Opinion
NO. 2013-CA-001108-MR
05-29-2015
JAMES J. STENGEL APPELLANT v. RESHAE D. STENGEL APPELLEE
BRIEF FOR APPELLANT: Bethanni Forbush-Moss Louisville, Kentucky BRIEF FOR APPELLEE: Denotra Spruill Gunther Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE LUCINDA CRONIN MASTERSON, JUDGE
ACTION NO. 10-CI-03070
OPINION
AFFIRMING
BEFORE: COMBS, D. LAMBERT AND TAYLOR, JUDGES. D. LAMBERT, JUDGE: James J. Stengel ("Jeff") appeals from a Fayette Family Court order in this dissolution of marriage action. He raises six claims of error, only one of which is adequately preserved for our review. We affirm.
Jeff and Reshae Stengel were married on September 29, 2007. They have one minor child. The couple separated in April 2009, and Reshae filed a petition for dissolution of marriage on May 24, 2010. A final hearing was conducted on January 8, 2013, and the trial court directed Reshae's attorney to prepare Findings of Fact, Conclusions of Law and Decree of Dissolution ("Findings") and forward them to Jeff's attorney for review.
On May 20, 2013, Reshae's attorney filed a motion to enter the proposed Findings she had prepared, claiming that she had provided them to opposing counsel on January 14, 2013, but had received no response. The trial court entered the Findings on May 24, 2013.
Jeff's counsel filed a motion to alter, vacate and amend, alleging that she had not timely received the motion to enter the Findings because, due to the bulky size of the envelope, it was delivered via parcel post rather than first class mail. Jeff's motion claimed that Reshae's attorney had failed to provide documentation concerning medical information, and that the draft of the Findings did not accurately reflect what had occurred at the final hearing before the court. Attached to the motion were copies of several emails exchanged between the attorneys. Although no explanation of the content of the emails was provided in the motion, the one dated May 22, 2013, from Jeff's attorney to Reshae's attorney, contains references to some of the issues raised in this appeal:
As you know, what you initially sent to my office [presumably this is a reference to the Findings sent by Reshae's attorney in January] is different than what you sent on Thursday. I sent you documentation in February that was provided to me from Mr. Stengel. However, I never received any medical bills/account statements from you with regard to Ms. Stengel. I am agreeable with
everything including pages 1 thru 9, 12, 14 and 15. However, pages 10, 11, 13 wherein the changes/language is not agreeable as it relates to the medical issues are being faxed to you where I have marked what parts are not agreeable on each page.
With regard to the medical issues, Ms. Stengel was supposed to provide proof of the medical bills that she has paid for reimbursement or copy of the bill for Mr. Stengel to pay his share. As of today's date, I have not received a copy of any medical bills. Additionally, there was no agreement and no discussion about adding allergy medication reimbursement as part of the wage assignment. Both the surgery amount and the allergy medication reimbursement fall under the extraordinary medical expenses that are covered in paragraph thirteen (13) on pages ten (10) and eleven (11). I can delete the items that are not agreeable and send the amended executed document back to you.
At the hearing on the motion, Jeff's attorney argued that changes needed to be made to the Findings concerning Jeff's payment for the child's allergy medication which was being deducted by wage assignment. She also argued that Jeff needed to know whether payment of the sum of $600, which he owed for the child's uninsured medical bills, should be made to Reshae or directly to the medical provider. The trial court ruled that Jeff's share of the cost of the child's allergy medication would continue to be paid by him by means of wage assignment and that Jeff had to pay the $600 he owed for the child's medical bills, and that it should not matter to him whether he paid Reshae or the physician directly. The trial court then asked whether there were any other issues concerning the Findings. Neither attorney raised any further issues. This appeal by Jeff followed.
Jeff raises the following issues on appeal: (1) that there was no substantial evidence to support the award of her full 401(k) account to Reshae; and that the trial court erred (2) by not restoring Reshae's engagement ring to Jeff; (3) in determining the prorated amount of child support; (4) in ordering the child's uninsured medical expenses to be deducted by wage assignment; (5) in not setting the amount of child support based on Reshae's hourly wage; and (6) in its calculation of the child support percentages and the division of the uninsured medical expenses based on these percentages.
Jeff's brief asserts that these six claims were preserved for appeal in his motion to alter, vacate and amend and the attached emails concerning requested changes to the Findings. However, that motion stated only that Reshae "was supposed to provide documentation concerning medical information," and that the draft prepared by Jeff's attorney "did not accurately reflect what had occurred in court." The emails are attached to the motion with no explanation of their specific contents, and we previously set forth the only email that addresses substantive issues. Indeed, the fact that Jeff raised only one issue at the hearing on his motion to alter, amend and vacate, even after the judge asked whether there were any other issues to be discussed, implies that he acquiesced in the Findings as to all other issues.
Additionally, Jeff's brief makes no other references to the record to indicate where during the course of the January 8, 2013, hearing these six claims were preserved, and whether any objection was made at that time to the trial court's rulings on these issues. Indeed, the only effective references to the record are made in the appellee's brief. Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v) requires an appellate brief to contain an argument "with ample supportive references to the record and citations of authority pertinent to each issue of law and . . . a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." The purpose of this rule is to permit "a meaningful and efficient review by directing the reviewing court to . . . where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself." Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010).
Of the six claims in Jeff's brief, the only one which is preserved for our review by the motion to alter, amend and vacate, is the fourth, concerning the child's uninsured medical expenses being deducted by wage assignment.
"Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only [.]" Id. at 696. We choose to follow the third course and review Jeff's other five claims for manifest injustice only. CR 61.02. "[T]he task of the appellate court in review under CR 61.02 is to determine if (1) the substantial rights of a party have been affected; (2) such action has resulted in a manifest injustice; and (3) such palpable error is the result of action taken by the court." Fraley v. Rice-Fraley, 313 S.W.3d 635, 641 (Ky. App. 2010).
We are also mindful that our usual standard of review requires us to show deference to the family court's findings:
A family court operating as finder of fact has extremely broad discretion with respect to testimony presented, and may choose to believe or disbelieve any part of it. A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous.Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).
Jeff's first argument concerns Reshae's 401(k) retirement account. At the final hearing, Reshae disclosed that she had a 401(k) account that she had "just started." Jeff denied having a retirement account, even though he admitted that during the course of the marriage he had worked for some time for the Lexington-Fayette Urban County Government. The trial court directed Jeff to obtain a statement from the Urban County Government about the status of his retirement account. Jeff finally conceded that he had such statement, and would provide it. He never did so. The trial court's final order directed Jeff to provide proof that he did not have a retirement account during the parties' marriage. Otherwise, the court directed Reshae to be awarded her 401(k) retirement account free from any claim or interest by Jeff.
The award of the retirement account to Reshae certainly did not result in manifest injustice, since Jeff refused to provide any reciprocal documentation regarding his own account. The trial court's order was fully in accordance with Kentucky Revised Statutes (KRS) 403.190(4) which provides in part that "[i]f the retirement benefits of one spouse are excepted from classification as marital property, or not considered as an economic circumstance during the division of marital property, then the retirement benefits of the other spouse shall also be excepted, or not considered, as the case may be." Moreover, any error was not the result of action taken by the court, but by Jeff's refusal to provide information about his retirement account.
Jeff's second argument concerns an engagement ring which he gave to Reshae, and now wishes to have returned as his non-marital property. He claims that the ring was a gift, conditioned on the marriage lasting. At the hearing, the parties agreed that the ring would be placed in a safety deposit box and given to their minor child when she became an adult. Jeff acquiesced and never raised the issue again. The trial court found that the ring was a gift to Reshae who wanted to keep it for her daughter. There is no manifest injustice in the trial court's resolution of this dispute.
Jeff's third argument is that no substantial evidence supported the trial court's calculation of the prorated child care costs for the summer. Our review of the record, and the appellee's brief, indicates that the trial court found that the child's after school care costs $50 per week for 35 weeks per year, and her summer care costs $120 per week for 11 weeks. Jeff argues that the trial court failed to account for the week that Reshae is on vacation and therefore presumably will not incur child care costs, and also failed to account for the week he is on vacation and can look after the child. There is absolutely no indication that this argument was ever raised before the trial court. The trial court's calculations are based on substantial evidence in the record, and we cannot find any manifest injustice in its allocation of child care expenses.
Fourthly, Jeff argues that the trial court erred in ordering the child's uninsured medical expenses to be deducted by wage assignment. He contends that a line was added to the Findings that was not part of the trial court's original ruling from the bench. The disputed line provides that Jeff's responsibility to pay a 69 percent share of the child's allergy medication, in the amount of $27.60 per month, shall be paid via wage assignment. Again, absolutely no references are made to the record to show when this issue was addressed at the final hearing. Jeff has not explained why payment via wage assignment is harmful or prejudicial to him in any way, and we can detect no manifest injustice in the trial court's decision that the expense would be paid using this method.
Fifthly, Jeff argues that the trial court erred in not setting child support based on Reshae's hourly wage. The trial court instead relied on Reshae's pay statement which listed her gross income as $20,346.64 as of December 31, 2012. Reshae testified that she earned $12.77 per hour, and was only guaranteed to work 20 hours per week. She did say that she was able to average 35-38 hours per week. Jeff argues that this testimonial evidence should have been used to calculate her income, although he never raised this objection at the hearing. The amount on the pay statement constituted substantial evidence and there was no manifest injustice in the trial court's decision to use it as a basis to calculate child support.
Finally, Jeff argues that because the trial court erred in its calculation of the child support percentages, its calculation of the percentage of uninsured medical expenses to be paid by each parent is also inaccurate and should be set aside. We have already held that the trial court's calculation of child support did not result in manifest injustice. By extension, therefore, neither did the allocation of the child's uninsured medical expenses.
The order of the Fayette Circuit Court is hereby affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Bethanni Forbush-Moss
Louisville, Kentucky
BRIEF FOR APPELLEE: Denotra Spruill Gunther
Lexington, Kentucky