Opinion
NO. 2014-CA-001352-MR
12-18-2015
TINA VAN PELT (NOW GRIGGS) APPELLANT v. FABIAN ANDREW VAN PELT APPELLEE
BRIEF FOR APPELLANT: J. Robert Cowan Lexington, Kentucky BRIEF FOR APPELLEE: Charles M. Perkins Georgetown, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE FAMILY COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 00-CI-00020 OPINION
AFFIRMING BEFORE: COMBS, J. LAMBERT AND THOMPSON, JUDGES. THOMPSON, JUDGE: Tina Van Pelt (now Griggs) appeals from a Fayette Family Court order directing her to repay overpaid child support and attorney fees, and finding that she waived any claim for contribution toward unreimbursed medical expenses.
On February 20, 2001, Tina and Fabian Andrew Van Pelt entered into a property settlement agreement as part of the dissolution of their marriage. The couple has two children, a daughter born in 1993 and a son born in 1996. Under the terms of the agreement, Andrew was responsible for the children's health and dental insurance, and he and Tina were required to "allocate all extraordinary medical expenses in proportion to the parties' income as set forth in the Child Support Guidelines." The agreement further provided that Andrew would pay child support by wage assignment.
In 2012, Andrew moved the family court to modify his child support because the daughter had graduated from high school and attained the age of eighteen. An agreed order was entered on June 19, 2012, which calculated the revised amount of his support obligation and provided for Tina to reimburse him for the overpayment anticipated between the date the new support amount took effect and the effective date of the wage assignment. The repayment was due within ten days of the overpayment. Tina failed to make the repayment. On November 21, 2012, Andrew filed a motion to compel payment of the excess child support in the amount of approximately $981.25.
According to Tina and her attorney, they failed to receive notice of the motion, and consequently were not present at the hearing. On December 17, 2012, the family court entered an order compelling Tina to repay $926.10 in child support overpayments and an additional $406.25 in attorney fees.
Tina did not make the payment, but she contacted Andrew to inform him that the children had incurred a significant amount of "extraordinary medical expenses" over the past several years, which she paid. On August 1, 2013, Andrew requested Tina to provide copies of any out-of-pocket medical expenses and proof of her notices to him of the services and amounts she believed due. On August 6, 2013, Tina sent Andrew over twenty-nine pages purporting to detail the extraordinary medical expenses.
Following a hearing on September 6, 2013, the family court ordered Tina to repay the child support overpayment on or before November 8, 2013, and to submit her claim for unreimbursed medical expenses no later than September 13, 2013. Tina did not make the payment or submit the expenses claim.
The case came before the family court again for a hearing on March 28, 2014. In its order, the court noted that Tina gave Andrew no notice of the unreimbursed medical bills for nearly a decade after the first bills were incurred and Tina raised the issue of the bills for the first time in August 2013 as an offset for the overpayment of the child support and attorney fees. The family court found that Tina had been dilatory in the matter of the unreimbursed medical expenses and consequently waived any claim for Andrew's contribution. The family court further found the documents presented by Tina regarding the unreimbursed medical expenses lacked sufficient detail and were not in appropriate form to permit adequate review. The family court ordered Tina to pay the overpaid child support and attorney fees, including additional fees for further pleadings and court appearances. Tina filed a motion to set aside the order, which was denied. This appeal followed.
We note as a preliminary matter that Tina's brief does not comply with the Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v) requirement that each argument in the appellant's brief begin with "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." Oster v. Oster, 444 S.W.3d 460, 461-62 (Ky.App. 2014). "Case law is abundantly clear that we are not obligated to search the record to locate where an issue may have been preserved." Id. at 462. "Our options when an appellate advocate fails to abide by the rules are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the brief for manifest injustice only[.]" Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.App. 2010) (quoting Elwell v. Stone, 799 S.W.2d 46, 47 (Ky.App. 1990)).
We have elected to review Tina's arguments on appeal, although we shall rely primarily on Andrew's statement of the facts.
When we review the decision of the family court, "[t]he test is not whether the appellate court would have decided it differently, but whether the findings of the family court are clearly erroneous, whether it applied the correct law, or whether it abused its discretion." Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008) (quoting B.C. v. B.T., 182 S.W.2d 213, 219-20 (Ky.App. 2005)). This Court cannot set aside a finding of fact unless it is clearly erroneous. "If supported by substantial evidence, the court's finding of fact is not clearly erroneous." Black Motor Co. v. Greene, 385 S.W.2d 954, 956 (Ky. 1964). The "test for substantiality of evidence is whether when taken alone, or in the light of all the evidence, it has sufficient probative value to induce conviction in the minds of reasonable men." Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky.App. 1999). "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).
We are also mindful that
A family court operating as finder of fact has extremely broad discretion with respect to testimony presented, and may choose to believe or disbelieve any part of it. A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous.Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky.App. 2007).
Tina argues the family court's ruling that she had not timely provided adequate documentation of the extraordinary unreimbursed medical expenses was arbitrary and not based on any controlling authority. She points out that because Andrew was required to provide a percentage of the children's insurance coverage under the terms of their settlement agreement, he would have received an explanation of benefits or other statements regarding their medical expenses on a regular basis from his insurance company and would consequently have been on notice of his obligation. As support for this argument, she relies on an unpublished opinion of this Court. CR 76.28(4)(c) requires a copy of unpublished opinions to be tendered with the brief. Tina's brief does not comply with this requirement, although Andrew has attached a copy of the opinion to his brief.
In Mitchell v. Mitchell, No. 2011-CA-000193-ME, 2011 WL 6306720 (unpublished) (Ky.App. 2011), a panel of this Court upheld a family court's finding that the father's receipt from his insurance provider detailing expenses paid by his insurance and those not paid placed him on notice that extraordinary medical expenses were being incurred and affirmed mother's entitlement to reimbursement of the money she paid toward these medical expenses that was actually owed by father. While the father argued that mother failed to show she paid the extraordinary medical expenses, the record contained a lengthy exhibit with a detailed listing of the extraordinary medical expenses paid, with receipts and medical records to corroborate. Id. at 4.
No such corroboration exists in this case. As we noted earlier, the family court specifically found that the documentation provided by Tina was not in an appropriate form to permit adequate review. According to Andrew, the documentation does not indicate which bills or portions of the bills Tina allegedly paid. Tina was provided ample opportunity to produce more informative and probative records. Under these circumstances, it was not an abuse of discretion for the family court to rule that Tina had waived her right to recover these expenses.
Tina attributes her lengthy delay in bringing the matter of the unreimbursed medical expenses to the family court's attention to her reluctance to confront Andrew. She contends that Andrew has defied the terms of the settlement agreement in the past and, in 2001, he had to be ordered by the court to comply with its medical insurance provisions. She states multiple domestic violence orders were entered to shield her from his domestic abuse and Andrew has chosen voluntarily to terminate his visitation rights with the children due to his violent behavior. She claims Andrew threatened her, telling her that she "better not" send him any medical expenses because she took the children to the doctor "too much." She states that she advised the family court of her well-established and legitimate fear of confronting Andrew. As with her other arguments, we are provided with no reference to the record to show where this claim is preserved. The purpose of providing this reference is to show this Court that the family court had been given the "opportunity to correct its own error before the reviewing court considers the error itself." Hallis, 328 S.W.3d at 697.
The trier of fact has the right to believe the evidence presented by one litigant in preference to another. The trier of fact may believe any witness in whole or in part. The trier of fact may take into consideration all the circumstances of the case, including the credibility of the witness.Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996) (internal citations omitted).
In light of the broad discretion afforded to the family court, we cannot say its decision finding Tina had waived her claim to the unreimbursed medical expenses was arbitrary, unreasonable or unfair.
For the foregoing reasons, the Fayette Circuit Court order is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: J. Robert Cowan
Lexington, Kentucky BRIEF FOR APPELLEE: Charles M. Perkins
Georgetown, Kentucky