Penner v. Penner

• Decision Date: 27 September 2013
• Docket Number: No. 2011–CA–002238–MR.,2011–CA–002238–MR.
• Citation: 411 S.W.3d 775
• Parties: Thomas Henry PENNER, Appellant v. Linda Lane Blevins PENNER, Appellee.
• Court: Kentucky Court of Appeals

411 S.W.3d 775

Thomas Henry PENNER, Appellant

v.Linda Lane Blevins PENNER, Appellee.

No. 2011–CA–002238–MR.

Court of Appeals of Kentucky.

Sept. 27, 2013.

Julie A. Johnson, Louisville, KY, for appellant.

Mary Jane Lintner, Louisville, KY, for appellee.

Before LAMBERT, MOORE, and VANMETER, Judges.

OPINION

LAMBERT, Judge:

Thomas Penner (Tom) appeals from the Jefferson Circuit Court, Family Division's September 12, 2011, and December 6, 2011, orders regarding calculation of maintenance and child support, the division of the parties' assets, and the award of attorney's fees to Linda Lane Blevins Penner (Lane). After careful review of the record, the hearings, and the parties' arguments, we affirm in part, reverse in part, vacate in part, and remand.

Tom and Lane met in September 1994 while working for a law firm in Atlanta, Georgia. Tom was a law clerk and Lane was a paralegal. The parties were married on November 25, 1995. Tom started law school at Emory University in 1996. Also in 1996, Lane began having symptoms of multiple sclerosis, and she has since been diagnosed with recurring and remitting multiple sclerosis, which results in sporadic fatigue, mild cognitive issues, and numbness in her arms and legs. Lane took off a couple months to rest, but then she resumed her employment.

In 1997, the couple started trying to have a family, and Lane had to undergo fertility treatments. She quit her job so she could focus more on that effort. When Lane was unable to get pregnant, the parties decided to adopt. They adopted Mary Lane in 2000 and Eloise in 2001. Mary Lane and Eloise were adopted at the time of their respective births and are biological sisters. Lane never resumed employment after the adoption of the girls until the parties separated much later.

Tom graduated from law school in 1999, and the parties moved to Louisville when Tom accepted a one-year clerkship with the Sixth Circuit Court of Appeals. At the end of the clerkship, the parties returned to Atlanta, where Tom accepted employment at Alston & Bird. In 2003, Tom and Lane moved back to Louisville so Tom could accept a position with Frost Brown Todd. In 2004, Tom left that position to accept his current position as an attorney at Humana, Inc.

The oldest adopted child, Mary Lane, has been diagnosed as being ADHD with secondary visual memory impairment. The younger child, Eloise, has been diagnosed with Dyssemia and Asberger's Syndrome. Both children attend Summit Academy, a private school for children with special educational needs, at a cost of approximately $30,000.00 per year.

Tom and Lane both received financial assistance from their families during the marriage. Tom testified that while in law school, his grandmother provided him with the annual IRS exclusion amount and purchased his books and clothing. Lane received an inheritance of $338,151.00 from her grandfather during the marriage. Additionally, Lane's father, Harold Blevins, M.D., gave Lane at least $1,000.00 to $2,000.00 per month prior to the parties' separation. Dr. Blevins also paid for the parties' daughters to attend Summit Academy during the parties' marriage. Dr. Blevins testified that he volunteered to pay for the girls to attend Summit Academy because it appeared Lane and Tom could not afford it.

Lane and Tom separated on October 1, 2007, and Tom filed a petition for dissolution of marriage on October 30, 2007. Around that time, Tom vacated the marital residence. By order dated June 30, 2008, the trial court set child support at $1,639.00 per month. By order dated August 15, 2008, the trial court awarded maintenance to Lane in the amount of $3,600.00 per month. The trial court required Lane to pay the first and second mortgage on the marital residence, the minivan payment, and the utilities and food associated with the marital residence. Lane did not make the payments as required, which resulted in a foreclosure action being filed and Tom having to cash in stocks to cure the $14,198.46 default.

As a result of Lane's failure to make the mortgage payments, the trial court ordered Tom's maintenance payments to be reduced to zero retroactive to December 1, 2009, and required him to make the first and second mortgage payments. Lane subsequently vacated the marital residence, and Tom moved back into it. On April 1, 2010, Lane made another motion for pendente lite maintenance, requesting $1,000.00 per month. Tom filed a response in objection to Lane's motion on April 22, 2010. Without having a hearing, the court ordered Tom to pay Lane $500.00 per month in maintenance on May 1, 2010.

The original August 15, 2008, order also required Tom to pay the children's private school tuition at Summit Academy in addition to maintenance. Tom filed a motion on August 21, 2008, to vacate the part of the ruling requiring him to pay the tuition, and this motion was passed to trial. Tom's position throughout this action was that the children should go to Jefferson County Public Schools (JCPS) because he felt they should be mainstreamed into a public school setting. At trial, Tom presented the testimony of Susan Van Fleet McGurk, Psy.S., who is employed by the JCPS as a school psychologist, regarding the sufficiency of JCPS for the parties' daughters. Following her testimony, Lane's counsel stated that Lane would voluntarily secure the funds to pay 100% of the children's tuition at Summit Academy if the trial court would find that it is in their best interest to continue their education there.

Regarding Tom's income, Tom is currently employed as an attorney for Humana. During the marriage, his compensation included his salary, an incentive bonus (MIP), and restricted stock grants. The stock grants that Tom received were on a three-year vesting schedule, which means that the shares granted would vest through 2012. As there was no stock granted in 2010, there would not be any stock vesting in 2013. When the stock vests, Humana simultaneously sells enough shares to pay taxes on the entire grant, and Tom receives the remaining balance of the shares. At the October 2, 2009, trial, Tom presented the testimony of CPA Gwen Tilton for purposes of explaining this process. By way of example, Ms. Tilton explained that the Humana stock that vested in 2008 was worth a total of $89,918.79 on the date of vesting, with this amount being reflected on Tom's W–2. On the day of vesting, Humana simultaneously sold shares valued at $36,449.72 in order to pay the taxes. Therefore, Tom only actually received stock worth $53,469.07. At the time of vesting, the price per share was $69.34. The remaining shares, which Tom did not sell prior to the trial, had significantly dropped in value to less than $40.00 per share.

On April 22, 2010, Tom filed a motion alleging that Lane dissipated marital funds by refusing to file the 2009 taxes with him under the designation of “married filing jointly.” This motion was passed to the final day of trial on July 29, 2010. On that day Tom presented to the trial court a notice of compliance and an affidavit from a CPA stating that if Lane would have filed her taxes jointly with Tom, the parties would have had a refund in the amount of $8,804.00, as opposed to a tax liability for Tom of $13,621.00.

The court entered a limited decree of dissolution of marriage on March 16, 2010. The court heard trial testimony on October 7, 2009, December 2, 2009, and July 29, 2010. The trial court held the record open after the last hearing to allow the parties to take additional trial depositions. The case was submitted for adjudication on December 20, 2010. The trial court entered its findings of fact and conclusions of law on September 12, 2011.

In that order, the trial court awarded joint custody of the children to the parties and established a week on/week off equal timesharing arrangement for the parties with the children. The trial court ordered that the children would continue to attend Summit Academy at Lane's expense and awarded the marital residence to Tom (which had no equity and which Tom later sold at a loss). The trial court ordered each party to retain their vehicles and awarded an equal division of Tom's retirement and all vested and unvested Humana stock. The trial court instructed the parties to keep the furniture they currently possessed and ordered each party to be responsible for their own debts incurred after the separation and awarded Lane maintenance of $2,000.00 per month for 48 months. Child support was awarded to Lane in the amount of $1412.00 per month, with Tom providing the children's health insurance and a 22.78% (Lane) and 77.22% (Tom) split of the children's work-related childcare and extraordinary medical expenses in excess of $100.00 annually. The trial court ordered each party to pay their own attorney's fees.

The parties both filed Kentucky Rules of Civil Procedure (CR) 52.04 and CR 59 motions on September 20, 2001. The trial court held a hearing in October and issued an order denying Tom's motion on December 6, 2011. The trial court issued a separate order on that same date granting Lane's motion in part by awarding her $31,249.00 in attorney's fees.

Tom now appeals from the court's September 12, 2011, findings of fact and conclusions of law and both of the December 6, 2011, orders with respect to the following: 1) the trial court's calculation of Tom's income for child support and maintenance purposes; 2) the trial court's refusal to include the total value of the gifts received by Lane from her parents as income to her; 3) the trial court's refusal to include Lane's actual earned income or to impute earned income to Lane for child support and maintenance purposes; 4) the trial court's refusal to deviate from Kentucky's child support guidelines and adjust his child support obligation as a result of its award of an equal timesharing arrangement with the children; 5) the trial court's refusal to give Tom a credit for the private school tuition payments he made...