names and addresses of all persons whom the
investigator has consulted. Any party to the proceeding
may call the investigator and any person whom he has
consulted for cross-examination. A party may not waive
his right of cross-examination prior to the hearing.
The question we must ask ourselves is, should Appellant have been
allowed to depose Dr. Berla even though he did not pay the attorney fees and his
4
During a hearing on July 18, 2018, the trial court stated that the deposition of Dr. Berla would
be used as her trial testimony. It is unclear from the record if Appellant was able to call Dr.
Berla to testify live during the divorce trial.
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ability to conduct discovery was limited? As previously stated, we believe it was
appropriate for the trial court to limit Appellant’s discovery due to his failure to
pay the attorney fees. On the other hand, KRS 403.300(3) states that a party may
cross-examine the evaluator and cannot waive that ability prior to the child custody
hearing. Case law also indicates that the ability to cross-examine an evaluator,
such as Dr. Berla, is mandatory as it concerns issues of due process. Morgan v.
Getter, 441 S.W.3d 94, 112 (Ky. 2014); Thompson v. Thompson, Nos. 2017-CA-
001285-ME, 2017-CA-001286-ME, and 2017-CA-001288-ME, 2018 WL
6016662, at *14 (Ky. App. Nov. 16, 2018).
Based on the above statutory and case law, we conclude that it was
error for the trial court not to allow Appellant to depose Dr. Berla. Dr. Berla was
appointed by the trial court and the court relied heavily on her reports when
determining the child custody issues in this case. “[I]n domestic custody
proceedings, the parties’ right to due process includes the right to cross-examine
the authors . . . of evidentiary reports upon which the fact finder is entitled to rely.”
Morgan, 441 S.W.3d at 12. Appellant was entitled to depose her and question her
about her report. Not allowing such violated his due process rights and KRS
403.300(3); therefore, we reverse and remand the trial court’s decision regarding
child custody. On remand, Appellant shall be allowed to depose Dr. Berla and the
trial court will then make a new determination as to child custody.
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Appellant’s fifth argument on appeal is that the trial court erred in
denying him the opportunity to depose Appellee’s psychiatrist, Dr. Tammy
Pennington. Appellant was permitted to depose Dr. Pennington, but only after he
paid the required attorney fees, as discussed supra. Appellant argues that he
should have been given the unfettered ability to depose Dr. Pennington because the
trial court is supposed to examine the parties’ mental and physical health when
determining custody. KRS 403.270(2)(f).
As this is an evidentiary and discovery issue, we review for abuse of
discretion. We conclude that the trial court did not err on this issue. While
Appellant is correct that Appellee’s mental health is relevant to child custody
issues, KRS 403.270(2)(f), and Atwood v. Atwood, 550 S.W.2d 465, 467 (Ky.
1976), the trial court properly limited his ability to depose Dr. Pennington until
after he paid the required attorney fees to Appellee. This issue is distinguishable
from the deposition of Dr. Berla because statutory and case law mandates that a
party be allowed to depose or question a custodial evaluator. There is no such
statute or case law requiring the deposition of a psychiatrist. In addition, we must
note that Appellee’s medical records from Dr. Pennington were entered into
evidence in this case; therefore, the court was made aware of any psychological
issues Appellee may have.
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Appellant’s sixth argument on appeal is that the trial court’s findings
regarding Appellee’s mental health were clearly erroneous. In its January 30, 2020
findings of fact and conclusions of law, the trial court found that Appellee’s
“mental and physical health are generally well however, she does have passive and
dependent personality traits per Dr. Berla.” In an order dated October 6, 2020, the
trial court overruled Appellant’s post-trial motion for sole custody and stated
“[t]here is nothing in the record to suggest that the [Appellee] has any untreated
mental health condition, and the [Appellant] has given no evidence in that regard.”
Appellant argues that the report of Dr. Berla and Appellee’s certified medical
records show Appellee does have mental health problems.
The Court of Appeals . . . [is] entitled to set aside
the trial court’s findings only if those findings are clearly
erroneous. And, the dispositive question that we must
answer, therefore, is whether the trial court’s findings of
fact are clearly erroneous, i.e., whether or not those
findings are supported by substantial evidence.
“[S]ubstantial evidence” is “[e]vidence that a reasonable
mind would accept as adequate to support a conclusion”
and evidence that, when “taken alone or in the light of all
the evidence, . . . has sufficient probative value to induce
conviction in the minds of reasonable men.” Regardless
of conflicting evidence, the weight of the evidence, or the
fact that the reviewing court would have reached a
contrary finding, “due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses” because judging the credibility of
witnesses and weighing evidence are tasks within the
exclusive province of the trial court. Thus, “[m]ere doubt
as to the correctness of [a] finding [will] not justify [its]
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reversal,” and appellate courts should not disturb trial
court findings that are supported by substantial evidence.
Moore v. Asente, 110 S.W.3d 336, 353-54 (Ky. 2003) (footnotes and citations
omitted).
We do not believe the trial court erred in its findings regarding
Appellee’s mental health. The trial court had Dr. Berla’s reports and Appellee’s
medical records. The court was on notice that Appellee had treated with
psychiatric medical professionals in the past and Appellee discussed these issues
during her testimony in the divorce trial. Appellee also testified that she was on
psychiatric medication for anxiety and was currently seeing a therapist. The trial
court’s findings regarding Appellee’s mental health were supported by substantial
evidence in the record and were not clearly erroneous.
Appellant’s seventh argument on appeal is that the trial court erred in
its findings regarding Appellant’s mental health. Appellant takes issue with the
trial court stating in its January 30, 2020 findings of fact and conclusions of law
that Appellant shopped for a doctor who would prescribe him ADHD medication
and then abused said medication, that Appellant had a preoccupation with a smell
in the marital home, that Dr. Berla believed Appellant had an obsessive-
compulsive personality, and that Appellant was unable to “operate in a rational and
reasonable manner and free from disdain and paranoia toward the Appellee[.]”
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Appellant argues that all of these findings of fact are contrary to the evidence in the
record.
We find no error on this issue. As for the ADHD statements, the trial
court was simply reciting Appellee’s testimony at trial as to what she believed was
going on. The trial court did not make a finding that it believed Appellant was
abusing ADHD medication or that he shopped around for a doctor who would
prescribe him the medication. As for Appellant’s preoccupation with a smell in the
marital home, the evidence in the record indicates that Appellant was the only
person who could smell the odor, that Appellant tore holes in the walls looking for
the smell, and that he disassembled the HVAC system and washing machine
looking for the smell. This was supported by multiple testifying witnesses and
such a finding was not clearly erroneous. As for Dr. Berla believing Appellant had
an obsessive-compulsive personality, again, this is simply the trial court reciting
the evidence presented to it. The court was only discussing the contents of Dr.
Berla’s report and did not find that Appellant had such a personality. Finally, as to
the court stating that Appellant’s behavior toward Appellee was unreasonable, this
was a very contentious divorce case with little compromise. Appellee also testified
about how she believed Appellant’s behavior toward her and the children was
unreasonable and how Appellant would try to control every minutia of their lives.
Appellee’s testimony on this issue supports the trial court’s finding.
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Appellant’s eighth issue on appeal is that the trial court’s custody and
visitation decisions are an abuse of discretion. As we are reversing and remanding
for additional proceedings regarding the child custody and visitation issues, this
argument is moot and it will be considered anew on remand.
Appellant’s ninth argument on appeal is that the trial court must
reconsider its custody award because it awarded him the marital home, but did not
award him primary custody. Appellant cites to KRS 403.190(1)(d) which states:
(1) In a proceeding for dissolution of the marriage or for
legal separation . . . the court shall assign each spouse’s
property to him. It also shall divide the marital property
without regard to marital misconduct in just proportions
considering all relevant factors including:
....
(d) Economic circumstances of each spouse when the
division of property is to become effective, including
the desirability of awarding the family home or the
right to live therein for reasonable periods to the
spouse having custody of any children.
Appellant argues that since the general assembly codified the desirability to award
the marital home to the parent having primary custody, the trial court erred in
awarding him the marital home and not awarding him custody. Again, as we are
remanding for additional custody proceedings, this issue is moot.
Appellant’s tenth argument on appeal is that the trial court erred in
rejecting his claims of nonmarital interest in the marital home. Appellant claims
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that he provided sufficient proof that he used nonmarital funds to help purchase the
marital home. He also argues that the increase in the equity of the marital home
post separation should be granted solely to him.
When property distribution is at issue in a dissolution
proceeding, the trial court must undertake three steps:
(1) the trial court must categorize each piece of disputed
property as marital or nonmarital; (2) the trial court must
assign each party’s nonmarital property to that party; (3)
the trial court must equitably divide the parties’ marital
property in just proportions. Smith v. Smith, 235 S.W.3d
1, 5 (Ky. App. 2006).
“[A] trial court has wide discretion in dividing
marital property; and we may not disturb the trial court’s
rulings on property-division issues unless the trial court
has abused its discretion.” Id. at 6 (citing Davis v. Davis,
777 S.W.2d 230, 233 (Ky. 1989)). “The question of
whether an item is marital or nonmarital is reviewed
under a two-tiered scrutiny in which the factual findings
made by the court are reviewed under the clearly
erroneous standard and the ultimate legal conclusion
denominating the item as marital or nonmarital is
reviewed de novo.” Id. (citations omitted). Marital
property is defined in KRS 403.190(2) as “all property
acquired by either spouse subsequent to the marriage[.]”
Roper v. Roper, 594 S.W.3d 211, 225-26 (Ky. App. 2019), as modified (Jan. 17,
2020) (footnote omitted).
“Tracing” is defined as “[t]he process of tracking
property’s ownership or characteristics from the time of
its origin to the present.” In the context of tracing
nonmarital property, “[w]hen the original property
claimed to be nonmarital is no longer owned, the
nonmarital claimant must trace the previously owned
property into a presently owned specific asset.” The
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concept of tracing is judicially created and arises from
KRS 403.190(3)’s presumption that all property acquired
after the marriage is marital property unless shown to
come within one of KRS 403.190(2)’s exceptions. A
party claiming that property, or an interest therein,
acquired during the marriage is nonmarital bears the
burden of proof.
Sexton v. Sexton, 125 S.W.3d 258, 266 (Ky. 2004) (footnotes and citations
omitted).
Appellant purchased a condominium in 2006. The parties were
married in 2008 and they lived together in the condominium until it was sold in
2013. They received $5,471.35 in proceeds after selling the condominium. When
addressing the nonmarital interest in the marital home, the trial court stated:
At the time of the separation, the parties were
living at 101 Penn Court, Smithfield, Kentucky, 40068.
The home was purchased during the marriage and has a
substantial mortgage. The parties agreed, pursuant to
their Verified Disclosures, the value of the home is
$235,000.00. The original loan was for $224,070.00.
$205,158.63 is owed on the house, leaving $29,841.37, in
equity. The [Appellant] claimed a non-marital share
stemming from a condominium he owned prior to the
marriage. However, he failed in his burden of proof as
he failed to establish the purchase price of the parties’
prior home or sufficiently trace that home[’s] proceeds
into the marital home. Mr. Byrdwell purchased a condo
in Prospect on or about September 8, 2006, before the
marriage. The loan for the Prospect condo was for
$112,500.00. The Court was not provided with any
deeds to determine the purchase price which he stated to
be $112,500.00. The parties married on May 17, 2008,
less than two years after its purchase. Five years after the
marriage the property sold on April 16, 2013[,] for
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$119,000.00. The parties received $5,471.35 in cash at
the closing. They then purchased Penn Court in
Smithfield, Kentucky for $231,000.00, with a loan of
$224,000.00 on the same date, April 16, 2013. However,
the Court was not provided the loan balance on the date
of marriage or other documentary proof and is unable to
ascertain how much was paid on the mortgage before or
after the marriage on the Prospect condo.
As the home was bought and financed during the
marriage and the [Appellant] failed to provide sufficient
proof of a nonmarital interest, the equity is deemed
marital.
We believe that the trial court did not err in failing to award Appellant
a nonmarital interest in the marital home. Since the condominium was purchased
prior to the marriage, it is likely that Appellant did have some nonmarital interest
in it; however, Appellant’s evidence was insufficient to determine the amount of
his nonmarital interest. The mortgage for the condominium was paid with marital
funds for around five years. It is clear that the proceeds of the sale of the
condominium went toward the purchase of the marital home, but it is unclear how
much of those proceeds are nonmarital. Had Appellant provided proof of how
much of the condominium’s mortgage he had paid prior to the marriage, his
argument might be more persuasive. We agree with the trial court that Appellant
failed to meet his burden in proving his nonmarital interest in the marital home.
Appellant also claims that he should be awarded a nonmarital interest
in the money he expended in paying the mortgage after a limited decree of
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dissolution was entered. On July 19, 2019, the trial court entered a limited decree
of dissolution which dissolved the parties’ marriage, but reserved all issues
regarding the division of marital property, child custody, and child support.
Appellant argues that all money he expended to pay for the marital residence’s
mortgage should be his nonmarital property.
This is a novel argument, and one which would seem to be supported
by the case of Culver v. Culver, 572 S.W.2d 617, 620 (Ky. App. 1978); however,
Appellant does not cite to the record if he introduced evidence showing how much
he paid toward the mortgage after the limited decree of dissolution. Without this
evidence, we cannot conclude that the trial court erred. It goes without saying that
errors to be considered for appellate review must be precisely preserved and
identified in the lower court. Combs v. Knott County Fiscal Court, 283 Ky. 456,
141 S.W.2d 859, 860 (1940).
Appellant’s eleventh argument on appeal is that the trial court erred
when it ordered Appellant to allow Appellee unsupervised access to the marital
home to retrieve certain personal property. Appellant claims that if Appellee is
allowed unfettered access to the marital home that she will steal his personal
belongings. He also argues that there was no evidence that the personal property
being sought by Appellee was still in the marital residence. We find no error in the
court’s order. The trial court awarded Appellee certain items of personal property
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and she is entitled to them without the interference of Appellant. If Appellee steals
personal property from Appellant while inside the marital residence, that is an
issue for the police.
Appellant’s twelfth argument on appeal is that the trial court erred in
its imputation of income for Appellee. For the purposes of calculating child
support, the trial court imputed minimum wage to Appellee. Appellant argues that
the trial court should impute additional income to Appellee because prior to
marriage, she worked as a dental assistant. He claims her imputed income should
resemble that of a dental assistant and not minimum wage.
“As are most other aspects of domestic relations law, the
establishment, modification, and enforcement of child support are prescribed in
their general contours by statute and are largely left, within the statutory
parameters, to the sound discretion of the trial court. This discretion is far from
unlimited.” Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky. App. 2000) (citations
omitted).
In order to set child support, a trial court must determine the incomes
of the parties. At the relevant time herein, KRS 403.212(2) stated in relevant part:
(a) “Income” means actual gross income of the parent if
employed to full capacity or potential income if
unemployed or underemployed;
....
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(d) If a parent is voluntarily unemployed or
underemployed, child support shall be calculated based
on a determination of potential income, except that a
determination of potential income shall not be made for a
parent who is incarcerated, physically or mentally
incapacitated, or is caring for a very young child, age
three (3) or younger, for whom the parents owe a joint
legal responsibility. Potential income shall be
determined based upon employment potential and
probable earnings level based on the obligor’s or
obligee’s recent work history, occupational
qualifications, and prevailing job opportunities and
earnings levels in the community. A court may find a
parent to be voluntarily unemployed or underemployed
without finding that the parent intended to avoid or
reduce the child support obligation.
We find no error in the trial court only imputing a minimum wage
income to Appellee. While Appellee had been a dental assistant prior to the
marriage, she was a stay at home mother for the entirety of the marriage. After the
separation, Appellee went back to school and was not earning any income as a
student. We believe that based on Appellee’s lack of recent work history and lack
of employment qualifications, the trial court did not abuse its discretion in the
imputation of minimum wage income.
Appellant’s thirteenth argument on appeal is that the trial court’s
assignment of marital debts was an abuse of discretion. At the time the parties
filed their preliminary verified disclosure of assets, the parties had unsecured debts
of $51,388.71. By the time of the divorce trial, these debts had ballooned to
$139,647.07. These additional debts were taken out in Appellant’s name only.
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The trial court ordered that Appellant pay the debts solely in his name because they
were incurred after the separation of the parties and for his sole benefit. Appellant
claims that because these debts were incurred prior to the final decree of
dissolution, they should be considered marital debts and Appellee should be
assigned a portion.
As with division of marital property, the trial
court’s decisions regarding division of marital debt is
reviewed for abuse of discretion. Furthermore, there is
no presumption that debts incurred during the marriage
are marital. Rather, the party claiming that a debt is
marital has the burden of proof. In making this
determination, the trial court should consider receipt of
benefits, the extent of participation, whether the debt was
incurred to purchase assets designated as marital
property, whether the debt was necessary to provide for
the maintenance and support of the family, and any
economic circumstances bearing on the parties’
respective abilities to assume the indebtedness.
Maclean v. Middleton, 419 S.W.3d 755, 773 (Ky. App. 2014) (citations omitted).
We agree with the trial court regarding the allocation of debts.
Evidence in the record indicates that some of the additional debts were incurred by
Appellant to pay for his legal fees. Additionally, after the separation, Appellant
took the Cisco Certified Internetwork Expert (CCIE) exam multiple times. Some
of the new debts were incurred to pay for study materials for the exam and to help
pay the fees and other costs associated with taking the exam. The trial court found
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that these new debts were incurred for Appellant’s sole benefit; therefore, he
should be responsible for them. We agree and find no abuse of discretion.
Appellant’s fourteenth argument on appeal is that the trial court erred
in finding that he dissipated marital assets. On June 27, 2016, the trial court
entered a status quo order which stated that the parties should not sell or otherwise
dispose of property, cash, or other assets in their possession without an order of the
court or an agreed order signed by both parties. After the entry of the status quo
order, Appellant liquidated one retirement account and reduced the amount
contained in another. Appellant did not receive permission from the court or
Appellee to do so. In the January 30, 2020 findings of fact and conclusions of law,
the trial court held that these retirement accounts were marital property and that
Appellant violated the status quo order by reducing the amount contained in them.
The court held Appellee was entitled to an amount of money equal to half the
funds in the accounts prior to their reductions. Appellant claims this conclusion by
the trial court was in error because there was no proof he intended to deny
Appellee her share of marital assets and that these reductions were necessary to
pay for litigation fees and costs of living.
While Appellant may claim that he used these retirement funds for
litigation fees and to pay for living expenses, he does not cite to the record the
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location of the evidence supporting his claim. We do not know if he had receipts
showing where these funds went or if he discussed it in his testimony.
Without pinpoint citations to the record, a court “must
sift through a record to [find] the basis for a claim for
relief.” Expeditious relief would cease to exist without
this requirement. “It is well-settled that an appellate
court will not sift through a voluminous record to try to
ascertain facts when a party has failed to comply with its
obligation under [our rules of procedure] . . . to provide
specific references to the record.”
Commonwealth v. Roth, 567 S.W.3d 591, 595 (Ky. 2019) (footnotes and citations
omitted). Due to the failure to cite to the evidence in the record that supports his
argument, we find no error.
Appellant’s final argument on appeal is that he is entitled to an
evidentiary hearing on two motions for sole custody he made after the entry of the
January 30, 2020 findings of fact and conclusions of law. Seeing as we are
reversing and remanding the child custody issue, this argument is moot.
CONCLUSION
Based on the foregoing, we affirm in part, reverse in part, and remand.
We reverse only the determination of child custody because Appellant was not
allowed to depose Dr. Berla and this was in violation of statutory and case law.
Seeing as the trial court heavily relied on Dr. Berla’s reports in deciding the child
custody issue, we must reverse the child custody issue. On remand, the trial court
shall allow Appellant to depose Dr. Berla. Then, the trial court will take into
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consideration the evidence produced by her testimony and decide the child custody
issue anew.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joseph Matthew Byrdwell, pro se Jonathan O. Wells
Eminence, Kentucky LaGrange, Kentucky
Benjamin Francis Wyman
Carrollton, Kentucky
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