Opinion
NO. 2012-CA-001275-MR
03-14-2014
ROGER COLEMAN APPELLANT v. GAYLE COLEMAN APPELLEE
BRIEF FOR APPELLANT: Charles W. Arnold Lexington, Kentucky BRIEF FOR APPELLEE: Suzanne Baumgardner Kami C. Brumley Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 96-CI-00665
OPINION
AFFIRMING
BEFORE: COMBS, LAMBERT, AND THOMPSON, JUDGES. COMBS, JUDGE: Roger Coleman appeals an order of the Fayette Circuit Court which increased his spousal support obligation and awarded Gayle Coleman a lump-sum retroactive support payment. After our review, we affirm.
Roger and Gayle married in Ontario, Canada, in 1969. Roger had a successful career working in sales for IBM. Gayle maintained their household, including caring for their two children. In 1991, Roger was transferred to Lexington, Kentucky, when his division was sold to Lexmark. For two years, he worked in Lexington while travelling to Toronto on weekends. Gayle visited Lexington one time but refused to relocate with Roger; they separated on January 1, 1994.
On December 20, 1995, Roger and Gayle executed a separation agreement in Toronto. It disposed of financial issues, including spousal support. It also included a clause providing that the law of the province of Ontario would govern the agreement. The agreement set an amount for Roger's spousal support obligation while also providing that the amount could be adjusted in the event of a material change in circumstances.
In 1996, Roger filed a petition for dissolution in Fayette County. On June 17, 1996, the court entered a decree of dissolution which incorporated the Ontario separation agreement. On August 7, 2008, Gayle filed a motion in Fayette Circuit Court to modify maintenance. The parties engaged in discovery for nearly three years before a hearing was held on November 14, 2011.
Gayle contended that two material changes in circumstances had occurred. First, Roger worked for several years in Hong Kong during which time his income had increased significantly. Meanwhile, Gayle's health had deteriorated to the point that she was no longer able to work.
Roger disagreed with Gayle's position. He claimed that his income had not actually changed during his time in Hong Kong but that it merely appeared inflated because of an equalization process applied by Lexmark. The equalization formula was designed to prevent Roger from being penalized by the extra expenses that he incurred from working abroad. Roger also contended that Gayle was capable of working because she is able to participate in curling, yoga, Pilates, and exercise on an elliptical machine. She is also able to go shopping, and she volunteers at a hospital.
The family court entered its findings on April 6, 2012. It found that a material change in circumstances had occurred and increased Roger's monthly support obligation. Additionally, it made a retroactive modification and awarded Gayle a significant lump-sum amount. On April 16, 2012, Roger filed a motion to amend the judgment. On May 24, 2012, he supplemented his motion with an affidavit and letters from a Lexmark employee corroborating Roger's claims about the equalization process. The trial court declined to consider the documents and denied the motion on July 9, 2012. This appeal follows.
Our standard of review for a motion to modify maintenance is to determine whether the trial court abused its discretion. Block v. Block, 252 S.W.3d 156, 159 (Ky. App. 2007). We may set aside the trial court's decision only if it was not supported by substantial evidence. Id.
The parties agree that the interpretation of the separation agreement is governed by Ontario law. Roger first argues that the family court incorrectly applied Canadian law. He contends that the family court erred by utilizing the Spousal Support Advisory Guidelines. The Guidelines are not laws that were enacted by the Canadian legislature. SSAG, Executive Summary. They serve as an advisory adjunct to the courts. Id.; Rhynold v. Rhynold, 2009 ONSC 55702 (CanLII) (citing Yemchuk v. Yemchuk, 2005 BCCA 406 (CanLII)). For our purposes, we summarize the Guidelines as providing ranges of support - low, mid, and high.
Roger argues that the Guidelines should not have been used by the Fayette County family court. He relies on Fisher v. Fisher, 2008 ONCA 11 (CanLII), in which the Ontario Court of Appeals held that "[the Guidelines] only apply to initial orders for support and not to variation orders." Id. at ¶ 96. Fisher was rendered on January 10, 2008. At that time, the Guidelines were still in draft form. Abernethy v. Peacock, 2012 ONCJ 145 (CanLII). In July 2008, the final version of the Guidelines was released. It explicitly addressed the situation in the case before us:
In cases where a spousal support agreement has been incorporated into the divorce judgment - as is the practice in many parts of the country - the agreement is treated as a court order. If the agreement provides for review or includes a material change clause, and those conditions are met, the Advisory Guidelines may be applicable to determine amount and duration.SSAG 14.1. Although Roger does not contend that the family court improperly determined that a material change had occurred, he does argue that the Guidelines should not have been used to determine specific figures. Ontario courts routinely apply the Guidelines in variation of support orders. See Meissner v. Meissner, 2013 ONSC 5621 (CanLII); Favero v. Favero, 2013 ONSC 4216 (CanLII); Misztal v. Karpynczyk, 2012 ONSC 6474 (CanLII). We are not persuaded that the family court erred in applying the Guidelines.
Parenthetically, we note that the court applied the low end of the range in order to lighten Roger's burden to some extent.
Roger next claims that the family court failed to apply Ontario law when it assigned to him the tax consequences of the lump-sum payment. Because Roger has failed to provide any legal authority for his claim, we cannot address it. See Kentucky Rule[s] of Civil Procedure (CR) 76.12(4)(c)(v) (arguments must be supported by ample references to authority); Harris v. Commonwealth, 384 S.W.3d 117, 130-31 (Ky. 2012) (It is not the function or responsibility of the court to research and argue for a party). Although Roger cites MacKinnon v. MacKinnon, 2005 ONCA 13191 (CanLII), it is not on point. MacKinnon involved the division of past tax benefits -- not future tax consequences. It holds that the trial court must consider tax implications when determining awards, and the family court did so in this case.
Roger's second argument is that the findings of the family court were unsupported by substantial evidence. He points us to several examples. First, Roger claims that the family court failed to consider the deposition of Dr. Joseph Zerga, who testified that Gayle had the ability to work. Dr. Zerga offered his opinion after reviewing her medical records, but he did not actually examine Gayle. While the family court's order did not name Dr. Zerga in the list of Roger's witnesses, it did recite information derived from the medical records that accompanied his deposition. Thus, we are satisfied that the family court actually reviewed and evaluated Dr. Zerga's testimony. Furthermore, Gayle also testified about her physical condition, and Roger was able to cross-examine her. The court chose to believe Gayle - as was its prerogative - and thus did not abuse its discretion. CR 52.01; Rose v. Ackerson, 374 S.W.3d 339, 343 (Ky. App. 2012).
Next, Roger claims that the court erroneously calculated his income from 2001 through 2011 because there was no proof of his 2011 income. However, we have reviewed the record closely, and at the hearing, Rogers offered sworn testimony of his 2011 salary. The family court used the same figure in its findings. Thus, it did not abuse its discretion.
Additionally, Roger claims that the family court miscalculated the increase in his income over the years. In his brief, he offers hypothetical and rather complicated means of determining the numbers that he believes the court should have reached. However, the issue remains succinct: whether there was evidence to support the court's decision.
Roger and Gayle both offered various methods of calculating his income. Gayle provided Roger's W2's and tax returns. Roger and his former attorney testified that the documents did not reflect his true income due to the equalization process to accommodate his sojourn in Hong Kong. Roger also presented a document of his pay history from Lexmark that showed lower income for the disputed time period. The salaries were described as base pay and did not necessarily reflect Roger's total earnings. The document also indicated that Roger had received substantial bonuses.
The court chose to ascribe greater credibility to Gayle's evidence, which consisted of tax returns. Roger presented a report from an economics expert hypothesizing what he believed the maintenance payments should be. His expert relied on the same figures from the tax documents that Gayle had utilized. In its findings, the family court acknowledged Roger's equalization claim; however, it found the numbers unreliable due to the lack of paperwork proof as substantiation. Roger's lack of documentation essentially created an open issue as to the contrasting credibility of the parties. The family court's findings were supported by the substantial evidence of tax records, and, therefore, we must affirm. CR 52.01.
Finally, Roger argues that the family court erred by not considering the supplemental evidence that he presented as part of his motion to amend the judgment. The new documentation consisted of an affidavit and four letters which corroborated Roger's explanation of the equalization formula. He relies on CR 60.02(f), which allows relief from judgment in case of a "reason of an extraordinary nature justifying relief." We have examined the record closely, and he captioned his motion as a "motion to amend or reconsider." Such motions are authorized by CR 59.05. It is firmly established that "[a] party cannot invoke CR 59.05 to raise arguments and to introduce evidence that should have been presented during the proceedings before the entry of the judgment." Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky. 2005). (Emphases added).
In this case, Roger could have obtained the information in the affidavit and letters prior to trial. He does not claim that the information was unavailable. Rather, he contends that it would have been embarrassing to ask Lexmark for documentation of why his salary was inflated during his time in Hong Kong. His reluctance may be understandable, but his embarrassment does not serve as a legal basis for allowing this evidence at this juncture. Therefore, the family court did not err in declining to consider the documentation.
Accordingly, we affirm the Fayette Circuit Court.
LAMBERT, JUDGE, CONCURS.
THOMPSON, JUDGE, CONCURS IN RESULT ONLY. BRIEF FOR APPELLANT: Charles W. Arnold
Lexington, Kentucky
BRIEF FOR APPELLEE: Suzanne Baumgardner
Kami C. Brumley
Lexington, Kentucky