WARREN GENE TUTTLE v. MILDRED ANN NEIKIRK TUTTLE
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RENDERED:
October 30, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1997-CA-000814-MR
1997-CA-001214-MR
WARREN GENE TUTTLE
v.
APPELLANT
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR.,JUDGE
ACTION NO. 95-CI-000126
MILDRED ANN NEIKIRK TUTTLE
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
COMBS, EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Warren Gene Tuttle (Warren) appeals from the
final judgment of the Estill Circuit Court in his divorce action
against Mildred Ann Neikirk Tuttle (Mildred), and from orders
denying his post-judgment motions.
In this appeal, Warren claims
error because the division of property does not assign every
asset a value, and because the trial court awarded Mildred $2,500
towards her attorneys’ fees.
We affirm.
Warren and Mildred were married on June 21, 1985.
was the second marriage for both parties.
both ended in divorce.
This
Their first marriages
In fact, Warren was still in the process
of property division from his previous wife, Anna, during his
marriage to Mildred.1
A general grocery store in Estill County
was involved in the property division between Warren and Anna and
was valued at $32,000 at the time of discovery.
The grocery
store was also the marital home for Warren and Mildred for the
first four years of their marriage until it was sold in
September, 1989, for $55,000.
The store appreciated $23,000 in
value during the four year marriage of Warren and Mildred.
After
the general store was sold in 1989, the parties acquired three
video rental stores, known as Hometown Video I, Hometown video
II, and Hometown Video III.
The couple supported themselves off
the modest income from these three stores during the marriage.
The parties separated on June 5, 1995, and this divorce
action was filed August 17, 1995.
The action was bifurcated and
a decree of divorce was entered October 4, 1996.
parties litigated property division.
Thereafter, the
Warren was very
uncooperative and vindictive towards Mildred throughout the
proceedings.
In the judgment of property division, the trial
court noted, “Mr. Tuttle has been found in contempt of Court for
failing to provide discovery to Mrs. Tuttle and also has been
found in contempt of Court for failure to return Mrs. Tuttle’s
personal property as ordered by the Court.”
1
The case file of the divorce between Warren and Anna is
apparently missing from the Estill Circuit Clerk’s Office. A
copy of that file was requested in discovery during this action
but was not produced by Warren’s counsel. Warren’s counsel had
previously represented Anna in her divorce from Warren.
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In the February 7, 1997, judgment of property division,
the trial court awarded Warren: the Hometown Video III store; all
livestock and farming equipment; a house trailer and its
furnishings; $1,000 from the sale of the marital home; two bird
dogs; marital household furnishings in his possession; $5,000 in
the HNB savings account; 1988 Ford Bronco; any other bank
accounts in his name; and any post-separation property he had
acquired.
Mildred was awarded: the Hometown Video I and II
stores; 1990 pickup truck; $1,000 from the sale of the marital
home; $5,000 in the HNB savings account; any bank accounts in her
name; any post-separation property she had acquired.
The court
required each party to be responsible for the debts, taxes or
assessments owed on the property they were awarded.
Warren was
also ordered to pay $2,5000 towards Mildred’s attorney’s fees
because, “[h]is actions have caused Mrs. Tuttle to incur
additional costs and attorney fees a portion of which she should
recover from Mr. Tuttle in this action.”
On February 18, 1997, Warren’s trial counsel filed a
motion to alter, amend or vacate the judgment of property
division pursuant to CR 59.05.
entered February 28, 1997.
This motion was denied by order
On March 27, 1997, Warren’s new
attorney filed a motion requesting the court “assign specific
dollar values to all properties awarded... .”
Warren filed his
first notice of appeal the next day, March 28, 1997.
Also on
March 28, 1997, the record reflects the trial court entered an
order enlarging Warren’s time to perfect an appeal to thirty days
-3-
after the ruling on the motion then pending.
the motion was entered April 18, 1997.
The order denying
On April 29, 1997, Warren
filed an amended notice of appeal indicating he appealed from the
judgment of property division and the orders denying his two
post-judgment motions.2
The standard of appellate review we apply to findings
of fact in domestic relations cases is the findings shall not be
set aside unless clearly erroneous.
CR 52.01.
Moreover, KRS
403.190, the property division statute, does not require property
to be divided equally, only that the division be in “just
proportions.”
(1983).
McGowan v. McGowan, Ky. App., 663 S.W.2d 219
The laws gives the trial court a good deal of discretion
in dividing marital property and awarding attorney’s fees.
It is
by these standards which we must scrutinize the record in this
case.
The first issue presented is whether the trial court
erred in its division of marital property when it awarded two of
the three video stores to Mildred without assigning specific
dollar values to the three stores.
Warren claims “[i]t is not
possible to review the Judgment of Property Division or the
record and determine if the marital property was divided in just
proportions.”
The reason the record does not contain more
information regarding the video stores and other assets is that
Warren, despite repeated discovery requests and court orders,
2
This appeal has two Court of Appeals case numbers because
of the original and amended notices of appeal.
-4-
failed to provide it.
Warren never requested an appraisal of the
businesses or other assets nor did he provide one of his own.
The state of the record generally and the claimed lack of
evidence on value of assets specifically, is clearly Warren’s
fault.
Our review of the record indicates the judge did the best
job possible with the information he had available.
The trial
court found:
...[T]he increase in the value of the store
from $32,000 to %55,000 was due to both
economic inflation and the contribution of
the parties in adding improvements to the
store. The Court therefore finds that the
value of the increase from contribution by
the parties is $10,000.00 and that each of
the parties is entitled to one half (1/2) of
that sum or $5,000.3
As to the video stores, the trial court found:
The Court finds that the video stores were
purchased by the parties through loans
acquired from HNB Bank and that they were not
purchased with the non-marital funds of Mr.
Tuttle. By his own testimony Mr. Tuttle
indicates that Mrs. Tuttle has been almost
solely responsible for the running of the
video stores located in Irvine [Estill
County, Hometown Video I and II]. The
evidence is that she has managed the accounts
for the Beattyville store although he has
been the one to physically manage the store.
[Lee County, Hometown Video III]... .
...
In reviewing the information available
from the video stores it appears that they do
not generate a great deal of income, however
they do provide enough income for the parties
to make a reasonable living.
3
Mildred did not cross-appeal this finding or any other
finding.
-5-
The court had to split three video stores between two parties.
Absent the sale of one of the stores, either Mildred or Warren
had to receive two stores.
Considering this and the fact that
Warren has non-marital pension income of $638 per month, we
cannot say that the trial court failed to divide the marital
property in just proportions.
Warren has failed to cite us to
evidence sufficient to meet his burden of proving the trial
court’s findings are clearly erroneous.
This assignment of error
is completely without merit.
Warren’s second assignment of error is that the trial
court erred in requiring him to pay a portion of Mildred’s
attorney’s fees.
We disagree.
Under KRS 403.220, the court can
award attorney’s fees if there is a disparity in the relative
financial resources of the parties.
The attorney’s fees incurred
by Mildred as a result of Warren’s obstructive tactics and
refusal to cooperate in the proceedings are recoverable under
Gentry v. Gentry, Ky., S.W.2d 928 (1990):
The amount of an award of attorneys fees
is committed to the sound discretion of the
trial court with good reason. That court is
in the best position to observe conduct and
tactics which waste the court’s and
attorney’s time and must be given latitude to
sanction or discourage such conduct. Id. At
938.
Separate and independent grounds supporting the award
of attorney’s fees are found in the record in Warren’s failure to
provide discovery (as authorized by CR 37.01[d]) and Warren’s
failure to comply with court orders (as authorized by CR
-6-
73.02[3]).
Warren has failed to meet his burden of proving the
trial court abused its discretion in awarding Mildred $2,500
towards her attorney’s fees.
We affirm the Estill Circuit Court’s judgment of
property division and the orders denying Warren’s motions for
post-judgment relief.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert C. Moody
Richmond, KY
Marvin E. Clem
Lexington, KY
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