GEORGE W. PHILPOT v. ANNA RUTH PHILPOT
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RENDERED: December 17, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003259-MR
GEORGE W. PHILPOT
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE FARMER H. HELTON, JUDGE
ACTION NO. 96-CI-0067
ANNA RUTH PHILPOT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOX AND SCHRODER, JUDGES.
JOHNSON, JUDGE: George W. Philpot appeals from the findings of
fact, conclusions of law, and final judgment entered by the Bell
Circuit Court on September 5, 1997, that dissolved the marriage
between him and Anna Ruth Philpot,
and decided all issues
concerning the parties’ marital and non-marital property.
Having
concluded that the trial court’s findings of fact are supported
by the evidence and that the trial court did not abuse its
discretion in its division of the property, we affirm.
George and Ruth were married on January 19, 1989, and
separated on February 1, 1996.
George filed a petition for
dissolution of the marriage on March 1, 1996.
Evidence was
submitted and on September 5, 1997, the trial court entered its
final judgment dissolving the marriage and deciding all property
issues.
On September 15, 1997, George filed a motion to alter,
amend or vacate the final judgment.1
George argued that the
trial court had erred in the division of his pension, his IRA,
the cabin, and in the assignment of responsibility for medical
bills and insurance.
Ruth filed a response to George’s CR 59.05
motion on September 22, 1997, in which she argued that the motion
was a nullity and should not be considered since George’s new
attorney, Mary-Ann Smyth Rush, had not filed a notice of entry of
appearance.
Ruth also argued that “the distribution of property
was just in all respects and proper according to the law.”
Rush then filed a notice of entry of appearance,
followed by two re-notices for the CR 59.05 motion to be heard by
the trial court.
On October 17, 1997, George filed a reply to
Ruth’s response.
The reply supplemented George’s earlier
arguments by including three exhibits that had not been
previously introduced into evidence.
filed a motion to strike the exhibits.
On October 17, 1997, Ruth
She argued that since the
exhibits had not been introduced before the final judgment, they
were inadmissible as a matter of law.
1
George, without supporting
Kentucky Rules of Civil Procedure (CR) 59.05.
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legal authority, filed a response to the motion to strike on
October 22, 1997.
George argued that the trial court should
consider the exhibits to “prevent a manifest injustice” in the
action.
On November 21, 1997, the trial court denied the motion
to alter, amend, or vacate, and made additional findings of fact
relating to the division of property.
We first consider Ruth’s claim that this Court does not
have subject matter jurisdiction over this appeal because
attorney Rush failed to file a notice of entry of appearance,
before filing the CR 59.05 motion.
While both parties failed to
cite any authority in support of their positions, the law
provides that when a pleading is not properly signed, in
violation of a rule, dismissal is not mandatory, but rather at
the court’s discretion.2
Since the trial court addressed the CR
59.05 motion, it obviously chose, within its discretion, not to
dismiss the motion as being improperly filed.3
Ruth also argues that we should not consider the three
exhibits George attached to his CR 59.05 motion because these
exhibits constitute evidence outside the record.
court denied George’s CR 59.05 motion, it did not
When the trial
rule on Ruth’s
motion to strike the exhibits, or in any way address these
2
See 61B Am. Jur. 2d § 886 (1999).
3
See also In re Estate of Herring, 970 S.W.2d 583 (Tex.App.
Corpus Christi 1998)(court held that the trial court may not
treat an unsigned pleading as a nullity); and Horton v. Horton,
Ky., 263 Ky. 413, 420, 92 S.W.2d 941 (1936)(“court is not
authorized to disregard them after permitting them to be
filed”)(citation omitted).
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exhibits.
Thus, it is impossible for this Court to determine
what weight, if any, the trial court placed on the exhibits.
However, since we affirm the trial court’s rulings that were
favorable to Ruth, any consideration by the trial court of
George’s exhibits would have been harmless error.
We will now turn our attention to addressing the issues
raised by George in his appeal.
We begin by noting that George
has failed to comply with CR 76.12(4)(c)(iv) by not providing “a
statement with reference to the record showing whether the issue
was properly preserved for review and, if so, in what manner”;
and by not providing “ample supportive references to the record.”
While we are not required to review the issues due to George’s
noncompliance with CR 76.12, we will, nonetheless, do so.
However, counsel should take note of the availability of
sanctions for such deficiencies.4
The trial court, in dividing property, must assign each
spouse his or her non-marital property and then divide the
couple’s marital property in “just proportions,” without regard
to marital misconduct and in light of the following factors: each
spouse’s contribution to the acquisition of the marital assets,
including homemaking duties; the value of each spouse’s nonmarital property; the duration of the marriage; and the economic
circumstances of each spouse at the time of distribution.5
The
role of this Court is to review the trial court’s judgment to
4
CR 76.12(8).
5
KRS 403.190(1) (a)-(d).
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determine whether its factual findings are clearly erroneous or
whether it abused its discretion in applying the law to the
facts.6
The trial court has “wide discretion” in the division of
marital property.7
The trial court’s division of property will
be upheld absent a showing of abuse of discretion.8
George argues that the trial court abused its
discretion when it granted Ruth a portion of his pension.
The
trial court found that George’s monthly pension benefit was
$1850.00; that George’s pension increased in value during four
years of the marriage; that George had worked a total of 29.3
years at General Motors; and that Ruth was thereby entitled to
“at least 11%” of his pension income, or $200 per month.
George argues correctly that only a vested pension can
be considered marital property and be subject to division.9
In
his brief, George notes that the pension plan vested in “January
1989", “before” the parties were married on January 19, 1989:
Quite clearly, [George’s] pension vested
before the marriage between [George and Ruth]
ever occurred. Although [Ruth] was married
to [George] for four years of his active work
with General Motors, the pension vested
before they married, and [George’s] benefits
were not increased during the four years he
worked while married to [Ruth]. Therefore,
according to the applicable case law and KRS
6
CR 52.01; Herron v. Herron, Ky., 573 S.W.2d 342, 344
(1978).
7
Davis v. Davis, Ky., 777 S. W.2d 230, 233 (1989).
8
Herron, supra.
9
Owens v. Owens, Ky.App., 672 S.W.2d 67 (1984) and Fry v.
Kersey, Ky.App. 833 S.W.2d 392 (1992).
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403.190, George’s pension was not divisible
as marital property and the award of any of
[George’s] interest in his pension to [Ruth]
in the final decree was clearly error by the
trial court.
George’s argument ignores the fact that at trial George
admitted the value of his pension was enhanced over the four
years he worked at General Motors during the marriage.
George
cites Vanover-May v. Marsh, Ky.App., 793 S.W.2d 852 (1990), for
the proposition that in determining the marital share of a
pension the trial court should not consider the time period the
parties were married that occurred after retirement.
In the case
sub judice, the trial court did not consider the time period
occurring after George retired, but instead only considered the
four years that George worked while he was married to Ruth.
Furthermore, in dividing the marital property under KRS
403.190(1)(b), the trial court is required to consider the value
of each spouse’s non-marital property, such as the non-marital
portion of George’s pension.
Therefore, we find no abuse of
discretion by the trial court in dividing George’s pension.
George also claims that the trial court erred in
awarding “Ruth a portion of [his] IRA.”
George before the marriage.
The IRA was owned by
It had a balance of $4,000.00 at the
beginning of the marriage; and at the time of dissolution its
value was shown to have increased to over $18,000.00.
The trial
court, in its amended findings, addressed the concern raised by
George regarding the IRA and stated, “[e]xcept for the $200.00 a
month no value has been placed on the amount of the IRA and the
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Pension Fund except in the over-all picture.”
Thus, George is in
error when he claims the trial court awarded Ruth a portion of
his IRA.
Again, any consideration that was given to the non-
marital IRA was done in relation to dividing the martial property
pursuant to KRS 403.190(1)(b).
George next claims that the trial court abused its
discretion in awarding Ruth a lien on the Corbin property.
The
parties purchased this property during the marriage from George’s
mother for $4,000.00.
George claims that there is no indication
that Ruth contributed any amounts to the $4,000.00 that was used
to buy the property.
However, there is evidence to the contrary
from George himself in his deposition testimony:
Q. I think you also admitted that you and
your wife purchased your mother’s property
for $4,000.00?
A. Yes sir.
Q. During the marriage?
A. Yes sir.
Q. From marital funds?
A. Yes.
Once again, the record contains no evidence to support George’s
claim that the $4,000 used to purchase the Corbin property could
be traced to his non-marital property.
However, George was
awarded the Corbin property as part of the division of martial
property.
The fact that the trial court awarded Ruth a lien on
the property to secure her monetary claim against George cannot
be deemed an abuse of discretion.
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The trial court’s judgment
ordering George to execute a lien in actuality did not give Ruth
any additional rights that she did not already possess in the
form of a judgment lien.10
George’s last issue concerns the award of the cabin to
Ruth as “pre-marital”, or non-marital, property.
Ruth testified,
and the trial court found, that while both parties had worked to
improve the cabin, “all the money put into the cabin was from the
pre-marital funds of [Ruth].”
In its order denying George’s CR
59.05 motion, the trial court made additional findings that “premarital property of [Ruth’s] was eventually sold with a
substantial amount of profit being reinvested in the property
referred to as the cabin.”
Ruth’s testimony supported the trial
court’s finding that George had received, near the time the
parties separated, $7,885.00, constituting one-half of that
profit from Ruth’s non-marital property.
George did not dispute
this, nor did he dispute Ruth’s claim that the funds invested in
the cabin were primarily her non-marital funds.
The presumption
that property purchased during the marriage is marital property
is overcome by this evidence of Ruth’s non-marital investment.
In its division of the cabin, the trial court considered both the
value of Ruth’s non-marital contributions and George’s
contributions to the improvement of the cabin.
Despite George’s claim that some evidence was
introduced purporting to show that Ruth had obtained ownership of
the cabin during the marriage in 1991 , George testified to the
10
See KRS 426.720.
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contrary in his own deposition by stating that Ruth owned the
cabin when they married.
There was also evidence that Ruth
already owned the cabin before the marriage, but was merely
paying the debt on the cabin during the marriage.
Even if the
cabin were deemed to be marital property, the trial court was
within its authority to award it to Ruth as a part of the overall
division of marital property.
George does not allege that the
award of the cabin is otherwise inequitable in the context of the
overall property division. We find no abuse of discretion related
to the cabin.
Clearly, whenever possible, it is preferable to
make a clean division of property so the parties are “spared
further entanglement.”11
Accordingly, the judgment of the Bell Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mary-Ann Smyth Rush
London, KY
Gerald L. Greene
Pineville, KY
11
See Duncan v. Duncan, Ky.App., 724 S.W.2d 231, 233 (1987).
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