Shafizadeh v. Shafizadeh
444 S.W.3d 437
| Ky. Ct. App. | 2012Background
- Saeid Shafizadeh, pro se, appeals multiple orders from Jefferson Family Court related to property division, maintenance, child support, and attorney’s fees following a 1982 marriage to Denise Shafizadeh.
- Court issued a February 3, 2010 order dividing marital assets, awarding maintenance and child support, and allocating debts and assets.
- Denise sought relocation, modification of parenting schedule, and various garnishment and fee awards; Saeid challenged jurisdiction and relief requests in later appeals.
- Questions concern whether the 2010 order was entered with pending disqualification petitions and whether the court properly handled maintenance, custody, and income-imputation issues.
- The appellate court affirms in part, reverses in part (notably maintenance duration and some custody-modification/jurisdiction rulings), and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction during disqualification petition | Disqualification petition divested court of particular case jurisdiction | Subject matter jurisdiction remained; orders entered pending Chief Justice ruling were voidable but not void | Order not void ab initio; harmless error cured by Chief Justice denial |
| Dissipation of assets and missing findings | Family court failed to make specific dissipation findings | CR 52.04 and CR 52.01 require only substantial addressing of issues; not all specifics needed | No reversal on this basis; insufficient post-judgment findings not shown to be reversible error |
| Maintenance open-ended duration | Open-ended maintenance is appropriate given Denise’s needs and lack of immediate employment | Open-ended maintenance is improper; should have a fixed duration | Open-ended maintenance reversed; fixed duration required on remand |
| Imputation of Saeid's income for child support | Saeid is not voluntarily underemployed; economic downturn dismisses imputation | Saeid is voluntarily underemployed given past earnings and opportunities; imputation warranted | Imputation of income sustained; Saeid reasonably underemployed; Denise not imputed income |
| Custody modification jurisdiction and affidavits | Motion to modify custody improperly labeled; lacked affidavits; court lacked jurisdiction | Motion to modify timesharing; affidavits not required for visitation-type modification; jurisdiction exists | Reverse on custody-modification dismissal; on remand assess sufficiency of affidavits and hear if adequate cause exists |
Key Cases Cited
- Jackson v. Commonwealth, 806 S.W.2d 648 (Ky. 1991) (recusal remedy; trial court must stay proceedings when petition pending)
- Diaz v. Barker, 254 S.W.3d 835 (Ky.App. 2008) (recusal hinges on Chief Justice ruling; not finality of order)
- Hisle v. Lexington-Fayette Urban County Government, 258 S.W.3d 422 (Ky.App. 2008) (distinguishes subject matter vs. particular-case jurisdiction; effect of disqualification petition)
- Dix v. Dix, Hospital? 310 Ky. 818, 222 S.W.2d 839 (Ky. 1949) (void vs. voidable judgments when lack of jurisdiction)
- Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) (controls custody-time-sharing interpretation in relocation context)
- Brockman v. Craig, 205 S.W.3d 244 (Ky.App. 2006) (custody relocation labeling; superseded by Pennington)
- Copas v. Copas, 699 S.W.2d 758 (Ky.App. 1985) (two-affidavit requirement for custody modification)
- Petrey v. Cain, 987 S.W.2d 786 (Ky. 1999) (jurisdictional affidavits; procedure for motions to modify custody)
- Robinson v. Robinson, 211 S.W.3d 63 (Ky. App. 2006) (affidavits required for modification of custody; jurisdictional rule)
- Pennington v. Marcum, 266 S.W.3d 759 (Ky. 2008) (controlling for timesharing vs custody modification in joint custody)