Aoife Shah v. Jay Shah ( 2024 )

RENDERED: NOVEMBER 1, 2024; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2023-CA-0880-MR
AOIFE SHAH APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
v. HONORABLE JEFFREY C. MOSS, JUDGE
ACTION NO. 22-CI-00173
JAY SHAH APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; A. JONES AND LAMBERT,
JUDGES.
JONES, A., JUDGE: Aoife Shah appeals from the findings of fact, conclusions of
law, and decree of dissolution entered by the Jessamine Family Court. The issues
on appeal pertain only to property distribution, spousal maintenance, and debt
allocation.1 After careful review, we affirm.
1
All matters related to child custody and visitation of the parties’ five minor children were
decided by the family court at a later date and are not part of this appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties married in 2002. During the marriage, Jay went to
medical school and eventually became an orthopedic surgeon. While Jay was
attending medical school, Aoife worked full-time in medical equipment sales and
was the primary breadwinner. The parties had five children during the marriage.
In 2015, Aoife quit working outside of the home and became a full-time
homemaker. Jay was working as an orthopedic surgeon in Kentucky, but in 2019,
his employment contract was not renewed. Jay attributes termination of his
employment contract to Aoife’s interference. He accused her of frequently calling
his place of employment and harassing his colleagues.2 Aoife attributed
termination of Jay’s employment contract to alcohol consumption and poor job
performance. Regardless, Jay soon found another position as an orthopedic
surgeon, but in Greenville, South Carolina. In 2019, Jay accepted the position with
the understanding that Aoife and the children would also move once he was
settled. Jay continued to pay the mortgage3 on the marital home in Kentucky and
all expenses for Aoife and the children, on top of his own living expenses in South
Carolina. However, months went by, and Jay eventually realized that Aoife had no
2
Jay submitted into evidence a letter sent to Aoife from his employer in which the employer
threatened legal action if Aoife continued to harass employees.
3
The record before us indicates the mortgage payment on the marital home was approximately
$4,600.00 per month.
-2-
intention of moving to South Carolina with the children. He filed for divorce in
2022.
The dissolution action was contentious from the outset, particularly in
regard to custody and visitation of the children, but also in regard to spousal
maintenance and child support. Jay never contested that he has the financial means
to support Aoife and the children,4 but repeatedly challenged Aoife’s spending
habits, including sending the children to both psychiatrists and psychologists that
are not covered by Jay’s health insurance. The family court entered a temporary
order in which Jay was to pay Aoife $7,500.00 every two weeks, while also
continuing to pay the mortgage on the home. The amount was inclusive of both
temporary child support and spousal maintenance.
In January 2023, the family court conducted a two-day final hearing
on all matters except child custody and visitation. The court then entered findings
of fact, conclusions of law, and decree of dissolution that was twenty pages in
length. Attached to the order was a spreadsheet that itemized the parties’ assets
and debts and assigned each accordingly. The marital home, which included
approximately $268,000.00 in equity and $707,000.00 in debt was awarded to
4
Jay earns approximately $900,000.00 per year as an orthopedic surgeon.
-3-
Aoife, which she requested.5 After assignment of the debts and assets, the family
court ordered Aoife to make an equalization payment to Jay of approximately
$124,000.00, Aoife was awarded spousal maintenance; however, the award will
gradually decrease every two years, with the last payment by Jay scheduled for
February 2031. Aoife filed a motion to alter, amend, or vacate the order. The
family court entered an order making further findings but did not alter the
distribution of debts and assets. Aoife appealed on numerous grounds.
II. STANDARD OF REVIEW
The assignment of marital property and debts incurred during the
marriage are reviewed under an abuse of discretion standard. Neidlinger v.
Neidlinger, 52 S.W.3d 513, 522 (Ky. 2001), overruled on other grounds by Smith
v. McGill, 556 S.W.3d 552 (Ky. 2018). Similarly, “[w]hile the award of
maintenance comes within the sound discretion of the trial court, a reviewing court
will not uphold the award if it finds the trial court abused its discretion or based its
decision on findings of fact that are clearly erroneous.” Powell v. Powell, 107
S.W.3d 222, 224 (Ky. 2003) (citation omitted). Finally, any deviation from the
statutory parameters of KRS6 Chapter 403 with regard to the allocation of
5
The family court ordered that if Aoife could not refinance the mortgage into her name, the
home was to be sold and the sale proceeds divided equally.
6
Kentucky Revised Statutes.
-4-
extraordinary medical expenses of the children is also reviewed under an abuse of
discretion standard. Van Meter v. Smith, 14 S.W.3d 569, 574 (Ky. App. 2000).
III. ANALYSIS
On appeal, Aoife argues the trial court erred by (1) not dividing the
extraordinary medical expenses of the children in accordance with KRS
403.211(9); (2) failing to give her credit for one-half of the amounts Jay paid
towards his student loans and for the downpayment on a Cadillac SUV; (3)
requiring Aoife to reimburse Jay for half of the costs she alleged for refrigerator
and masonry repairs; (4) assigning value to the personal property in the marital
home without expert testimony; (5) not assigning Aoife’s unsecured debt to Jay;
and (6) reducing Jay’s spousal maintenance payments to Aoife over time.
We first turn to Aoife’s argument that the family court should have
divided the children’s extraordinary medical expenses in accordance with KRS
403.211(9). For the purpose of calculating child support and extraordinary
expenses of the children, the family court looked to Jay’s most recent W-2, which
indicated his yearly income is $937,661.00. The court then imputed Aoife at
$60,000.00 per year based on testimony that she previously worked in medical
equipment sales. Aoife did not object to the imputed income. Accordingly, Jay
earns 94% of the parties’ combined income, and Aoife earns 6%. Because the
parties’ combined income exceeds the upper limits of the child support guidelines,
-5-
the family court looked to the needs of the children. See KRS 403.211(3). Aoife
does not challenge the amount of child support on appeal; rather, she confines her
argument to the allocation of the extraordinary medical expenses of the children.
KRS 403.211(9) provides that “[t]he initial two hundred fifty dollars
($250) of medical expenses shall be covered by the parent who maintains health
insurance for the child or children subject to the order per calendar year, unless the
parties have agreed otherwise.” However, the family court ordered that the parties
shall equally divide all of the children’s extraordinary medical expenses up to
$500.00 in cost per individual occurrence, and any expenses in excess of $500.00
shall be divided with 94% of the cost to Jay and 6% of the cost to Aoife. The
family court has the discretion to deviate from the statutory parameters of KRS
Chapter 403, “but only if it makes findings clearly justifying the deviation.” Van
Meter, 14 S.W.3d at 574. Here, the family court made the appropriate findings to
justify the deviation. It found Jay paid $6,868.00 in extraordinary medical, mental
health, dentist, and vision expenses for the children just for the short period of time
from October 25, 2022, to December 3, 2022. Jay was concerned that Aoife was
deliberately trying to increase the expenses. In its order denying Aoife’s motion to
alter, amend, or vacate, the family court further explained that
[t]he [c]ourt is concerned that the proportion of income is
so unbalanced that Aoife has no incentive to attempt to
reduce costs by seeking other providers, comparison shop
for medicines, or other steps people of less means would
-6-
attempt. The [c]ourt seeks to conserve both parties’
resources by encouraging both parents to be thrifty and
reasonable regarding these expenses.
See page 2 of the family court’s Order Following Motion to Alter, Amend, or
Vacate. The family court did not abuse its discretion in its allocation of the
children’s extraordinary medical expenses.
Aoife next argues that she should have received a credit for one-half
of the reduction in Jay’s student loans as well as credit for half of the
downpayment of $20,000.00 Jay made towards the purchase of a Cadillac SUV.
We first turn to the student loans. After medical school, Jay had over $350,000.00
in student loan debt. By the time the parties appeared before the family court in
January 2023, Jay had reduced the amount owed to approximately $5,000.00.
Aoife argues this debt reduction is the equivalent of dissipation of marital funds.
We disagree. Generally, student loan debt is nonmarital. See Van Bussum v. Van
Bussum, 728 S.W.2d 538, 539 (Ky. App. 1987). Further, “[d]issipation occurs
when marital property is expended (1) during a period when there is a separation or
dissolution impending; and (2) where there is a clear showing of intent to deprive
one’s spouse of her proportionate share of the marital property.” Heskett v.
Heskett, 245 S.W.3d 222, 227 (Ky. App. 2008) (internal quotation marks and
citations omitted).
-7-
The record shows that Jay began making accelerated payments on his
student loans in 2019 when he began working in South Carolina. However, he also
started paying off other debt the parties had incurred. At the time, the parties were
not contemplating divorce or separation, and Jay in fact continued to believe that
Aoife and the children would join him in South Carolina. The family court found
there was no evidence that Jay intended to deprive Aoife of any funds by paying
down his student loan debt, and that her needs and the needs of the children were
met at all times.
Regarding the downpayment on the Cadillac, Jay testified that, once
he realized the children would not be moving to South Carolina, he needed a
vehicle large enough to transport all five children during visits, so he purchased the
2020 Cadillac SUV with a $20,000.00 downpayment. The family court found that,
although the vehicle was a marital asset, the downpayment simply increased the
equity and decreased the lien, which was accounted for in the family court’s
spreadsheet, which shows the Cadillac is valued at $45,000.00, but has $25,000.00
in associated debt. Notably, Aoife received a 2019 Toyota Sienna valued at
$27,838.00 that has no associated debt. The family court did not abuse its
discretion when it found Jay did not dissipate marital assets when paying down his
student loans or purchasing the Cadillac SUV.
-8-
We now turn to Aoife’s assertion that the family court erred in
requiring her to reimburse Jay for one-half of alleged expenses related to masonry
work and refrigerator repairs for the marital home. The family court dedicated
numerous pages in its order to what it believed was Aoife’s deception and
dishonesty to both Jay and the court regarding these expenses. Aoife generally
was not able to prove her various monthly expenses for herself or the children, and
these alleged repairs highlight what the family court believed was Aoife’s scheme
to get more money from Jay and the court. Briefly, in February 2022, Aoife
informed Jay she needed $7,000.00 for repairs to the front steps of the marital
home. Jay deposited the money into her bank account. However, he wanted to see
a receipt or invoice and proof of the work performed. When he did not receive
proof, Jay withdrew the money from the account. Emails between the parties were
entered into evidence showing that Aoife insisted she needed the money because
she had already given the contractor a check, so Jay again deposited $7,000.00 into
Aoife’s account. Nevertheless, Aoife’s mother testified that she had also given
Aoife $7,000.00 in cash to pay the contractor and Aoife never repaid her. There
was no evidence of any money withdrawn from Aoife’s account in the form of
check or cash to pay the contractor and Aoife confirmed that she did not reimburse
her mother. There was an invoice submitted into evidence, but the name of the
contractor did not appear in a Google search, the address was only a road name,
-9-
and no one, including the family court, could reach the alleged contractor at the
phone number listed. The family court found that “it was this incident in particular
that leads the [c]ourt to be deeply concerned about Aoife’s willingness to disregard
the truth in favor of a narrative which she believes will better suit her interests, and
which will result in the greatest possible award from the [c]ourt.” In other words,
the family court had serious concerns regarding Aoife’s credibility.
Similarly, Aoife contacted Jay about what she claimed were repairs to
the refrigerator totaling $2,342.00. Jay gave the funds to Aoife, but again
requested proof of the work and wanted to know exactly what was done because he
reasoned the parties could have purchased a new refrigerator for the same amount
of money. Aoife presented him with a similar invoice that was lacking in details
and Jay was unable to contact the alleged contractor. Aoife was also unable to
produce any proof that she paid the contractor. The family court found that, “[b]y
itself, the [c]ourt would not necessarily believe that Aoife was deceiving Jay, but
combined with the other incident, it leads the [c]ourt to believe that Aoife had a
pattern of convincing Jay to give her more money by coming up with repairs that
supposedly needed to be done.” Notably, Jay was paying bills, including the
mortgage, and making payments directly to Aoife each month in the amount of
$16,500.00, prior to entry of any order by the family court. The family court did
-10-
not abuse its discretion when it ordered Aoife to reimburse Jay for one-half the
costs for the alleged repairs to the masonry and refrigerator.
Next, Aoife argues the family court erred by assigning value to the
personal property in the marital home without expert testimony. Jay testified that,
upon moving into the marital home, Aoife spent $50,000.00 for furnishings. He
did not take any furnishings with him when he moved to South Carolina and
provided some receipts showing he spent approximately $13,000.00 to furnish his
apartment after the move, and estimated the furnishings were now worth
$7,500.00. Jay estimated that, due to the passage of time and wear and tear, the
furnishings in the marital home were worth approximately $20,000.00. Aoife
failed to provide any evidence to the value of the personal property in the home.
She simply testified that she believed the items were worth less than $20,000.00
but did not provide an amount. She did not dispute that she spent $50,000.00 to
furnish the home. The family court valued the personal property in the marital
home at $20,000.00 based on Jay’s testimony and awarded it to Aoife.
On October 27, 2022, the family court entered a pre-trial order which
stated, in relevant part, that the parties were to exchange, but not file with the
court, a list of witnesses to be called. Therefore, Aoife’s witness list does not
appear in the record before us, and we do not know if she retained an expert
witness to value the personal property in the home. Regardless, Aoife did not call
-11-
a witness to testify regarding the value of the personal property at the final hearing;
and she now appeals the lack of expert testimony. If there was any error on the
part of the family court, Aoife invited the error. Invited errors are those that reflect
a party’s knowing relinquishment of a right. See Quisenberry v. Commonwealth,
336 S.W.3d 19, 38 (Ky. 2011). “It is the rule that one cannot complain of an
invited error.” Miles v. Southeastern Motor Truck Lines, 173 S.W.2d 990, 998
(Ky. 1943). Aoife had the opportunity to provide evidence of the value of the
personal property in the home; whether it was in the form of expert testimony was
her decision to make. Yet she failed to present any evidence whatsoever with
regard to the value of the personal property. Accordingly, there was no error on
the part of the family court.
Aoife also contends the family court erred by assigning her unsecured
credit card debt in the amount of $7,000.00 to her. The debt was subtracted from
the assets awarded to Aoife on the family court’s spreadsheet. Aoife argued the
debt was incurred because she was supporting five children on her own after Jay
moved to South Carolina. Again, Aoife’s argument is lacking in any proof
submitted to the family court. The record before us shows that Jay continued to
cover all expenses for Aoife and the children after he moved. The family court
also found that many of the alleged expenses Aoife claimed were either greatly
-12-
inflated or lacking in proof. The family court did not abuse its discretion by
assigning Aoife’s credit card debt to Aoife.
Finally, Aoife contends the family court erred by gradually reducing
her maintenance payments over time. The family court ordered Jay to pay Aoife
$9,000.00 per month in spousal maintenance until March 1, 2025. After that date,
he is ordered to pay $7,000.00 per month until March 1, 2027. The amount
decreases by $2,000.00 every two years until the final payment of $3,000.00 on
February 1, 2031.
Pursuant to KRS 403.200(1), a trial court may only
award a spouse maintenance in a dissolution proceeding[]
if it finds that two requirements are met. First, “there
must first be a finding that the spouse seeking
maintenance lacks sufficient property, including marital
property, to provide for his reasonable needs.” Drake v.
Drake, 721 S.W.2d 728, 730 (Ky. App. 1986).
“Secondly, that spouse must be unable to support himself
through appropriate employment according to the
standard of living established during the marriage.” Id.(citing Lovett v. Lovett, 688 S.W.2d 329, 332 (Ky.
1985)). If a trial court determines that a spouse is
entitled to receive maintenance, it looks to the factors
listed in KRS 403.200(2) to determine the amount and
duration of maintenance payments.
Roper v. Roper, 594 S.W.3d 211, 230 (Ky. App. 2019).
Jay did not dispute that Aoife was entitled to spousal maintenance. It
is also important to note that Jay was also ordered to pay $7,500.00 per month in
-13-
child support for the five children and neither party contests that amount.7 Before
the circuit court, Aoife argued that Jay had previously been paying the mortgage as
well and requested an additional $4,600.00 per month in spousal maintenance to
cover the mortgage and no gradual reduction. She continues that argument to this
Court, asserting that the mortgage payment will not decrease, so the gradual
decrease in the amount of maintenance by the family court was arbitrary. We
disagree.
Aoife testified at trial that she previously had a career in medical
equipment sales and made over $100,000.00 per year. She stopped working after
the birth of the parties’ youngest child, who was in kindergarten at the time of the
final hearing. Emails were admitted into evidence that showed Aoife was actively
job searching from 2020 – 2022 and had interviews and offers for employment.
Yet, at the final hearing, she testified that she did not want to go back to work until
the youngest child is in high school, or approximately nine years from the date of
the final hearing. The family court determined that it was unreasonable for Aoife
to wait nine years to return to the workforce. Further, the family court found that
Aoife greatly exaggerated or was dishonest about her monthly expenses. For
7
Aoife also received one-half of Jay’s retirement accounts. Although not immediately
accessible to Aoife, Jay testified the accounts were valued at $256,401.00 at the time of the final
hearing. The family court did not include the retirement accounts in the spreadsheet of assets
and debts.
-14-
example, she testified the cost for the children to participate in an elite soccer
program in Lexington was $3,000.00 per year per child. The family court gave her
an opportunity to submit proof of those expenses on the second day of the final
hearing. The proof provided showed the expenses were much less than what Aoife
had stated. Additionally, Aoife indicated she spends $1,300.00 per month on
gasoline alone. The family court undertook a mathematical analysis that we will
not repeat here but based on the known miles per gallon of her vehicle combined
with the known mileage on the vehicle, the length of time she has owned the
vehicle, and the average cost of gasoline, the family court found that it was simply
impossible that Aoife spends $1,300.00 per month on gasoline. That, combined
with what the family court determined was her deception and dishonesty regarding
home repairs, severely damaged Aoife’s credibility to the family court, which
believed her monthly expenses were exaggerated due to lack of proof.
Accordingly, the family court did not abuse its discretion in amount, duration, or
gradual reduction in Aoife’s maintenance payments.
IV. CONCLUSION
For the foregoing reasons, the judgment of the Jessamine Family
Court is affirmed.
ALL CONCUR.
-15-
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Michael Davidson Seth R. Thomas
Lexington, Kentucky Nicholasville, Kentucky
-16-