Varghese v. Varghese

Decision Date02 September 2016
Docket NumberNO. 2015-CA-000510-MR,NO. 2015-CA-000517-MR,2015-CA-000510-MR,2015-CA-000517-MR
PartiesSABU VARGHESE APPELLANT/CROSS-APPELLEE v. JEANETTE VARGHESE (NOW AUMON) APPELLEE/CROSS-APPELLANT
CourtCourt of Appeals of Kentucky

NOT TO BE PUBLISHED

APPEAL AND CROSS-APPEAL FROM SHELBY CIRCUIT COURT

HONORABLE S. MARIE HELLARD, JUDGE

ACTION NO. 10-CI-00542

OPINION

AFFIRMING

** ** ** ** **

BEFORE: D. LAMBERT, STUMBO AND THOMPSON, JUDGES.

STUMBO, JUDGE: Sabu Varghese appeals, and Jeanette Varghese (now Aumon) cross-appeals, from an Opinion and Order of the Shelby Circuit Court adjudicating the parties' respective Motions to Alter, Amend or Vacate a November 16, 2011 Final Decree. The parties raise various claims of error including venue, the introduction of exhibits, spousal maintenance and attorney fees. For the reasons stated below, we find no error and AFFIRM the Opinion and Order on appeal.

Sabu Varghese ("Mr. Varghese") and Jeanette Varghese (now Aumon, and referred to herein as "Ms. Aumon") were married on July 19, 1987, in India. The marriage produced two children, who have reached the age of majority. During the marriage, which lasted approximately 24 years, Ms. Aumon was a homemaker although she briefly worked outside the home on two occasions. At the time of the trial, Ms. Aumon was a student and planned ultimately to obtain a nursing degree. Mr. Varghese was a computer consultant whose net income in the years 2006 to 2009 ranged from $271,058 to $720,713.

On July 15, 2010, Ms. Aumon filed a Petition for Dissolution of Marriage in Shelby Circuit Court. The matter proceeded for approximately 16 months, culminating in the court's Findings of Fact, Conclusions of Law and Decree of Dissolution ("Final Decree") rendered on November 16, 2011. The Final Decree disposed of marital and non-marital property, and adopted various agreements entered into by the parties. As part of the Final Decree, the court awarded Ms. Aumon maintenance in the amount of $6,000 per month for four years, followed by $3,000 per month for the following 15 years. The Final Decree also noted that Mr. Varghese failed to reach an agreement with Ms. Aumon on an agreed exhibit list or to file one of his own. This resulted in Mr. Varghese being precluded from offering exhibits or presenting witnesses other than himself. Finally, the court noted that Mr. Varghese failed to prove the veracity of his claim that Ms. Aumon sought to preclude him from his proper share of the marital assets by dissipating those assets in contemplation of the dissolution. The court determined that certain asset transfers undertaken by Ms. Aumon were for marital purposes and consistent with a long-established practice during the marriage.

After the parties filed Motions to Alter, Amend or Vacate the Final Decree, Mr. Varghese filed a Complaint with the Chief Justice of the Kentucky Supreme Court seeking to disqualify Judge David Myles. The Complaint arose after a contentious exchange between Judge Myles and Mr. Varghese's trial counsel on February 21, 2012. Though no recusal order is found in the record, the Kentucky Supreme Court assigned Judge Martin McDonald to oversee the case. After a status conference and other matters were undertaken, Judge McDonald rendered new Findings of Fact, Conclusions of Law and Decree on May 22, 2012.

The following month, on June 20, 2012, Ms. Aumon filed her Notice of Appeal from Judge McDonald's May 22, 2012 Decree. In an unpublished Opinion rendered by this Court, a three-judge panel determined that Judge McDonald's Decree was improperly rendered because neither party made a motion under Kentucky Rule of Civil Procedure (CR) 59.07. The panel of this Court went on to find that since motions were made under CR 52.02, 52.04 and 59.05, the Final Decree was converted to an interlocutory Order. The panel concluded that since post-trial motions were still pending in Shelby Circuit Court (Family Division), the Court of Appeals was without jurisdiction to hear the appeal. The matter proceeded for discretionary review by the Kentucky Supreme Court, which was denied on April 11, 2014.

Thereafter, the case was returned to Shelby Circuit Court and assigned to Special Judge Bailey Taylor. Before Judge Taylor undertook any substantive action on the matter, Judge S. Marie Hellard was elected and replaced Judge Taylor. The parties, through counsel, then moved the trial court for a Case Management Conference, which was conducted on February 19, 2015. After the matter was taken under submission, Judge Hellard rendered an Opinion and Order on February 25, 2015, addressing all pending motions and bringing the matter to final resolution. Mr. Varghese now appeals, and Ms. Aumon cross-appeals, from the November 16, 2011 Final Decree and February 25, 2015 Opinion and Order adjudicating the parties' respective Motions to Alter, Amend or Vacate.

Mr. Varghese first argues that the Shelby Circuit Court "usurped and then abused its self-proclaimed discretion" by denying his Motions to Dismiss for lack of venue. Mr. Varghese notes that Kentucky Revised Statute (KRS) 452.470 mandates that "[a]n action for maintenance or dissolution must be brought in the county where the husband or wife usually resides." (Emphasis added). He maintains that Ms. Aumon never resided in Shelby County, Kentucky, instead residing solely in Oldham County, Kentucky, for 14 years prior to filing the Petition for Dissolution. Mr. Varghese argues that the statutory language requires mandatory compliance and does not allow the exercise of discretion. As such, he contends that because Ms. Aumon never resided in Shelby County, Kentucky, the Shelby Circuit Court erred in exercising jurisdiction over the proceeding.

KRS 452.470 states that an "action for . . . dissolution must be brought in the county where the husband or wife usually resides." In examining the question of residency, the Court may consider the county of the parties' marital residence prior to separation, the usual residence of the children, the accessibility of witnesses and the economy of offering proof. Hummeldorf v. Hummeldorf, 616 S.W.2d 794, 798 (Ky. App. 1981). Additionally, intent alone is not sufficient to establish residency, good faith is required and the evidence must show that the party has actually and completely abandoned the former residence. Sebastian v. Turner, 320 S.W.2d 794, 795 (Ky. 1959). Finally, it is sufficient that the wife established residency on the day the Petition was filed. Carter v. Carter, 273 S.W.2d 823 (Ky. 1954).

We must first note that Mr. Varghese has not complied with CR 76.12(4)(c)(v), which requires the Appellant to state at the beginning of the written argument if the issue was preserved and, if so, in what manner. We are not required to consider portions of the appellant's brief not in conformity with CR 76.12, and may summarily affirm the trial court on the issues contained therein. Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947 (Ky. 1986); Pierson v. Coffey, 706 S.W.2d 409 (Ky. App. 1985).

Arguendo, even if Mr. Varghese's written argument was made in conformity with CR 76.12(4)(c)(v), we would find no error. In the matter before us, the evidence was conflicting on the issue of residence, jurisdiction and venue. Mr. Varghese maintained that at all relevant times, Ms. Aumon resided in Oldham County, Kentucky, where jurisdiction would have been proper. Conversely, Ms. Aumon testified that her new address was 532 Jurich Court, Shelby County, Kentucky. She further claimed that she used her attorney's office address in court filings due to the issuance of an Emergency Protective Order in accordance with KRS 403.150(2)(a), that she had relocated her horses to Shelby County, and that her new and permanent residence was located in Shelby County prior to the filing of the Petition for Dissolution.

In Lancaster v. Lancaster, 738 S.W.2d 116 (Ky. App. 1987), a panel of this Court concluded that while a circuit court may look to the Hummeldorf factors for guidance, "it is nonetheless within the discretion of the court to accept or decline jurisdiction." Id. at 117. Additionally, "[s]uch a determination will not be reversed absent an abuse of discretion." Id. As there was conflicting testimony regarding residency, including testimony sufficient to support finding jurisdiction in Shelby Circuit Court, we cannot conclude that the Shelby Circuit Court abused its discretion on this issue. Further, it appears from the record that Mr. Varghese now resides in California. As such, even if the matter were reversed and remanded on this issue, Oldham Circuit Court could not properly exercise jurisdiction. We find no error.

Mr. Varghese next argues that the Shelby Circuit Court abused its discretion by prohibiting him from introducing any exhibits at trial. On March 2, 2011, the parties were ordered to tender a joint Exhibit and Witness List by July 1, 2011. Such a list was not produced by either party. Thereafter, on August 4, 2011, Ms. Aumon filed her own Exhibit and Witness List. Later at trial, Judge Myles noted that Mr. Varghese had tendered neither a joint Exhibit and Witness List nor an individual list. Judge Myles then determined that there would be no Exhibits presented by Mr. Varghese. Mr. Varghese now contends that the decision to prevent him from presenting any exhibits was draconian, arbitrary and capricious. He notes that he was never ordered to prepare an individual list, that Ms. Aumon did not file a joint list, and that the exhibits he sought to introduce were not "joint" exhibits.

Again, this argument was not made in conformity with CR 76.12(4)(c)(v). Nevertheless, we have closely examined this issue and find no error. The corpus of Mr. Varghese's claim of error centers on his assertion that the "sanction" imposed by Judge Myles bore no reasonable relationship to the seriousness of the defect. However, it is uncontroverted that Mr. Varghese did not tender either a joint or individual Exhibit and Witness List. No Exhibit or...

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