GEORGE JOSHUA CRANCE v. BETTY ANN CRANCE
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RENDERED:
January 21, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001320-MR
GEORGE JOSHUA CRANCE
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 02-CI-00936
v.
BETTY ANN CRANCE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; MINTON, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Appellant George Joshua Crance (George)
brings this appeal from the Boyd Circuit Court of a decree of
dissolution of marriage entered June 2, 2003, and an order
overruling his exceptions to and adopting the April 9, 2003,
Report of the Domestic Relations Commissioner (DRC) entered
April 23, 2003.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statutes 21.580.
Before us George argues that the trial court erred in
awarding maintenance of $618.00 per month to appellee Betty Ann
Crance (Betty) by failing to consider both his ability to pay
and the sufficiency of Betty’s property, and further erred in
the division of property by failing to consider the value of the
property set apart to each spouse.
We review questions of fact under the clearly
erroneous standard of Kentucky Rule of Civil Procedure (CR)
52.01 and questions of law de novo.
As we conclude that the
findings of the circuit court are supported by substantial
evidence and are not an abuse of discretion, we affirm the
circuit court.
Betty was born May 18, 1951, and George was born
August 7, 1945.
The parties married on April 13, 1974, and had
two children who were both emancipated at the time of the
proceedings.
At the hearing before the DRC on November 20, 2002,
evidence was presented as follows.
George was a long time
employee of American Electric Power (AEP) who had retired due to
a disability.
He was earning $1,074.00 per month from Social
Security and $600.00 per month in long-term disability from AEP
for a total monthly income of $1674.00.
His expenses were
$1656.00 per month, and his medical insurance was paid through
his employer.
Evidence was also presented that Betty was
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disabled, earning $438.00 per month.
Betty’s expenses were
$1,513.87 per month at the time of the hearing, anticipated to
be reduced to $1,479.20 after the dissolution.
Betty was
covered by Medicare.
The parties accumulated marital property including the
marital residence, valued at $52,000.00; George’s retirement
benefits through AEP, valued at $27,906.40; George’s 401(k)
plan, valued at $4,000.00; a baseball card collection, valued by
George at $500.00 and by Betty at between $65,000.00 and
$80,000.00; a 1998 Honda Civic valued at $8,000.00 with no lien;
a 1998 Toyota Camry valued at $13,500.00 with a lien of
$8,995.88; a 2002 Nissan with a lien in excess of $10,000.00;
a
life insurance policy with some cash value, unvalued at the time
of the dissolution; and marital debts of $133.00 on a discover
card and $428.84 in back utilities.
Betty also claimed non-marital property including, by
way of inheritance, living room furniture, a chest of drawers, a
hope chest, two odd tables, living room sofa, chair, sofa table
and entertainment center; and a hope chest that was a gift.
Based on the evidence, the DRC recommended that the
marital residence and the baseball card collection be sold and
the proceeds divided equally (approximating equal portions of
$26,000.00 for the house and between $250.00 and $32,500.00 for
the baseball cards); that Betty receive the non-marital property
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listed plus the dinette set, the bedroom furniture, her
daughter’s bed, the Christmas collection and the dryer; that the
parties equally divide 1) George’s retirement (equal division
approximates to $13,953.20 for AEP and $2,000.00 for the
401(k)), 2) the cash value of the life insurance policy, and 3)
the past utility bills of $428.84; that George return Betty’s
jewelry; that George receive the 2002 Nissan and all debts
thereon (which George testified had a lien in excess of
$10,000.00); that Betty receive the 1998 Camry and all debts
thereon (value of $13,500.00 and a lien of $8,995.88); that the
daughter receive the 1998 Honda; and that George pay the
discover card debt ($133.00).
Based on information from an
attorney with Home Federal Savings and Loan Association, the DRC
concluded that proceeds from Betty’s automobile accident
recovery were held in trust for the parties’ adult daughter and
therefore were not considered in the computation of maintenance
or division of the marital estate.
Each party was responsible
for his or her attorney fees and George was responsible
additionally for the DRC fee and the court reporter’s fee.
The DRC further found that Betty did not have enough
property awarded to her and was thus unable to adequately
maintain herself through her income.
monthly income (George:
expenses (George:
Based on the parties’
$1,674.00; Betty:
$1,656.00; Betty:
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$438.00) and monthly
$1,513.87 at the time of
the hearing, anticipated to be reduced to $1,479.20 after the
dissolution), the DRC recommended that, in order to equalize the
income of the parties, that George pay Betty maintenance of
$618.00 per month until further orders of the Court.
George filed objections to the DRC report, claiming
that the award of $618.00 per month in maintenance was excessive
in light of Kentucky Revised Statutes (KRS) 403.200(2)(f), and
that the DRC’s attempt to equalize the parties’ income left
George with a monthly shortage of $756.00 and Betty with a
monthly shortage of $429.00.
Additionally George argued that
the DRC incorrectly categorized the proceeds in Home Federal as
an irrevocable trust and argued that the proceeds should have
been considered Betty’s non-marital property.
George also
objected to the characterization of the entertainment center as
non-marital property, and objected to the sale and division of
the baseball card collection instead of awarding it to the
parties’ son.
On April 23, 2003, the circuit court overruled
George’s objections and adopted the DRC report of April 9, 2003.
Thereafter, on June 2, 2003, the decree of dissolution was
entered.
This appeal followed.
George first argues that in awarding maintenance to
Betty the circuit court failed to consider KRS 403.200(2)(f),
which states that any “maintenance order shall be in such
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amounts . . . as the court deems just, and after considering all
relevant factors including . . . [t]he ability of the spouse
from whom maintenance is sought to meet his needs while meeting
those of the spouse seeking maintenance.”
We disagree.
The amount of maintenance is within the sound
discretion of the circuit court.
928, 937 (Ky. 1990).
Gentry v. Gentry, 798 S.W.2d
KRS 403.200 sets forth the findings
required to be made by the court in awarding maintenance.
Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992), the
Supreme Court stated:
Under this statute, the trial court has dual
responsibilities: one, to make relevant
findings of fact; and two, to exercise its
discretion in making a determination on
maintenance in light of those facts. In
order to reverse the trial court’s decision,
a reviewing court must find either that the
findings of fact are clearly erroneous or
that the trial court has abused its
discretion.
As stated in Russell v. Russell, 878 S.W.2d 24, 26 (Ky.App.
1994):
It is appropriate to award maintenance when
a party is not able to support themselves in
accord with the same standard of living
which they enjoyed during marriage and the
property awarded to them is not sufficient
to provide for their reasonable needs.
Robbins v. Robbins, Ky.App., 849 S.W.2d 571,
572 (1993); and Atwood v. Atwood, Ky.App.,
643 S.W.2d 263, 265-66 (1982). Furthermore,
where a former spouse is not able to produce
enough income to meet their reasonable
needs, it is appropriate to award
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In
maintenance. Id. and Calloway v. Calloway,
Ky.App., 832 S.W.2d 890, 894 (1992).
The circuit court considered both George and Betty’s
income and expenses.
The court concluded that both George and
Betty are disabled and that both sets of expenses are similar,
including vehicle debt.
The circuit court also concluded that
the award of maintenance of $618.00 per month to Betty served to
equalize the income of the parties when added to Betty’s
disability income of $438.00 monthly.
Additionally, in the
division of marital property, both received one-half of the
proceeds from the sale of the marital residence, which
approximates to $26,000.00 each; one-half of George’s AEP
retirement and 401(k) which approximates to $15,953.20 each;
one-half of the cash value of the life insurance policy which
was unvalued at the hearing; and one-half of the proceeds from
the sale of the baseball cards which approximates to either
$250.00 or $32,500.00 each depending on which value, George’s or
Betty’s, is believed.
In Garrett v. Garrett, 766 S.W.2d 634 (Ky.App. 1989),
the circuit court failed to consider KRS 403.200(2)(f) when it
imposed maintenance obligations.
distinguishable.
The instant case is clearly
Herein, the financial condition of both
parties was particularly considered by the circuit court which
made a specific finding to equalize the income of the parties.
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Under the circumstances, we conclude that the circuit court’s
findings of fact are not clearly erroneous, and its award of
maintenance to Betty in the amount of $618.00 per month is not
an abuse of discretion.
George also argues that the award of maintenance was
further erroneous because the circuit court failed to consider
Betty’s marital and non-marital property in finding that Betty
lacked sufficient property to provide for her reasonable needs.
KRS 403.200(1) requires the court to make a finding before
awarding maintenance that the spouse seeking maintenance lacks
sufficient marital and non-marital property to provide for his
or her reasonable needs.
Again, we disagree with George’s contentions.
Betty’s
division of marital property amounted mainly to one-half of the
marital residence, one-half of George’s retirement, and one-half
of the value of a life insurance policy.
with similar debt.
Both received vehicles
Betty received non-marital property
consisting of household items.
George’s allegations of Betty
having access to sufficient property to support her reasonable
needs by way of proceeds from inheritance and an automobile
accident settlement are not supported by the record.
The
circuit court’s findings that these funds are not marital
property are clearly supported by the evidence.
abuse of discretion in the award of maintenance.
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There was no
George lastly argues that the circuit court erred in
its division of marital property.
George asserts that the
circuit court failed to consider as marital property his
testimony that Betty withdrew $17,000.00 from joint savings,
gave it to the parties’ son who then returned the money to
Betty.
Again we disagree.
Both parties made allegations of
similar amounts of dissipation of funds and both parties
disagreed with the allegations of the other.
Pursuant to CR
52.01, due regard shall be given to the opportunity of the trial
court to judge the credibility of the witnesses.
The circuit
court’s distribution of the marital estate was equitable and
supported by the evidence.
We conclude that there was no abuse
of discretion.
For the foregoing reasons, the decree and order of the
Boyd Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jill Hall Rose
Julie H. Gragg
Lexington, Kentucky
Jeffrey L. Preston
Catlettsburg, Kentucky
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