Michael Todd Keene v. Jennifer Keene ( 2023 )


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  •                   RENDERED: AUGUST 18, 2023; 10:00 A.M.
    NOT TO BE PUBLISHED
    Commonwealth of Kentucky
    Court of Appeals
    NO. 2021-CA-1493-MR
    MICHAEL TODD KEENE                                                   APPELLANT
    APPEAL FROM JEFFERSON FAMILY COURT
    v.               HONORABLE DERWIN L. WEBB, JUDGE
    ACTION NO. 20-CI-502330
    JENNIFER KEENE                                                         APPELLEE
    OPINION
    VACATING AND REMANDING
    ** ** ** ** **
    BEFORE: COMBS, DIXON, AND LAMBERT, JUDGES.
    LAMBERT, JUDGE: This appeal arises from a dissolution action in which
    Michael Todd Keene seeks review of the Jefferson Family Court’s division of
    marital property. We vacate and remand.
    Michael and Jennifer Keene were married on June 27, 1994, in
    Jefferson County, Kentucky. The parties separated in February 2020, and Michael
    filed a petition to dissolve the marriage on October 2, 2020. At that time, he was
    46 years old and worked as a representative for United Auto Workers with Ford
    Motor Company, and Jennifer was 43 years old and worked as a medical assistant
    with Norton Healthcare. Michael sought an equitable division of marital property
    and debts, and he indicated that he may claim non-marital property. Jennifer filed
    a response and a counter petition to dissolve the marriage, seeking an equitable
    division of marital property and debts, the restoration of her non-marital property,
    temporary and permanent maintenance, and payment of her costs including
    attorney fees.
    In November 2020, Jennifer moved the court to enter a status quo
    order and for exclusive possession of the marital residence, where she had been
    living since the separation, so that she would have privacy and security. Jennifer
    also indicated that Michael had removed $6,000.00 from their checking account.
    The family court granted the motions later that month. In the status quo order, the
    court ordered Michael to pay for the parties’ mortgage, health insurance, car
    insurance, and water bill. The court ordered Jennifer to pay her car payment, the
    gas and electric, cable, and internet bills, for the home security system, and for
    trash pick-up. Michael sought a case management date to discuss the issues and
    the return of $20,000.00 Jennifer had removed from their joint account.
    The parties filed their respective pre-trial compliance, and Michael
    tendered proposed findings of fact and conclusions of law. Michael moved to
    strike Jennifer’s untimely filed proposed findings, noting that she had failed to
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    comply with other pre-trial deadlines. In response, Jennifer blamed unreliable
    internet access for filing the proposed findings a day late.
    The family court held a trial on July 16 and 21, 2021,1 and on
    September 8, 2021, it entered an order in which it dissolved the marriage and ruled
    on the pending issues. The court assigned non-marital property, and it split the
    marital property (including the marital residence, vehicles, retirement accounts,
    three bonus/profit sharing payments, and personal property) and debts. It also
    addressed issues as to the withdrawal of funds from bank accounts, attorney fees,
    and the award of maintenance (the court awarded Jennifer $1,500.00 per month for
    three years).
    Michael moved the court to make additional findings pursuant to
    Kentucky Rules of Civil Procedure (CR) 52, to alter, amend, or vacate the order
    pursuant to CR 59, and to reschedule the October 6, 2021, contempt hearing until
    45 days after the final order. He also attached profit sharing information as
    ordered by the court, noting that there were only two payments, not three. Michael
    sought changes related to the value of the marital residence, the offset of the value
    of the vehicles from the value of the marital residence, offsets with his retirement
    plan, the amount of maintenance he was ordered to pay, and the attorney fee
    1
    The certified record does not include a recording of the trial.
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    award. Jennifer also moved the court to alter, amend, or vacate the order pursuant
    to CR 59.05. This was related to the amount and duration of maintenance.
    On November 10, 2021, the family court ruled on the pending post-
    judgment motions. It denied Michael’s motion to strike Jennifer’s proposed
    findings, noting that it had not signed either party’s proposed findings; denied his
    motion to base the value of the marital residence on his father’s testimony, even
    though he is a licensed real estate agent, as he was not a disinterested party; and
    declined to change its maintenance award. The court also declined to change the
    way it calculated the division of the marital property on an individual/line-item
    basis as “the overall distribution of assets is equitable. Changing a portion of the
    distribution would upset the overall balance contemplated by the Court.” This
    appeal now follows.
    On appeal, Michael seeks review of the family court’s division of
    marital property. Jennifer contends that the court did not abuse its discretion in the
    division of the assets.
    CR 52.01 provides the general framework for the family court as well
    as review in the Court of Appeals: “In all actions tried upon the facts without a
    jury or with an advisory jury, the court shall find the facts specifically and state
    separately its conclusions of law thereon and render an appropriate judgment[.] . . .
    Findings of fact, shall not be set aside unless clearly erroneous, and due regard
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    shall be given to the opportunity of the trial court to judge the credibility of the
    witnesses.” See Moore v. Asente, 
    110 S.W.3d 336
    , 354 (Ky. 2003) (footnote
    omitted) (An appellate court may set aside a lower court’s findings made pursuant
    to CR 52.01 “only if those findings are clearly erroneous.”). The Asente Court
    defined substantial evidence as:
    “[S]ubstantial evidence” is “[e]vidence that a reasonable
    mind would accept as adequate to support a conclusion”
    and evidence that, when “taken alone or in the light of all
    the evidence, . . . has sufficient probative value to induce
    conviction in the minds of reasonable men.” Regardless
    of conflicting evidence, the weight of the evidence, or the
    fact that the reviewing court would have reached a
    contrary finding, “due regard shall be given to the
    opportunity of the trial court to judge the credibility of
    the witnesses” because judging the credibility of
    witnesses and weighing evidence are tasks within the
    exclusive province of the trial court. Thus, “[m]ere doubt
    as to the correctness of [a] finding [will] not justify [its]
    reversal,” and appellate courts should not disturb trial
    court findings that are supported by substantial evidence.
    
    Id.
     (footnotes omitted). “The trial court’s conclusions of law are reviewed de
    novo. . . . Decisions concerning the division of marital property are also within the
    sound discretion of the trial court, and will not be disturbed except for an abuse of
    that discretion.” Stipp v. St. Charles, 
    291 S.W.3d 720
    , 723 (Ky. App. 2009) (citing
    Gosney v. Glenn, 
    163 S.W.3d 894
    , 98-99 (Ky. App. 2005), and Neidlinger v.
    Neidlinger, 
    52 S.W.3d 513
     (Ky. 2001)). With these standards in mind, we shall
    address the issues Michael raises in his appeal.
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    For his first argument, Michael contends that the family court erred in
    dividing the parties’ marital property due to a mathematical error with respect to
    the division of the values of the equity in the marital residence and the marital
    vehicles. Kentucky Revised Statutes (KRS) 403.190(1) provides that the court
    must “divide the marital property . . . in just proportions considering all relevant
    factors[,]” including each spouse’s contribution to its acquisition, the value of non-
    marital property assigned to each spouse, the duration of the marriage, and the
    economic circumstances of each spouse when the division becomes effective. We
    review a family court’s division of marital assets for abuse of discretion. Young v.
    Young, 
    314 S.W.3d 306
    , 308 (Ky. App. 2010).
    In its findings, the court determined that the marital residence had a
    value of $192,500.00, that there was $152,500.00 in equity, and that each party
    was entitled to half of the equity, or $76,250.00. The court awarded the 2019 Ford
    Explorer to Jennifer and the remaining three vehicles to Michael. These three
    vehicles had a value of $23,500.00, which the court ordered would offset his
    interest in the marital residence. The court did not find it necessary for either party
    to offset funds each had retained from a joint bank account ($20,000.00 that
    Jennifer withdrew) or a tax refund (Michael retained approximately $7,000.00).
    As to Michael’s TESPHE2 account, that account contained $149,378.98, and
    2
    Tax-Efficient Savings Plan for Hourly Employees.
    -6-
    divided equally, each party would receive $74,689.00. “However, after dividing
    the vehicles, [Michael] is still owed $52,750.00 in equity in the marital residence.
    As such, he shall retain all but $21,939.00 of his TESPHE account. [Jennifer] shall
    be entitled to that amount as her share.” In addition, Jennifer was awarded half of
    the marital portion of Michael’s Ford pension.
    On this issue, Michael argues that the total value of the vehicles he
    was retaining ($23,500.00) should be offset from the total value of the marital
    residence, rather than just half of it. The court determined that Michael was owed
    $52,750.00 in equity in the marital residence, calculated as follows: $76,250.00
    (Michael’s one-half interest in the marital residence) minus $23,500.00 (the total
    value of the vehicles Michael retained) equals $52,750.00. Michael asserts that the
    correct calculation the court should have used was to subtract the total value of the
    remaining vehicles (half was Michael’s portion) from the total equity in the house
    ($152,500.00), meaning that he was owed $64,500.00 in equity for the marital
    residence, creating a difference of $11,750.00. This proposed calculation, Michael
    argues, would permit each party to be awarded one-half of these marital assets,
    which is what the family court intended based on the overall decree. The family
    court declined to change this calculation when it ruled on Michael’s post-decree
    motion, stating that the overall distribution of the assets was equitable and that the
    balance would be upset if a portion of the distribution were to be changed.
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    We agree with Michael that the family court’s calculation was not in
    keeping with its references to an equal division of the marital property. The court
    should have used either the total value of the equity and vehicles, or half of these
    values, to determine Michael’s half of those two categories of marital property, and
    then calculate his portion with an offset of the value of the three vehicles he was
    retaining. The total amount of the equity in the marital residence and the vehicles
    is $176,000.00, meaning that the parties’ portions should have been $88,000.00.
    Because Michael was retaining all of the vehicles, which had a value of
    $23,500.00, that amount would be offset from his portion. Therefore, he should
    have been apportioned $64,500.00, not $52,750.00. The court declined to revisit
    its calculation based upon Michael’s post-decree motion, and we hold that this
    constitutes an abuse of discretion, especially in light of a lack of findings to
    support an unequal division, and the portions of the orders dividing the marital
    assets must be vacated.
    Next, Michael contends that the family court failed to consider the tax
    consequences of its division of his TESPHE account. The court based the division
    of the account on its flawed calculation of the vehicles and equity in the marital
    residence, and it therefore must be vacated. However, we shall review this
    argument to offer any direction necessary on remand.
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    Michael cites to Atkisson v. Atkisson, 
    298 S.W.3d 858
     (Ky. App.
    2009), in support of his argument that the family court erred when it offset post-tax
    assets with his pre-tax retirement assets. While he was left with more of the
    TESPHE account, he stated that he would incur taxes in order to liquidate the
    account before he would be able to use this share of the marital estate or pay
    amounts to Jennifer or her attorney as ordered. This, he argues, would disrupt the
    intended equal division of marital property.
    In Atkisson, this Court stated:
    In his second appeal, James contends that Kathleen
    filed the writs of garnishment and judgment lien before
    the compliance dates in the trial court’s judgment had
    passed. As a result of this premature filing, James states
    that he incurred substantial penalties and interest as a
    result of the garnishment against his Allstate pension
    account. James maintains that these expenses should
    come out of Kathleen’s share of the marital property
    since they were incurred as a result of her actions.
    ....
    But while Kathleen was within her rights to file the
    writs, we question the trial court’s decision to allow
    Kathleen to garnish the tax-deferred accounts. Because
    the trial court allowed the garnishment against these
    accounts, James states that he incurred 10% penalties for
    early withdrawal, plus additional taxes and fees. James
    contends that these penalties should be assessed against
    Kathleen’s share of the marital estate.
    In the absence of a statutory exemption, tax-
    deferred accounts are subject to garnishment and
    judgment liens like any other account. However, the trial
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    court should consider the tax consequences of its division
    of marital property. See Broida v. Broida, 
    388 S.W.2d 617
    , 621 (Ky. 1965); and Owens v. Owens, 
    672 S.W.2d 67
    , 69 (Ky. App. 1984). Otherwise, the payor spouse’s
    share of the marital estate might be consumed by the
    taxes incurred to liquidate sufficient assets for the payee
    spouse’s share.
    In this case, the trial court recognized that James
    would incur substantial penalties and taxes by allowing
    the garnishments; but the court concluded that James
    could have avoided these consequences by paying the
    judgments within the time frames provided in the
    judgments. Under the specific circumstances of this
    case, we disagree.
    The trial court faulted James for his failure to
    submit a [Qualified Domestic Relations Order] QDRO by
    the February 25 deadline set out in the amended
    judgment. Although James failed to meet this deadline, it
    is clear from the record that James and his counsel made
    a good faith effort to do so. James submitted a QDRO to
    Kathleen’s counsel, who responded that a QDRO would
    not be necessary.
    We agree with the trial court that James’s
    submission of the QDRO to the [sic] Kathleen’s counsel
    did not comply with the mandate set out in the judgment.
    However, the trial court made no effort to determine
    whether James had other accounts which could be
    garnished without incurring such drastic tax
    consequences. Furthermore, the trial court could have
    imposed additional attorney fees and costs for the delay.
    Additionally, of course, the amounts bear interest at the
    post-judgment rate from December 20, 2007.
    By upholding the garnishment writs against the
    tax-deferred accounts, the trial court subjected James to a
    penalty which was far in excess of his breach. The
    garnishment writ converts a deferred distribution of
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    marital assets into a present-value distribution. The
    penalties and taxes imposed on James fundamentally
    alter the underlying allocation of marital assets.
    Consequently, we find that the trial court’s decision to
    uphold the writs amounted to an abuse of its discretion.
    Since the trial court upheld the garnishment writs,
    James has presumably already incurred the penalties and
    taxes as a result of the early withdrawals. We agree with
    James that these additional expenses should be assessed,
    at least in part, against Kathleen’s portion of the marital
    estate. However, we also agree with the trial court that
    James bears some, if not substantial, responsibility for
    these penalties since he did not fully comply with the
    trial court’s orders. Therefore, we will remand this
    matter to the trial court for a determination of the amount
    of penalties and taxes incurred as a result of the
    garnishment and an appropriate allocation of this amount
    between the parties.
    Atkisson, 
    298 S.W.3d at 865, 867-68
    .
    Jennifer argues that Atkisson has no application to this case, and we
    agree. In that case, there were actual taxes, penalties, and interest that the husband
    had to pay due to the garnishment. Here, the court’s award did not require Michael
    to liquidate any of his assets and, therefore, he had not incurred any tax
    consequences. The court ordered the account to be divided pursuant to a QDRO in
    order to prevent the imposition of taxes, penalties, or interest.
    However, on remand, while the family court is not required to
    consider the tax consequences of offsetting post-tax assets from pre-tax assets, it
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    may do so if it decides that would be an appropriate consideration when it
    redivides the marital property.
    Finally, Michael argues that the family court erred in including profit
    sharing bonuses in the marital estate that no longer existed at the time of the trial.
    He bases this argument on two reasons. First, he argues this part of the award
    arose from Jennifer’s untimely filed proposed findings that the court improperly
    permitted her to submit, which argument we reject. And second, that he had used
    these funds to pay for marital expenses and should not have to owe Jennifer any of
    the amount when the court declined to make Jennifer do the same thing with
    respect to the $20,000.00 she withdrew. Jennifer, on the other hand, states that
    during the trial, Michael admitted that he had received two profit sharing bonuses
    during the marriage, but after they had separated. He claimed at trial that he had
    used these funds for bills, but the family court found that he had been living with
    his parents, incurring virtually no expenses. Jennifer also argues that Michael
    failed to preserve this argument for our review, which we also reject.
    As to the merits of the argument, we disagree with Jennifer’s assertion
    that the family court’s reference to Michael having virtually no expenses is in
    relation to what he spent the bonus money on. Rather, that reference by the family
    court is in the section of the order ruling on permanent maintenance. And we
    recognize that pursuant to the status quo order, Michael was required to pay the
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    parties’ mortgage, health and car insurance, and water bill. Because we are
    vacating the division of the marital assets, the court may revisit the division of the
    profit sharing bonuses on remand if it so chooses.
    For the foregoing reasons, the orders of the Jefferson Family Court
    related to the division of marital property are vacated, and this case is remanded for
    further proceedings in accordance with this Opinion.
    COMBS, JUDGE, CONCURS.
    DIXON, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
    OPINION.
    BRIEFS FOR APPELLANT:                      BRIEF FOR APPELLEE:
    Justin R. Key                              Mary Rives Chauvin
    Jeffersonville, Indiana                    Louisville, Kentucky
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