BILL CRIDER v. JOYCE GAINES CRIDER, SHEA CHANEY, ESQ. DEBRA A. DOSS, ESQ.
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RENDERED: April 15, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000218-MR
BILL CRIDER
v.
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISAAC, JUDGE
ACTION NO. 01-CI-04579
JOYCE GAINES CRIDER,
and
SHEA CHANEY, ESQ.
and
DEBRA A. DOSS, ESQ.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; TACKETT, JUDGE; MILLER, SENIOR
MILLER, SENIOR JUDGE:
Appellant Bill Crider (Bill) appeals from
a decree of the Fayette Circuit Court, entered November 25,
2003, dissolving his marriage to Joyce Gaines Crider (Joyce).
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, Bill contends that the trial court erred in refusing
to recuse; by invalidating the parties’ prenuptial agreement; in
the characterization and distribution of marital property; and
in awarding attorney fees.
We affirm.
Bill and Joyce were married on November 20, 1999, the
second marriage for both.
36 and Joyce was 29.
At the time of the marriage, Bill was
Just short of two years later, they
separated, and within a month following separation Bill
initiated dissolution proceedings.
Within a year, on the day
before her scheduled deposition, Joyce disappeared.
She
remained absent throughout the rest of the proceedings.2
Her
mother, Joan Gaines, was appointed as Joyce’s conservator by the
Probate Division of the Fayette District Court.3
The parties
agreed to continue the proceedings in Joyce’s absence with
Joyce’s mother appearing for her.
The trial court made the following findings and
distributions:
1) 945 Dayton Avenue, Lexington: Purchased
by Joyce in 1992, prior to the marriage, for
$39,000.00; Joyce made improvements before
the marriage and was solely responsible for
the mortgage, even after the marriage; in
2
Bill initially testified by deposition that he last spoke to Joyce on the
Friday evening before her disappearance the following Monday; he later gave a
sworn statement contradicting that testimony and indicating instead that he
and Joyce had spent that weekend together in Northern Kentucky and had agreed
to a division of the property so that she would not have to give her
deposition. He stated that he last saw Joyce that Sunday afternoon when they
returned to Lexington.
3
Kentucky Revised Statutes (KRS) 387.590.
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April, 2001, eighteen months into the
marriage, house and contents destroyed by
fire caused by a gas leak; insurance paid
$78,969.00 for the house, an appreciation of
$44,169.00. Court awarded Joyce $37,519.00
as nonmarital property; remainder of
appreciation of $6,650.00 deemed marital
property and each party awarded one-half
($3,325.00). The court awarded Joyce
$17,500.00 for the value of the land, the
amount spent by Bill to purchase it.
2) 2909 Jason Court, Lexington: Purchased
by the parties in August 2001 for
$117,500.00; down payment of $33,500.00 from
the insurance proceeds; $84,000.00 remained
on the mortgage; Bill lived on the property
and contributed to the mortgage payments for
three months before moving out due to the
separation; after Bill moved out, payments
made by Joyce or her mother. Court awarded
Bill marital share of $3,325.00
(contribution from his marital portion of
the insurance proceeds) and $175.00
(contribution for three months residing
there) and awarded Joyce the property.
3) 8102 Kentucky Highway 114, Prestonsburg:
originally owned by Bill’s mother; she
deeded the property to Bill shortly
following the mortgage payoff; $24,000.00 in
marital funds (proceeds from the personal
property insurance proceeds from the fire)
was used to pay off mortgage in June, 2001,
and joint improvements of $5,000.00 equal
total marital contributions of $29,000.00.
Court awarded each party one-half of marital
contributions ($14,500.00). Rental income
found to be 40% marital, 60% nonmarital.
Court awarded each party one-half of the
marital portion ($300.00); Bill awarded the
remainder of $1,200.00.
4) Personal Property: Majority destroyed in
the fire; insurance proceeds totaled
$55,250.00; Remainder of $31,250.00 (after
$24,000.00 used to pay off Prestonsburg
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mortgage); 60% Joyce’s marital share and 40%
Bill’s marital share; Court awarded Bill the
jet ski, guns purchased during the marriage,
dune buggy, gooseneck trailer, Looney Tune
car (totaling $17,700.00) and awarded Joyce
the remaining contents at Jason Court, the
1991 Toyota truck, and the 1993 Infinity car
(totaling $18,500.00).
5) The court awarded Bill $3,500.00,
constituting one-half of marital funds used
by Joyce to repay a prior debt to her
mother.
6) Four Siberian Husky Dogs: Court awarded
Bill one dog purchased before the marriage
and awarded Joyce three dogs given to Joyce
during the marriage.
7) Attorney Fees: Joyce’s fees total
$12,000.00 for Mr. Chaney and $6,000.00 for
Ms. Doss; Court found that fees reasonably
incurred due to Bill’s actions and ordered
Bill to pay 80% or $14,400.00.
We review questions of fact under the clearly
erroneous standard of Kentucky Rules of Civil Procedure (CR)
52.01; Largent v. Largent, 643 S.W.2d 261, 263 (Ky. 1982).
trial court’s application of law is reviewed de novo.
Clayton, 132 S.W.3d 864, 866 (Ky. 2004).
The
Rehm v.
We conclude that the
findings of the trial court are supported by substantial
evidence and are not clearly erroneous.
We also find that there
was a correct application of law.
Bill initially contends that the trial judge erred 1)
in not permitting his case to be heard in Fayette Family Court
and 2) in not recusing under KRS 26A.015(2)(a) and (e).
-4-
“The
burden of proof required for recusal of a trial judge is an
onerous one."
2001).
Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky.
"A party's mere belief that the judge will not afford a
fair and impartial trial is not sufficient grounds to require
recusal."
Webb v. Commonwealth, 904 S.W.2d 226, 230 (Ky. 1995).
The person seeking recusal must point to facts demonstrating
bias or other reasons for disqualification of a trial judge.
Foster v. Commonwealth, 348 S.W.2d 759, 760 (Ky. 1961), cert.
denied, 368 U.S. 993, 82 S.Ct. 613, 7 L.Ed.2d 530 (1962).
For
the following reasons, Bill has failed to meet his requisite
burden.
On January 23, 2003, Chief Fayette Circuit Judge Gary
Payne entered the following order:
IT IS HEREBY ORDERED BY THE COURT, for
the purpose of transferring Domestic/Family
Cases from the Civil/Criminal Divisions of
the Fayette Circuit Court, namely, the 1st,
3rd, 4th, 5th, 7th and 8th Division to the
Family Court Divisions, namely, 2nd, 6th and
9th, the following cases, which have been
randomly selected by the Fayette Circuit
Court Clerk, are reassigned from the 7th
Division to the 9th Division.
* * *
01-CI-04579 BILL CRIDER VS. JOYCE
GRIDER (sic)
* * *
IT IS FURTHER ORDERED that upon motion,
with notice thereof, filed in the 9th
Division, a case may be reassigned to the 7th
Division. The motion will state good cause
for the reassignment and contained thereon,
or attached thereto, the written consent to
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such reassignment by the Judge of the 7th
Division.
IT IS FURTHER ORDERED that these
transfers shall become effective February 1,
2003 and if any proceedings or motions have
been previously scheduled, parties are
directed to file a re-notice of said
proceeding for the new division.
Joyce asked the Seventh Division to consent to a reassignment
back to the Seventh Division due to its extensive knowledge and
the fact that family court’s long term involvement would not be
required as no children were involved.
Bill objected, arguing
that the Seventh Division lost jurisdiction of the case as more
than ten days had passed since transfer, and “(b)y virtue of an
amendment to the Constitution and enabling legislation this
matter is now properly pending in the ninth Division, Family
Court.”
On May 9, 2003, the Seventh Division concluded that
Joyce was not required to file a motion in the Ninth Division to
allow the Seventh Division to retain the case, and entered an
order retaining the case.
On August 13, 2003, Bill filed a motion to recuse,
asking the trial court “to comply with the Order of the Chief
Judge.”
He also filed an affidavit, citing KRS 26A.015(2)(a)
and (e), and alleging impropriety in the trial judge’s
“statements made in court; her refusal to abide by the order of
the Chief Circuit Judge; her refusal to grant [Bill] his
residence and his pets; and the Judge’s participation in the
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solicitation of support in the campaign of her husband.”
hearing was held.4
A
Following the hearing, the Ninth Division
entered an order reassigning the case to the Seventh Division.
Although there is no order in the record overruling Bill’s
recusal motion, and the video hearing is not part of the record
on appeal, both parties indicate in their briefs that Bill’s
recusal motion was overruled at this hearing.
Bill raised the
issue again at the conclusion of the case in his CR 59.05 motion
to alter, amend, or vacate, which was overruled by the court by
order entered January 5, 2004.
Pursuant to Kentucky Constitution Section 116, the
“Supreme Court shall have the power to prescribe . . . rules of
practice and procedure for the Court of Justice.”
In Supreme
Court Rule (SCR) 1.040(3), the Court delineates the duties of
the chief circuit judge, including the duty to (d) “reassign
cases from one judge to another as necessary or convenient;” and
the responsibility in (4)(a) to “regulate the assignment of
cases to the judges on a random basis.”
SCR 1.040(4)(c)
provides that absent “good cause to the contrary, all matters
connected with a pending or supplemental proceeding shall be
heard by the judge to whom the proceeding was originally
assigned.”
4
Although both parties cite this court to a video record of the hearing on
this motion on August 18, 2003, the hearing is not in the record on appeal.
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Despite this authority, Bill contends that once the
Ninth Division was designated as a “family court” and his case
was transferred to the Ninth Division by Chief Judge Payne’s
January 23, 2003 order (made effective February 1, 2003), the
Seventh Division lost jurisdiction as the Ninth Division had
exclusive jurisdiction pursuant to KRS 23A.100, which
establishes the jurisdiction of family court.
He further argues
that any actions of the Seventh Division following February 1,
2003, are thus erroneous and reversible.5
Bill’s reliance on KRS
23A.100, however, is misplaced as this statute did not become
effective until June 24, 2003, after the reassignment of cases
herein.
The reassignment of Bill’s case was performed under the
authority of the above Supreme Court Rule.
There was,
therefore, no error by the trial judge in retaining this case.
Bill additionally contends that the trial judge erred
in overruling his motion to recuse pursuant to KRS 26A.015(2)(a)
and (e).6
Bill argues on appeal that recusal was mandated by the
5
Bill’s arguments essentially relate only to actions by the Seventh Division
between February 1, 2003, (the effective date of the transfer order) and
August 21, 2003, (when the Ninth Division entered an order reassigning the
case to the Seventh). According to the record, this includes rulings on
several motions to continue, interim attorney fees, substitutions of counsel,
and purchase of the Dayton Avenue property by Bill.
6
(2) Any justice or judge of the Court of Justice or master commissioner
shall disqualify himself in any proceeding:
(a) Where he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceedings, or has expressed an opinion concerning the merits of the
proceeding;
* * *
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trial judge’s “statements made in court, her refusal to abide by
the orders of the Chief Circuit Judge, her refusal to grant him
his residence and pets in the absence of his wife Joyce and the
Judge’s participation in the solicitation of support in the
campaign of her husband.”
Bill fails, however, pursuant to CR
76.12(4)(c)(v),7 to cite in his argument to specific facts
supporting these claims.
Also, as stated above, although the
parties refer to the video hearing on this issue, it was not
made a part of the record on appeal.
When the complete record
is not before the appellate court, the appellate court must
assume that the omitted record supports the decision of the
trial court.
1985).
Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky.
As such, Bill has failed to carry the burden justifying
recusal.
Bill next contends that when invalidating the parties’
prenuptial agreement, the trial court applied an erroneous
standard when it placed the burden of proof on him to establish
the existence of the items claimed, and further that the trial
court erroneously relied on hearsay and Bill’s non-production of
assets in reaching its conclusion.
We must decline, however, to
(e) Where he has knowledge of any other circumstances in which his
impartiality might reasonably be questioned.
7
(4)(c)The organization and contents of the appellant’s brief shall be as
follows:
* * *
(v) An “ARGUMENT” . . . with ample supportive references to the record.
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review this issue.
The hearing on this matter apparently
occurred on August 18, 2003.
As stated above, this video
hearing is not part of the record on appeal.
We must,
therefore, assume that the omitted record supports the decision
of the trial court.
See id.
Bill next asserts that the trial court erred in the
characterization and division of property.
According to Sexton
v. Sexton, 125 S.W.3d 258, 264-65 (Ky. 2004),
The disposition of parties' property in a
dissolution-of-marriage action is governed
by KRS 403.190, and neither record title nor
the form in which it is held . . . is
controlling or determinative. Under KRS
403.190, a trial court utilizes a three-step
process to divide the parties' property:
"(1) the trial court first characterizes
each item of property as marital or
nonmarital; (2) the trial court then assigns
each party's nonmarital property to that
party; and (3) finally, the trial court
equitably divides the marital property
between the parties."
Footnotes omitted.
First, with regard to the Dayton Avenue property and
the insurance proceeds, there is no dispute that the property
was originally owned by Joyce and then served as the couple’s
residence after their marriage, and that the residence burned
resulting in an award of insurance proceeds.
The trial court
found that 81% (representing 90 months of 108 months) of the
appreciation and equity in the property was Joyce’s nonmarital
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property and 19% (representing the 18 months of the parties’
marriage) of the appreciation and equity was marital, equally
dividing that amount between the parties.
After making this
finding regarding the percentage of marital property, the trial
court awarded the proceeds from the sale of the Dayton Avenue
property, after the fire, to Joyce, which Bill later paid in
purchasing the property.
Bill takes issue with the
characterization of the nonmarital property, asserting that the
insurance contract was executed after the marriage and thus all
the insurance proceeds were marital property; and also asserting
that the proceeds from the sale were marital.
We find no error
in the trial court’s application of the “source of funds” rule
as stated in Sexton at 265:
"An item of property will often consist of
both nonmarital and marital components, and
when this occurs, a trial court must
determine the parties' separate nonmarital
and marital shares or interests in the
property on the basis of the evidence before
the court." Neither title nor the form in
which property is held determines the
parties' interests in the property; rather,
"Kentucky courts have typically applied the
'source of funds' rule to characterize
property or to determine parties' nonmarital
and marital interests in such property."
"The 'source of funds rule' simply means
that the character of the property, i.e.,
whether it is marital, nonmarital, or both,
is determined by the source of the funds
used to acquire the property."
Footnotes omitted.
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Bill makes a similar claim with regard to the Jason
Court property, of which the down payment was made with the
insurance proceeds.
The court awarded the property in
proportion to the parties’ marital percentage of insurance
proceeds.
As above with the Dayton Avenue property, we find no
error with regard to this award.
We likewise find no error with regard to the
Prestonsburg property deeded to Bill from his mother.
The
evidence supported that the $24,000.00 used to payoff the
existing mortgage was marital funds (proceeds from the
insurance) and further that $5,000.00 in marital funds was
expended in improvements.
Bill received one-half of the marital
interest and 60% of the rental income.
Bill also asserts error by the trial court in the
division of personal property and in the total amount of money
expended by Joyce prior to their separation, keying his argument
to the credibility of Joyce’s mother who testified in Joyce’s
absence.
Our standard of review is not based, however, on
whether the losing side presented credible evidence; rather
"[t]his court cannot disturb the findings of a trial court in a
case involving dissolution of marriage unless those findings are
clearly erroneous . . . .
The property may very well have been
divided or valued differently; however, how it actually was
divided and valued was within the sound discretion of the trial
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court." (citation omitted).
Cochran v. Cochran, 746 S.W.2d 568,
569-570 (Ky.App. 1988).
As indicated above, we review these characterization
and distribution issues under an abuse of discretion standard.
We decline to disturb the trial court’s rulings.
There is
substantial evidence in the record to support the trial court's
determinations.
The court’s findings are not clearly erroneous.
Lastly, Bill complains of the trial court’s award of
80% of Joyce’s attorney fees.
The court based this award upon
misrepresentations and untruths by Bill which ultimately
required Joyce’s counsel to defend.
Although Bill admits
untruths and concealment of information during the proceedings,
and the record clearly shows four changes of counsel leading to
delays, he contends that Joyce was equally as culpable by
disappearing, and that the court failed to recognize that there
was a substantial imbalance in the parties’ financial resources
in favor of Joyce.
KRS 403.220 authorizes the award of attorney fees in a
dissolution action.
The trial court’s ruling is subject to
review only for an abuse of discretion.
Sexton at 272.
"Obstructive tactics and conduct, which multiplied the record
and the proceedings" are proper considerations "justify[ing]
both the fact and the amount of the award."
798 S.W.2d 928, 938 (Ky. 1990).
Gentry v. Gentry,
Contrary to Bill’s untruths and
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delays due to changes in counsel, Joyce’s mother was appointed
conservator to avoid further delays in the case.
supports the trial court’s findings.
The record
As to Bill’s contention of
error based on a substantial imbalance in the parties’ financial
resources, as Joyce was awarded the “vast majority of the monies
and properties,” the trial court was presented with evidence on
the financial resources of both parties, including evidence that
Bill made substantially more in income, and that Bill has, by
his own admission, a vast collection of guns and close to onehalf million dollars buried in a lockbox in Eastern Kentucky.
There was no abuse of discretion.
For the foregoing reasons, the judgment of the Fayette
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Judy
Frankfort, Kentucky
Debra Ann Doss
Shea Chaney
Lexington, Kentucky
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