MATTHEW BRYNE BECK v. DELENA BEARD (FORMERLY DELENA BEARD BECK)Annotate this Case
DECEMBER 8, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
MATTHEW BRYNE BECK
APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 97-CI-00409
DELENA BEARD (FORMERLY
DELENA BEARD BECK)
VACATING AND REMANDING
** ** ** ** **
COMBS, JOHNSON, AND KNOPF, JUDGES.
Matthew Bryne Beck appeals from an August 3, 1998,
judgment of the Taylor Circuit Court dissolving his marriage to
Delena Beard, disposing of the couple’s property, and
apportioning their debts.
Beck contends that the property and
debt assignments were based on erroneous findings of fact and
were so inequitable as to constitute an abuse of the trial
Although we do not reach all of Beck’s
contentions, we are persuaded that the meager record thus far
compiled does not adequately support many of the trial court’s
We remand this matter, therefore, for additional proceedings.
Beck and Beard married in June 1996.
in their early twenties.
Both of them were
They separated in November 1997, Beard
petitioning for dissolution that same month.
No children were
born during this brief marriage, nor did the parties acquire a
In June 1998, the trial court convened a
hearing to address property and debt issues.
Prior to the
hearing and in compliance with a pre-trial order, Beck had filed
a document allegedly summarizing the estate and proposing a
division of its assets and liabilities.
According to Beck, the
couple’s assets consisted primarily of household goods, including
some jewelry, and two automobiles, a Pontiac Trans-Am and a Ford
Beck’s summary also listed some shares of Kroger
Co. stock and suggested that Beard had acquired them through an
employee purchasing plan.
The liabilities Beck listed were auto-
related obligations to two banks and four credit-card balances.1
Beck’s summary estimated the estate and proposed its
division as follows:
Kroger Savings Plan
At the June 1998 hearing, Beck sought to supplement his
pre-trial summary by tendering an itemized list of the couple’s
The list purported to indicate the value of
each item, whether it was marital property or non-marital, and
who had possession of it in the division the parties had already
Beard tendered a similar list of household goods,
although hers did not include values.
According to Beck, Beard
had possession of about $8,200.00 worth of the household goods,
and he had possession of household goods worth about $1,200.00.
Beard objected to the introduction of Beck’s documents, both the
summary and the itemized list, on the ground that the values
represented on them were inaccurate and had not been properly
In the discussion that followed, the trial court
declared that it would not entertain detailed proof concerning
the value of the household goods.
The case should not, Beard’s
Star Bank (Ford)
[This should be
[This should be
[Beck’s grand total
comports with the
[This should be
counsel asserted and the court agreed, become a fight over the
value of sugar bowls.
Thereupon, Beck acknowledged that he did
not oppose what he believed was an unequal division of the
household goods provided the overall division of the estate was
otherwise made equal along the lines of his tendered proposal.
In particular, he indicated a strong preference for the Pontiac
rather than the Ford.
The trial court apparently understood Beck to mean that
the only dispute was over the Pontiac, and thus that evidence
concerning the rest of the estate was unimportant.
objection to Beck’s documents was not ruled upon, nor was Beck’s
motion to introduce them into evidence.
Instead, the parties
testified briefly as to whether a washer, dryer, and treadmill
were marital property or non-marital, and Beck testified that the
Pontiac had a current value (apparently a blue-book value) of
He also argued that the debt on the Pontiac
could currently be retired for about $16,000.00,2 although the
parties agreed that if the debt were extended for the full period
of the loan the amount to be repaid was in excess of $19,000.00
(52 payments outstanding x $371.00/payment).
The parties also
agreed that the payments on the Ford were about $327.00/month,
but there was no evidence concerning the Ford’s current value,
and, aside from counsel’s assertion that three years remained “on
Sometime after the hearing, Beck submitted a statement from
the creditor bank corroborating this assertion.
the lease,”3 the number of monthly payments outstanding was not
Nor was there any proof concerning the existence or the
amount of any of the credit-card debts, with the exception of
Beck’s tendered balance sheet and Beard’s testimony that the
treadmill had been purchased on credit from Sears and that she
had been making the payments.
Evidence was lacking as well on
Beard’s alleged workplace savings.
Beck’s summary of the marital
estate implied that Beard had worked for Kroger during the
marriage and that she had accumulated Kroger Co. stock or
retirement benefits, but nothing else in the record established
the existence of this alleged asset, its character as marital or
non-marital property, or its value.
Indeed, the trial court’s initial disposition of the
estate did not even mention Beard’s alleged Kroger Co. asset.
Instead the court acknowledged the “list of property furnished by
counsel . . . [that] reflects the items which are now in the
hands of each of the parties,” and found that the following debts
had accumulated during the marriage:
Helzburg diamond store
The court apportioned the first three of these debts to
Beard and the last two to Beck.
Without attempting to value
If the Ford was in fact leased, then only the value of the
lease (if any) and not the value of the vehicle would figure
among the estate’s assets. This is another matter that, if
necessary, may be addressed on remand.
either the car or the goods, it also awarded to Beard the Pontiac
with its associated debt and all of the household goods that had
been in her possession at the time of the hearing.
Beck promptly moved for additional findings and an
By his calculation, the court had awarded
Beard approximately $29,000.00 of the roughly $50,000.00 in
estate assets and had apportioned to her only about $19,000.00 of
the estate’s liabilities, which totaled approximately $46,000.00.
Why, Beck wondered, should there be a $16,000.00 discrepancy4 in
the division of an estate with a net value of less than
Beard’s student loans could not account for the
difference, he maintained, because their existence had not been
proven; they had simply materialized in the trial court’s
Even if they existed, they were Beard’s non-marital
debts, Beck asserted, and thus were not properly included in the
The effect of their inclusion in the decree,
Beck claimed, was to obscure what was otherwise a clearly
inequitable division of the parties’ assets and liabilities.
In response to Beck’s motion, the trial court
supplemented its August 3, 1998, decree with an order entered
October 28, 1998.
In the supplementary order the court observes
that the student loans are Beard’s non-marital debts, but it does
not explain how they came to the court’s attention.
also finds, contrary to Beck’s summary of the estate, that the
Beard’s net award, according to Beck, was approximately
$10,000.00, whereas Beck claims that his net award was
approximately $21,000.00 (assets) - $27,000.00 (liabilities) or
household goods were divided equally and that the two automobiles
had equal equity.
Supplementing the decree’s conclusions, the
order also provides that Beard’s Kroger Co. stock should be
deemed her non-marital property, in light of the marriage’s
brevity; that Beck should retain jewelry in his possession; and
that the apportionment of the credit-card debt in the original
decree was based on
who incurred the debt, who received the
benefit of same, who received the property
purchased as a result of the debt and
further, in consideration of the equities in
the distribution of all personalty.
It is from the August 3, 1998, decree as thus supplemented that
KRS 403.190 governs the property dispositions
necessitated by marriage dissolutions, and, in general, trial
courts are expected to use a three-step process when settling
First, the court must determine what property
is available for distribution.
court values the property.
Third, the court divides the marital
property in “just proportions.”
There is no
presumption or requirement that marital property be equally
Rather, as noted,
the court must . . . divide the couple's
marital property in "just proportions,"
Beck requested the trial court to reconsider its October
28, 1998, order, but that request, as Beard notes and as Beck
apparently acknowledges, amounted to an improper, successive
motion for CR 59 relief. Cloverleaf Dairy v. Michels, Ky. App.,
636 S.W.2d 894 (1982). That motion not serving to sustain the
trial court’s jurisdiction, we have disregarded the trial-court
proceedings pertaining to it, although we may note that the trial
court summarily denied Beck’s request.
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 non-marital
property; the duration of the marriage and
the economic circumstances of each spouse at
the time of distribution.
Russell v. Russell, Ky. App., 878 S.W.2d 24, 25 (1994) (citations
This Court reviews the trial court’s factual findings
under the clearly erroneous standard of CR 52.01 and its exercise
of discretion for abuses thereof.
Herron v. Herron, Ky., 573
S.W.2d 342 (1978); Purdom v. Purdom, Ky., 498 S.W.2d 131 (1973).
Beck maintains that several of the trial court’s
factual findings were clearly erroneous.
of course, may not be deemed clearly erroneous if it is supported
by substantial evidence of record.
564 S.W.2d 221 (1978).
Johnson v. Johnson, Ky. App.,
Evidence is substantial only if it has
sufficient probative value to induce conviction in the minds of
Reichle v. Reichle, Ky., 719 S.W.2d 442
Kentucky State Racing Commission v. Fuller, Ky., 481
S.W.2d 298 (1972).
Where the evidence lacks that power, however,
or where it is simply lacking, the trial court is not at liberty
to fill the void with its own extra-evidentiary knowledge unless
the particular fact is so commonly known that it may be given
Colley v. Colley, Ky., 460 S.W.2d 821 (1970);
Brunson v. Brunson, Ky. App., 569 S.W.2d 173 (1978).
Unfortunately, several of the trial court’s findings in this case
lack adequate evidentiary support.
The most glaring instance is the finding that Beard is
encumbered with student loans.
We have little doubt that this
statement is true, and if properly proven it is a fact that could
legitimately bear on the distribution of the marital estate.
But there is no evidence in the record to establish
The finding, therefore, is clearly erroneous and should not
have appeared in or had any bearing upon the decree.
Nearly as unsupported are the findings implicit in the
court’s rulings to the effect that Beard acquired Kroger stock
during the marriage and that the parties’ credit-card debts were
apportioned according to which party caused the particular debt
and benefitted from it.
As noted above, the evidence does not
even establish that Beard worked for Kroger, much less that the
alleged stock was acquired during the marriage.6
individual responsibility may well be a valid basis for
apportioning marital debts in some cases, there is no evidence in
this case tending to show that either party individually caused a
particular credit-card transaction or, indeed, what was
purchased--aside from a treadmill--in any of them.
findings, too, then, are clearly erroneous.
Also troublesome is the trial court’s finding regarding
the value of the couple’s household goods.
We are familiar with
how difficult and unsatisfying proof of value tends to be.
proof is particularly vexatious where the values to be determined
are numerous and relatively insignificant.
It is always to be
hoped that a divorcing couple will divide their household goods
If it was acquired during the marriage, however, it may not
simply be deemed non-marital. Its character as marital or nonmarital property must be determined in accordance with KRS
by agreement or at least that they will stipulate values or a
range of values for them.
Where there is neither agreement nor
stipulation, however, and the question of value is not otherwise
waived, the trial court has no alternative but to entertain proof
on this question in some manner.
This is not to say that the
trial court’s reluctance to expend hearing time on the minutia of
a divorcing couple’s personalty was unreasonable or hard to
Evidence of the value of household goods may better
be gathered perhaps, in some other way, such as a commissioner’s
hearing or depositions.
But be that as it may, where the issue
of value is engaged, evidence, however gathered, is necessary to
Beard contends that there was an agreed division of the
household goods in this case, which obviated proof of value, but
the “agreement,” the record makes clear, was conditioned from
Beck’s point of view on what he considered an equalizing division
of other property, particularly the automobiles, and the
condition did not occur.
Beck assuredly did not agree that the
already-effected division of the household goods was equal, just
as Beard assuredly did not stipulate that Beck’s proffered values
The issue of value was thus engaged and evidence
Beck’s attempt to introduce evidence, however,
was cut short, and Beard proffered none.
Nevertheless, the trial
court found that the household goods had been divided equally.
The only possible basis for this finding is the trial court’s own
estimate of the property’s worth, an inappropriate exercise of
See Colley v. Colley, supra.
then, is also clearly erroneous.
Beck also challenges the trial court’s finding that the
automobiles had equal equity.
As noted above, the evidentiary
basis for this finding was again scant, although in this instance
it may have been sufficient.
We need not address that question,
however, for the errors already noted require that this case be
We are mindful that the parties have been
divorcing now for longer than they were married.
We are also
mindful that, equity in the division of marital estates being
left largely to the trial court’s discretion, the division of
this estate may, upon a proper record, be shown to have been
within that discretion.
The parties are entitled, however, (Beck
in particular in this instance) to the assurance that the trial
court’s discretion has been exercised on the basis of facts.
Those should only be facts that the parties have had a full and
fair opportunity either to prove or to controvert.
reasons discussed above, the record before us does not provide
Accordingly, we vacate those portions of the
August 3, 1998, decree (as modified by the October 28, 1998
order) disposing of the marital property and remand for
reconsideration of that disposition in light of new evidentiary
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
David A. Nunery
Theodore H. Lavit
Theodore H. Lavit &