MARY ELIZABETH MOORE and LAW OFFICE OF GORDON DILL, P.S.C. v. HOWARD F. MOORE
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RENDERED:
October 15, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001276-MR
MARY ELIZABETH MOORE and
LAW OFFICE OF GORDON DILL, P.S.C.
APPELLANTS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 96-CI-01105
v.
HOWARD F. MOORE
APPELLEE
and
NO.
1998-CA-001311-MR
HOWARD F. MOORE
CROSS-APPELLANT
CROSS-APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 96-CI-01105
v.
MARY ELIZABETH MOORE
CROSS-APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
COMBS, EMBERTON, and McANULTY, Judges.
COMBS, JUDGE:
The appellant, Mary Elizabeth Moore (Beth),
appeals from the judgment of the Boyd Circuit Court in a marital
dissolution proceeding.
She contends that the court erred in its
division of the property and in failing to award her maintenance
and attorney’s fees.
The appellee, Howard F. Moore (Howard),
cross-appeals, challenging the court’s division of the property
as well.
Having reviewed the record, we affirm in part, vacate
in part the judgment of the circuit court, and remand.
Howard and Beth were married on August 2, 1975.
Two
children were born of their marriage — one of whom is over the
age of eighteen.
Howard is employed as an engineer by Ashland,
Inc., with an annual income of $100,355.32.
Beth has a hearing
impairment and for most of the parties’ marriage, she did not
work outside the home.
However, she worked as teacher for a
short period early in the parties’ marriage.
Beth receives a
small income from her investments of non-marital funds.
On November 12, 1996, Beth filed a petition to dissolve
the parties’ marriage.
The court referred the action to a
domestic relations commissioner (DRC).
The DRC conducted a
hearing and filed his report and recommendations with the court
on March 4, 1998, dividing the parties’ non-marital and marital
property and addressing the issues of maintenance and custody of
the parties’ minor child.
The DRC found that Beth had
successfully traced her contribution of non-marital funds to the
parties’ farm (the marital residence).
Using the formula set
forth in Brandenburg v. Brandenburg, Ky. App., 617 S.W.2d 871
(1981), the DRC calculated Beth’s non-marital interest in the
farm as 42.27% and the parties’ marital interest as 57.73%.
He
recommended that the farm be sold, that Beth receive 42.27% of
the proceeds as her non-marital contribution, and that the
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remaining portion — the marital interest — be divided equally
between the parties.
The parties also owned several horses and
operated a horse boarding facility on their farm.
The DRC
awarded Beth and Howard two horses each; he also allocated two
horses to their minor daughter, stating that they should be
maintained for her.
The DRC directed that the remaining
livestock should be sold unless the parties could reach an
agreement as to its division.
The DRC found that Beth should be restored her nonmarital investments totaling approximately $277,800.00.
As to
the retirement fund accumulated during the marriage by Howard
through his employment and the parties’ other financial
investments, the DRC recommended that they be equally divided
between the parties.
The DRC directed that pending the sale of
the farm, Howard should pay Beth $500.00 per month in maintenance
and that he continue to be responsible for the mortgage payments
and the taxes on the farm.
The DRC recommended that the parties
have joint custody of their minor child but that the child’s
primary residence should be with Beth.
On April. 14, 1998, the court entered an order adopting
the DRC’s report except for the recommendation as to the issue of
custody.
The court awarded Howard custody of the parties’ minor
child and granted Beth visitation rights.
As the action
proceeded forward, the farm was sold for $425,000.00.
After the
mortgage was paid, $317,000.00 remained from the sale of the farm
from which $60,000.00 was immediately distributed to Beth to
purchase a house.
Pursuant to the DRC’s findings adopted by the
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court, Beth received a total of $225,497.95 and Howard received
$91,502.05.
Subsequently, the court entered an order on May 1,
1998, correcting a clerical error regarding the distribution of
certain life insurance policies.
On May 18, 1998, the court
entered a decree dissolving the parties’ marriage, awarding
Howard custody of the parties’ minor child, and adopting and
incorporating the DRC’s report except as modified by the court’s
orders of April 14, 1998, and May 1, 1998.
Additionally, Beth
was ordered to pay Howard $142.00 per month in child support.
This appeal and cross-appeal followed.
Beth first argues on appeal that the court erred in
failing to award her maintenance beyond the sale of the parties’
farm.
She contends that she lacks sufficient property to provide
for her reasonable needs and that she is unable to support
herself through appropriate employment.
Beth asserts that her
hearing impairment and other physical problems limit her ability
to find appropriate employment.
Therefore, she maintains that
she is entitled to maintenance under KRS 403.200.
The scope of appellate review of a trial court’s
decision on the issue of maintenance is limited.
It is a matter
that is within the sound discretion of the circuit court.
v. Moss, Ky. App., 639 S.W.2d 370, 373 (1982).
Moss
Absent a showing
of abuse by the trial court, an appellate court may not disturb
the trial court’s findings.
56 (1990).
Clark v. Clark, Ky. App., 782 S.W.2d
In determining whether maintenance is appropriate,
the court is required by KRS 403.200(1) to consider: (1) whether
the spouse seeking maintenance lacks sufficient property,
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including the marital property apportioned to her, to support
herself; and (2) whether she is unable to support herself through
appropriate employment.
The record shows that Beth was awarded a substantial
amount of non-marital and marital property.
She received
approximately $225,000.00 from the sale of the farm, and the
amount of $277,800.00 in non-marital financial investments was
restored to her.
Additionally, Beth’s share of the division of
the parties’ other financial assets was approximately
$250,000.00.
Although Beth has a hearing impairment and has been
treated periodically for asthma and depression, the evidence
shows that she managed the parties’ horse boarding operation — an
enterprise which required her to deal with customers, supervise
employees, purchase materials, and attend to care of the horses.
She is highly educated, having obtained a B.A., M.A., and Rank I
status on her teaching certificate.
Presumably, she could re-
activate that certificate with a few additional hours of course
work.
We cannot say that the court abused its discretion in
failing to award Beth maintenance beyond the sale of the farm.
The criteria set forth in KRS 403.200 have not been met; Beth
received a large amount of property, and she is capable of
working.
We find no error.
Beth next argues that the court erred in failing to
find that the farm was wholly Beth’s non-marital property.
During the parties’ marriage, Howard executed a deed conveying
sole title of the farm to Beth.
She maintains that Howard
conveyed to her his interest in the farm in exchange for her
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agreeing to use $25,000.00 of her non-marital funds to reduce the
mortgage on the farm.
Beth thus contends that Howard gave her
his interest in the farm as a gift and that, therefore, it
constituted non-marital property.
All property acquired after the marriage and before a
decree of legal separation is presumed to be marital property
regardless of whether title is held individually by one spouse or
by both parties.
KRS 403.190(3).
However, “[p]roperty acquired
by gift, bequest, devise, or descent during the marriage” is not
considered marital property.
KRS 403.190(2)(a).
The court’s
determination regarding an item’s status as a gift will not be
disturbed absent clear error.
S.W.2d 31 (1980).
Ghali v. Ghali, Ky. App., 596
In O’Neill v. O’Neill, Ky. App., 600 S.W.2d
493 (1980), this court held that the following four factors must
be considered in determining whether an item is a gift (and thus
excluded from consideration in the division of the marital
property):
(1) the source of the money with which the item was
purchased; (2) the intent of the donor at the time as to the
intended use of the property; (3) the status of the marriage
relationship at the time of the transfer; and (4) the existence
of any valid agreement that the transferred property was to be
excluded from the marital property.
In evaluating these four
elements, the case law in this jurisdiction indicates that
donative intent constitutes the primary factor.
The DRC did not address this important issue in his
report and wholly omitted mentioning that title to the farm was
held by Beth.
Nonetheless, the DRC specifically found that the
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farm was purchased with both non-marital and marital funds.
Howard testified that the farm was placed in Beth’s name simply
to make her “feel better.”
He indicated that there was no
donative intent on his part to make a gift to Beth and that he
had not intended to exclude the farm from the marital property.
Moreover, he argues that the farm was purchased during the
parties’ marriage, that it was used as the marital residence, and
that the mortgage payments were paid with marital funds.
The critical issue of donative intent needed to be
examined carefully and addressed specifically by the DRC or the
court in order to resolve the status of the farm as marital
property subject to division or as Beth’s non-marital property as
a result of Howard’s "gift" and therefore exempt from division.
The DRC did not discuss this issue in his findings.
When the
exceptions filed by Beth properly raised the issue before the
trial court, no mention was made and no findings were entered
with respect to whether a valid gift of the farm in toto
redounded to Beth by virtue of Howard’s deed.
We therefore
vacate that portion of the judgment with respect to the
marital/non-marital status of the farm and remand for entry of
specific findings on this issue.
Beth also alleges on appeal that the horse Bambi
(formally known as “Knight Deer”) was her non-marital property
and that the court erred in failing to assign her this horse.
agree.
Bambi was not one of the horses assigned to Beth, to
Howard, or to their daughter.
Instead, she was included among
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We
the livestock deemed to be marital property which the DRC
directed to be sold unless the parties could reach an agreement.
Beth argues that she established that Bambi was
purchased with her non-marital property funds.
As
substantiation, she notes that the horse Thumper was correctly
assigned to her as her non-marital property, that Bambi is the
mother of Thumper, and that Bambi and Thumper had been acquired
together as mother and foal by her with non-marital funds.
The report and recommendation of the DRC omitted any
mention of Bambi but assigned Thumper as non-marital property to
Beth.
Beth filed an exception with respect to Bambi, and at that
time Howard did not dispute her contention.
The court did not
address the exception, allowing Bambi to be included among the
livestock to be sold.
On appeal, Howard contests Beth’s non-
marital interest in Bambi and contends that Bambi belongs to the
minor child.
It appears that Bambi’s omission from the DRC’s report
was an oversight — one that is surely understandable in light of
the tremendous amount of property to be catalogued.
However, we
find that clear error occurred with respect to Bambi and direct
the court on remand to award her to Beth as non-marital
property.1
The last issue raised by Beth on appeal is whether the
court abused it discretion in ordering each party to pay his own
1
We are mindful of the equitable maxim cited by appellee on
this point ("De minimus non curat lex"). However, what is a
trifle to one party may be a treasure to another, and the law
should concern itself with that distinction whenever possible.
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attorney’s fees.
She argues that in light of the disparity
between her income and Howard’s, the court abused its discretion
in failing to award her attorney’s fees.
It is well settled that an allocation of attorney’s
fees in a divorce action is within the discretion of the trial
court.
Browning v. Browning, Ky. App., 551 S.W.2d 823 (1977).
The only guideline is that there be a disparity in the financial
resources of the parties.
798 S.W.2d 928 (1990).
KRS 4032.220; Gentry v. Gentry, Ky.,
Furthermore, KRS 403.220 provides only
that the trial court may consider the financial resources of the
parties; it does not require the court to make findings on the
parties’ financial resources nor does it provide a specific
standard to evaluate the discrepancy in their respective
financial resources.
See generally Hollingsworth v.
Hollingsworth, Ky. App., 798 S.W.2d 145 (1990).
We find no
evidence that the court failed to consider the parties’
respective financial resources; thus, we cannot say that the
court abused its discretion.
On cross-appeal, Howard argues that court erred in
failing to recognize his non-marital interest in the farm and in
calculating the parties’ non-marital and marital interests in it.
We disagree.
The DRC made detailed findings tracing non-marital
and marital funds used from the time of the purchase of the
parties’ first house until the farm.
He then properly calculated
the parties’ non-marital and marital interests according to the
Brandenburg formula.
As the DRC’s findings are supported by
substantial evidence, we cannot say that court’s judgment was
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clearly erroneous or that it abused its discretion with respect
to the calculations.
However, this issue may be moot in light of
our remand for specific findings as to whether a valid gift of
the farm was conveyed to Beth by Howard’s deed.
Based upon the foregoing reasons, we affirm in part and
vacate in part the judgment of the Boyd Circuit Court, and remand
this matter for additional proceedings consistent with this
opinion.
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ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Gordon J. Dill
Ashland, KY
John David Preston
Paintsville, KY
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