PRUDENCE PRISCILLA TUFTS v. JAMES H. TUFTS
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RENDERED:
AUGUST 24, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001127-MR
PRUDENCE PRISCILLA TUFTS
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 98-CI-00828
v.
JAMES H. TUFTS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
EMBERTON, MILLER, AND SCHRODER, JUDGES.
MILLER, JUDGE: Prudence Priscilla Tufts (Priscilla) brings this
appeal from an April 5, 2000, order of the Boyd Circuit Court.
We affirm.
Priscilla and James Tufts were married on April 20,
1985.
No children were born of the marriage.
This was the third
marriage for Priscilla, and the fourth marriage for James.
Prior
to the marriage, Priscilla owned real property on Mill Road, in
Ohio.
Prior to the marriage, James owned real property on Music
Branch, in Kentucky.
At the time of dissolution, Music Branch
was the parties' marital home, and Mill Road was rented out for
$800.00 per month.
During the marriage, James was employed by AK
Steel, earning approximately $45,000.00 per year.
Priscilla
worked briefly in a retail clothing store at some time during the
marriage.
She also periodically traveled to various locations to
sell crafts.
On August 24, 1998, James filed a Petition for
Dissolution in the Boyd Circuit Court.
The matter was heard
before a Domestic Relations Commissioner (DRC) on March 17, 1999.
The DRC recommended, inter alia, that James pay Priscilla's
health insurance premiums for six months; that Priscilla was not
entitled to maintenance; that the parties be restored to their
premarital real properties; and that Priscilla was not entitled
to attorney fees.
Priscilla filed exceptions to the latter three
recommendations.
The circuit court referred the case back to the
DRC for rehearing.
The DRC filed another report on October 18, 1999,
concluding that the previous disposition of real property was
correct; that Priscilla was not entitled to attorney fees; and
Priscilla was entitled to maintenance in the amount of $350.00
per month for two years, in addition to the health insurance
premiums.
This report was adopted by order of the circuit court
dated October 29, 1999.
The court nevertheless gave the parties
additional time to file exceptions.
maintenance award.
James objected to the
Priscilla again objected to the property
valuation, and denial of attorney fees.
The circuit court ruled
that Priscilla was not entitled to attorney fees or maintenance,
and that the property valuation was appropriate.
A motion by
Priscilla to alter, amend, or vacate was overruled and a final
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decree of dissolution entered April 5, 2000.
This appeal
followed.
Priscilla asserts the circuit court abused its
discretion in assigning the marital and nonmarital values to the
Music Branch, Kentucky, and Mill Road, Ohio, properties.
The
circuit court found that at the time of dissolution, the Music
Branch, Kentucky property was worth approximately $90,000.00.
The property carried a mortgage of approximately $29,000.00,
leaving roughly $61,000.00 in equity.
The court found that at
the time of dissolution, the Mill Road, Ohio property was worth
approximately $95,000.00.
The property carried a mortgage of
approximately $27,000.00, leaving roughly $68,000.00 in equity.
James was awarded Music Branch, his premarital property.
Priscilla was awarded Mill Road, her premarital property.
As the
marital contributions on the premarital properties were very
close, the circuit court found that restoring the parties to
their premarital residences constituted a division of property in
just proportions under KRS 403.190.
Priscilla complains that as to the Mill Road, Ohio
property the circuit court did not properly apply the
“Brandenburg formula” as set out in Brandenburg v. Brandenburg,
Ky. App., 617 S.W.2d 871 (1981).
The Brandenburg formula is
merely a guideline for calculating marital and nonmarital values
of property in a dissolution action.
exclusive formula.
It is by no means an
In Brandenburg, the Court stated:
We do not intend to imply by the adoption of
this formula that this Court will not approve
other procedures utilized by the lower courts
in arriving at an equitable division of
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property as long as the relationship between
the contributions of the parties is
established.
Id. At 873.
As such, we are of the opinion that absent abuse of
discretion or clear error, whether or how the Brandenburg formula
was used is immaterial.
We now consider whether the circuit court abused its
discretion or was clearly erroneous.
The circuit court is in the
best position to judge the circumstances in an action for
dissolution.
(1979).
Peterson v. Peterson, Ky. App., 583 S.W.2d 707
The properties had similar values in equity.
If
anything, it appears Priscilla's property was worth some
$7,000.00 more than James'.
premarital owner.
Each property was restored to its
Though Priscilla claims she made improvements
on Music Branch with nonmarital funds, she offered no evidence to
support her claim.
As such, we perceive no abuse of discretion
or clear error on the part of the circuit court in assigning
marital and nonmarital values to the Music Branch or Mill Road
properties.
Next, Priscilla asserts the circuit court erred by
reversing its previous order awarding her temporary maintenance.
Specifically, she complains that the circuit court heard
exceptions to the DRC's report after the report had been adopted
by the court.
The DRC's report was filed October 18, 1999, and
adopted by the circuit court on October 29, 1999.
The court gave
the parties until November 8, 1999, to file exceptions.
We
observe that the circuit court's extension of time appears in the
record as an agreed order signed by attorneys for both parties.
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Generally, a party has ten days after being served with notice of
the filing of the DRC's report to file exceptions.
P. (CR) 53.06(2).
Ky. R. Civ.
Priscilla argues that CR 53.06(2) precludes
the circuit court from enlarging the time to file exceptions.
Where a court has already considered exceptions, such
consideration may be assumed to be a proper enlargement of time
under CR 6.02.
Eiland v. Ferrell, Ky., 937 S.W.2d 713 (1997).
As such, the court did not err in extending the time for
exceptions.
We now consider whether the circuit court abused its
discretion in determining Priscilla was not entitled to
maintenance.
Kentucky Revised Statute (KRS) 403.200 sets out the
factors to be considered in awarding maintenance and reads, in
pertinent part as follows:
(1)
[T]he court may grant a maintenance
order for either spouse only if
it finds that the spouse seeking
maintenance:
(a)
(b)
(2)
Lacks sufficient property,
including marital property
apportioned to him, to
provide for his reasonable
needs; and
Is unable to support himself
through appropriate
employment. . . .
The maintenance order shall be in such
amounts and for such periods of time
as the court deems just, and after
considering all relevant factors including:
. . . .
(f)
The ability of the spouse
from whom maintenance is
sought to meet his needs
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while meeting those of the
spouse seeking maintenance.
The circuit court is in the best position to judge the
circumstances in an action for dissolution.
Peterson, Id.
The
circuit court considered substantial evidence as to the parties'
respective financial situations.
The court found James was
unable to pay the $350.00 per month maintenance, plus the $285.00
health insurance premium, and reasonably provide for his own
needs.
Each party was awarded valuable real property, in
addition to adequate personal property.
The court also
determined Priscilla was able to work and support herself.
Thus,
we do not believe the circuit court abused its discretion by not
awarding maintenance to Priscilla.
Finally, Priscilla contends the circuit court erred in
not awarding her attorney fees.
In order to preserve the issue
of attorney fees for review, the attorney must be included as a
party on appeal.
(1989).
Davis v. Davis, Ky. App., 775 S.W.2d 942
Neither of Priscilla's attorneys was made a party to
this appeal.
Thus, we may not review this assignment of error.
We note even if Priscilla had made her counsel a party, we would
have reached the same result.
An award of attorney fees is
entirely within the discretion of the trial court.
Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975).
KRS 403.220;
Upon examination
of the record herein, we are of the opinion the circuit court's
judgment was supported by substantial evidence, and there was no
abuse of discretion.
Upon the whole of this case, we perceive no error.
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For the foregoing reasons, the judgment of the Boyd
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodney S. Justice
Ashland, Kentucky
Sharon Easthom Rowsey
Ashland, Kentucky
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