In re Marriage of DePriest and Weaver ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,506
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
In the Matter of the Marriage of
ELIZABETH A. DEPRIEST,
Appellee,
and
DONALD F. WEAVER,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; RHONDA K. MASON, judge. Opinion filed April 23, 2021.
Affirmed.
Donald F. Weaver, appellant pro se.
Janet L. Damore, of The Damore Law Firm, LLC, of Leawood, for appellee.
Before BRUNS, P.J., BUSER, J., and WALKER, S.J.
PER CURIAM: Donald F. Weaver appeals from the district court's division of
assets in his divorce from Elizabeth A. DePriest. His pro se brief is difficult to read and
fails to comply with the Kansas Supreme Court rule requirements for appellate briefs. See
Rule 6.02(a) (2021 Kan. S. Ct. R. 35). The quality of his brief makes it difficult to
ascertain the rulings that Weaver is appealing. However, there are three common themes
in his brief. Weaver alleges: (1) DePriest submitted a fraudulent Domestic Relations
Affidavit (DRA), (2) the district court erred by allowing DePriest to admit exhibits
summarizing financial documents, and (3) the district court erred in finding that Weaver
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dissipated marital assets. Because we find Weaver's arguments to be unpersuasive and
not supported by the record, we affirm the district court's decision.
FACTS
This divorce proceeding returns for the second time to our court. The case began
in October 2016 when DePriest filed a petition for divorce from Weaver. Weaver's
tardiness in filing an answer and responding to court orders resulted in the district court
granting DePriest a default judgment. Weaver appealed. A panel of our court reversed
and remanded the case on the basis that the district court had not exhausted other
remedies for noncompliance with its orders and therefore default judgment was too
severe a sanction. In re Marriage of DePriest and Weaver, No. 117,682, 2018 WL
3485722 (Kan. App. 2018) (unpublished opinion).
The parties returned to the district court for a status conference in September 2018.
The court delineated the scope of discovery, scheduled various deadlines, and set the
matter for trial.
A one-day bench trial was held in December 2018. In order to fully understand
and evaluate the district court's decision dividing property in this case, it will be
necessary to discuss the evidence presented in some considerable detail.
According to DePriest and a marriage certificate in her possession, the couple was
married in June 2008. However, Weaver believed that they were married in 2009 and
refused to stipulate to the validity of the certificate. DePriest was 51 years old at the time
of marriage and Weaver was 42, which made them 62 and 53 years old respectively at the
time of trial. Weaver described himself as "an investment banker by trade." DePriest was
a certified registered nurse anesthetist and had plans to retire at age 65.
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At the time of trial, DePriest had two adult sons in their early 20s from a prior
relationship. She maintained responsibility for caring for one of her sons who, at that
time, was in a mental health facility. Upon release, her son planned to live with DePriest.
Her other son was in college but would stay with DePriest during school breaks and
received financial support from DePriest.
Weaver entered the marriage with student loan debt and no assets. DePriest
brought substantial assets into the marriage. Her primary assets were a house in Roeland
Park, Kansas, a house at Lake Lotawana, a pontoon boat and motor, a Bluegreen
Vacation Club timeshare, and three retirement plans. Her retirement accounts included
Insight Financial (previously called Pershing and referred to as such occasionally at trial)
($371,665), John Hancock 401(k) ($33,140), and a smaller account with Anesthesiology
Professionals ($4,742). Totaling the values of these assets, DePriest estimated her
premarital assets to be $562,588.
The house at Pagosa Springs
DePriest testified that shortly after their marriage the stock market was in decline.
She and Weaver began discussing the idea of using DePriest's retirement funds to build a
house in Pagosa Springs, Colorado. Weaver suggested that DePriest take money out of
her retirement accounts and invest it into a self-directed IRA in real estate. Weaver told
DePriest that he could construct the house himself for approximately $250,000 and that it
would be ready in about six months. DePriest agreed but planned to have little
involvement in the project, trusting Weaver to do what he said he could do and relying on
his expertise. DePriest opened a self-directed IRA account with IRA Services Trust
Company on July 30, 2009. Her initial contribution to the account of $238,178.55 came
from her premarital funds at Pershing.
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Since DePriest could not directly spend funds from the self-directed IRA on the
Pagosa Springs residence, she established Blue Moon, LLC to facilitate the project. Blue
Moon opened an account at Bank of America. Both Weaver and DePriest had signatory
authority on Blue Moon's account. DePriest would transfer money from the self-directed
IRA to Blue Moon and the Blue Moon funds could then be used to construct the Pagosa
Springs property. The money in the Blue Moon account was to be used solely for the
Pagosa Springs project. It was not to be used for personal expenses.
On August 5, 2009, DePriest made her first transfer from the self-directed IRA to
Blue Moon in the amount of $235,523.31. A couple of weeks later, DePriest deposited
the remainder of her Pershing account, about $418, to the self-directed IRA. There was
no explanation offered at trial as to why DePriest's Pershing account was worth $371,665
at the time of marriage but less than $240,000 when she transferred the funds in the
account to her self-directed IRA.
Seventeen months later, in December 2010, only $2,565 was left in the Blue Moon
account. Although it had been more than a year and DePriest had expended almost
$250,000, the house was still just a shell—a structure with nothing inside. Additionally,
Weaver did not have insurance to protect the property and he was not bonded, leaving
DePriest's investment at risk. Once DePriest realized there was no insurance and
attempted to obtain some, she learned she could not insure the property until she had a
certificate of occupancy.
Very little construction occurred in 2011 and 2012. DePriest deposited an
additional $4,742.25 in the self-directed IRA which she received from a premarital
former employer. This money was mostly used for utilities and bank fees.
In April 2013, DePriest deposited another $141,463.69 into the self-directed IRA.
The money was rolled over from her John Hancock IRA which DePriest recently had
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been able to access because she stopped working for the employer that sponsored the
account. She then moved $100,000 of this into the Blue Moon account. At this point, she
had cumulatively invested at least $350,000 into the project.
Around this time, the Pagosa Lakes Property Owners Association (POA) sued
Blue Moon for violating various building codes and the POA's rules and regulations. The
POA also obtained a temporary restraining order preventing Weaver from working on the
house. DePriest believed the lawsuit occurred because Weaver mismanaged the
construction. By the end of 2013 DePriest still could not get a certificate of occupancy to
insure the house and only $18,065.93 remained in Blue Moon's account.
Weaver had the Pagosa Springs house appraised in January 2014. During the
appraisal, Weaver estimated the cost to finish the house was $60,000. A couple of weeks
after the appraisal DePriest transferred another $40,000 into the Blue Moon account.
Coupled with the $18,000 already in the Blue Moon account, DePriest believed Weaver
would be able to complete the home without any additional funds. By May 27, 2014,
however, the account had a negative balance of $81.25 and the house was not complete.
DePriest opened another retirement account, an SEP IRA with Vanguard, during
the marriage. She made two $10,000 deposits to the Vanguard IRA in 2013 and 2014. On
May 28, 2014, DePriest transferred the $20,000 in her Vanguard IRA to her self-directed
IRA, and then into the Blue Moon account. When this money was nearly depleted, she
transferred another $8,000 in July 2014. She continued this pattern of replacing depleted
funds with transfers from her Vanguard account of $8,000 in July 2014, $14,000 in
November 2014, and $10,000 each in December 2014, March 2015, and June 2015. By
June 2015, DePriest had moved a total of $72,000 from her Vanguard IRA to Blue Moon.
DePriest made a surprise visit to Colorado in June 2015 to figure out why the
project was taking so long to complete and to determine whether Weaver was really
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working. DePriest found Weaver living with another woman. DePriest felt like Weaver
was taking advantage of her by depleting her funds while being with another woman.
Despite this revelation, DePriest continued making deposits into the self-directed
IRA that were then transferred to Blue Moon. DePriest made two direct contributions of
$5,000 into the self-directed IRA in August 2015, almost all of which she subsequently
moved to the Blue Moon account. She removed Weaver from the Blue Moon account in
October 2015. There was less than $600 in the account when DePriest removed Weaver.
DePriest still could not get a certificate of occupancy for the house. Under the
circumstances, DePriest began searching for someone who could finish the job.
DePriest worked with contractors to complete the house. An electrician had to
redo some work that had not been done properly. By March 2016, DePriest was able to
get a certificate of occupancy and insurance for the house. Between initial construction in
2009 through March 2016 her entire investment had been at risk. DePriest secured renters
for the Pagosa Springs residence and had earned just over $6,000 in rental income by the
time she filed for divorce.
At the time she filed for divorce, DePriest valued the Pagosa Springs house at
$366,600. While the county had only assessed the property at $328,770 in 2016, DePriest
had the home valued by a realtor in February 2017 who provided a value of $366,635.
DePriest used the realtor's valuation in her proposed division of assets.
In total, between opening the account in July 2009 and filing for divorce in
October 2016, DePriest made $486,724.16 in contributions to the self-directed IRA. Of
those funds, $482,276.95 were transferred to the Blue Moon account.
At trial, DePriest claimed that Weaver used a significant amount of money from
Blue Moon's account for his personal consumption. To document her contention,
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DePriest presented an exhibit at trial summarizing the funds she believed were for
Weaver personally rather than the Pagosa Springs house. These included direct charges to
Blue Moon's account, transfers to bank accounts Weaver established under trade names,
and the costs of the POA lawsuit. In total, she believed $130,127.59 of her funds had
been dissipated by Weaver for his own personal expenses.
Included in DePriest's total was $71,600 that Weaver paid to The Complete
Carpenter. The Complete Carpenter was a trade name used by Weaver, and Weaver
ostensibly established a bank account for The Complete Carpenter to enable him to build
the home while staying within IRS rules on self-directed IRAs. Weaver said he was a
49% minority owner in the company. The bank statements for The Complete Carpenter
were introduced at trial. An overwhelming number of charges were clearly for personal
purchases at places like liquor stores, grocery stores, bars, restaurants, gas stations as well
as for cash withdrawals, and even a charge for Ride the Ducks in Branson, Missouri.
Occasionally there were charges at hardware or lumber stores. However, Weaver did not
provide any receipts for his purchases, contracts, purchase orders, invoices, or other
documents that would show that the money went towards building the Pagosa Springs
residence.
Weaver had a similar account under the trade name Trim Works. DePriest
identified over $16,000 in funds that were moved from the Blue Moon account to Trim
Works. The purchases made from Trim Works' account were very similar to those made
from The Complete Carpenter's account.
DePriest also identified numerous charges made directly to Blue Moon's account
that she believed were for Weaver's personal benefit. Like the charges to the Trim Works
and The Complete Carpenter accounts, many of the direct charges to the Blue Moon
account were for convenience stores, fast food, gas stations, and groceries. Weaver also
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made cash withdrawals. Additionally, Weaver wrote several checks to another individual
that were then endorsed back to Weaver.
DePriest included the cost of the POA lawsuit in her summary because she
believed those charges should be borne by Weaver due to his mismanagement of the
construction project.
The Crested Butte property
The Pagosa Springs residence was not the only topic discussed at trial. DePriest
sold the Lake Lotawana property she brought into the marriage in 2011. After expenses,
she earned $159,960 from the sale. DePriest had to pay capital gains tax on the proceeds.
She used the proceeds from the sale to purchase a home in Crested Butte, Colorado. The
Crested Butte home cost $150,000. DePriest used $98,448.15 of the Lake Lotawana
proceeds on the Crested Butte home, and took out a loan for the balance. DePriest sold
the Crested Butte residence in July 2016, shortly before filing for divorce. She later sold
the property for $325,000 and, after paying off the mortgages on the property, was left
with $240,881.31.
The Highlands Ranch property
DePriest used $236,381 of the proceeds from Crested Butte to purchase a property
in Highlands Ranch. She purchased the property in September 2016. The purchase price
was $310,000, and DePriest covered the balance with a loan. DePriest received less than
one month's rent from the Highlands Ranch property, prorated to $1,096.77, before she
filed for divorce.
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DePriest's requested division of property
DePriest asked the district court to restore the entry value of her assets. She also
asked for a majority of the real estate, including the houses in Roeland Park, Highlands
Ranch, and Pagosa Springs. She offered to assume all marital debts. DePriest asked that
each party retain their personal vehicle. She also requested that the court award Weaver
his individual retirement account valued at $1,614, a lot of land they had purchased
around the time of their marriage valued at $1,000, and a pontoon boat and motor valued
at $4,390.
The district court's decision
In May 2019 the district court issued its final journal entry on the division of
property. It found the entry value of DePriest's property was $562,588. Much of the
marital property could be traced back to DePriest's premarital assets. Weaver had no
premarital assets. The court held that DePriest presented tangible evidence tracing her
individual assets to the existing marital assets.
After reviewing the bank records, the district court believed there was "clear
evidence" that Weaver took money out of Blue Moon's account and "us[ed] it for his own
personal benefit, either by making cash withdrawals, using the check card, or writing
checks payable to himself or third parties so he would have funds available for his
personal use at gas stations, convenience stores, car washes, fast food restaurants, liquor
stores, grocery stores, bars, and auto centers to name a few." And, despite knowing that it
was critical to maintain records regarding the construction of the Pagosa Springs
residence, Weaver "failed to provide any contracts, agreements, subcontracts, purchase
orders, invoices, or other documents requested by Ms. DePriest during the course of
discovery that would support the costs incurred in constructing the residence." In essence,
the court observed, "[h]e was spending money without any regard for Ms. DePriest's
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interest, and generally living an independent life while funding his individual needs." The
court, adopting the estimate submitted by DePriest, held that Weaver dissipated $130,128
in marital assets.
The district court accepted DePriest's proposed division of property and debt.
After balancing the assets and debts awarded to each party and considering the
dissipation, the court found that Weaver owed DePriest an equalization payment of
$116,221.
Weaver has timely appealed from the district court's orders. After appealing,
Weaver made several motions including a motion to void judgment, motion for mistrial,
and motion for relief under K.S.A. 2020 Supp. 60-260(b). The district court denied each
of these motions, holding that it did not have jurisdiction to modify the judgment after the
appeal had been docketed.
ANALYSIS
Weaver's failure to follow Kansas Supreme Court Rules
Weaver filed a pro se brief with this court which is, at times, very difficult to
decipher. In response to Weaver's brief, DePriest has asked us to affirm the district court's
judgment on the basis that Weaver failed to comply with Kansas Supreme Court Rule
6.02(a), which specifies the requirements for appellate briefs. This rule provides:
"(a) Required Contents. An appellant's brief must contain the following:
(1) A table of contents that includes:
(A) page references to each division and subdivision in the brief, including
each issue presented; and
(B) the authorities relied on in support of each issue.
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(2) A brief statement of the nature of the case—e.g., whether it is a personal
injury suit, injunction, quiet title, etc.—and a brief statement of the nature of
the judgment or order from which the appeal was taken.
(3) A brief statement, without elaboration, of the issues to be decided in the
appeal.
(4) A concise but complete statement, without argument, of the facts that are
material to determining the issues to be decided in the appeal. The facts
included in the statement must be keyed to the record on appeal by volume
and page number. The court may presume that a factual statement made
without a reference to volume and page number has no support in the record
on appeal.
(5) The arguments and authorities relied on, separated by issue if there is more
than one. Each issue must begin with citation to the appropriate standard of
appellate review and a pinpoint reference to the location in the record on
appeal where the issue was raised and ruled on. If the issue was not raised
below, there must be an explanation why the issue is properly before the
court." Supreme Court Rule 6.02(a) (2021 Kan. S. Ct. R. 35-36.)
We concur with DePriest that Weaver has substantially failed to comply with these rules.
For example, Weaver's brief includes a table of contents, although it is out of order
and missing some page references to the divisions within his brief. The brief's nature of
the case section does not mention that this is a divorce action, but it does summarize
Weaver's primary argument in this case which is that "[t]he final decree is packed full of
FALSE statements and other information that was NOT in the trial or part of the record.
The bigger problems with Weaver's brief arise from his issue statements, facts
section, and analysis. Weaver's issue statements are as follows:
"Issue I: K.S.A. 60-260(b), Petitioner and her attorney committed several frauds on the
court, both thru submissions to the court, as well as statements to the court."
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"Issue II: K.S.A. 60-1610, The Court failed to rule on the facts of the case. The evidence
shows that the Court not only failed to follow Kansas Family Guidelines, but also
maliciously placed $120,000 penalty on the defendant, based on fraud by the petitioner
and her attorney, that is on top of the $140,000 in market losses the petitioner is trying to
get the defendant to preplace [sic]."
"Issue III: KRPK 3.4 The petitioner's attorney Janet Da[m]ore submitted fraudulent
documents to the court, petitioner's exhibits #2, #6, #7. These documents were used in
place of real evidence to convince the judge; (1) there were no assets to divide; (2) as
well as Dissipation, [sic]."
"Issue IV: the petitioner made many violations of KRPC 3.3, these statements were; (1)
false statements of fact; (2) statements of a material nature; (3) frivolous request for
evidence."
While he purports to separate his brief into issues, his arguments are jumbled and poorly
framed. It is difficult to ascertain any discrete issues for us to analyze.
Additionally, Weaver's facts section is neither concise nor complete, and it is rife
with argument. For example, he states that "[t]he petitioner's attorney Janet Damore made
false statements to the court at every hearing." He criticizes Damore's argument to the
court, saying: "This is not fact based, this is a sad for [sic] of deductive 'logic'." He
makes other arguments in the facts section, such as alleging that "Petitioner omitted the
$63,000 in rental income from the PETITIONER'S DRA . . . to date the investment has
earned over $100,000 in rental income." And, "[t]he petitioner is trying to get the court to
make the defendant covers [sic] her losses in the stock market. These are losses that
happened before the defendant had access to any funds."
Weaver also complains about discovery and accuses DePriest of concealing
information from him. For instance, he argues that DePriest had a secret IRA with IRA
Services Trust Company that the court mentioned in its final decree. On this point he
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stated: "The defense is pondering weather [sic] this is another EX PARTE
communication between the judge and the attorney Janet Damore, or if the judge is JUST
MAKING IT UP!" There are numerous examples of inappropriate argument in Weaver's
fact section. As DePriest summarizes it: "It is not a 'concise' statement; it is rambling and
incoherent."
While Weaver does occasionally cite to the record, there are many assertions with
no citation or an incomplete citation. For example, he provides a record cite to support
his assertion that DePriest had a secret IRA with IRA Services Trust Company, but the
portion of the record to which he cites shows that DePriest was discussing her IRA with
Vanguard, not some secret second account with IRA Services Trust Company.
Weaver's statements of the standards of review are also deficient. As stated, it is
difficult to ascertain exactly what issues he is raising. He does attempt to include a
standard of review at the beginning of each issue section. As an example, he partially
frames his first issue around K.S.A. 2020 Supp. 60-260(b)(3), (b)(4), and (b)(6) and
accuses DePriest and Damore of committing frauds on the court. However, he provides
only the standard of review for K.S.A. 60-260(b)(4) (unlimited review) and does not
include the standard of review for K.S.A. 60-260(b)(3) or (b)(6) (abuse of discretion).
See In re Adoption of A.A.T., 287 Kan. 590, Syl. ¶ 1, 196 P.3d 1180 (2008). Additionally,
this section is not limited to his K.S.A. 2020 Supp. 60-260 motion and brings in separate
issues related to admission of evidence, sufficiency of the evidence, and discovery
requests.
Similarly, Weaver's third issue purports to address the admission of three exhibits.
As his standard of review, he states:
"Kansas Court of Appeals reviews all appeals de novo, for fairness. The court
reviews materiality de novo, [In re Kline,] 298 Kan. 96, *96, 311 P.3d 321, **321; 2013
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Kan. The Supreme Court has continued to apply a 'sufficiency of the evidence' standard
of review when a party appeals from an order granting a divorce. See LaRue v. LaRue,
216 Kan. 242, 245-46, 531 P.2d 84 (1975); Berry v. Berry, 215 Kan. 47, 49, 523 P.2d 342(1974). Kan. R. Rel. Disc. Att. 3.4. Falsifying evidence is also generally a criminal
offense. Paragraph (a) applies to evidentiary material generally, including computerized
information." (Errors in original.)
Weaver's statement makes little sense and does not even attempt to state the standard of
review for admission of evidence. He then goes on to complain that DePriest submitted a
fraudulent DRA, notarized by her attorney, and that both of them have committed
criminal offenses. He also alleges that Damore engaged in attorney misconduct.
His fourth issue statement alleges that DePriest violated the Kansas Rules of
Professional Conduct. First, it should be noted that these rules apply to attorneys, not
their clients. Second, as a standard of review he cites to a Nevada case which is not
binding on Kansas courts. State v. Quested, 302 Kan. 262, 273, 352 P.3d 553 (2015).
Weaver's legal arguments and citations in support are just as deficient as his
standards of review. He frequently makes assertions without supporting them with
citations. Of critical importance, on multiple occasions he blatantly misrepresents the
holding of a case or changes quotations to fit his argument. For example, in setting up his
argument that DePriest submitted a fraudulent DRA he cites In re Estate of Loughmiller,
229 Kan. 584, 629 P.2d 156 (1981) and quotes: "'Without a true and accurate DRA, the
judgement [sic] is void, for lack of jurisdiction.'" As DePriest notes in her brief, the
Loughmiller case does not contain this quote. He also cites In re Marriage of Johnson,
No. 89,915, 2003 WL 22990188 (Kan. App. 2003) (unpublished opinion) for the
proposition that "[f]ailure to scrutinize the DRA by K.S.A. 60-1610[b] results in a
denial of due process." Such language clearly does not appear in that case.
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These are not the only problems with Weaver's brief, but they exemplify the
inherent problems in it. Weaver's complete failure to write an adequate brief has caused
both our court and likely DePriest and her counsel to expend great efforts attempting to
ascertain the particulars of his appeal. It is also difficult to respond to his many
incomprehensible statements. Weaver did not file a reply brief addressing these
insufficiencies.
Weaver's brief shares many of the same problems as the appellant's brief in
Hoskinson v. Intagliata, No. 119,575, 2018 WL 6424968 (Kan. App. 2018) (unpublished
opinion). There, the pro se appellant failed to include proper cites to support her factual
statements, included improper issue statements, failed to state the appropriate standard of
review, and failed to support arguments with relevant legal authority, included irrelevant
facts, and failed to include a proper record. 2018 WL 6424938, at *3. A panel of our
court deemed the issues raised in the brief waived or abandoned based on the appellant's
failure to comply with Kansas Supreme Court rules. 2018 WL 6424938, at *4. See
Reynolds v. Kansas City, No. 119,372, 2019 W 2064497, at *3 (Kan. App. 2019)
(unpublished opinion) (dismissing appeal because appellant barely provided citations in
his brief, and many of the citations he did include were incorrect and did not provide
support for his claims).
Weaver does not get a free pass from observing court rules simply because he is
not an attorney. As our court has previously noted:
"A pro se litigant in a civil case is required to follow the same rules of procedure
and evidence which are binding upon a litigant who is represented by counsel. A party in
civil litigation cannot expect the trial judge or an attorney for the other party to advise
him or her of the law or court rules or to see that his or her case is properly presented to
the court. A pro se litigant in a civil case cannot be given either an advantage or a
disadvantage solely because of proceeding pro se." In re Estate of Broderick, 34 Kan.
App. 2d 695, Syl. ¶ 6, 125 P.3d 564 (2005).
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Inadequately briefed issues are deemed waived or abandoned, and all of Weaver's
issues are inadequately briefed. See Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647(2017). Although we would have a solid basis for dismissing Weaver's appeal for failure
to comply with Supreme Court Rule 6.02(a), we will try, as best we can, to address the
issues he is apparently trying to raise. In order to do so, we need to determine precisely
what issues Weaver is actually raising.
Reading his brief as a whole, three overarching issues seem to permeate Weaver's
brief. First, he asserts that DePriest lied on her DRA and concealed money from the
court. Second, he argues that the district court should not have admitted three of
DePriest's exhibits. Third, he complains that the district court erred by finding that he
dissipated assets. We will address each of these issues in turn.
DePriest's domestic relations affidavit
A common theme throughout Weaver's brief is that DePriest submitted a
fraudulent DRA (notarized by her attorney, Damore) that omitted several hundred
thousand dollars of marital assets. Weaver asserts that by submitting this DRA both
DePriest and Damore have committed an act of criminal fraud, and further that Damore
has violated the Kansas Rules of Professional Conduct. He asks for both DePriest and
Damore to "be arrested for 'theft by fraud', the value being over $100,000 make this a
felony." Further, because DePriest "stated in the affirmative to all these lies in court, [she]
is also guilty of perjury."
In support of his argument, Weaver asserts that DePriest omitted the following:
"Insight/Pershing 'entry value' fraud of ($140,000) difference in value disappeared before
rollover to IRA"; "$208,000 in new monies to the retirement accounts"; "$175,000 of
Capital Gains from Crested Butte Condo!"; rental income from Highlands Ranch and
Pagosa Springs accruing through the time of trial and "accruing still!"; a "secret" SEP
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IRA; and a Wells Fargo account. He does not explain how he arrived at many of these
numbers nor does he support his assertions with appropriate cites to the record, which
makes his complaints difficult to analyze. However, the numbers are not material as
Weaver's argument on this point is based on a fundamental misunderstanding of domestic
relations affidavits.
All parties in a divorce are directed by Kansas Supreme Court Rule 139(a) (2021
Kan. S. Ct. R. 217) to prepare and file a DRA using a form provided in the Kansas Child
Support Guidelines. The DRA asks for information on the parties' monthly income, liquid
assets (bank accounts and cash), expenses, health insurance costs, retirement benefits,
real property, and other assets or debts. Parties may provide either actual values or
estimates. Kansas Child Support Guidelines, Appendix III (2021 Kan. S. Ct. R. 153). The
DRA provides the court and parties with a snapshot of the assets and debts existing when
a party files for divorce, which in this case was October 2016.
Some of the assets that Weaver accuses DePriest and Damore of fraudulently
concealing from the district court did not exist at the time she filed. DePriest transferred
the funds in her Pershing account to the self-directed IRA, so at the time of filing there
was no Pershing asset to report. Similarly, DePriest placed the Crested Butte proceeds
with Asset Preservation, Inc. to conduct an Internal Revenue Code 26 U.S.C. § 1031(2018) like-kind exchange and acquire the Highlands Ranch property. Thus, there was no
lump sum of proceeds from Crested Butte to report as an asset because they had been
spent. Weaver provides no support for his assertion that DePriest was required to report
nonexistent assets on her DRA.
It is unclear what Weaver means by "$208,000 in new monies to the retirement
accounts." He does not explain how he arrived at that figure nor does he provide cites to
the record. The evidence submitted at trial showed that at the time of filing, DePriest had
about $900 in her self-directed IRA and less than a dollar in her Vanguard account.
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Weaver fails to support his argument that DePriest was "hiding" $208,000 at the time of
filing.
Weaver's argument also includes claims that are demonstrably false. He claimed
that DePriest failed to list her Wells Fargo bank account on her DRA, but DePriest did in
fact list the account in the DRA. He also claimed that DePriest had a "secret" SEP IRA
with IRA Services Trust Company, the same company where she had her self-directed
IRA. His cite to the record in support of this assertion does not disclose a secret SEP IRA
with IRA Services Trust Company. Rather, in the cited testimony DePriest stated that she
had a self-directed IRA with IRA Services Trust Company and the SEP IRA with
Vanguard. She provided documentation for both accounts showing deposits and
distributions. There is no evidence of a second account with IRA Services Trust
Company.
Finally, Weaver claims that DePriest failed to report rental income from the
Highlands Ranch and Pagosa Springs houses. Before filing for divorce, DePriest received
less than one month's rent from the Highlands Ranch property, prorated to $1,096.77. It is
not clear from the record where the money was deposited. DePriest began renting the
Pagosa Springs property in May 2016, although her first renters could not pay so she had
to find different renters. The rental income from that property was deposited into the Blue
Moon account. The record shows that at the time of filing, DePriest had earned $6,029.20
in rental income from the property.
DePriest did not explicitly list the rental incomes on her DRA but that does not
mean it was not included. She listed the value of the Blue Moon bank account, where the
rental income from Pagosa Springs was deposited, on her DRA. Weaver did not elicit
testimony as to where DePriest deposited her Highlands Ranch income so he cannot
demonstrate that she failed to include it on her DRA. Even if DePriest had not included
the rental income on her DRA, Weaver suffered no prejudice. It is clear from the trial that
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he had the relevant rental agreements and bank accounts needed to know how much
rental income Weaver was earning.
Weaver's true argument on this point is not that DePriest failed to list these
incomes on her DRA. His real claim is that he is entitled to half of DePriest's rental
proceeds accrued during the marriage and after DePriest filed for divorce. Weaver
explained his belief at trial, stating, "[T]his was a continuing operation. [DePriest] just
doesn't get to say I'm having a divorce, so therefore I get to keep all the rental incomes
going forward. Those are still being split 50-50 until this day is done." However, Weaver
provides no caselaw in support of his contention that he is automatically entitled to half
of the rental income on properties that DePriest bought with premarital funds. In fact, it is
merely one of the factors a district court should consider in making a fair and equitable
property division.
There is no requirement, as Weaver asserts, that a person list his or her premarital
assets or accounts that the person had during the marriage but did not own at the time of
filing. The DRA is not intended to be a comprehensive list of every asset brought into the
marriage. Further, as DePriest notes in her brief, Weaver did not follow his own rule on
this point as he did not include his The Complete Carpenter, Trim Works, or other
accounts in his DRA. There is no reason to accept Weaver's argument that DePriest
committed a fraud on the court.
Admission of exhibits
Weaver's second area of complaint is his contention that the district court erred in
admitting three of DePriest's exhibits—Exhibits 2, 6, and 7. Exhibit 2 was a chart
showing the value of DePriest's individual property at the time of the marriage, including
real estate, vehicles, and retirement plans. For all but one asset (the Bluegreen Vacation
Club timeshare), DePriest listed a corresponding exhibit showing where she got the
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values for each item. These underlying exhibits were admitted at trial. She testified that
she got the value for the timeshare by calling Bluegreen and asking what the timeshare
was worth. Exhibit 6 was a single-page chart summarizing contributions to DePriest's
self-directed IRA and subsequent transfers to Blue Moon's Bank of America account. She
also admitted the bank documents affirming that each transfer listed on the exhibit did in
fact occur. Exhibit 7 was a 10-page chart in which DePriest identified the disbursements
from Blue Moon's bank account that she was alleging were for Weaver's personal use.
Again, she admitted the underlying bank documents showing each transaction.
Weaver's challenge to the admissibility of these exhibits is not properly preserved.
Under K.S.A. 60-404, a party must make "a timely and specific objection to the
admission of evidence at trial in order to preserve issues arising from that admission for
appellate review." State v. King, 288 Kan. 333, Syl. ¶ 2, 204 P.3d 585 (2009).
Weaver did not object at all to the admission of Exhibit 2. In fact, he said, "I've got
it nailed if this is the best they can do." Regarding Exhibit 6, the district court asked
Weaver if he had a legal objection to admission of the Exhibit. He replied, "I don't know
objections well enough to know that." When DePriest moved to admit Exhibit 7, Weaver
said, "If the petitioner is willing to accept my summaries, I'm willing to accept hers."
DePriest's counsel began to respond that she did not know what was in Weaver's
summaries so she could not accept them when Weaver interjected and said, "Well, then I
can't accept hers."
Weaver objected in a general sense to admission of exhibits that summarized
financial documents. For example, when discussing Exhibit 6 he said, "It's a beautiful
spreadsheet. Don't get me wrong. I like it. It's sexy. But bank statements are factual and
historical documents that was neither." With Exhibit 7 he said that he would "rather have
the Complete Carpenter documents because those are truth. This is someone else's
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creation." However, he did not lodge any specific legal objections against the exhibits at
issue. His failure to do so precludes appellate review of the admissibility of the exhibits.
But even if Weaver had provided a legal objection to the admission of the exhibits,
he provides no citation to Kansas law that prohibits the introduction of summary exhibits.
"Visual aids are a staple of civil litigation to assist triers of fact in making the appropriate
calculations. So long as the information contained in a chart or summary is included in
the evidence admitted at trial, their use is not only permissible, but also desirable."
Martinez v. Wally Auto Sales, Inc., No. 93,619, 2006 WL 90101, at *5 (Kan. App. 2006)
(unpublished opinion). Kansas law also permits summaries of content when there are
"multiple or voluminous writings which cannot be conveniently examined in court" as
long as the adverse party has a reasonable opportunity to examine the records before trial
and the writings are present in court for use in cross-examination. K.S.A. 60-
467(a)(2)(F). Here, the documents forming the basis for each summary were voluminous.
Further, the underlying documents were not only available for cross-examination but
were admitted into evidence. The district court did not err in admitting Exhibits 2, 6, and
7.
DePriest and her counsel did a commendable job preparing the summary exhibits
which set forth DePriest's position and evidence in support. Weaver fails to demonstrate
any error in their admission.
Dissipation of marital assets
As his third major area of complaint, Weaver contends the district court erred by
finding he had dissipated marital assets. The district court held that Weaver regularly
used his access to the Blue Moon funds for his own personal benefit. It stated:
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"Mr. Weaver provided nothing to support the costs incurred to build the Pagosa Springs
residence: no architect drawings, contractor agreements, invoices, permit fees, license
fees, payment for labor, equipment, supplies, fixtures, or anything that would lend
validity or credibility to the payments he disbursed from the Blue Moon Investments
LLC Bank of America account to his various business entities or directly to himself. To
the contrary, the bank statements he did produce are replete with payments that are
clearly personal in nature, provided no benefit to Ms. DePriest, and had nothing to do
with building the Pagosa Springs residence."
Even though Weaver "was the general contractor and ostensibly in charge of
building the Pagosa Springs residence," the district court noted: "[H]e failed to provide
any contracts, agreements, subcontracts, purchase orders, invoices, or other documents
requested by Ms. DePriest during the course of discovery that would support the costs
incurred in constructing the residence." Ultimately, the district court adopted the estimate
in DePriest's Exhibit 7, in which she identified funds she believed Weaver took for his
personal benefit, and held that Weaver dissipated $130,127.59.
Weaver argues there was insufficient evidence of dissipation. He asserts that the
funds DePriest and the district court characterized as dissipation were merely a loss on
investment, asserting that DePriest was asking the court "to return monies the defendant
never had access too [sic] and were dissipated by the Great Recession, this is THEFT BY
FRAUD." He states that the money all went toward labor, gas, and construction of the
Pagosa Springs residence. He denies spending DePriest's money at restaurants or bars,
and asserts that there was "not one check made out to the defendant" from Blue Moon's
account.
When a district court is tasked with making a division of property in a divorce
proceeding, it must consider a number of factors. K.S.A. 2020 Supp. 23-2802(c). One of
these is dissipation of assets. K.S.A. 2020 Supp. 23-2802(c)(8).
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"To 'dissipate' has a defined and accepted meaning. Black's Law Dictionary 473
(6th ed. 1990) defines dissipate as '[t]o destroy or waste, as to expend funds foolishly.'
Webster's New Collegiate Dictionary 366 (9th ed. 1991) defines the term as 'a: to expend
aimlessly or foolishly b: to use up esp. foolishly or heedlessly.'" In re Marriage of
Rodriguez, 266 Kan. 347, 352, 969 P.2d 880 (1998).
A district court has "wide latitude to divide marital property and this latitude
provides the judge with discretion to consider whether marital assets were lost as a result
of the wrongful conduct of one of the parties to the marriage." 266 Kan. at 352. The
district court's property division is reviewed for abuse of discretion. "Judicial discretion is
abused when judicial action is arbitrary, fanciful, or unreasonable." 266 Kan. at 352.
There is ample evidence supporting the district court's conclusion on dissipation.
The dissipated money can be broken into three general categories: money Weaver
transferred to his The Complete Carpenter and Trim Works accounts, money Weaver
spent directly from Blue Moon's account, and money spent on the POA lawsuit.
In August 2009, DePriest deposited $235,523.31 into the Blue Moon account. By
December 2010, that account had less than $3,000 in it. During this period, Weaver
transferred $71,600 to his The Complete Carpenter account. Subsequently, Weaver
transferred over $18,000 into his Trim Works account. Bank statements for both accounts
were introduced into evidence and show that Weaver used the accounts almost
exclusively for his personal benefit. As the district court found, the statements show that
Weaver used the funds "for a myriad of personal expenses," including but not limited to
convenience stores, gas stations, liquor stores, bars, entertainment, fast food, restaurants,
groceries, and lodging.
Weaver argues, without citation to the record, that The Complete Carpenter's bank
statements show he used approximately $23,000 for rental equipment, $6,200 at lumber
and hardware stores, and $11,500 on laborers. The remaining funds from The Complete
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Carpenter, he asserts, were split between him and his business partner with Weaver
receiving 49 percent and the partner receiving 51 percent. While there are some charges
to The Complete Carpenter's account to rental companies, there is no indication of what
Weaver was renting. He could have been renting equipment for the construction project,
or he could have been renting items for personal use. There are innumerable things
Weaver could have rented.
Similarly, while there are checks written to individuals there is no evidence as to
whether those individuals worked on the Pagosa Springs residence. The same problem
exists for the hardware stores. And, Weaver did not even identify his business partner, or
list him or her on the account. Weaver makes no argument regarding the Trim Works
expenditures. While he asserts that Trim Works was a woodworking company, the Trim
Works bank records he produced show charges for gas stations, liquor stores, restaurants,
a veterinarian, and cash withdrawals, among other things. Again, there are occasional
charges to hardware or lumber stores but no evidence as to what was purchased or
whether it was used in constructing the Pagosa Springs residence.
The evidence also supports the district court's conclusion that Weaver used funds
directly from Blue Moon's account for personal items. He argues that there was no
dissipation because there were no checks from the Blue Moon account made directly to
him. Kansas does not ascribe to such a narrow interpretation of the term dissipation. See
In re Marriage of Rodriguez, 266 Kan. at 350 (declining to adopt strict test for
dissipation). The charges DePriest identified, which correlate to Blue Moon's bank
statements, show that Weaver used the Blue Moon account for personal purchases similar
to those from The Complete Carpenter and Trim Works accounts.
Weaver also denies responsibility for the charges related to the POA lawsuit. He
argues that, because DePriest owns Blue Moon and Blue Moon owns the Pagosa Springs
residence, DePriest is solely responsible for the cost of the lawsuit. The problem with this
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argument is that it ignores the evidence showing that he was the reason the POA filed the
lawsuit. He was responsible for constructing the house, and when he did it incorrectly he
caused DePriest to incur legal fees associated with the lawsuit. The lawsuit can be traced
to Weaver's poor judgment and workmanship, which justifies the district court's finding
that Weaver dissipated the assets spent on the lawsuit.
It is certainly possible that some of the charges identified as monies consumed for
Weaver's benefit actually went into the Pagosa Springs residence. But such a conclusion
would be based on speculation, because Weaver failed to provide anything beyond
conclusory statements in support of his contentions. Even assuming for the sake of
argument that he is correct, the district court still acted within its discretion in finding that
Weaver dissipated assets. Weaver made tens of thousands of dollars of purchases with
DePriest's retirement funds that were obviously not for the Pagosa Springs project.
Additionally, Weaver promised to build the Pagosa Springs residence for $250,000 and to
have it completed in about six months. After 7 years, over $463,000 in DePriest's funds,
and one lawsuit, Weaver still had not completed the residence. Some of the work he did
complete was shoddy and had to be fixed by DePriest. While Weaver argues there was no
dissipation and that DePriest simply lost money on a bad investment, he fails to
acknowledge the evidence showing that he is responsible for the loss.
In short, we find no abuse of discretion in the district court's determination that
Weaver dissipated $130,127.59 in marital funds.
Affirmed.
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