Opinion
NO. 2013-CA-000232-MR
01-23-2015
SHAMSA HAROON APPELLANT v. SOHAIL HAROON APPELLEE
BRIEF FOR APPELLANT: Gordon J. Dill Ashland, Kentucky BRIEF FOR APPELLEE: James H. Moore, III Devon Reams-Howell Ashland, Kentucky
NOT TO BE PUBLISHED APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 12-CI-00766
OPINION
AFFIRMING
BEFORE: JONES, KRAMER, AND MAZE JUDGES. MAZE, JUDGE: Shamsa Haroon appeals from a judgment of the Boyd Circuit Court following the entry of a decree dissolving her marriage to Sohail Haroon. She challenges the trial court's valuation and allocation of marital property, and the trial court's award of maintenance and attorney fees to Sohail. We conclude that most of these issues are not properly preserved, and the trial court's judgment does not result in manifest injustice. Hence, we affirm the trial court's judgment.
Sohail and Shamsa Haroon were married on November 17, 1982, in Lahore, Pakistan. They had three children, all of whom have reached the age of majority. During their time in Pakistan, Sohail worked as a physician and eventually started a private practice. Shamsa also was employed as a physician during this time.
In 1994, Shamsa and one of the children moved to the United States. She took her exams to become licensed as a physician in Kentucky and then began a residency program at the University of Kentucky Medical Center. Sohail sold his practice in Pakistan and moved to the United States in 1995. However, in 1997, Shamsa obtained an Emergency Protective Order (EPO) after Sohail assaulted their son and threatened her. Sohail agreed to leave the United States in exchange for having the EPO and the related criminal charges dismissed.
Over the next ten years, Sohail worked as a physician in Pakistan, Saudi Arabia, and Somalia. He did not provide any support for the family during this time. Shamsa completed her residency and became a member of a pathology practice group providing services under contract to King's Daughters Medical Center in Ashland, Kentucky. She and her family maintained a primary residence in Lexington and a secondary residence in Ashland.
Sohail returned to the United States in 2007. Upon his return, he executed deeds transferring the two parcels of real property into a revocable trust. Shamsa continued to provide the primary, if not sole source of income for the family. Sohail did not attempt to obtain his license to practice medicine in Kentucky. Instead, he attended Asbury Seminary in Wilmore, Kentucky, for several years. He also worked as a physician's assistant in Richmond, Kentucky, where he earned $10 per hour. He voluntarily left that position in May 2012 and has not worked since that time.
In July 2012, another domestic violence incident occurred at the marital residence in Lexington. Shamsa testified that Sohail threatened the family with a knife. Shamsa obtained an EPO, which required Sohail to vacate the Lexington residence. Sohail then moved into the Ashland house, but he left that property a short time later.
On August 3, 2012, Sohail filed this petition for dissolution of the marriage in the Boyd Circuit Court. On the same day, Shamsa filed her own petition in the Fayette Circuit Court. Shamsa objected to venue in Boyd County. The trial court eventually determined that Boyd County would be the more appropriate forum.
The parties then engaged in an exchange of discovery and submitted the disputed matters to the trial court following a hearing on December 19, 2012. On January 4, 2013, the trial court entered its findings of fact, conclusions of law, and a decree of dissolution of marriage. In pertinent part, the trial court found that Sohail contributed very little to the marriage after 1997. The trial court also found that Sohail was fully informed of the effect of the real estate transfers in 2007, and that those properties were excluded from the marital estate by valid agreement of the parties. The trial court valued the remaining marital assets at $742,031, and awarded Sohail approximately 20% of this amount, or $150,000. The court reduced this award by $12,000 for amounts previously advanced to him.
On the issue of maintenance, the trial court stated that Sohail has been voluntarily unemployed or underemployed since 2007. Nevertheless, the court found that Sohail is "currently unable to provide for his reasonable needs but will be able to do so within a reasonably short period by updating his medical credentials...." The court further found that Shamsa was capable of meeting her needs while paying maintenance to Sohail. Based on these findings, the court ordered Shamsa to pay maintenance to Sohail in the amount of $2,000 per month for a period of 24 months. Finally, the court ordered Shamsa to contribute $8,000 toward Sohail's attorney fees.
Shamsa filed a motion to alter, amend or vacate the judgment pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. The motion specifically objected to the trial court's valuation and division of marital assets, the court's failure to require Sohail to account for income which he earned outside of the United States, and the awards of maintenance and attorney fees to Sohail. On January 18, 2013, the trial court entered an order reducing the maintenance payments to $1,500 per month, but otherwise denying the motion to alter the judgment. Shamsa now appeals to this Court.
Shamsa again challenges the trial court's valuation and allocation of marital assets and its award of maintenance and attorney fees to Sohail. As an initial matter, we note that Shamsa's brief does not indicate how or when she raised these issues before the trial court. CR 76.12 (4)(c)(v) requires that the Appellant's brief include "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." "Compliance with this rule permits a meaningful and efficient review by directing the reviewing court to ... where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself." Hallis v. Hallis, 328 S.W.3d 694, 696-697 (Ky. App. 2010).
"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[.]" Id. at 696. See also Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014). We note that Shamsa did raise these issues in her post-judgment motion, albeit in a cursory manner. Under the circumstances, we will review these findings for manifest injustice.
Shamsa first argues that the trial court erred in the determination of the value of marital estate. She focuses on two particular assets: the trial court's inclusion of the value of tax-deferred retirement assets in its calculation of the total marital estate; and the trial court's inclusion of a money market account which she states was used to pay off marital debts. Shamsa contends that Sohail's share of the marital estate was improperly inflated by inclusion of these assets.
With respect to the retirement account, there are three methods which the courts may use to divide the marital interest: the net present value method, the deferred distribution method, and the reserve jurisdiction method. Armstrong v. Armstrong, 34 S.W.3d 83, 85 (Ky. App. 2000). The net present value method, as applied in this case, results in the non-employee spouse receiving a lump sum to be distributed immediately. Id.
Shamsa argues that the trial court should have only awarded Sohail a percentage of any future benefits, rather than a cash award based upon their current value. A trial court retains broad discretion in valuing retirement accounts and choosing the method to divide such assets. Young v. Young, 314 S.W.3d 306, 310 (Ky. App. 2010). Although the evidence would have supported another method of dividing the marital interest in Shamsa's retirement account, we cannot say that the trial court's application of the net present value method was an abuse of discretion or resulted in manifest injustice in this case.
Similarly, we find no clear error or manifest injustice in the trial court's inclusion of the money market account as a marital asset. There was evidence that Shamsa withdrew approximately $222,000 from the account and used it to pay for educational expenses relating to the parties' adult children. By including these withdrawn funds in the total marital estate, the trial court implicitly concluded that these withdrawals were not for a marital purpose or with Sohail's agreement. Given our limited standard of review, this finding was not manifestly unjust.
Shamsa primarily focuses on the trial court's decision to allocate 20% of the marital estate to Sohail. The trial court expressly found that Sohail had made no contributions to the acquisition of marital property since 1997, and that Shamsa had acquired most of the marital property through her sole efforts. She also notes that Sohail failed to account for any income which he earned from 1997 to 2007 while he was outside of the country. Based upon these facts, Shamsa asserts that the trial court abused its discretion by awarding any marital property to Sohail.
However, Kentucky Revised Statutes (KRS) 403.190(3) establishes a presumption that all property acquired during the marriage is marital. KRS 403.190(1) grants the trial court wide discretion to divide the marital property in "just proportions" after considering all relevant factors. Smith v. Smith, 235 S.W.3d 1, 6 (Ky. App. 2006). Among other factors, KRS 403.190(1)(a) directs the trial court to consider "[c]ontribution of each spouse to acquisition of the marital property...."
Although Sohail clearly did not make any significant contribution to the acquisition of marital property after 1997, the parties were married for fifteen years before he left the United States. The court specifically noted that each party contributed toward the maintaining of the family and acquisition of assets while they lived in Pakistan, but there was limited evidence to determine the extent of each respective contribution. By implication, the trial court concluded that Sohail's contributions allowed Shamsa to move to this country and have the opportunity to earn a substantially greater income. We concede that the award of 20% of the marital estate to Sohail was probably still generous given his more recent conduct. Nevertheless, we cannot find that it was an abuse of discretion or results in manifest injustice under the circumstances. As such we must honor the trial court's judgment on this issue.
Shamsa next challenges the trial court's award of rehabilitative maintenance to Sohail. This Court has held that a trial court may impute income to a voluntarily unemployed or underemployed spouse for purposes of determining both entitlement to maintenance and the amount and duration of maintenance. McGregor v. McGregor, 334 S.W.3d 113, 117 (Ky. App. 2011). Shamsa argues that the award of maintenance was inconsistent with the trial court's finding that Sohail was voluntarily unemployed or underemployed since 2007.
We agree to the extent that the trial court did not directly address Sohail's current earning capacity. However, we cannot find any indication that Shamsa asked the trial court for a more specific finding on this question, as required by CR 52.04. Furthermore, the trial court found that Sohail is currently unable to provide for his reasonable needs, but will be able to do so when he becomes licensed to practice medicine in this country. The trial court allowed Sohail two years of maintenance, after which time he will be expected to fully support himself. And while the trial court's first order awarded maintenance to Sohail in excess of his monthly expenses, the trial court subsequently reduced that amount in its post-judgment order. Although this still seems rather generous under the circumstances, we cannot find that the trial court's decision to award this limited maintenance results in a manifest injustice to Shamsa. Again, we are precluded from substituting our judgment for the trial court's judgment.
Finally, Shamsa objects to the trial court's order directing her to pay $8,000 of Sohail's attorney fees. KRS 403.220 grants broad discretion to a trial court to order one party to a divorce action to pay a "reasonable amount" for the attorney fees of the other party, but only if there exists a disparity in the relative financial resources of the parties in favor of the payor. Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001). Shamsa concedes this discretion, but argues that the award was not justified given the allocation of marital assets and the award of maintenance.
As matters now stand, an award of attorney fees under KRS 403.220 is entirely within the discretion of the trial court. Id. at 520, citing Wilhoit v. Wilhoit, 521 S.W.2d 512, 514 (Ky. 1975). There is clearly a significant disparity between Shamsa's and Sohail's income. And even if Sohail obtains his medical license, his lifetime earning capacity is limited by his age and health. Although we may not have granted the award of attorney fees to Sohail under these circumstances, we cannot find that the trial court abused its discretion or that the award results in a manifest injustice to Shamsa.
Accordingly, the judgment of the Boyd Circuit Court is affirmed.
JONES, JUDGE, CONCURS.
KRAMER, JUDGE, DISSENTS AND WILL NOT FILE SEPARATE OPINION. BRIEF FOR APPELLANT: Gordon J. Dill
Ashland, Kentucky
BRIEF FOR APPELLEE: James H. Moore, III
Devon Reams-Howell
Ashland, Kentucky