Family Law

STIPP V. CHARLES

TO BE PUBLISHED:  AFFIRMED

PANEL:  ACREE PRESIDING; NICKELL AND KNOPF CONCUR

COUNTY: JEFFERSON
DATE RENDERED: 7/2/2009

Ex-Husband appealed TC?s order finding that he waived his objection to improper venue and dividing marital assets and awarding maintenance, claiming error.   

FACTS:

The parties separated after 20 years of marriage.  They had one teenage child.  At the time of separation, the parties resided in Oldham County near the Jefferson County line.  The most Ex-Husband earned in one year was about $35,000, while Ex-Wife was earning $235,000 at the time of separation in addition to receiving bonuses, stocks, and stock options.  Ex-Husband did not work and provided primary care for the parties? son for a period of time. 

Ex-Wife filed for divorce in Jefferson County.  Subsequently, she filed a domestic violence petition in Oldham County and an emergency protection order was entered.  Ex-Husband filed his response to the divorce petition in Jefferson County, noting that neither party resided in Jefferson County and that the proper venue was Oldham County; but rather than objecting to the venue, stated that he ?reserves the right to ask [the] court to transfer [the] case to the Oldham Circuit Court.?  He then filed his mandatory case disclosure in Jefferson County. 

A case management conference was scheduled by the Jefferson family court and mediation was also scheduled.  Both parties also filed other motions with the Jefferson court, as well as an Agreed Order dismissing the Oldham County domestic violence order.  Only after these filings did Ex-Husband then file a motion requesting a transfer of the case from Jefferson County to Oldham County on grounds of improper venue. The Jefferson family court proceeded with the case management conference, finding the motion for transfer to be untimely and denied it on that basis.  After final hearing, the Jefferson family court awarded Ex-Wife 57% of the marital assets and 43% to Ex-Husband, awarded Ex-Husband maintenance of $2,000 per month for a period of six Years, and required Ex-Wife to continue providing health insurance coverage for Ex-Husband through COBRA for three years, which the court reduced to eighteen months in response to Ex-Wife?s motion to alter, amend or vacate, as this was the period of allowable coverage under Ex-Wife?s health insurance plan.

Ex-Husband then appealed.

ANALYSIS:

Venue.  At the time the case was filed, Oldham County was the proper venue. 

?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.  If the defense is not so asserted, it is waived.   As Ex-Husband did not timely raise his objection under the Rules, he waived the objection. 

Furthermore, Ex-Husband availed himself of the Jefferson family court?s time and judicial resources by filing documents with the court and entry of Agreed Orders with that court.   Were the court to allow Ex-Husband?s ?reservation? as an assertion of the improper venue defense beyond the time allotted by the Civil Rules, the court would enable a form of forum shopping, allowing a party to subjectively assess how the litigation is progressing before seeking a different venue. If Ex-Husband wanted the case transferred to another county after failing to object to improper venue in his responsive pleading, the legal basis of such a post-pleading motion was the doctrine of forum non conveniens. Even if Ex-Husband?s motion were viewed under this doctrine, the Jefferson family court did not err in denial of the motion, as it had already expended judicial resources in the case and the parties? residence was far from inconvenient.

Distribution Of Marital Assets.  Ex-Husband also claims TC erred by failing to distribute the marital assets equally. CA found that, in determining the division, TC followed the statute and considered ?all relevant factors,? including those listed in KRS 403.190(1)(a)-(d), and found no error. 

Award Of Maintenance.  Ex-Husband also contended TC abused its discretion by awarding him maintenance of only $2,000 per month for six years. He argued the

CA found that TC properly considered the nature of Ex-Wife?s financial resources, the standard of living established by the parties during the marriage, the duration of the marriage, and the ability of Ex-Husband to meet his own reasonable needs, and found no error.      

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates