Faiz Salehi v. Homeira Kanjouri

RENDERED: DECEMBER 18, 2020; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0479-MR
FAIZ SALEHI APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 18-CI-00177
HOMEIRA KANJOURI APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: CALDWELL, MAZE, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: Faiz Salehi (“Salehi”) appeals from the Knox Family Court’s
findings of fact, conclusions of law, judgment, and final decree dissolving his
marriage to Homeira Kanjouri (“Kanjouri”). Salehi argues the family court failed
to make adequate findings under CR1 52.01 concerning its division of property and
1
Kentucky Rules of Civil Procedure.
failed to assign property pursuant to KRS2 403.190. After review, we reverse as to
the family court’s division of property and remand for further proceedings.
I. Background
Salehi and Kanjouri were married on March 8, 2011, in Las Vegas,
Nevada. The couple initially lived in Canada but moved to Kentucky in 2014
when Salehi was hired as a college professor. The parties separated on or about
July 28, 2017. On April 25, 2018, Salehi filed a verified petition for dissolution of
marriage in Knox Family Court requesting the court to dissolve the marriage and
divide the parties’ property.
An evidentiary hearing was held on January 16, 2019. The testimony
was conflicting as to whether the parties acquired any real property during the
marriage. Salehi testified that Kanjouri owned two real estate properties in
Canada, one acquired during her first marriage and a condo during the time they
were dating, but was unsure whether the condo purchase was finalized before or
after the parties’ marriage. Kanjouri testified she bought and sold the condo before
the marriage. She also produced an alleged pre-nuptial contract dated March 2011
excluding the Canadian properties from marital property. Salehi disputed that he
signed the contract; however, the document was notarized.
2
Kentucky Revised Statutes.
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Salehi testified he wrote checks to Kanjouri to pay the mortgage of the
Canadian properties but was unsure what she did with the money. Salehi produced
photocopies of many canceled checks, including one from December 2011 for
$35,000.00.
Salehi also testified concerning items of personal property he alleged
Kanjouri took from the home at the time of their separation, including: a dog, a
laptop computer, several USB drives, a mobile phone, suitcases, and a coin
collection, among other things. Salehi said most of the items were acquired prior
to the marriage. Kanjouri admitted to having the dog and an apartment key in her
possession but denied taking any of the other items.
Following the hearing, the family court deferred making detailed
findings until reviewing the exhibits but found from the bench that the marriage
was irretrievably broken and granted the dissolution, restored Kanjouri’s maiden
name, and ordered that each of the parties keep the personal property in their
possession, as well as any debt, except for the items Salehi alleged were stolen.
The family court requested proposed findings as to real property, debts, retirement,
bank accounts, and the dog.
On February 18, 2019, the family court entered a final decree
containing written findings of fact and conclusions of law. It found the parties did
not own any marital real estate and awarded the Canadian real estate to Kanjouri,
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finding that there was insufficient evidence of Salehi’s equity in the property. The
court also awarded each party their personal property in their possession, with the
dog being awarded to Kanjouri. It similarly awarded each party its respective
vehicles, bank accounts, and retirement accounts. This appeal followed.
II. Standard of Review
An appellate court reviews a trial court’s factual findings for clear
error. CR 52.01. “If the trial judge’s findings of fact in the underlying action are
not clearly erroneous, i.e., are supported by substantial evidence, then the appellate
court’s role is confined to determining whether those facts support the trial judge’s
legal conclusion.” Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (citation
omitted). “[A]ppellate review of legal determinations and conclusions from a
bench trial is de novo.” Id. (citation omitted).
III. Analysis
At the outset, we note that Kanjouri did not file an appellee brief.
Pursuant to CR 76.12(8)(c):
If the appellee’s brief has not been filed within the time
allowed, the court may: (i) accept the appellant’s
statement of the facts and issues as correct; (ii) reverse
the judgment if appellant’s brief reasonably appears to
sustain such action; or (iii) regard the appellee’s failure
as a confession of error and reverse the judgment without
considering the merits of the case.
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We have chosen to accept the appellant’s statement of the facts and agree that
Salehi’s brief justifies the reversal he seeks. Salehi argues the family court erred in
failing to make adequate findings pursuant to CR 52.01 regarding the marital or
nonmarital nature of the disputed property and failing to apply the factors in KRS
403.190 or identify the evidence it relied on in applying the factors in KRS
403.190. Salehi notes that the family court found the Canadian condo was
nonmartial property with no findings supporting its classification—despite Salehi’s
testimony that the condo purchase was finalized after the parties’ marriage.
Similarly, the court awarded the dog to Kanjouri without finding the dog was
marital or nonmarital property, nor findings explaining its division.
CR 52.01 provides that in all actions tried upon the facts without a
jury, “the court shall find the facts specifically and state separately its conclusions
of law thereon. . . .” However, CR 52.04 states that a final judgment “shall not be
reversed or remanded because of the failure of the trial court to make a finding of
fact on an issue essential to the judgment” unless that omission has been brought to
the court’s attention by a written request for that finding or by a motion filed
within ten days of the entry of the judgment. Here, Salehi did not file a motion for
additional findings within ten days of the entry of judgment.
Notwithstanding, “CR 52.01 requires that the judge engage in at least
a good faith effort at fact-finding and that the found facts be included in a written
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order. Failure to do so allows an appellate court to remand the case for findings,
even where the complaining party failed to bring the lack of specific findings to the
trial court’s attention.” Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011).
The family court’s order in this case contains very few findings of
fact to support its conclusions—falling short of the requirements of CR 52.01. “To
perform meaningful review of a trial court’s decision, this Court must be able to
fully understand the facts and evidence upon which the court relied. Without
specific findings, this Court ‘cannot discern the basis of the circuit court’s decision
and there can be no meaningful review[.]’” Patmon v. Hobbs, 495 S.W.3d 722,
728 (Ky. App. 2016) (quoting Kindred Nursing Centers Ltd. P’ship v. Sloan, 329
S.W.3d 347, 348 (Ky. App. 2010)).
Further, “[t]o divide personal property in a divorce, the trial court is
obligated to follow the procedure set forth in KRS 403.190.” Barber, 505 S.W.3d
at 759. When dividing property in a divorce, a trial court is required to follow a
three-step process:
(1) the trial court first characterizes each item of property
as marital or nonmarital; (2) the trial court then assigns
each party’s nonmarital property to that party; and (3)
finally, the trial court equitably divides the marital
property between the parties.
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Travis v. Travis, 59 S.W.3d 904, 909 (Ky. 2001) (footnotes omitted). The property
division statute, KRS 403.190(1), contains factors which the trial court must
consider for a division of marital property:
(a) Contribution of each spouse to acquisition of the
marital property, including contribution of a spouse as
homemaker;
(b) Value of the property set apart to each spouse;
(c) Duration of the marriage; and
(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.
Ford v. Perkins, 382 S.W.3d 821, 824 (Ky. 2012) (quoting KRS 403.190(1)).
The family court’s order contains no mention of the statutory factors
in KRS 403.190, no assessment of exactly which property is marital or nonmarital,
and no discussion of the evidence it relied upon in applying the factors. For
example, the family court awarded Kanjouri sole ownership of the dog, but there is
no finding the dog is marital or nonmarital property, nor reasoning why the dog
was awarded to Kanjouri when Salehi testified he purchased the dog during the
marriage. There is simply no analysis why any of the property was divided the
way it was. A trial court errs when it “fail[s] to make sufficient findings
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under KRS 403.190 prior to dividing” assets in a divorce. Ford, 382 S.W.3d at
825.
In Ford, the Kentucky Supreme Court addressed a similar situation
concerning a trial court’s division of an individual retirement account (IRA). The
trial court found the IRA was marital property and divided the account equally
between the parties. On appeal, the Court of Appeals affirmed the trial court’s
finding that the account was marital property but remanded to the trial court with
instructions to award 100 percent of the account to the husband, because there was
no evidence the wife contributed to the account.
On discretionary review, the wife argued that the Court of Appeals
erred in awarding 100 percent of the IRA to the husband without applying the
factors in KRS 403.190 or identifying the evidence it relied on in applying the
factors. The Supreme Court agreed, holding:
Clearly, the trial court failed to make sufficient findings
under KRS 403.190 prior to dividing the retirement
account. The provisions of KRS 403.190(1) as to the
division of marital property require that the trial court
divide the property of the parties in just proportions and
consider all relevant factors. CR 52.01 requires a trial
court to “find the facts specifically and state separately its
conclusions of law thereon and render an appropriate
judgment . . . .” The trial court has not met the
requirements of CR 52.01 and, therefore, we cannot
determine if the requirements of KRS 403.190(1) are
met. Having found that the trial court’s findings of fact
were insufficient, the Court of Appeals should have
remanded the matter for further proceedings. See,
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e.g., Brosick v. Brosick, 974 S.W.2d 498, 503 (Ky. App.
1998). On remand the trial court is instructed to conduct
additional fact-finding in order to consider the other
relevant factors under KRS 403.190.
Ford, 382 S.W.3d at 825.
Similarly, here the family court’s order lacks sufficient findings
supporting its rationale, preventing meaningful review. The findings of fact are
mostly conclusions concerning the division of property, while the conclusions of
law are a single paragraph concerning the court’s jurisdiction and stating the
marriage should be dissolved. While admittedly the parties’ assets were not
plentiful nor the division complex, a trial court is obligated to make findings on the
marital or nonmarital nature of property in dispute and make a just division of the
couple’s marital property by considering all relevant factors, including those listed
in KRS 403.190(1). See Barber, 505 S.W.3d at 760-61.
On remand, the family court is instructed to make detailed findings of
fact and conclusions of law concerning the marital and nonmarital nature of the
property, including the disputed property, and make a just division of the property
by considering all relevant factors under KRS 403.190.
IV. Conclusion
For the foregoing reasons, we affirm the judgment of dissolution of
marriage entered by the Knox Family Court on February 18, 2019, but reverse
those portions of the judgment concerning division of assets, and remand for a
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hearing for the family court to receive evidence for the record. Thereafter, the
family court shall enter an amended judgment containing explicit findings of fact
and conclusions of law supporting its decisions on asset division with appropriate
consideration of the factors outlined in KRS 403.190.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FILED FOR APPELLEE
Danny Lee Lunsford, Jr.
Harlan, Kentucky
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