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RENDERED: DECEMBER 14, 2012; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2011-CA-000860-MR JOHN RICHARD AMSHOFF APPELLANT

v.

APPEAL FROM NELSON CIRCUIT COURT HONORABLE CHARLES C. SIMMS III, JUDGE ACTION NO. 10-CI-00183

MARTINA DENISE WALLS AMSHOFF AND ROBERT E. BUTLER, GUARDIAN AD LITEM

APPELLEES

OPINION AFFIRMING ** ** ** ** ** BEFORE: KELLER, TAYLOR AND VANMETER, JUDGES. KELLER, JUDGE: John Richard Amshoff (John) argues on appeal that the trial court erred when it: determined time sharing; ordered him to pay half of the guardian ad litem (GAL) fee; denied his request for attorney's fees and maintenance; divided marital debt; and failed to restore his non-marital property.

Martina Denise Amshoff (Martina) argues to the contrary. Robert A. Butler, the GAL, did not file a brief. Having reviewed the record, the arguments of the parties, and the applicable law, we affirm. FACTS John and Martina were married on October 3, 1997. Two children were born of the marriage, Aaron on June 20, 2000, and Grant on May 20, 2003. Martina has a son from a previous marriage, Brandon Simpson (Brandon), who is now at least eighteen years of age. The parties separated on February 14, 2010, following an altercation between John and Brandon that ended with Brandon seeking treatment in the emergency room and John being charged with assault and subject to an emergency protective order (EPO). We note that Martina and John testified, at length, about what precipitated the altercation, with John essentially blaming Martina and Brandon, and Martina essentially blaming John.1 At the time the couple separated, Martina was working as a special education teacher at Bloomfield Middle School in Nelson County, Kentucky. Grant and Aaron attended Bloomfield Elementary School, which is located on the same campus as the middle school, and Martina transported the boys to and from school with her. John was working part-time as an emergency medical technician and as a clerk at Bass Pro Shops. He also provided CPR training.

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Eventually, the EPO was "converted" to a restraining order and the assault charges were dropped.

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On February 18, 2010, John filed a petition for dissolution seeking joint custody, equitable distribution of the couple's marital property and debt, and return of non-marital property. The court dissolved the parties' marriage on July 7, 2010, but reserved all other issues. Following a hearing on January 31, 2011, the court entered a judgment that disposed of the remaining issues. John timely filed a motion to alter, amend, or vacate which, with regard to the issues related to this appeal, the court denied. We set forth additional facts as necessary when we address the issues raised by John on appeal. STANDARD OF REVIEW We review the trial court's holdings regarding timesharing, maintenance, the allocation of debt, and the assessment of attorney's fees for abuse of discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001); Wilhoit v. Wilhoit, 521 S.W.2d 512, 514 (Ky. 1975); Wireman v. Perkins, 229 S.W.3d 919, 920 (Ky. App. 2007); Sayre v. Sayre, 674 S.W.2d 647 (Ky. App. 1984). The court abuses its discretion when its decision is "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." T.A.N. v. M.J., 266 S.W.3d 251, 255 (Ky. App. 2008). We apply a mixed standard of review with regard to the classification of property as marital/non-marital, reviewing factual findings under the clearly erroneous standard. However, because the classification of property is a question of law, we review how the court classifies property de novo. Smith v. Smith, 235 S.W.3d 1, 6-7 (Ky. App. 2006). ANALYSIS -3-

1. Timesharing John has sought equal parenting time with the boys since the beginning of this litigation. On appeal, he argues that the trial court erred when it denied him that time. In support of his argument, John states that the trial court's timesharing determination was not supported by evidence of substance and the court erroneously relied on a report from the boys' GAL. We address John's issues regarding the GAL separately below. The court held two hearings wherein the parties presented evidence regarding custody and timesharing. During the hearings, John testified that he: was actively involved with the boys in Cub and Boy Scout activities; took the boys hunting and fishing; helped them with their homework; and cooked meals for them. He also presented a number of witnesses who testified that he and the boys get along well and that he is a good parent. However, John admitted he had not been as actively involved in the boys' school activities and their health care as Martina, although he blamed this on Martina's failure to communicate with him. Furthermore, John testified that he worked from 8:00 a.m. to 6:00 p.m. on Mondays and Fridays and from 10:00 a.m. to 8:00 p.m. on Tuesdays and Thursdays with occasional overtime. When questioned about how, with this work schedule, he would care for the boys during the week, John testified that he would receive help from family and friends. Several of John's witnesses confirmed that they were ready and willing to care for the boys if John had a scheduling conflict.

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Martina testified that she had been the boys' primary caregiver, taking them to and from school and extra-curricular activities, attending school functions, discussing issues with their teachers, and taking care of their medical needs. Martina opposed equal timesharing primarily because she thought it would be too disruptive to the boys' schedules. She noted that, if the boys were with John during the week, they would have to go to different houses following school every day but Wednesday. Furthermore, they would have to rely on different people to transport them to and from school and their extra-curricular activities. According to Martina, this would be particularly difficult for Aaron, who had been diagnosed with attention deficit disorder that made him especially sensitive to changes in his routine. John expressed reservations about Aaron's diagnosis, testifying that he believed Martina had orchestrated it so that Aaron would qualify as a special needs child and the school would receive additional funding. Because of his skepticism about the diagnosis, John testified that he wanted a second opinion. However, John had not requested a copy of Aaron's medical records, had not spoken with Aaron's physician, and had not scheduled any appointments for Aaron to be reevaluated. As noted by John in his brief, Martina did not present any witnesses to testify regarding how she gets along with the boys and that she is a good parent. However, we note that the majority of John's witnesses testified that Martina has a

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good relationship with the boys and any witnesses from Martina would simply have been redundant. In addition to hearing from the parties and John's witnesses, the trial judge interviewed the boys. Grant and Aaron both testified that: they wanted "fifty-fifty" time with their parents; they enjoyed spending time with each parent; they did not like it when their parents "yelled" at them; and they enjoyed their school and extra-curricular activities. Finally, the court reviewed a report filed by the GAL. In that report, the GAL noted that "THE BOYS OBVIOUSLY DESIRE MORE TIME WITH THEIR FATHER, AND THAT RESULT SHOULD IN SOME WAY BE ACHIEVED." (Emphasis in original). However, the GAL noted that, with John's work schedule, any week on/week off arrangement would not result in John getting any significant additional "awake time" with the boys. The additional time would be spent with John's friends or relatives and "introduce an element of calamity, unnecessarily, into the boys [sic] lives." The GAL concluded that "[t]here must be a way to get more quality time for the boys with John without impinging on school, study or sleep time," and that "[m]ore time with third parties is not what is needed." Based on the preceding and other testimony not summarized herein, the court awarded the parties joint custody, designated Martina as primary residential parent, and gave John timesharing according to the local rules (essentially every other weekend) with every Wednesday from 4:00 p.m. until the -6-

boys go to school on Thursday morning. In doing so, the court undertook a sevenpage analysis of the evidence and noted "that John's work schedule would require a non-parent to provide significant care for the children" if timesharing were equally divided. John correctly argues that there is no law "to indicate that having a work schedule that requires assistance from non-parents to properly care for the children makes that parent less able to have their [sic] children 50% of the time." However, there is also no law that forbids a court from taking that fact into consideration when making a difficult timesharing decision. John's argument to the contrary notwithstanding, this is simply what the court did. As between two equally capable parents, the court chose Martina as the primary residential custodian and assigned timesharing unequally. When parties cannot agree and ask the court to intervene in their affairs, someone is likely to be unhappy with the result. That does not make the result improper or subject to reversal on appeal. Because the court's determination regarding timesharing is supported by substantial evidence, we cannot overturn it on appeal. 2. The GAL As noted above, when the parties separated, Martina taught special education classes at Bloomfield Middle School. Grant and Aaron attended Bloomfield Elementary School, which is on the same campus as the middle school. Because of that proximity, the boys rode to and from school with Martina. At some point after Martina and John separated, the school board notified Martina that -7-

she was being transferred to the Boston School, which is apparently on the other side of the county. Martina, without consulting John, transferred the boys to the Boston School. On July 15, 2010, John filed a motion asking the court to stop the transfer. In support of his motion, John argued that it might be difficult for him to receive a fair assessment of the boys' progress because Martina was teaching in the same school. He also argued that the Boston School was not convenient for him, his family members, or any friends who might have to transport the boys. The court, sua sponte, appointed a GAL to represent the boys' interests. The GAL prepared a report to the court, indicating that he had interviewed the boys and believed they were smart, friendly, and would likely adapt to the change in their situation. Furthermore, he noted that Grant had already started attending the Boston School and that Aaron, who had been ill, was eager to start school. The GAL did not make any specific recommendation. The court, after reviewing the preceding, denied John's motion. The GAL did not participate again in this matter until January 2011 when, at John's request, he interviewed Grant and Aaron a second time. Following that interview, the GAL attended and participated in the final hearing on January 31, 2011. On February 11, 2011, the GAL filed the report we referred to in Section 1 above. In rendering its opinion, the court stated that it was "compelled to note that [the GAL] shares many of the Court's concerns, including Aaron's present difficulties, John's clueless reaction to Aaron's prescription for Zoloft, John's work -8-

schedule which would result in non-parents providing care, etc."2 The court also ordered the parties to evenly split the GAL's fee. After the court rendered its opinion, John filed a motion to strike the GAL's February report. In his motion, John argued that there was no basis for the report, that he had been denied the opportunity to cross-examine the GAL, and that the report was "a complete 'blindside' move and . . . a pure ambush." In its order, the court struck several portions of the GAL's report and noted that "it would have rendered the same decision even if those portions were stricken before entry of" its opinion. On appeal, John continues to argue that the GAL's February report was not necessary and the court should not have ordered him to pay any of the GAL's fee. We disagree. John did not object to the appointment of the GAL or to the GAL's continued involvement in this case. In fact, John asked the GAL to interview the boys prior to the final hearing and did not object to the GAL's appearance at that hearing. Furthermore, John did not ask the court to clarify what role the GAL would take in the hearing or if the GAL would be preparing a report. Therefore, his objection to the GAL's appointment and continued involvement in this case is without merit. As to the GAL's report, John did move to strike it from the record, a motion the court granted, in part. However, John continues to argue that he was
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Aaron was prescribed Zoloft to treat his attention deficit disorder.

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"blindsided" by the report; that the GAL did not testify; and that he had no opportunity to cross-examine the GAL. As noted above, John did not ask if the GAL would be preparing a report. Furthermore, he did not call the GAL as a witness. Therefore, his complaints about being "blindsided" are not persuasive. As to the contents of the GAL's report, we are somewhat confused by John's apparent ire. While the report is not completely in John's favor, the GAL emphatically stated that the court should try to find a way to increase John's timesharing, one of John's primary goals. Furthermore, despite John's statement to the contrary, the court did not find the GAL's report to be "compelling." What the court said is that it was "compelled to note" that the GAL shared many of the court's concerns. Thus, the court was simply stating that the GAL's report confirmed the court's own thoughts, not that the court felt compelled to follow any of the GAL's recommendations. Therefore, we discern no error in the court's admission of the GAL's report, as amended. With regard to the GAL's fee, John has not cited to any law that prevents the court from dividing liability for that fee. In fact, the statute John cites for his argument that appointment of a GAL was not appropriate provides that the fee should be paid by the plaintiff, which in this case would be John. Furthermore, Kentucky Family Court Rule of Practice and Procedure 6 provides that a court is permitted to apportion the expenses associated with a GAL to the parties. Because the court deemed that a GAL would be beneficial and John sought the GAL's

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services, we discern no error in the court's assessment of half of the GAL's fee to John. 3. Attorney's Fees and Maintenance John asked the court to award him attorney's fees and maintenance. These issues are inter-related because they spring from the parties' unequal incomes. As previously noted, Martina is a special education teacher for the Nelson County schools. As such, she earned approximately $55,000 during the 2010-2011 school year. John, an emergency medical technician, had worked fulltime for the Louisville/Jefferson County Emergency Medical Services until sometime in 2005, earning approximately $45,000 per year. However, John lost that job and had only been able to find part-time work as an emergency medical technician and as a clerk at Bass Pro Shops. At the time of the final hearing, John estimated that he would earn approximately $25,000 in 2011. a. Attorney's Fees John testified that he had amassed approximately $30,000 in legal fees, $2,301 of which was related to the legal proceedings arising from John's and Brandon's altercation. John asked the court to order Martina to pay his attorney's fees; however, it is somewhat unclear from the record if John was asking for payment of all his legal fees or only those associated with the assault and EPO proceedings. The court found that, "after considering the financial resources of both parties . . . it would be inappropriate to award" John the attorney's fees related to -11-

the assault and EPO actions. The court apparently believed that John was only seeking payment of the fees related to the assault and EPO proceedings because it denied John's request based on its findings that Martina did not initiate those proceedings and that John was partially at fault. The court did not address whether John would be entitled to payment of any of his attorney's fees specifically related to the dissolution. John filed a petition to alter, amend, or vacate and, among other matters, he appears to have asked the court to order Martina to pay the entire $30,000 in attorney's fees. The court denied John's motion without specifically addressing the attorney's fee issue. The parties have proceeded as if this amounted to a denial of John's request for attorney's fees in its entirety. We proceed accordingly. Kentucky Revised Statute (KRS) 403.220 provides that the court may "after considering the financial resources of both parties . . . order a party" to pay the other party's attorney's fees. We discern no abuse of discretion in the court's denial of John's request for attorney's fees. The parties do have different incomes, although it is difficult to tell from the record exactly what John's earnings were and/or will be. John testified that he earned $10.00 per hour working as an emergency medical technician. However, it is unclear how much John can or will earn operating his CPR training/seminar business. We note that he earned nearly $20,000 in 2008, nearly $6,800 in 2009, and was on track to earn $3,500 to $4,500 in 2010. As previously noted, Martina earned approximately $55,000 in 2010, and -12-

had earned a little more than that in 2009 because of extra classroom responsibilities. Although not equal, the parties' incomes are not so disparate as to require an award of attorney's fees to John. The trial court acted within its discretion in denying John's request and there is nothing in the record to compel a contrary result. b. Maintenance As to the issue of maintenance, KRS 403.200 provides, in pertinent part, that a "court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance: (a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (b) Is unable to support himself through appropriate employment . . . ." The court noted that the martial home, the parties' primary asset absent retirement accounts, was encumbered by two mortgages and that the parties had significant credit card debt. Based on those factors, and the fact that the marital home had not yet sold, the court could not determine the value of the marital property that John would receive. However, the court noted that John appeared to be in good health and was able to earn money as an emergency medical technician and by conducting CPR training/seminars. Based on that employment, the court concluded that John is able to support himself through appropriate employment and is not entitled to maintenance. That finding by the court is supported by evidence of substance and is not subject to reversal on appeal.

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As we understand it, John is arguing that the court erred because there is a disparity between his income and Martina's; that Martina earned an advanced teaching degree during the marriage, which provided her with the wherewithal to earn a greater income; that the parties' lifestyle when married is something John cannot now achieve on his own; and that John cannot meet his financial obligations without assistance from Martina. Even if we accept these arguments as true, they are factors the court must consider when determining the amount and duration of maintenance, not entitlement to maintenance. See KRS 403.200(2). Because it determined that an award of maintenance was not appropriate, the court was not required to consider the factors cited by John. Therefore, any failure to do so was not error. 4. Assignment of Debt [T]here is no presumption that debts incurred during the marriage are marital. Rather, the party claiming that a debt is marital has the burden of proof. In making this determination, the trial court should consider receipt of benefits, the extent of participation, whether the debt was incurred to purchase assets designated as marital property, whether the debt was necessary to provide for the maintenance and support of the family, and any economic circumstances bearing on the parties' respective abilities to assume the indebtedness. McGregor v. McGregor, 334 S.W.3d 113, 119 (Ky. App. 2011) (internal citation omitted). John argues that it was inappropriate for the court to divide the credit card debt between the parties because Martina failed to meet her burden. Martina

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testified that she had used several credit cards to make purchases for the benefit of the family during the parties' marriage. Following John's resignation from his position as an emergency medical technician with the City of Louisville, Martina's reliance on credit cards increased. In support of her testimony that the credit card purchases were for marital purposes, Martina offered credit card statements that show where purchases were made and the purchase price, but that did not show what was purchased. John argued that this was not sufficient evidence of substance to meet Martina's burden of proof. The court determined that the credit card debt was marital and ordered the parties to equally assume liability for that debt. John filed a motion to alter, amend, or vacate, arguing that "there is no documentation whatsoever showing that the credit card indebtedness . . . was for the maintenance and support of the family." The court, in its order denying John's motion, stated that it: finds absolutely no merit to this complaint. For example, Martina provided proof of the following credit card charges: Wal-Mart, Target, Kroger, Hibbett Sports, Halloween Express, Bass Pro Shops, Lowe's, Mejeir, Bardstown Sporting Goods, Barnes & Noble, Swope Toyota, Radio Shack, Craig's Shoe Company, Best Buy, BP Oil, Home Depot, Gamestop, Bardstown Veterinary, Bardstown Primary Care, Shoe Carnival, Mr. Gatti's Pizza, JC Penney Store, Dick's Sporting Goods, Def Leppart, Build-A-Bear Workshop, Garden Ridge, etc. . . . . Although Martina obviously did not have proof of all the credit card charges, this Court finds Martina's testimony to be credible on the credit card indebtedness. John continues to argue that Martina did not meet her burden because she "did not produce any proof that the credit card debt was marital." We agree with -15-

the court that this argument is without merit. Martina testified that she used the credit cards for marital purposes and offered documentation showing where the purchases were made. A simple perusal of the list of stores where purchases were made - sporting goods shops, grocery stores, toy stores, etc. - supports her testimony that the purchases were marital. Furthermore, John's reliance on McGregor for the proposition that the credit card debt is non-marital is misplaced. In McGregor, the wife testified that she took out a home equity loan without her husband's knowledge and that she forged her husband's signature on the loan documents. She also testified that the money from the loan was used to make improvements to the home. However, her husband presented evidence, which the court found to be credible, that the parties paid for the improvements from a different source. Based on that evidence, the court determined that the disputed debt was non-marital. 334 S.W.3d at 119-20. In this case, Martina testified that the purchases were for the family and provided documentation that showed they were from stores that would sell items for family use. Unlike the husband in McGregor, John did not rebut Martina's testimony; he simply argued that Martina's documentation was deficient. The court was free to believe Martina, particularly when John offered no evidence that the purchases were not marital. Finally on this issue, we note John's argument that the court shifted the burden of proving that the debt was non-marital to him. The court did state "that there is no credible assertion that Martina ever used these credit cards for anything -16-

except marital purposes." However, the court was not shifting the burden to John, it was simply pointing out that John had not done anything to rebut Martina's testimony and documentary evidence. Based on the preceding, we discern no error in the court's allocation of the credit card debt. 5. Designation of Marital Property All property acquired during a marriage is presumed to be marital. Terwilliger v Terwilliger, 64 S.W.3d 816, 820 (Ky. 2002). The party seeking to overcome that presumption bears the burden of proof. Id. at 823. John was a member of a class action lawsuit against the City of Louisville involving overtime pay. The parties settled the lawsuit and, as part of the settlement, John received the following checks: (1) $11,577.26 on December 7, 2009; (2) $5,015.85 in April 2010; and (3) $5,424.73 on July 28, 2010. John argued before the trial court and argues before us that one-fourth of the settlement proceeds were non-marital. In support of that argument, John testified that he worked a total of 120 months for the City of Louisville and that thirty of those months were before the parties' marriage. The court denied John's claim, noting that "John failed to introduce any documentation from this lawsuit, i.e. - the complaint, any discovery responses, any legal rulings, and the settlement terms." Based on the evidence it had, the court stated that it "simply . . . [could not] determine the following: (1) whether John was compensated for his employment prior to the marriage, and (2) . . . if John was compensated for same, how John, his

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counsel, and the City of Louisville calculated same." Therefore, the court concluded that John had failed to meet his burden of proof. John argues that, because Martina admitted that she did not have any records to contradict his testimony, he is entitled to one-fourth of the settlement proceeds. We disagree. John has the burden of proving what, if any, portion of the settlement proceeds was non-marital. As the court noted, it was not clear from John's testimony whether any of his potential claim to overtime pay was barred by a statute of limitations; whether his salary remained static or changed during the years that he worked, arguably making the later years more valuable than the earlier years; or how those factors were used, if at all, to calculate his share of the proceeds. Without having these facts, the court correctly concluded that John had not overcome the presumption that the settlement proceeds were marital. CONCLUSION Having reviewed the record and the arguments of the parties, and for the reasons set forth above, we affirm. ALL CONCUR.

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BRIEFS FOR APPELLANT: John Douglas Hubbard Bardstown, Kentucky

BRIEF FOR APPELLEE, MARTINA DENISE WALLS AMSHOFF: Joseph G. Ballard Bardstown, Kentucky BRIEF FOR APPELLEE, ROBERT E. BUTLER, GUARDIAN AD LITEM: No Brief Filed

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