Stipp v. Charles
| Decision Date | 02 July 2009 |
| Docket Number | No. 2008-CA-000400-MR.,2008-CA-000400-MR. |
| Citation | 291 S.W.3d 720 |
| Parties | Michael E. STIPP, Appellant, v. Anna M. ST. CHARLES, Appellee. |
| Court | Kentucky Court of Appeals |
James Dean Liebman, Frankfort, KY, for appellant.
Peter L. Ostermiller, Robert G. Stallings, Louisville, KY, for appellee.
Before ACREE and NICKELL, Judges; KNOPF,1 Senior Judge.
This is an appeal from an order of the Jefferson Family Court dispensing with several matters relative to the dissolution of the marriage of Anna St. Charles (formerly Stipp) and Michael Stipp. Michael contends that the family court erred by finding that he waived objection to venue and further argues that the family court committed several errors in dividing the parties' marital assets and awarding maintenance benefits. We affirm.
The parties were married on June 25, 1987, and separated in April 2007. Anna and Michael have one minor child, now in his late teens. When the parties married, Anna was working for the Lexington Herald-Leader newspaper. She had a bachelor's degree from the University of Kentucky. Michael had dropped out of college to work at his father's surveying business. The most he earned in one year was $30,000 to $35,000.
The parties remained in Lexington for approximately ten years, then due to promotions and better job opportunities for Anna, the couple and their child moved to Pennsylvania, South Carolina, Louisiana, and finally settled in Oldham County in October 2005. While living in Pennsylvania, the parties jointly decided that Michael would stay at home and take care of the parties' child. However, Anna maintains she encouraged Michael to work while they lived in South Carolina and Louisiana.
Anna's current annual salary is $235,000 and is supplemented with bonuses, stock options and stock units. She received a $25,000 bonus in early 2007. Her monthly net income after taxes and various insurance premiums is $13,721.
In 2007, Anna sent the parties' child to a behavioral treatment program in Idaho after he attempted suicide. Anna did not consult Michael concerning this decision. Tuition for the program was $8,500 per month. Anna had to borrow $62,640 against her 401K retirement plan to pay the tuition while in Idaho. Michael did not contribute to these expenses.
Anna filed for divorce on April 9, 2007, in Jefferson Family Court. Initially, the parties continued to live together in the marital residence located in Prospect, Kentucky, in Oldham County near the Jefferson County line. On April 23, 2007, Anna filed a domestic violence petition against Michael in Oldham Family Court and an emergency protection order was entered.
On April 30, 2007, Michael filed his response to the divorce petition. He requested that the parties be awarded joint custody of their child, that marital property be divided, and that he receive maintenance from Anna.
Michael also made note of the fact that "neither party resided in Jefferson County" and that "proper venue for this action lies in Oldham County." He did not, however, object to venue. Instead, Michael stated that he "reserves the right to ask this court to transfer this case to the Oldham Circuit Court."
Michael filed his mandatory case disclosure on May 21, 2007. In that document, he provided legal and factual information concerning his financial circumstances and concerning his identification of the issues to be decided by the family court. In particular, Michael indicated that the legal issues to be resolved included maintenance, property division, valuation of assets and debt allocation. Michael also noted that he was currently living in Lexington. He still did not object to venue.
A case management conference was scheduled by the family court for June 25, 2007. Mediation was also scheduled for early July.
Michael and Anna continued to move forward with the divorce in Jefferson Family Court as evidenced by respective filings on May 24 and 31, 2007. On June 8, 2007, the parties executed an agreed order which was tendered to the family court and entered on June 12, 2007. The order included an agreement to request the dismissal of the domestic violence order of protection in Oldham County. On June 20, 2007, the domestic violence order was dismissed.
On June 25, 2007, the Jefferson Family Court entered an order rescheduling the parties' case management conference to July 20, 2007. Also on June 25, Michael filed a motion requesting a transfer of the case from Jefferson County to Oldham County on grounds of improper venue. The motion noted that Anna still lived in Oldham County and Michael lived in Fayette County.
On July 20, 2007, the family court proceeded with the status conference. Addressing Michael's motion in which he actually objected to venue for the first time, the court found it to be untimely and denied it on that basis.
The family court conducted a final hearing on October 4, 2007, before entering an order containing findings of fact, conclusions of law and a judgment on December 4, 2007. The court awarded Anna 57% of the marital assets and 43% to Michael. It awarded Michael maintenance of $2,000 per month for a period of six years. Further, Anna was directed to continue providing health insurance coverage for Michael for a period of three years.
On December 14, 2007, Anna filed a motion to alter, amend or vacate the December 4, 2007 judgment challenging certain portions of the order. On February 1, 2008, the family court entered an order upholding its previous judgment except issues concerning the disposition of the 2006 income tax refunds and the time period Anna was to provide health insurance coverage for Michael. The 2006 income tax refund was to be allocated for the parties' joint childcare obligation; however, it had been erroneously included in the total value of the marital assets to be distributed. The trial court remedied this mistake by reducing the amount Anna was ordered to transfer from her 401K via a qualified domestic relations order. The family court further agreed to reduce the length of time that Anna was required to provide insurance coverage for Michael to eighteen months, the period of allowable coverage under Anna's health insurance plan.
Thereafter, Michael filed his appeal from the July 24, 2007, December 4, 2007, and February 1, 2008 orders.
We review the findings of fact in a dissolution action only to determine if they are clearly erroneous. Kentucky Rules of Civil Procedure (CR) 52.01; Sexton v. Sexton, 125 S.W.3d 258 (Ky.2004); Ghali v. Ghali, 596 S.W.2d 31 (Ky.App.1980). CR 52.01 states, in part,
Findings of fact shall not be set aside unless clearly erroneous, and due respect shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
The trial court's conclusions of law are reviewed de novo. Gosney v. Glenn, 163 S.W.3d 894, 898-99 (Ky.App.2005).
Miller v. Watts, 436 S.W.2d 515, 518 (Ky.1969).
Decisions concerning the division of marital property are also within the sound discretion of the trial court, and will not be disturbed except for an abuse of that discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky.2001).
Citing KRS 452.470,2 Michael argues that Oldham County is the proper venue for the dissolution proceeding and that the family court erred by denying his motion to transfer the case. We disagree.
Our analysis presumes that when Anna filed her dissolution petition in Jefferson Family Court, Oldham Family Court was the proper venue. However, by choosing the court in Jefferson County, she waived her right to object to venue there. Seymour Charter Buslines, Inc. v. Hopper, 111 S.W.3d 387, 390 (Ky.2003)(With rare exception, "plaintiff, by bringing the suit in a district other than that authorized by the statute, relinquished his right to object to the venue"; quoting Olberding v. Illinois Centr. R. Co., Inc., 346 U.S. 338, 340, 74 S.Ct. 83, 85, 98 L.Ed. 39 (1953)). This gave Michael tactical alternatives. He could accept Anna's choice of Jefferson Family Court as the forum simply by declining to object. But he also had the option under the Civil Rules to object and assert the defense that Anna brought the action in the wrong venue. He sought to do neither.
Instead, Michael attempted in his response to "reserve" the right to raise improper venue as a defense at a later time. Two months later, Michael did file a motion to "to transfer venue." He claims "[t]his sequence of events should not have constituted waiver." We disagree.
"Improper venue" is a defense, CR 12.02(c), which a party must assert, either in a responsive pleading or by motion, "within 20 days after service of the summons upon him/her." CR 12.01. "A defense of ... improper venue ... is waived ... if it is neither made by motion under Rule 12 nor included in a responsive pleading or an amendment thereof permitted by Rule 15.01 to be made as a matter of course." CR 12.08(1). Our Supreme Court has so interpreted these rules in Seymour Charter Buslines, supra, stating,
An objection as to venue must be made according to CR 12.02(c), which clearly labels a venue objection as a "defense." ... [S]uch "defenses" are waived if not made in a responsive pleading or by Rule 12 motion.
Seymour Charter Buslines at 390; see also, Shepherd v. Mann, 490 S.W.2d 760, 762 (Ky.1973)(in divorce action, objection to venue was "waived by petitioner's failure to raise it within proper time after valid service of the summons"; citing CR 12.01, 12.08(1)).3 Michael neither asserted this defense in his response nor did he file a CR 12 motion. This constitutes a waiver of his objection to venue. We reach this conclusion for two reasons.
First, a party cannot unilaterally enlarge the time within...
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