Dustin Wayne Little v. Keisha Nicole Little ( 2021 )

RENDERED: MARCH 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0420-MR
DUSTIN WAYNE LITTLE APPELLANT
APPEAL FROM LESLIE CIRCUIT COURT
v. HONORABLE CLINT HARRIS, JUDGE
ACTION NO. 19-CI-00084
KEISHA NICOLE LITTLE APPELLEE
OPINION
AFFIRMING
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BEFORE: JONES, LAMBERT AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Dustin Little appeals from an order of dissolution of
the Leslie Circuit Court and an order denying a motion to alter, amend, or vacate
the dissolution order. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Dustin and Keisha Little were married on July 24, 2010. The parties
stayed together until Appellee filed a petition for dissolution of marriage in April
of 2019. During the marriage, two children were born, A.L. (hereinafter referred
to as Child 1) and I.L. (hereinafter referred to as Child 2).1 Child 1 is about three
years older than Child 2.
When the parties were married, Appellee was a registered nurse.
During the course of the marriage, Appellee returned to school and earned an
advanced degree. At the time of the petition for dissolution, Appellee was a nurse
anesthetist working at Appalachian Regional Healthcare in Hazard, Kentucky, and
she was making around $200,000 per year. Appellant was a clerk at Appalachian
Regional Healthcare in Hazard, Kentucky, and was making about $34,000 per
year. Also during the course of the marriage, the parties purchased a home in
Perry County, Kentucky.
The parties separated on or about April 27, 2019. At this time,
Appellee moved from the marital home, and she and the children moved in with
her parents in Leslie County, Kentucky. On April 29, 2019, Appellee filed the
underlying dissolution action in Leslie Circuit Court. On July 8, 2019, Appellant
filed his response. Multiple motions were later filed and discovery was conducted.
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We will not use the names of the children in order to protect their privacy.
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On October 25, 2019, the Leslie Circuit Court conducted a final
hearing on all the issues. The hearing lasted approximately 13 hours and the court
heard testimony from 20 witnesses. At the conclusion of the hearing, the court
orally ruled on all the issues from the bench. On December 2, 2019, a final order
was entered reflecting the court’s decisions. Both parties filed motions to alter,
amend, or vacate, and a hearing was held on January 6, 2020. This hearing lasted
around 40 minutes. The court again made oral rulings from the bench, and an
order was entered on February 18, 2020, reflecting the court’s oral rulings. This
appeal followed.
ANALYSIS
Before we discuss the merits of this case, we must first address
Appellant’s lack of compliance with Kentucky Rules of Civil Procedure (CR)
76.12(4)(c)(iv) and (v). These rules state that a brief must have ample references
to the record. Appellant’s brief has zero references to the record. Appellee
requests that we either strike the brief or review for manifest injustice only. We
decline Appellee’s request and will review this case on the merits. We do so
because in Appellant’s reply brief, he corrects his lack of record citation. A reply
brief can be used to correct omissions and procedural defects in the original brief.
Hollingsworth v. Hollingsworth, 798 S.W.2d 145, 147 (Ky. App. 1990).
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Appellant’s first argument on appeal is that the trial court erred in
denying his motion to change venue under the doctrine of forum non conveniens.
On August 14, 2019, Appellant filed a motion requesting that the court transfer the
dissolution proceeding to the Perry Circuit Court. Appellant argued it was a more
appropriate venue to hear the case because the parties lived in Perry County prior
to separation, all of the marital assets were in Perry County, the parties both
worked in Perry County, and the children were raised in Perry County. On
September 9, 2019, the trial court entered an order denying the motion.
The doctrine of forum non conveniens vests in a court,
before which an action is brought, the discretion to refuse
to accept jurisdiction, and such a determination will not
be reversed by an appellate court, except where such
determination is found to be an abuse in the exercise of
that discretion.
Williams v. Williams, 611 S.W.2d 807, 809 (Ky. App. 1981) (citations omitted).
“The test for abuse of discretion is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky. 1999).
In the case at hand, we believe Appellant waived his right to contest
the venue by not timely raising the issue. Appellee filed the petition for dissolution
on April 29, 2019. Appellant filed his answer on July 8, 2019. At that time,
Appellant did not raise the forum non conveniens issue. After filing his response,
Appellant made multiple motions, propounded a set of interrogatories, and allowed
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an agreed order to be entered. It was not until August 14, 2019, that Appellant first
raised the venue issue. This was almost four months after Appellee filed her
petition for dissolution. By not making a timely motion and by taking substantial
action in the Leslie Circuit Court, we conclude that Appellant waived his right to
raise forum non conveniens. See Stipp v. St. Charles, 291 S.W.3d 720, 724-25
(Ky. App. 2009).
Appellant’s second argument on appeal is that the trial court erred in
holding that a 50/50 split in parenting time was not in the children’s best interests.
The trial court awarded the parties joint custody but awarded more parenting time
to Appellee. The court held that Appellant did not have adequate family support
which would allow him to work full time and care for the children. The court also
took into consideration that Child 1 suffered from separation anxiety and did not
like to be away from Appellee. Appellant argues that he should have been
awarded equal parenting time.
Kentucky Revised Statute (KRS) 403.270(2) states:
The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian.
Subject to KRS 403.315, there shall be a presumption,
rebuttable by a preponderance of evidence, that joint
custody and equally shared parenting time is in the best
interest of the child. If a deviation from equal parenting
time is warranted, the court shall construct a parenting
time schedule which maximizes the time each parent or
de facto custodian has with the child and is consistent
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with ensuring the child’s welfare. The court shall
consider all relevant factors including:
(a) The wishes of the child’s parent or parents, and any
de facto custodian, as to his or her custody;
(b) The wishes of the child as to his or her custodian,
with due consideration given to the influence a parent or
de facto custodian may have over the child’s wishes;
(c) The interaction and interrelationship of the child with
his or her parent or parents, his or her siblings, and any
other person who may significantly affect the child’s best
interests;
(d) The motivation of the adults participating in the
custody proceeding;
(e) The child’s adjustment and continuing proximity to
his or her home, school, and community;
(f) The mental and physical health of all individuals
involved;
(g) A finding by the court that domestic violence and
abuse, as defined in KRS 403.720, has been committed
by one (1) of the parties against a child of the parties or
against another party. The court shall determine the
extent to which the domestic violence and abuse has
affected the child and the child’s relationship to each
party, with due consideration given to efforts made by a
party toward the completion of any domestic violence
treatment, counseling, or program;
(h) The extent to which the child has been cared for,
nurtured, and supported by any de facto custodian;
(i) The intent of the parent or parents in placing the child
with a de facto custodian;
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(j) The circumstances under which the child was placed
or allowed to remain in the custody of a de facto
custodian, including whether the parent now seeking
custody was previously prevented from doing so as a
result of domestic violence as defined in KRS 403.720
and whether the child was placed with a de facto
custodian to allow the parent now seeking custody to
seek employment, work, or attend school; and
(k) The likelihood a party will allow the child frequent,
meaningful, and continuing contact with the other parent
or de facto custodian, except that the court shall not
consider this likelihood if there is a finding that the other
parent or de facto custodian engaged in domestic
violence and abuse, as defined in KRS 403.720, against
the party or a child and that a continuing relationship
with the other parent will endanger the health or safety of
either that party or the child.
Appellant argues that the trial court did not consider the above factors and
erroneously held that he did not have adequate family support.
Trial courts have broad discretion to decide
custody and timesharing. In reviewing a decision as to
where a child will primarily live, we must give a great
deal of deference to both the trial court’s findings of fact
and discretionary decisions. The trial court is in the best
position to resolve the conflicting evidence and make the
determination that is in the child’s best interest. So long
as the trial court properly considers the mandate of KRS
403.270, including giving due consideration to all
relevant factors, we will defer to its decision if it is
neither clearly erroneous nor an abuse of discretion.
Barnett v. White, 584 S.W.3d 755, 759 (Ky. App. 2019) (citations omitted). We
find no error here.
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This Court has reviewed the testimony of Appellant, Appellee, and the
paternal grandparents. We have also reviewed the statements made by the court on
the record at the end of the final dissolution hearing and during the hearing on the
motions to alter, amend, or vacate. During the statements made on the record at
the conclusion of the final dissolution hearing, the trial court specifically went
through each and every factor listed in KRS 403.270(2). The trial court found that
the factors weighed evenly in favor of the parties, but the court was concerned with
Child 1’s separation anxiety. The court spoke about the testimony of the child’s
counselor and how Child 1 was improving. The court was open to reexamining the
parenting time issue once Child 1’s emotional and mental state had improved. The
court was focused on Child 1’s well-being, and this was not error.
Also, the written dissolution order stated that Appellant did not have
adequate family support. Appellant claims this finding is erroneous. We do not
believe it is. After reviewing the testimony and statements made by the trial court,
it is clear that the court was indicating that the paternal grandparents do not live
locally. The paternal grandfather lives over an hour away from Appellant, and the
paternal grandmother lives about 45 minutes away from Appellant. The maternal
grandparents, on the other hand, live locally and are more geographically close to
Appellee. Appellant and the paternal grandparents all testified that the paternal
grandparents love the children and would help out when needed; however, the trial
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court was concerned that they did not live closer to Appellant in order to be more
available to help with the children.
We believe the trial court properly chose not to award equal parenting
time to Appellant. The trial court was extremely concerned with Child 1’s
separation anxiety. That, along with Appellant not having local family members
available to help with the children, were appropriate factors to consider. The trial
court is not limited to considering only the eleven factors listed in KRS 403.270(2).
Barnett, 584 S.W.3d at 760.
Appellant’s next argument on appeal is that the trial court erred in
finding that Appellee’s professional degree was not marital property. Appellant
claims that because Appellee obtained her professional degree during the marriage,
it should be considered marital property. Also, Appellant claims the court failed to
take into consideration Appellee’s professional degree when determining
maintenance and property distribution.
Appellant is incorrect that a professional degree can be marital
property. Kentucky law is clear that it is not, and such a degree cannot be divided
upon divorce. Inman v. Inman, 648 S.W.2d 847, 852 (Ky. 1982); Schmitz v.
Schmitz, 801 S.W.2d 333, 335 (Ky. App. 1990); McGowan v. McGowan, 663
S.W.2d 219, 223 (Ky. App. 1983). Schmitz and McGowan do hold that a court
may consider one spouse’s contribution to the other spouse obtaining a
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professional degree when determining maintenance and property distribution.
Schmitz, 801 S.W.2d at 336; McGowan, 663 S.W.2d at 223.
Appellant argues that the trial court did not consider his contribution
to the family while Appellee was obtaining her professional degree and did not
consider Appellee’s increased earnings when determining maintenance and
property distribution. The trial court awarded no maintenance and an equal
property distribution.
(1) In a proceeding for dissolution of the marriage or for
legal separation, or in a proceeding for disposition of
property following dissolution of the marriage by a court
which lacked personal jurisdiction over the absent spouse
or lacked jurisdiction to dispose of the property, the court
shall assign each spouse’s property to him. It also shall
divide the marital property without regard to marital
misconduct in just proportions considering all relevant
factors including:
(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.
KRS 403.190.
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(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked
personal jurisdiction over the absent spouse, the court
may grant a maintenance order for either spouse only if it
finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs;
and
(b) Is unable to support himself through appropriate
employment or is the custodian of a child whose
condition or circumstances make it appropriate that the
custodian not be required to seek employment outside the
home.
(2) The maintenance order shall be in such amounts and
for such periods of time as the court deems just, and after
considering all relevant factors including:
(a) The financial resources of the party seeking
maintenance, including marital property apportioned to
him, and his ability to meet his needs independently,
including the extent to which a provision for support of a
child living with the party includes a sum for that party as
custodian;
(b) The time necessary to acquire sufficient education or
training to enable the party seeking maintenance to find
appropriate employment;
(c) The standard of living established during the
marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of
the spouse seeking maintenance; and
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(f) The ability of the spouse from whom maintenance is
sought to meet his needs while meeting those of the
spouse seeking maintenance.
KRS 403.200. We review maintenance and property distribution awards for abuse
of discretion. McGregor v. McGregor, 334 S.W.3d 113, 118-19 (Ky. App. 2011).
We will first address the property distribution issue. As previously
stated, the trial court split the marital property equally between the parties. The
marital home was to be sold and the proceeds split between the parties after all
home-related debts were paid. Each party also received a similarly valued vehicle.
As for their retirement accounts, Appellee’s retirement account had a significant
amount more than that of Appellant; therefore, the trial court allowed Appellant to
keep his retirement account and gave Appellant a portion of the funds in
Appellee’s account. Adding the amount of money in Appellant’s retirement
account to the money he received from Appellee’s account equals the amount
Appellee was allowed to keep in her account. In addition, the personal property
was split evenly, and each party was responsible for the debt solely in his or her
name. We believe this was a just division, and the trial court did not abuse its
discretion. The parties did not live extravagantly and did not have a plethora of
marital property. Additionally, Appellant received a significant amount of money
from Appellee’s retirement account. There was no error here.
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As to maintenance, the court stated in its order that it considered the
factors listed in KRS 403.200. In addition, the court found that the parties lived in
a modest house with a sizeable amount of debt associated with it. Furthermore, the
court found that there was no testimony regarding a lavish lifestyle or an
extravagant standard of living that would warrant maintenance. During the court’s
oral statements at the conclusion of the dissolution hearing, the court also
considered that the parties did not have much money “in the bank” and that both
parties have always worked. Finally, the court ordered that Appellee was to be
solely responsible for the mortgage payments until the marital home was sold. The
court suggested that this was in lieu of maintenance and because Appellee had the
greater income. We believe the trial court considered the financial situation of
each party and did not abuse its discretion in declining to award maintenance.
We now move on to Appellant’s final argument regarding attorney
fees. Appellant argues that the trial court erred in only awarding him $5,000 in
attorney fees, as opposed to the $15,000 he requested. Appellant argues that the
trial court failed to consider the income disparity between the parties when
awarding attorney fees. We review issues of attorney fees for abuse of discretion.
Miller v. McGinty, 234 S.W.3d 371, 373 (Ky. App. 2007).
The court from time to time after considering the
financial resources of both parties may order a party to
pay a reasonable amount for the cost to the other party of
maintaining or defending any proceeding under this
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chapter and for attorney’s fees, including sums for legal
services rendered and costs incurred prior to the
commencement of the proceeding or after entry of
judgment. The court may order that the amount be paid
directly to the attorney, who may enforce the order in his
name.
KRS 403.220.
We find no error as to the award of attorney fees. When the court
made its oral findings at the end of the dissolution hearing, the court stated that the
only factor it could consider when determining attorney fees is the difference in the
income of the parties. It is clear to us that the court did consider Appellee’s larger
income when it awarded $5,000 in attorney fees. There was no abuse of discretion.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Leslie Circuit
Court.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Leonard H. Brashear Kenneth A. Buckle
Hyden, Kentucky Hyden, Kentucky
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