APRIL E. WOLFORD v. RONALD A. WOLFORD
Annotate this Case
Download PDF
RENDERED:
NOVEMBER 9, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002064-MR
APRIL E. WOLFORD
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE M. GARBER, JUDGE
ACTION NO. 96-FC-004965
RONALD A. WOLFORD
AND
APPELLEE
NO. 2000-CA-002068-MR
RONALD A. WOLFORD
v.
CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE M. GARBER, JUDGE
ACTION NO. 96-FC-004965
APRIL E. WOLFORD;
VICTORIA ANN OGDEN;
MICHAEL T. CONNELLY; and
RICHARD A. GETTY
AND
NO. 2000-CA-002140-MR
MICHAEL T. CONNELLY
v.
CROSS-APPELLEES
CROSS-APPELLANT
CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE M. GARBER, JUDGE
ACTION NO. 96-FC-004965
RONALD WOLFORD;
VICTORIA OGDEN; and
RICHARD A. GETTY
CROSS-APPELLEES
OPINION
AFFIRMING ON DIRECT APPEAL NO. 2000-CA-002064-MR
AFFIRMING ON CROSS-APPEAL NO. 2000-CA-002068-MR
AFFIRMING ON CROSS-APPEAL NO. 2000-CA-002140-MR
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MILLER, JUDGES.
MILLER, JUDGE:
CA-002064-MR.
April E. Wolford brings Direct Appeal No. 2000Ron A. Wolford brings Cross-Appeal No. 2000-CA-
002068-MR.
Michael T. Connelly brings Cross-Appeal No. 2000-CA-
002140-MR.
All appeals are brought from an August 4, 2000 order
of the Jefferson Circuit Court.
2000-CA-002064-MR.
We affirm on Direct Appeal No.
We affirm on Cross-Appeal No. 2000-CA-002068-
MR and Cross-Appeal No. 2000-CA-002140-MR.
April and Ron were married December 1, 1973.
Ron held
an undergraduate degree in sociology with a minor in business
administration from Western Kentucky University.
April held an
undergraduate degree in Journalism and English from Western
Kentucky University.
1977.
April completed a masters degree in 1976 or
In 1974, Ron and his father founded a home building
business, Ron Wolford, Inc. (RWI).
RWI is a popular builder of
luxury homes in the Louisville-Jefferson County area.
Ron has
operated this business and worked full time as a builder since
1974.
April worked for RWI in various capacities over the years.
Most often she performed decorating and bookkeeping tasks.
1973 to 1979, April worked as a high school teacher.
-2-
From
In 1984,
she earned a law degree from University of Louisville.
practiced briefly.
into escrow.”
She
Several years later, she let her license “go
April reactivated her law license in 1997.
The parties enjoyed an extravagant lifestyle for most
of their marriage because of the success of RWI.
They lived in
twelve or thirteen elegantly appointed luxury homes, typically
“model homes” for RWI.
by RWI.
The homes and the furnishings were owned
All repairs and upkeep for the homes as well as taxes
and utilities were paid by RWI.
The vehicles driven by the
parties were also owned by RWI, and at one time included a BMW
for the parties' son.
Auto insurance and gasoline were provided
by RWI, as was health insurance.
Generally, all day to day items
except for food and clothing were provided by RWI.
Occasionally,
however, Ron, would perform small jobs for customers and keep the
cash payments for living expenses.
virtually no tangible assets.
Consequently, the parties had
They had, however, managed to
maintain a self-employed pension (SEP) account.
At the time of
dissolution, the account contained approximately $379,000.00.
The parties separated sometime in March 1996.
April filed the
current dissolution action on April 9, 1996.
After two years of extremely contentious pre-trial
proceedings, a six day trial was held beginning June 2, 1998.
The circuit court appointed Certified Public Accountant (CPA),
John Anderson, to assess the value of RWI.
Anderson opined RWI
was worth $240,000.00 when calculated using an “income-based
approach.”
Ron offered the expert opinion of Helen Cohen, also a
CPA, as to RWI's value.
Cohen opined RWI was worth $75,000.00,
-3-
using a “net income approach.”
The trial court also appointed
CPA John Gravitt to perform limited forensic accounting to
determine whether there was merit to April's numerous allegations
of Ron's attempts to deprive her of marital assets.
April was awarded half of the value of RWI, half of the
SEP account, half of the cash value of life insurance policies
owned by Ron, and half of the marital personal property.
She was
also awarded $7,500.00 in attorney fees.
The court further ordered that the value of the
aforementioned awards would be paid to April from the SEP
account.
The court also awarded maintenance to April in the
amount of $4,525.00 per month for a period of seven years,
following an initial eighteen month “reacclimation period.”
This
order was entered July 29, 1999.
After a motion to alter or amend by April, the court
issued a supplemental order December 30, 1999.
In said order,
the circuit court increased the duration of April's maintenance
to lifetime, awarded her an additional $5,000.00 in attorney's
fees, and modified tax consequences related to withdrawals from
the portion of the SEP account awarded to April to satisfy Ron's
property obligation.
Ron filed a motion to alter, amend or vacate in January
2000.
That same month, the Hon. Juda Maria Hellman replaced
Judge Mason Trenaman as the presiding Judge.
Judge Hellman
recused herself from the case, which was then transferred to Hon.
Eleanore Garber, the successor court.
The successor court
adopted the findings of fact of Judge Trenaman, the predecessor
-4-
court, and granted Ron's motion to alter, amend or vacate.
The
successor court modified the maintenance provisions from lifetime
maintenance of $4,525.00 per month to $4,525.00 per month for a
period of seven years, beginning in December of 1999, to be
followed by an additional three years of maintenance at $3,000.00
per month by order entered August 4, 2000.
This appeal followed.
DIRECT APPEAL NO. 2000-CA-002064-MR
April contends the successor court erred in modifying
the predecessor court's judgment and order.1
A successor judge
is allowed to carry on the business of the court to the same
extent as their predecessor.
S.W.2d 95 (1977).
Herring v. Moore, Ky. App., 561
The trial court may, upon proper motion,
appropriately enter new conclusions or alter the judgment.
Id.
It is well established that our standard of review is that of
abuse of discretion. “The test for abuse of discretion is whether
the trial judge's decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.”
(Citation omitted).
Goodyear Tire and Rubber Company v. Thompson, Ky., 11 S.W.3d 575,
581 (2000).
1
Ron argues consideration of various issues is barred
because the issues did not appear on the pre-hearing statement.
Ky. R. Civ. P. (CR) 76.03(8). We disagree. Substantial
compliance, absent prejudice, is sufficient to satisfy CR
76.03(8). A review of the record reveals the issues were
addressed throughout this action. We believe there was
substantial compliance with CR 76.03(8), and thus no prejudice
against Ron.
Cf. Capital Holding Corporation v. Bailey, Ky.,
873 S.W.2d 187 (1994).
-5-
Pursuant to Kentucky Revised Statutes (KRS)
403.200(1)(a)(b), a court may grant maintenance for a spouse only
if it finds the spouse seeking maintenance:
(a)
Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
(b)
Is unable to support himself
through appropriate employment
. . . .
Under KRS 403.200(2)(a), the amount and duration of the award
will be determined after considering all relevant factors,
including:
The financial resources of the party seeking
maintenance, including marital property
apportioned to him, and his ability to meet
his needs independently, . . . .
The successor court, adopting the predecessor court's
findings of fact in her order altering the December, 1999,
judgment, concluded the maintenance award was excessive.
The
successor court modified the award from a lifetime maintenance
award of $4,525.00 per month to $4,525.00 per month for seven
years, followed by three years at $3,000.00 per month.
April is
a well educated former teacher, who is now a licensed attorney
with practice experience.
At the time of the hearing, April was
in her late forties, with no health problems which would
interfere with full-time employment.
The marriage lasted some
twenty-two years, during most of which the parties' enjoyed an
extravagant lifestyle.
The maintenance award totals some
$563,000.00 over a ten year period.
-6-
Upon the whole, we cannot
say the successor court abused its discretion in modifying
April's maintenance award.
April's next assignment of error is that the circuit
court erred in the distribution and valuation of marital
property.
Specifically, April maintains the court erred in: (1)
distribution of personalty at Ron's house, (2) distribution of
the SEP account, (3) ignoring issues of dissipation, and (4) the
valuation of the parties' business.
We address these issues
seriatim.
April asserts certain property in Ron's home is
marital.
April correctly maintains that the property in the home
is presumed to be marital unless proved otherwise.
403.190(3).
KRS
Ron testified that these items belonged either to
his live-in girlfriend, Martha Brown, or her family, and as such,
the property was not “acquired” during the marriage.
The circuit
court found the property in question was the property of Brown;
April offered no testimony or evidence to the contrary.
We are,
thus, of the opinion that there exists substantial evidence to
support the court's finding that the property at issue was nonmarital.
April contends that the $240,000.00 value assigned to
RWI by the court is error.
experts.
The court heard testimony from two
Helen Cohen of Potter and Company was hired by Ron to
perform a valuation on RWI.
Randy Anderson of Crowe & Chizek was
appointed by the court for same.
April did not supply expert
testimony or other evidence to the value of RWI.
Cohen opined
the value of RWI was $75,000.00 using a net income approach.
-7-
Anderson determined the value of RWI was $240,000.00 using an
income-based approach.
The circuit court made an extensive,
well-reasoned determination that the income-based approach was
the superior method to value the business.
The court noted the
income-based approach was preferable because it utilized RWI's
actual revenues along with industry averages for expenses and
pre-tax profit margins.
The court further noted this approach
assumed the business was being operated responsibly, and was not
as susceptible to manipulation by means of various record keeping
or bookkeeping methods.
As such, we do not believe the court
erred in the valuation of RWI.
April asserts the circuit court erred by distributing
her property award through the SEP account.
Specifically, April
contends her property award will be greatly diminished by payment
of taxes and penalties.
The approximately $379,000.00 SEP
account was virtually the only liquidatable asset the parties
possessed, thus the property settlement in this action is made
largely from the SEP account.
From each parties' respective interest in the account,
the circuit court either credited or debited amounts to equalize
the property distribution.
Because this is a pension account,
any party liquidating will suffer significant tax and penalty
consequences.
While not completely clear concerning the
distribution of the SEP, the court stated that its overriding
objective in this case was to effect an “equal distribution of
all marital assets.”
If April's award for her interest in the
marital property were subject to substantial taxes and penalties,
-8-
the distribution could hardly be said to be equal.
April's award
for her interest in the marital property after adjustments was
$140,832.00.
We believe, in order to keep the distribution
equal, the court intended this amount be paid to April free and
clear of any taxes or penalties.
Thus, we are of the opinion
Ron's payment to April will be a net amount of $140,832.00,
whether that means Ron pays any penalty and taxes on SEP funds,
or simply makes a cash payment to April in that amount.
It is
upon this construction we affirm the circuit court.
April contends the circuit court erred in ignoring
issues of dissipation.
Dissipation occurs when one party spends
marital funds for a non-marital purpose.
Ky. App., 736 S.W.2d 351 (1987).
Robinette v. Robinette,
Dissipation is appropriately
considered when the property is “expended (1) during a period
when there is a separation or dissolution impending, and (2)
where there is a clear showing of intent to deprive one's spouse
of his or her proportionate share of the marital property.”
(Citations omitted).
Id. at 354.
The spouse asserting
dissipation must prove by a preponderance of the evidence that
marital assets were used for a non-marital purpose.
Brosick, Ky. App., 974 S.W.2d 498 (1998).
Brosick v.
The circuit court
noted that April contended “that [Ron] individually, or RWI
itself had engaged in many courses of conduct . . . which sought
to hide, disguise, de-value or somehow wrongly deprive her of her
interest in the assets owned by these parties. . . .”
April
claimed one such attempt involved a lock box containing cash
hidden in the marital home.
The circuit court found that the box
-9-
contained approximately $7,000.00 and that the money was expended
for living expenses for the parties and their son.
April also
spent considerable time and energy trying to develop evidence Ron
was wrongly depriving her of marital assets, without success.
The court appointed a CPA to perform forensic accounting to
uncover any irregularities in the parties personal or business
finances, likewise without success.
The court determined there
was “absolutely no proof to support any of these various and
numerous allegations.”
We are of the opinion there was no clear
showing of Ron's intent to deprive April of any marital property.
Thus, we believe the record supports the circuit court's
rejection of April's claim of dissipation.
CROSS-APPEAL NO. 2000-CA-002068-MR
Ron contends the circuit court erred in dividing the
cash surrender value of a life insurance policy owned by the
parties.
The parties owned a life insurance policy with a cash
value of $12,253.00 as of August 7, 1996.
It is undisputed the
policy was surrendered prior to the parties' separation.
Ron
asserts the proceeds were used to pay off a marital debt.
He
does not cite to any such evidence in the record.
After hearing
testimony concerning the funds, the circuit court found they were
expended for maintenance, child support, and Ron's own support.
As such, the circuit court awarded each party one-half of the
proceeds.
We cannot say the circuit court abused its discretion
in dividing the proceeds from the life insurance policy.
-10-
Ron next maintains the circuit court erred in its
valuation of RWI.
Specifically, Ron urges us to adopt Cohen's
valuation over that of Anderson.
We have previously addressed
this issue in Appeal No. 2000-CA-002064-MR and therein concluded
that the circuit court's valuation of RWI was proper.
We adopt
the reasoning set out above and likewise conclude there was no
reversible error in the circuit court's valuation of RWI.
Ron maintains the circuit court erred in the allocation
of taxes and penalties for the SEP account.
We have previously
addressed this issue, and therein concluded the circuit court's
allocation of taxes and penalties for the SEP account was
improper.
We adopt the reasoning set out above and likewise
conclude the circuit court erred in allocating the taxes and
penalties.
Ron next assigns as error the failure of the circuit
court to credit him for overpayment of child support.
Ron paid
April $1,200.00 a month for temporary child support from April
1996 to May 1997, at which time the parties' son became
emancipated.
On October 14, 1997, the Domestic Relations
Commissioner ordered Ron to pay April $687.00 a month in child
support.
It is undisputed Ron overpaid his child support
obligation prior to that time.
Restitution of excess child support is inappropriate
unless there exists an accumulation of benefits not consumed for
support.
Clay v. Clay, Ky. App., 707 S.W.2d 352, 354 (1986).
This is a finding left to the trial court.
Id.
The trial
court's decision will not be disturbed on appeal unless clearly
-11-
erroneous.
Id.
The circuit court found that April expended the
excess funds on support for the parties' son.
to contrary evidence.
Ron does not cite
Thus, we perceive no clear error on the
part of the circuit court in denying Ron credit for overpayment
of child support.
Ron lastly asserts the circuit court erred in setting
the amount and duration of maintenance awarded to April.
As
hereinabove concluded in Appeal No. 2000-CA-002064-MR, we are of
the opinion the circuit court appropriately considered the award
of maintenance under KRS 403.200.
Ron also contends the circuit court erred in refusing
to credit him for maintenance paid to April pendente lite.
decline to do so.
We
Allowance or not allowance of pendente lite
maintenance payments is a matter for consideration of the trial
court.
Heustis v. Heustis, Ky., 381 S.W.2d 533 (1964); Hicks v.
Hicks, Ky., 290 S.W.2d 483 (1956).
In the case sub judice, the
circuit court considered, in particular depth, the numerous and
complex elements of this case.
After so doing, the court
declined to credit the pendente lite maintenance payments.
Upon
the whole, we are of the opinion the circuit court did not abuse
its discretion in setting the amount and duration of maintenance
or refusing to credit Ron for pendente lite maintenance paid.
CROSS APPEAL NO. 2000-CA-002140-MR
Connelly maintains the circuit court erred in its
determination of attorney's fees awarded to April.
-12-
The court may
order one party in a dissolution action to pay attorney fees of
the other party.
KRS 403.220.
The trial court has broad
discretion in awarding attorney's fees.
Russell v. Russell, Ky.
App., 605 S.W.2d 33 (1980); Wilhoit v. Wilhoit, Ky. App., 521
S.W.2d 512 (1975).
discretion.
Our standard of review is abuse of
See Moss v. Moss, Ky. App., 639 S.W.2d 370 (1982).
Connelly represented April from August 1996 through
July 14, 1997.
In its July 29, 1999 order, the circuit court
awarded April $7,500.00 in attorney's fees.
The circuit court
indicated it considered the complexity of the litigation, the
parties' respective incomes, and all “facts and circumstances
surrounding these parties.”
This amount was transferred to
Connelly by an Irrevocable Assignment and Transfer of Attorney
Fee Judgment Award, executed February 10, 2000.
In a
supplemental order entered December 30, 1999, an additional
$5,000.00 was awarded to Connelly through April.
The circuit
court indicated it had reconsidered statutory and case law and
found the additional award appropriate.
Thus, Connelly
ultimately received $12,500.00 for his representation of April.
Based on the foregoing facts, we cannot say the court abused its
discretion in awarding attorney fees to April.
-13-
SUMMARY
In summary, we find no error in either the Direct
Appeal or the Separate Cross-Appeals.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court in Direct Appeal No. 2000-CA-002064-MR is
affirmed.
Cross-Appeal No. 2000-CA-002068-MR and Cross-Appeal
No. 2000-CA-002140-MR are affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSSAPPELLEE, APRIL E. WOLFORD:
BRIEFS FOR APPELLEE/CROSSAPPELLANT/CROSS-APPELLEE,
RONALD A. WOLFORD:
Gregory A. Keyser
Lexington, Kentucky
Eugene L. Mosley
Louisville, Kentucky
BRIEF FOR CROSS-APPELLANT
Michael T. Connelly, Pro Se
Louisville, Kentucky
-14-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.