AND RITA A. JOHNSON v. DONALD EUGENE JOHNSON, BY AND THROUGH HIS GUARDIAN, VIVIAN N. McKEEHAN
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RENDERED: May 24, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
2001-CA-000353-MR
AND
2001-CA-000567-MR
RITA A. JOHNSON
APPELLANT/CROSS-APPELLEE
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE GARY PAYNE, JUDGE
ACTION NO. 92-CI-04022
v.
DONALD EUGENE JOHNSON,
BY AND THROUGH HIS GUARDIAN,
VIVIAN N. McKEEHAN
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, McANULTY, AND SCHRODER, JUDGES.
BARBER, JUDGE:
This appeal/cross-appeal arises out of a
proceeding for dissolution of marriage.
Both parties challenge
the trial court’s allocation of proceeds from a structured
settlement.
Finding no abuse of discretion, we affirm.
The Appellant\Cross-Appellee, Rita Johnson (“Rita”) and
Donald Johnson (“Donald”) were married in the 1970's.
In 1983,
Donald was struck by a motor vehicle, leaving him a quadriplegic
and leaving Rita to raise their four children, ages five to 12.
Donald was confined to the VA hospital.
appointed Donald’s guardian.
Initially, Rita was
She pursued a personal injury claim
on Donald’s behalf and derivative claims for herself.
A
structured settlement resulting from that litigation called for
payments of $2,000 per month for the greater of Rita’s life
expectancy, or 40 years, in addition to periodic and increasing
lump sum payments every five years — the last payment to be made
in the year 2017, in the amount of $100,000.00.
Thereafter, the
U.S. government filed suit against Rita to recoup some of the
money it had expended for Donald’s care.
As a result of that
litigation, a settlement was reached, in which the government
receives half of the lump sum payments from the structured
settlement.
In 1991, Donald’s mother, Vivian McKeehan,
(“McKeehan”), Appellee/Cross-Appellant herein, was appointed
guardian, by order of the Jessamine District Court.
In 1992,
Donald through McKeehan, as his guardian, filed a petititon for
dissolution in the Fayette Circuit Court.
On May 6, 1998, the
court entered a decree of dissolution, incorporating the parties’
property settlement agreement, which provides, in pertinent part:
The parties further agree that upon entry of
this Property Settlement Agreement and in
consideration of the covenants contained
herein, Husband waives his interest in the
marital residence . . . . Wife assumes all
responsibility for the debts on the subject
property and indemnifies and holds Husband
absolutely harmless as to said debts.
Husband agrees to convey his interest in said
property to Wife by Quit Claim Deed or other
appropriate instrument.
The parties acknowledge and agree that to due
to their lengthy separation and Petitioner’s
incapacity, the marital estate subject to
division, with the exception of the abovementioned residence consists of the remaining
payments to be received under the terms of a
structured settlement Agreement with Guaranty
National Insurance Company . . . . In
addition,. . . that . . . structured
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settlement has been further modified by a
Stipulation for Compromise/Settlement, filed
in the U.S. District Court . . . wherein the
United States of America will receive 50% of
the “additional lump sums” . . . in
consideration of and reimbursement for
indebtedness incurred for the care and
treatment of Husband by the Department of
Veterans Affairs.
. . . the parties further agree that,
commencing with the payment . . . of
$2,000.00 due April 1, 1998, under the
structured settlement, they shall equally
divide all monies received . . . .
. . . .
In addition, the parties further acknowledge
and agree that in the event Petitioner’s
eligibility status for continued care and
treatment by the Department of Veterans
Affairs changes such that he is no longer
eligible prior to expiration of the benefits
payable under the structured settlement, they
shall re-submit the issue of allocation of
said future benefits due and accruing for
further consideration and re-allocation by
the Court.
(Emphasis added.)
On August 21, 2000, McKeehan, filed a motion on
Donald’s behalf, requesting a hearing on the issue of
reallocating future payments of the structured settlement
proceeds, on the ground that Donald was no longer eligible for
continued long term care at a VA facility.
At hearing, McKeehan
testified about the plans she had made to take her son home and
care for him there, because his eligibility status for long term
care at the VA had changed.
McKeehan explained that she had
added on a room to her home in California for Donald and that she
was being instructed in caring for him (for example, he is fed
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through a tube).
McKeehan also testified that Donald appeared to
be aware of, and more relaxed in, her presence.
Testimony was
also presented by Ella Smith, an R.N. and VA employee, about
legislative changes regarding long term care through the VA, and
Donald’s change of eligibility status for that type of care, as
well as the type, amount and cost of care he would need — 16
hours of in-home care per day, at a cost of $275.00 per day,
essentially paid out of McKeehan’s pocket.
Some skilled nursing
services would also be required at times; however, those would be
covered.
Rita also testified at the hearing.
She has remarried,
her current husband is on disability, all the children are grown.
The three boys — now ages 22, 25 and 26 — still live at home.
The youngest apparently has difficulty reading; he works for
Goodwill; and Rita does not believe he could support himself.
The older two boys do work and pay her “rent.”
Rita testified
that she is not currently working and is under a doctor’s care.
She had applied for disability.
Rita previously worked as a deli
manager and as a salesperson/cashier at Lazarus.
She did not
work outside the home when the children were small.
On January 22, 2001, the trial court entered an opinion
and order, which provides, in pertinent part:
The record reflects that the Respondent
[Rita] has received most of the proceeds from
the structured settlement. The record also
reflects that the Respondent and her children
did not assist in the care of the Petitioner
[Donald] and that the Petitioner’s mother has
borne the expenses and expended an enormous
amount of time being with the Petitioner.
Having considered the testimony presented,
the records and the arguments of counsel, the
Court hereby rules that the Petitioner shall
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receive most of the remaining funds from the
structured settlement. The Court finds that
equity requires that the payments should not
be equally divided between the parties.
Therefore, it is hereby ORDERED that the
Petitioner shall receive seventy-five percent
(75%) of all future payments, both the
monthly payments and lump sum payments, and
the Respondent receives the remaining twentyfive percent (25%). It is further ORDERED
that any additional lump sum payments which
are payable to the Respondent’s estate in the
event of her death be assigned the
Petitioner’s estate. It should be noted that
the lump sum payment referred to in this
order refers to the amount going to the
parties after the government has received its
share.
On February 21, 2001, an amended order and opinion was
entered, the purpose of which “is to include the language to
insure that this Order is appealable.”
On appeal, Rita maintains that the trial court abused
its discretion in granting Donald’s motion and in ordering “a
change in the division” of the settlement proceeds.
Rita
attempts to persuade us that there are alternative means of care
for Donald, that he could be placed in a nursing home, and that
she needs the money “for the very roof over her head.”
Donald notes that Rita’s response is consistent with
her conduct after the accident — that she stopped visiting Donald
not long after his injuries, that she did not encourage continued
visits from the children, that she negotiated a structured
settlement payable to her, measured by her life expectancy and
collected over $280,000.00 of that settlement money without any
concern for her husband, until the government compelled her to
give up a portion of future payments.
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On cross-appeal, Donald
argues that the trial court abused its discretion by failing to
grant his motion entirely and award all of the remaining
structured settlement payments to him.
KRS 403.190(1) provides that:
In a proceeding for dissolution of the
marriage . . . the court shall assign each
spouse’s property to him. It also shall
divide the marital property without regard to
marital misconduct in just proportions
considering all relevant factors including:
(a) Contribution of each spouse to
acquisition of the marital property,
including contribution of a spouse as
homemaker;
(b) Value of the property set apart to each
spouse;
(c) Duration of the marriage; and
(d) Economic circumstances of each spouse
when the division of property is to become
effective, including the desirability of
awarding the family home or the right to live
therein for reasonable periods to the spouse
having custody of any children.
In the original property settlement, the parties agreed
that the remaining payments under the structured settlement were
marital, subject to division; further, that if Donald’s
eligibility status for VA care changed, the issue of reallocation
of those payments could be submitted to the court.
KRS
403.190(1) does not require equal division of marital property.
“This court may not disturb the findings of the trial court in a
case involving dissolution of marriage unless those findings are
clearly erroneous”
222 (1978).
Johnson v. Johnson, Ky. App., 564 S.W.2d 221,
Under the facts of this tragic case, we cannot say
that the trial court’s findings are truly erroneous.
affirm.
ALL CONCUR.
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Thus, we
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Robert L. Gullette, Jr.
Gullette & Gullette
Nicholasville, Kentucky
Deno C. Capello, Jr.
Lexington, Kentucky
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