Casey Shannon Hennessy v. Sandra Denise Hennessy

• Court: Court of Appeals of Kentucky
• Decided: February 29, 2024
• Docket: 2021 CA 001050
• Status: Unknown

Opinion

RENDERED: MARCH 1, 2024; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-1050-MR

CASEY SHANNON HENNESSY APPELLANT

APPEAL FROM NELSON CIRCUIT COURT v. HONORABLE CHARLES C. SIMMS, III, JUDGE ACTION NO. 19-CI-00571

SANDRA DENISE HENNESSY APPELLEE

OPINION AFFIRMING

** ** ** ** **

BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND MCNEILL, JUDGES.

ACREE, JUDGE: Casey Hennessy, Appellant, appeals the Nelson Circuit Court’s

June 7, 2021 Findings of Fact, Conclusions of Law, and Supplemental Judgment,

wherein the circuit court resolved all contested issues between Appellant and

Sandra Hennessy, Appellee, following their divorce. On appeal, Appellant

contests (1) the circuit court’s award of sole custody of their minor children to

Appellee; (2) the circuit court’s visitation schedule that provides Appellant one visit with the minor children per month; (3) the circuit court’s omission of

Appellant’s student loans from marital debt obligations; (4) the circuit court’s

imputation of additional income to Appellant when calculating child support; (5)

the circuit court’s award of attorney’s fees to Appellee; and (6) the circuit court’s

calculation of Appellant’s maintenance and child support arrearages for November

and December, 2019. We detect no error in the circuit court’s judgment, and

therefore, affirm.

BACKGROUND

Appellant and Appellee were married on March 18, 1996 and were

married for 24 years. They have four sons together: C.J., Evan, Logan, and

Dillon. C.J. and Evan were already adults at the time Appellee filed for divorce,

while Logan and Dillon were still minors. Since the time of filing, Logan and

Dillon reached the age of majority.

The family took a vacation to Florida in summer of 2019. While in

Florida, Appellant met a woman named Tiffany. Appellant engaged in an

extramarital affair with Tiffany during the vacation. Appellant and Tiffany are

now married and live together in Florida.

Appellant supported the family financially throughout the marriage.

He worked as a firefighter for Louisville Fire & Rescue, starting in April of 2000.

He ultimately reached the rank of captain. In combination with occasional side

-2- jobs – with City of Bardstown, with B&R Fire Safety, and by moving furniture –

Appellant earned nearly $97,000 in gross income in 2019. He holds a bachelor’s

degree in biology, a master’s degree in public health, and multiple vocational

certifications. By all accounts, the parties had a good standard of living during the

marriage.

Appellee was a homemaker for most of the marriage and was

primarily in charge of caring for the boys. In 2017, she began working part time

for the Bardstown School System as a cafeteria worker, earning $11.33 per hour.

After the parties separated, Appellee obtained full time employment as a benefits

coordinator with Kentucky Indiana Foot & Ankle Specialists. There, Appellee

earns or earned $13.00 to $14.00 per hour with a 32.5-hour work week; however,

she does not have set hours. For 2020, Appellee’s gross income was $23,457.46.

Appellee has a high school diploma.

Appellant retired from Louisville Fire & Rescue while the dissolution

action was pending, and now receives $4,179.84 monthly from the Kentucky

Retirement Systems. He now works as a biology teacher in Florida, with gross

monthly earnings of $3,869.20 as of January 2021.

Appellee filed for divorce on November 12, 2019. Divorce

proceedings were contentious, with the circuit court noting “the parties’ lackluster

-3- history of cooperation.” Additionally, the sons often heard Appellant and Appellee

make disparaging remarks about one another.

The circuit court granted Appellee’s motion for temporary custody of

the two minor sons on November 20, 2019. The circuit court also granted

Appellee temporary exclusive use of the marital home. On December 20, 2019,

the circuit court entered a pendente lite order, wherein the court awarded Appellant

visitation on alternate weekends, plus holidays. The circuit court ordered

Appellant to pay temporary maintenance and temporary child support.

At a June 30, 2020 evidentiary hearing, the circuit court, among other

rulings, held Appellee in contempt for failing to encourage the minor sons to visit

their father. The court also ordered the parties to participate in family counseling

with Lee Anne Gardner, a licensed marriage and family therapist. The parties

agreed to sell the rental home – with sale proceeds to be applied to credit card debt

– and to modify Appellant’s visitation to every third Saturday. Eventually,

visitation was again changed to one weekend per month, which must take place in

Kentucky. During one of Appellant’s visits to Kentucky, Appellant and Tiffany

toured Maker’s Mark distillery, while the boys waited outside.

According to Gardner’s written report to the circuit court judge –

which was not an exhibit at the final hearing but was both included in the record

and attached as an exhibit to Appellant’s brief – Logan and Dillon had lost respect

-4- for their father because of his behavior. The boys expressed anger at their father

and did not want to be forced to see him. Neither wanted to see Appellant’s new

wife. Gardner stated that, though both boys would be able to cope with the current

visitation schedule should it be enforced, she did not believe it would improve their

relationship with Appellant. Gardner recommended that the boys not be forced to

see Appellant’s new wife and recommended that visits be in Louisville should

visitation be enforced.

The circuit court dissolved the marriage on July 3, 2020. The parties

sold the rental home. A dispute over an AT&T bill necessitated another hearing

where the circuit court ordered the parties to pay the AT&T bill from proceeds of

the sale of the rental home. The parties split the remaining proceeds, each

receiving $10,784.89.

At the March 29, 2021 final hearing, Appellee requested a

continuance because Gardner was unavailable to testify. Though it denied the

continuance, the trial court permitted Appellee to take a deposition of Gardner

within sixty days. The court considered testimony from the parties and

interviewed Logan and Dillon in chambers; during the interview, neither expressed

interest in visiting Appellant and were opposed to traveling to Florida to visit him.

Appellee ultimately failed to take Gardner’s deposition.

-5- On June 7, 2021, the circuit court entered its findings of fact,

conclusions of law, and supplemental judgment which, due to the number of

unresolved disputes between the parties, is thirty-five pages long. Therein, the

circuit court assigned non-marital property, divided marital property, awarded

Appellee sole custody, maintained the once per month visitation arrangement,

awarded Appellee maintenance, child support, and temporary maintenance, and

awarded Appellee $8,000 in attorney’s fees, among other findings.

Appellant filed a motion to alter, amend, or vacate on June 18, 2021.

Appellee contested several aspects of the circuit court’s ruling. He also argued, for

the first time before the circuit court, that his student loan debt should be

considered marital debt. The circuit court agreed with Appellant that Appellee

should not be awarded his portion of a COVID-19 stimulus check but denied the

remainder of his motion.

Appellant now appeals. He mounts six challenges to the circuit

court’s judgment. Because there are no remaining minors among the parties’

children, the issues of custody and visitation are moot. The Court addresses

Appellant’s remaining challenges in turn below.

STANDARD OF REVIEW

“In all actions tried upon the facts without a jury[,]” including actions

for dissolution of marriage, “[f]indings of fact [] shall not be set aside unless

-6- clearly erroneous, and due regard shall be given to the opportunity of the trial court

to judge the credibility of the witnesses.” CR1 52.01. A factual finding is clearly

erroneous if it is “manifestly against the weight of evidence.” Wells v. Wells, 412

S.W.2d 568, 571 (Ky. 1967). Conversely, a factual finding is not clearly erroneous

if substantial evidence supports it. Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky.

App. 2003) (citing Owens-Corning Fiberglass Corp. v. Golightly, 976 S.W.2d 409

(Ky. 1998)). “Substantial evidence is evidence, when taken alone or in light of all

the evidence, which has sufficient probative value to induce conviction in the mind

of a reasonable person.” Id. (citing Golightly, 976 S.W.2d at 414).

Though factual findings are reviewed for clear error, a trial court’s

maintenance award is reviewed for abuse of discretion. Age v. Age, 340 S.W.3d

88, 94-95 (Ky. App. 2011). The abuse of discretion standard also applies to

allocation of marital property, Davis v. Davis, 777 S.W.2d 230, 233 (Ky. 1989),

custody determinations, B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005),

visitation schedules, Drury v. Drury, 32 S.W.3d 521, 525 (Ky. App. 2000), and

award of attorney’s fees, Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004). “The

test for abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Commonwealth v.

English, 993 S.W.2d 941, 945 (Ky. 1999).

1 Kentucky Rules of Civil Procedure.

-7- ANALYSIS

Appellant’s Student Loans.

Appellant argues the circuit court erred by failing to classify one of

Appellant’s student loans as marital debt. Because both parties benefitted from his

education, he argues he should be credited for his student loan debt.

This argument first appears in Appellant’s June 18, 2021 motion to

alter, amend, or vacate. “A party cannot invoke CR 59.05 to raise arguments and

to introduce evidence that should have been presented during the proceedings

before the entry of the judgment.” Gullion v. Gullion, 163 S.W.3d 888, 893 (Ky.

2005) (citations omitted). Appellant had every opportunity to raise this issue prior

to entry of the circuit court’s supplemental judgment and failed to include his

student loan debt in his final verified disclosure statement. Accordingly, this issue

is not preserved for our review.

Even if this issue were preserved, Kentucky jurisprudence is not on

Appellant’s side. “Loans obtained to get an educational decree [sic] are considered

non-marital debts.” Gildewell v. Gildewell, 859 S.W.2d 675, 679 (Ky. App. 1993)

(internal citations omitted). Stated more pointedly, “a student loan debt incurred

during the marriage is the nonmarital debt of the party receiving the educational

benefit associated with the loan[,]” and the circuit court is obligated to assign the

-8- debt to such party. Combs v. Ousley, No. 2007-CA-001552, 2009 WL 276506, at

*3 (Ky. App. Feb. 6, 2009).

In its August 11, 2021 order granting in part and denying in part

Appellant’s motion to alter, amend, or vacate, the circuit court found “absolutely

no merit with this argument.” We agree.

Imputation of Appellant’s Income.

Appellant argues the circuit court, when calculating Appellant’s

income, abused its discretion by supplementing Appellant’s income by $500.00

because of part-time work. He argues the testimony of both parties reflects he only

worked part-time on an intermittent basis. He further argues the imputation of this

additional money caused his child support obligation to be incorrect, and

improperly weighed in the circuit court’s decision to award attorney’s fees to

Appellee. The circuit court assigned an additional $500.00 of monthly income to

Appellant “based on [Appellant’s] history of self-employment during the

marriage.”

Again, factual findings are clearly erroneous if they are “manifestly

against the weight of evidence[,]” Wells, 412 S.W.2d at 571, and are not clearly

erroneous if substantial evidence supports them. Hunter, 127 S.W.3d at 659. “[I]t

is not the function of an appellate court to reweigh the evidence on a question of

fact[.]” Whittaker v. Rowland, 998 S.W.2d 479, 482 (Ky. 1999).

-9- For purposes of child support, “income” is defined by statute as

“actual gross income of the parent if employed to full capacity or potential income

if unemployed or underemployed.” KRS2 403.212(3)(a). This definition is rooted

in sound policy: “[t]he purpose of the statutes and the guidelines relating to child

support is to secure the support needed by the children commensurate with the

ability of the parents to meet those needs.” Gossett v. Gossett, 32 S.W.3d 109, 112

(Ky. App. 2000). Consistent with this policy, “[d]epending upon the

circumstances peculiar to each case, particularly where there is a history of a

spouse having had two jobs, the trial court may find it appropriate to consider

imputing to a spouse income from more than one job.” Id. (quoting Cochran v.

Cochran, 419 S.E.2d 419, 421 (Va. Ct. App. 1992)). When deciding whether to

impute income for purposes of calculating child support, appropriate

considerations include previous employment history, the person’s occupational

qualifications, and whether the parent is under-employed in his primary

occupation. Id. (quoting Cochran, 419 S.E.2d at 421).

We decline Appellee’s invitation to evaluate whether Appellant is

voluntarily underemployed by working as a high school teacher when he was

previously employed as a captain with Louisville Fire & Rescue. Regardless, we

believe sufficient evidence of record supports the circuit court’s imputation of

2 Kentucky Revised Statutes.

-10- $500.00 of additional monthly income to Appellant. As the record reflects,

Appellant possesses multiple occupational certifications and, with at least some

regularity, used those certifications to earn supplemental income. Because it is

appropriate to consider whether Appellant is able to ensure the needs of his

children are met, see Gossett, 32 S.W.3d at 112, the circuit court’s imputation of

additional income based on Appellant’s history of supplemental employment was

not clear error.

Attorney’s Fees.

Appellant contests the circuit court’s award of attorney’s fees to

Appellee as an abuse of discretion. Appellee incurred $16,440.46 in attorney’s

fees, and the circuit court directed Appellant to pay Appellee $8,000.00. The

circuit court determined Appellant has greater financial resources and ability to

earn money, and that Appellant caused Appellee to incur unnecessary fees.

Appellant argues Appellee’s conduct caused delay in the divorce action; he argues

Appellee’s failure to abide by court orders caused additional motion practice.

“Generally, Kentucky courts apply the so-called American Rule

regarding attorney’s fees[;]” this rule “requires parties to pay their own fees and

costs.” Rumpel v. Rumpel, 438 S.W.3d 354, 360 (Ky. 2014). However, circuit

courts, by statute, may shift the attorney’s fees of one party to a divorce action to

the opposing party:

-11- The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

KRS 403.220. “The amount of an award of attorney’s fees is committed to the

sound discretion of the trial court[.]” Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky.

1990). Under the statute, though the circuit court is required to consider the

financial resources of each party prior to an award of attorney’s fees, “[t]he statute

does not require that a financial disparity must exist in order for the trial court to”

make such award. Smith v. McGill, 556 S.W.3d 552, 556 (Ky. 2018). However,

“financial disparity is still a viable factor for trial courts to consider in following

the statute and looking at the parties’ total financial picture.” Id.

We conclude the circuit court did not err in its award of fees to

Appellee. Based on his education and work history, Appellant has both greater

financial resources and ability to earn income than Appellee – Appellee, for the

bulk of the marriage, was a homemaker, and only occasionally worked part-time.

As far as the circuit court’s conclusion that Appellant’s conduct caused Appellee to

incur excessive fees, the circuit court “is in the best position to observe conduct

-12- and tactics which waste the court’s and attorneys’ time and must be given wide

latitude to sanction or discourage such conduct.” Gentry, 798 S.W.2d at 938.

As Appellee notes, the circuit court heard testimony on a variety of

actions that Appellant took during the pendency of the divorce. These actions

include Appellant locking Appellee out of their rental home as Appellee attempted

to prepare it for sale, Appellant returning to the marital home – in violation of an

exclusive use order – and removing items from the garage, and Appellant locking

Appellee out of a shared bank account so that Appellee could not pay their

mortgage. These examples, and apparently several others, required additional

motions to be filed with the circuit court. Though Appellant argues Appellee’s

conduct also requires motions to be filed, it is not the task of an appellate court to

reweigh evidence on appeal. Accordingly, we find it was not arbitrary,

unreasonable, or contrary to law – and here not an abuse of discretion – for the

circuit court to award Appellee a portion of her attorney’s fees.

Child Support and Maintenance Arrearages.

Finally, Appellant argues the circuit court made a factual error when it

computed his child support and maintenance arrearage.

The circuit court entered a pendente lite order on December 20, 2019,

which required Appellant to pay Appellee $2,750.00 in temporary maintenance

and $768.17 in temporary child support per month – a total of $3,518.17 – which

-13- was retroactive to November 12, 2019. The circuit court credited Appellant

$3,000.00 for a deposit he made into a joint checking account, that Appellee had

sole access to, at some point after November 12, 2019. Appellant began paying

both his maintenance and child support obligations in January of 2020.

The parties could not agree upon the amount Appellant owed to

Appellee for the period of November 12, 2019, to December 31, 2019. To

determine Appellant’s arrearage obligation, the circuit court calculated Appellant’s

daily obligation for November ($3,518.17 divided by thirty days), multiplied his

daily obligation by nineteen (the remaining days in November beginning with

November 12), and then added that amount to his monthly $3,518.17 obligation for

December. This calculation yielded an arrearage of $5,746.30, and, after applying

the $3,000.00 credit, the circuit court determined Appellant owed $2,746.30 to

Appellee for that period.

Appellant argues on appeal that he, in fact, made three deposits into

the joint account. He says that, in addition to the $3,000.00 deposit, he made

deposits of $2,000.00 and $1,800.00 between November and January. However, as

Appellee accurately notes, the second and third deposits were made after the period

for which the circuit court calculated the arrearage. Appellant is not entitled to

credit for deposits made after the period for which amounts in arrearage were in

-14- dispute, i.e., for January 1, 2020, or later. We find no error in the circuit court’s

arrearage calculation.

CONCLUSION

Based on the foregoing, we affirm the Nelson Circuit Court’s June 7,

2021, findings of fact, conclusions of law, and supplemental judgment.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

Vickie Masden Arrowood Jason P. Floyd Louisville, Kentucky Bardstown, Kentucky

-15-