Shafizadeh v. Shafizadeh

• Decision Date: 14 December 2012
• Docket Number: 2010–CA–002125–MR,Nos. 2010–CA–000758–MR,2011–CA–000825–MR.,s. 2010–CA–000758–MR
• Citation: 444 S.W.3d 437
• Parties: Saeid SHAFIZADEH, Appellant v. Denise O. SHAFIZADEH, Appellee.
• Court: Kentucky Court of Appeals

444 S.W.3d 437

Saeid SHAFIZADEH, Appellant

v.Denise O. SHAFIZADEH, Appellee.

Nos. 2010–CA–000758–MR

2010–CA–002125–MR

2011–CA–000825–MR.

Court of Appeals of Kentucky.

Dec. 14, 2012.

Rehearing Denied July 3, 2014.

Saeid Shafizadeh, Louisville, KY, pro se appellant.

Susan M. Meschler, Shelbyville, KY, Michelle Chalmers–Thompson, Louisville, KY, for appellee.

Before ACREE, Chief Judge; CLAYTON and KELLER, Judges.

OPINION

ACREE, Chief Judge:

Saeid Shafizadeh, pro se, appeals numerous orders of the Jefferson Family Court. In the first appeal, Saeid takes issue with the family court's February 3, 2010 Findings of Fact, Conclusions of Law, and Order dividing marital property, establishing maintenance and child support, and awarding appellee Denise Shafizadeh (now Dugas) attorney's fees. In his second appeal, Saeid contends the circuit court erred by granting Denise's motion to relocate and modify the parties' parenting schedule, denying his motion to modify custody, and denying his motion to discharge an order of garnishment. Finally, in the third appeal, Saeid asserts the circuit court erred in denying his motion to discharge a second garnishment order, and erred in denying his request for relief pursuant to Kentucky Rules of Civil Procedure (CR) 60.02. We have consolidated these appeals in the interest of judicial economy. For the following reasons, we affirm in part, reverse in part, and remand for additional proceedings consistent with this opinion.

I. Facts and Procedure

Saeid and Denise married on January 27, 1982, in Henderson, Louisiana. The couple separated on December 27, 2006; on February 7, 2007, Denise filed a dissolution petition in Jefferson Family Court. At that time, Saeid and Denise had two adult children and two minor children:

A.B.S., born May 5, 2002; and D.J.S., born January 25, 2005.

Denise holds a bachelor's degree in business management. Between 1998 and 2005, Denise was employed as an Operations Manager at BB & T Bank earning $28,000 per year. In 2005, Denise left her employment to assume full-time care of the parties' minor children.

Saeid is a businessman and a licensed Kentucky attorney; Saeid holds several degrees. During the marriage, Saeid incorporated three business entities: Pars International Corporation, Cheyenne Properties Corporation,¹ and The Law Firm, PLLC. Saeid is the sole shareholder in Pars International and The Law Firm; Saeid and Denise were each 50% shareholders in Cheyenne Properties. Saeid derived his income solely from these business ventures and, in 2007, Saeid's gross salary was $40,000: $30,000 from Pars International, and $10,000 from The Law Firm.

On April 10, 2008, Saeid and Denise entered into a property settlement agreement which was subsequently adopted by the family court. Under its terms, the values of the certain assets, though not all marital assets, were stipulated as follows: the marital residence: $235,000 (unencumbered); Pars International: $275,000; Cheyenne Properties: $405,000; and The Law Firm: $0. The parties agreed Denise was entitled to 48% ($439,200) and Saeid was entitled to 52% ($475,800) of these assets. To advance a straightforward division of these assets, Denise received the marital residence, and Saeid agreed to pay Denise the sum of $204,200 as a cash settlement, thereby equalizing the division of property.

Thereafter, on June 24, 2008, Saeid and Denise entered into an agreed order regarding custody, which was subsequently incorporated into their decree of dissolution. Under its terms, Saeid and Denise agreed to joint custody of A.B.S. and D.J.S. without designating a primary residential parent. The agreement also set forth a detailed parenting and holiday schedule.

The family court entered the decree of dissolution on July 24, 2008.

On December 18, 2008, a trial was held on the issues of child support, maintenance, and division of the remaining marital property. There were several contested property issues. Saeid and Denise owned four vehicles, two motorcycles, and seven shares of stock. Both parties had individual retirement and bank accounts. The parties also had $122,500 in cash (previously held in a joint bank account), and $27,500 in an “emergency” fund.

On February 3, 2010, the family court entered its Findings of Fact, Conclusions of Law, and Order. The family court awarded Saeid three vehicles, the stock, and the motorcycles, and awarded Denise the remaining vehicle. Saeid received $55,931 of the $122,500 held in the joint bank account, and $25,513 of the $27,500 emergency fund; Denise received $66,659.00 from the joint bank account, and $1,987.00 of the emergency fund.²

Each party received his or her respective retirement and bank accounts. In sum, Saeid and Denise each received $90,301.00 in marital assets.³

The family court also restored to Denise two nonmarital assets: (1) an interest in an oil and gas lease inherited by Denise following the death of her father; and (2) a pain and suffering judgment from a personal injury lawsuit. Denise assumed responsibility for $2,043 in credit card debt, and the family court assigned Saeid the remaining debt which consisted of $101 on a BB & T Visa credit card.⁴

The family court further awarded Denise “open ended” maintenance in the amount of $750 per month, and attorney's fees in the amount of $6,412. Finally, with respect to child support, the family court concluded Saeid was capable of earning more money and, as a result, was voluntarily underemployed. The family court imputed earnings to Saeid at $60,000 per year, and awarded Denise $859.00 per month in child support.

The family court denied Saeid's motion for post-judgment relief. Saeid timely appealed.

As additional facts become relevant, they will be discussed.

II. February 3, 2010 Order and Related Issues

A. Jurisdiction

On December 21, 2009, before the family court entered its Findings of Fact, Conclusions of Law, and Order on February 3, 2010, Saeid filed a petition with the Chief Justice of the Kentucky Supreme Court, pursuant to Kentucky Revised Statutes (KRS) 26A.020, seeking to disqualify the family judge. The Chief Justice denied Saeid's petition on March 12, 2010, finding it failed to demonstrate any disqualifying circumstance or event.

Nonetheless, Saeid contends the family court lacked authority to enter its February 3, 2010 order because Saeid's pending petition for disqualification divested the family court of jurisdiction. Whether the family court acted outside its jurisdiction is a question of law. Biggs v. Biggs, 301 S.W.3d 32, 33 (Ky.App.2009). We review the issue de novo. Id.

“[A] party or counsel may seek to disqualify or recuse a judge from proceeding further in a matter either by filing an affidavit pursuant to KRS 26A.020, by filing a motion with the judge pursuant to KRS 26A.015, or by filing both.” Kenney v. Hanger Prosthetics & Orthotics, Inc., 269 S.W.3d 866, 876 (Ky.App.2008). KRS 26A.020(1) provides, in pertinent part, that:

If either party files with the circuit clerk his affidavit that the judge will not afford him a fair and impartial trial ... the circuit clerk shall at once certify the facts to the Chief Justice who shall immediately review the facts and determine whether to designate a regular or retired justice or judge of the Court of Justice as special judge.

Construing KRS 26A.020(1), our Supreme Court has explained: “The circuit judge does not have a hearing on the affidavit to disqualify. If it is sufficient on its face he has no alternative but to step aside or to stay proceedings pending determination of the challenge.” Jackson v. Commonwealth, 806 S.W.2d 643, 645 (Ky.1991). In Diaz v. Barker, 254 S.W.3d 835 (Ky.App.2008), this Court reiterated that “under the recusal remedy set out in KRS 26A.020(1), the trial judge is not to make the recusal determination and the case is to be held in abeyance pending the Chief Justice's determination.”Id. at 838 ; Jackson, 806 S.W.2d at 645 (explaining the trial court “is without further jurisdiction to proceed in the matter until the Chief Justice acts or until a special judge is designated”).

Saeid relies on Jackson and Diaz in making his argument that because the family court entered its February 3, 2010 order while his December 21, 2009 disqualification petition was pending before the Chief Justice, the family court lacked jurisdiction to enter its order. As a result, Saeid maintains, the family court's February 3, 2010 order is void ab initio.

We agree that, pursuant to Jackson and Diaz, the family court's February 3, 2010 order, entered while Saeid's petition for disqualification was pending, was premature. However, we do not think the defect of prematurity extinguishes an otherwise proper order simply because the family court entered it before the Chief Justice ruled on Saeid's petition.

It is, of course, “fundamental that a court must have jurisdiction before it has authority to decide a case.” Wilson v. Russell, 162 S.W.3d 911, 913 (Ky.2005). However, in Hisle v. Lexington–Fayette Urban County Government, 258 S.W.3d 422 (Ky.App.2008), this court discussed the interplay between jurisdiction and the effect of an order or judgment entered absent jurisdiction.

The court first distinguished the various categories of jurisdiction, i.e., personal jurisdiction, subject matter jurisdiction, and particular case jurisdiction. Id. at 429. With respect to the latter two, the court explained subject matter jurisdiction refers to the trial court's “authority over ... [a] general type of controversy,” i.e., the ability to hear “this type” of case, “whereas[ ] particular case jurisdiction focuses on a more limited or narrow fact-specific situation.” Id. at 429, 434 ; Commonwealth v. Griffin, 942 S.W.2d 289, 291 (Ky.1997). Succinctly put, “subject matter jurisdiction refers to a court's authority over ‘this kind of case’ as opposed to ‘this [specific] case.’ ” Hisle, 258 S.W.3d at 429 (citing Duncan v. O'Nan, 451 S.W.2d 626, 631 (Ky.1970) ). “Particular case jurisdiction is a subset of...