Opinion
NO. 2012-CA-001970-MR
04-25-2014
ROBBY JUDE ALBARADO APPELLANT v. KIMBER COWAN ALBARADO APPELLEE
BRIEF FOR APPELLANT: Hugh W. Barrow Louisville, Kentucky BRIEF FOR APPELLEE: B. Mark Mulloy Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 11-CI-501802
OPINION
AFFIRMING
BEFORE: COMBS, DIXON, AND VANMETER, JUDGES. COMBS, JUDGE: Robby Jude Albarado appeals from several portions of the decree of the Jefferson Family Court dissolving his marriage to Kimber Cowan Albarado. That decree established his maintenance and child support obligations as well as the division of marital property. In addition, Albarado contends that the court abused its discretion by classifying funds paid to Kimber, pendente lite, as temporary maintenance and temporary child support. Finally, Albarado argues that the family court abused its discretion by awarding attorney's fees. After our review, we affirm.
Robby and Kimber were married in February 2001. Three children were born of the marriage, and the couple amassed both a substantial marital estate and a significant debt. Kimber filed for divorce in May 2011.
On September 20, 2012, the family court entered a decree of dissolution. Based upon his past earnings, the court found that Robby was capable of producing gross income of $29,583 per month. Although Kimber had never worked outside the home during the marriage, the court projected that she could earn $1,256 per month. Based upon those projected earnings, the court found that Kimber would have a net shortfall of $5,050 with respect to her reasonable monthly living expenses. The family court found that the children's reasonable monthly living expenses, including their share of the household expenses and their insurance premiums, totalled $4,780. The court also found that, in addition to the marital home, the parties have equity in a fifteen-acre farm.
The family court concluded that Kimber was entitled to maintenance and ordered Robby to pay to her $6,750 per month for four years. Robby was also ordered to pay to Kimber an additional $2,968.41 per month for the support of the children and payment of the children's health insurance premiums.
Robby was awarded $67,498.95 as his non-marital interest in the marital home. The remaining equity was to be divided equally between the parties. The equity in the farm was also divided equally between them -- as was a portion of the proceeds from the sale of a New Orleans townhouse, which was sold during their separation. Annual proceeds derived from a breed share at Lane's End Farm were also to be divided evenly. The parties' personal property, including cars, farm equipment, live stock, investment accounts, life insurance, and retirement savings, was identified and distributed to them. The parties' debts were also divided. Finally, Robby was ordered to pay $20,000 (in addition to the $15,000 he had previously advanced) toward Kimber's attorney's fees. This appeal followed.
The case was tried before the court without a jury. In such a case, our review is narrowly circumscribed. Kentucky Rule[s] of Civil Procedure (CR) 52.01 provides that we must afford due regard "to the opportunity of the trial court to judge the credibility of the witnesses." It directs that the trial court's "[f]indings of fact shall not be set aside unless clearly erroneous." If they are supported by substantial evidence, the trial court's findings of fact cannot be deemed to be clearly erroneous. Moore v. Asente, 110 S.W.3d 336 (Ky. 2003).
On appeal, Robby first contends that the family court abused its discretion by projecting his income to be $29,583 per month. He argues that this alleged error tainted and rendered invalid the court's maintenance and child support computations.
Robby is a highly successful jockey. The evidence in this case indicates that he reported income of more than $1,000,000 in 2008, more than $550,000 in 2009, and more than $300,000 in 2010. At the time of trial, the parties had not yet filed 2011 tax returns; however, financial records through June 2012 indicated that Robby's most recent winnings had declined substantially from 2008. Year to year, Robby's reported income had generally ranged from 3.5% to 7% of his annual winnings. In 2011, Robby's winnings totalled $5.8 million. While he testified at trial that his recent winnings had been affected by physical injuries and personal setbacks, Robby indicated that he expected his racing career to rebound and that he could continue to race for another seven to nine years.
The family court was assuredly in the best position to estimate Robby's annual income. Considering the evidence, the court found that Robby could match his reported income from 2010 and earn an annual income of at least $355,000 prospectively. Because this finding is supported by substantial evidence, it is not clearly erroneous. Thus, there is no basis for reversal.
Next, Robby contends that the family court abused its discretion in establishing his maintenance obligation. He contends that the court failed to consider the substantial value of the marital property awarded to Kimber during the proceedings as compared to the negligible debt assigned to her. Additionally, he argues that the family court failed to properly evaluate his ability to pay his own expenses while contributing to Kimber's maintenance. Finally, he asserts that the family court erred by failing to consider Kimber's failure to make any effort to seek employment or to obtain any education or vocational training during the parties' separation. We disagree with these assertions.
The provisions of Kentucky Revised Statute[s] (KRS) 403.200 require the family court to engage in a two-step process when analyzing a request for maintenance. First, the court must determine whether the party seeking maintenance can meet his or her reasonable needs without assistance. If the court concludes that a maintenance award is warranted under the circumstances, the court must undertake the additional step of establishing the proper amount and duration of the award in light of several statutory factors. The court is not required to render findings of fact with respect to each relevant statutory factor. McGregor v. McGregor, 334 S.W.3d 113 (Ky. App. 2011). The extent to which a spouse seeking support has tried to find employment or has begun an educational or training program is not among the factors mandatorily prescribed for consideration by the family court.
In analyzing whether a party seeking maintenance can meet his or her reasonable needs without assistance, the statute directs the court to determine whether the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; andKRS 403.200(1)(a), (b). Both sections of the statute must be satisfied before the family court may award maintenance. Atwood v. Atwood, 643 S.W.2d 263 (Ky. App. 1982).
(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.
Robby contends that the court's finding that Kimber lacked sufficient property to provide for her reasonable needs is clearly erroneous. He relies on the fact that Kimber was awarded a share of the equity in the parties' real property in addition to one-half of the parties' retirement savings and one-half the proceeds of a breeding share that has provided an annual dividend for several years.
However, the family court found that Kimber, an unemployed, high-school graduate with very limited work experience, could work at a full-time position earning minimum wage. Considering the comfortable lifestyle established during the marriage, the court found that any income that her property could produce, along with the earnings that it imputed to her, was insufficient to provide for her reasonable needs. The court found that Kimber needed additional time to become self-sufficient. These findings are amply supported by the evidence. The family court did not abuse its discretion, and there is no basis upon which to disturb its conclusion that Kimber is entitled to maintenance under the circumstances.
After the family court concluded that Kimber was entitled to an award of maintenance, it established the amount and duration of the award by applying the following factors set forth in KRS 403.200(2):
(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
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
Robby contends that the family court abused its discretion by failing to consider: 1) the extent of the financial resources awarded to Kimber, 2) his ability to meet his own needs as well as hers, and 3) her failure to present a time frame for her expected entry into the workforce. However, that contention is contradicted by the express terms of the family court's judgment. The court meticulously addressed the relevant statutory factors in reaching its conclusion. Furthermore, with respect to Robby's argument that the family court failed to consider his ability to meet his own needs, the court directly refuted his assertion by its following findings:
Mr. Albarado has also requested additional findings with regard to his personal living expenses and his ability to pay maintenance. Mr. Albarado submitted a list of anticipated monthly expenses that total $21,220. The Court finds these to be greatly overstated and unreasonable in light of the parties' financial resources. For example, Mr. Albarado includes the cost of maintaining the marital residence and a 15-acre farm, though both properties are likely to be sold. With regard to the marital residence, the parties currently pay $5,600The amount and duration of maintenance awards are matters within the sound discretion of the trial court. Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990). The record indicates that the family court properly considered the relevant statutory factors and that its findings were adequately supported by the evidence. Thus, the court did not abuse its discretion.
per month on a 15-year mortgage, which includes additional principal reduction. It is unreasonable for Mr. Albarado to aggressively reduce his mortgage, while denying Ms. Albarado basic housing. Mr. Albarado includes other unjustifiable expenses, such as the cost of maintaining two vehicles, social club memberships and $500 per month for gifts. Finally, he includes $1,360 per month for tuition and education, though the children attend public schools. After review, the Court finds that Mr. Albarado's reasonable monthly expenses total no more than $13,000, including his child support obligation. He has the ability to earn a gross monthly income of $29,583, which is sufficient to meet his reasonable needs and to pay maintenance as ordered.
Robby next contends that the family court erred in computing his child support obligation. He contends that the court erred by finding that the children's monthly expenses amounted to $4,780.00 per month; he argues that this alleged error was compounded by the court's failure to calculate his income accurately. Again, we disagree.
The court determined that the combined adjusted parental gross income exceeded the highest levels of the child support guideline table. Therefore, it properly utilized its considerable discretion to determine the amount of support to which the children were entitled in this case. Based upon the evidence presented, the court found that the children's share of the costs for housing and utilities was a portion of one-half of the cost of maintaining the marital residence. It found that an additional $500 per month was spent for the children's food and personal items and $568.79 for their monthly health insurance premium. Robby was ordered to pay $2,968.41 per month for the support of the children. The findings were based upon substantial evidence, and there was no abuse of discretion.
Robby also argues that the family court erred in its distribution of two of the parties' assets. He contends that the court erred by awarding Kimber one-half of the proceeds of the sale of their New Orleans townhouse and one-half of the 2012 proceeds of the breed share, arguing that these funds were consumed by the parties during their separation and were not part of the marital estate at the time of trial. We disagree with Robby's contention.
After the parties separated and Robby sold the New Orleans townhouse, the family court ordered that the proceeds (totalling $221,025.41) be deposited into an interest-bearing account pending resolution of the action for dissolution. Instead of complying with that court order, Robby paid $72,000 to the Internal Revenue Service and deposited $49,000 into the parties' retirement savings. Although the family court ordered division of the remaining $100,025.41, Robby argues that this sum was exhausted as he struggled to pay outstanding marital debts during the period of separation -- as were the 2012 proceeds (amounting to $23,500.00) of the breed share.
It is within the sound discretion of the trial court to determine what constitutes an equitable distribution of marital property. Its discretion cannot be disturbed on appeal absent abuse of discretion. Hempel v. Hempel, 380 S.W.3d 549 (Ky. App. 2012). The family court's division of these assets is supported by the evidence. The court found that at the outset of the dissolution action, Kimber withdrew $30,000.00 from the parties' investment account (one-half of its value) in order to fund her individual checking account. The family court concluded that Kimber had used the proceeds to pay marital debts; nevertheless, Robby was awarded the remaining value of the account.
Robby indicated that the proceeds from the sale of the townhouse and from the 2012 breed share had likewise been consumed. The family court accepted Robby's testimony with respect to his payment of taxes and contribution to the parties' retirement account, but it did not find that the entirety of the remaining proceeds had been absorbed for the benefit of the marital estate. Instead, the court found that only a portion of the 2012 breed share proceeds had been used to pay some marital debt and that this debt had been made his separate obligation by the terms of an agreed order entered in April 2012. The court was not compelled by the evidence to make a different finding, and there was no abuse of discretion.
Robby also contends that the family court abused its discretion by classifying funds paid to Kimber during the litigation as temporary maintenance and temporary child support. Again, we disagree.
Pursuant to a temporary order entered in September 2011, the parties were to tender any and all income to a designated accountant, who would deposit the funds into a custodial account from which the parties' monthly expenses would be paid. Additionally, Kimber was to receive $7,500 per month, and Robby was to receive $5,000 per month. The monthly personal allowances were not characterized in the order as maintenance, child support, or advances against the marital estate.
In April 2012, the parties reached their own agreement regarding the prospective maintenance of the financial status quo. An agreed order was duly entered. Under the terms of that order, Robby was to pay the monthly mortgage payment, insurance premiums, utility bills, cell phone bill, car payments, and minimum credit card payments. Additionally, he was to pay to Kimber $6,000 per month. The order specifically provided that the "characterization of these payments as temporary maintenance, temporary child support or distribution of marital funds is reserved to the further agreement of the parties or the subsequent order of this Court." Order at 2.
In its final judgment, the family court directly addressed this issue and concluded that payments made to Kimber pursuant to the September 2011 temporary order were to be considered to be an advance on the marital estate and not as temporary maintenance or child support. However, it characterized the funds paid to Kimber pursuant to the April 2012 agreed order as temporary child support and temporary maintenance.
On appeal, Robby contends that temporary maintenance and temporary child support can be ordered only where the party seeking financial assistance files a proper motion. He argues that the family court erred by failing to conclude that the funds paid pursuant to the April 2012 agreed order also amounted to an advance on the marital estate because Kimber did not file a proper motion requesting temporary support. However, the agreed order specifically provided that the family court might decide how to characterize the payments. Thus, we cannot agree that it erred as a matter of law or abused its discretion by so doing. In light of terms of the order, Robby's assertion lacks foundation.
During the pendency of the action, Robby was required to advance $15,000.00 toward Kimber's attorney's fees. On appeal, he contends that the family court abused its discretion by awarding Kimber another $20,000.00 toward the payment of her attorney's fees. We disagree.
Where disparity exists in the relative financial resources of the parties, the provisions of KRS 403.220 authorize the family court to order one party to a dissolution proceeding to pay a "reasonable amount" for the attorney's fees of the other party. The family court has broad discretion under the provisions of the statute to determine the appropriate amount of the fees to be paid. Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001).
Robby contends that the family court abused its discretion by awarding Kimber the additional $20,000.00 toward her attorney's fees since no imbalance in financial resources existed between the parties at the time of dissolution. However, it appears that the court carefully considered the parties' financial resources -- including their ability to earn an income -- before determining that an imbalance existed in their financial resources. Accordingly, we cannot say that the family court abused its discretion by awarding Kimber an additional $20,000.00 in attorney's fees.
We affirm the order of the Jefferson Family Court in all respects.
ALL CONCUR. BRIEF FOR APPELLANT: Hugh W. Barrow
Louisville, Kentucky
BRIEF FOR APPELLEE: B. Mark Mulloy
Louisville, Kentucky