TROY GENE CRAIG v. TERESA ANN CRAIG
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RENDERED: AUGUST 5, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
MODIFIED:
AUGUST 19, 2005; 10:00 A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001108-MR
TROY GENE CRAIG
APPELLANT
APPEAL FROM TRIMBLE FAMILY COURT
HONORABLE KAREN A. CONRAD, JUDGE
ACTION NO. 01-CI-00042
v.
TERESA ANN CRAIG
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
KNOPF, TAYLOR, AND VANMETER, JUDGES.
TAYLOR, JUDGE:
Troy Gene Craig appeals from the March 5, 2004,
and May 7, 2004, orders of the Trimble Family Court, dividing
the parties’ marital property and awarding Teresa maintenance.
We affirm.
Troy and Teresa Ann Craig were married on January 26,
1979.
The parties’ marriage was dissolved by decree of
dissolution entered in Trimble Family Court on March 11, 2003.
All other issues raised by the pleadings were reserved for
future adjudication.
On March 5, 2004, the family court’s order
dividing the parties’ marital property and awarding Teresa
maintenance was entered.
Amend or Vacate.
Both parties filed Motions to Alter,
The family court’s order granting the parties’
motions in part and denying in part, was entered on May 7, 2004.
This appeal follows.
Troy argues the family court did not make the specific
findings of fact required by KRS 403.200(1) to support an award
of maintenance.
Specifically, Troy asserts the court did not
find whether Teresa had sufficient property to provide for her
own reasonable needs and whether she was able to support herself
through appropriate employment.
It is well-established that before the family court
may award maintenance, it must make findings of fact pursuant to
KRS 403.200(1).
1992).
Perrine v. Christine, 833 S.W.2d 825 (Ky.
KRS 403.200(1) states as follows:
(1)
In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of a marriage by a court
which lacked personal jurisdiction over
the absent spouse, the court may grant
a maintenance order for either spouse
only if it finds that the spouse
seeking maintenance:
(a) Lacks sufficient property,
including marital property
apportioned to him, to provide for
his reasonable needs; and
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(b)
Is unable to support himself
through appropriate employment or
is the custodian of a child whose
condition or circumstances make it
appropriate that the custodian not
be required to seek employment
outside the home. [Emphasis
added].
In the case sub judice, the family court made the
following findings relevant to the award of maintenance:
The court finds that [Teresa] does not have
sufficient property including marital
property set aside for her nor sufficient
income available to her from disability and
further finds that [Troy] has financial
resources sufficient to assist her in her
support.
In support of its findings, the family court noted that Teresa
suffered from fibromyalgia, depression, and generalized anxiety
disorder.
The court noted that Teresa “was declared totally and
permanently disabled by the Social Security Administration by a
decision entered July 26, 2000, . . . [and] [t]he outlook
further employment is dim.”
The court also recognized the
marital property apportioned to Teresa and even imputed interest
income to her based upon the amount Troy was ordered to pay her
to equalize the division of marital property.
A review of the record reveals that the family court
engaged in a thorough analysis and made the findings necessary
under KRS 403.200(1).
The court made specific findings
regarding the sufficiency of the property apportioned to Teresa
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and her ability to support herself through appropriate
employment.
As such, we believe the family court made the
necessary findings of fact pursuant to KRS 403.200(1) to support
its award of maintenance to Teresa.
Troy next contends the family court erred as to the
amount of maintenance awarded to Teresa.
Troy asserts that
“while the trial court listed the factors of KRS 403.200, no
specific findings were made for each of those factors.”
KRS 403.200(2) states as follows:
(2)
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:
(a) The financial resources of the
party seeking maintenance,
including marital property
apportioned to him, and his
ability to meet his needs
independently, including the
extent to which a provision for
support of a child living with the
party includes a sum for that
party as custodian;
(b) The time necessary to acquire
sufficient education or training
to enable the party seeking
maintenance to find appropriate
employment;
(c) The standard of living established
during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and
emotional condition of the spouse
seeking maintenance; and
(f) The ability of the spouse from
whom maintenance is sought to meet
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his needs while meeting those of
the spouse seeking maintenance.
In determining the amount of a maintenance award, KRS 403.200(2)
clearly directs the court to consider “all relevant factors.”
The statute does not, however, require the court to make
specific findings of fact as to each relevant factor.
Drake, 721 S.W.2d 728 (Ky.App. 1986).
Drake v.
After the court makes the
findings of fact required under KRS 403.200(1) to determine
whether an award of maintenance is proper, the amount of that
award is within the family court’s discretion.
S.W.2d 728.
Drake, 721
Absent an abuse of that discretion, the amount of
the maintenance award will not be disturbed on appeal.
Id.
The family court clearly considered the factors
relevant to the amount of maintenance.
The court discussed
Teresa’s financial resources, as well as Troy’s ability to meet
his needs while paying maintenance to Teresa.
The court also
considered Troy’s monthly income from Gallatin Steel of
$7,129.00 and Teresa’s monthly income from disability of
$916.00.
The court obviously considered that the parties were
married for some twenty-four years, as well as, Teresa’s age and
poor physical condition.
We, thus, believe that the family
court did not abuse its discretion in awarding Teresa
maintenance of $1,500.00 per month.
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See Drake, 721 S.W.2d 728.
Troy next argues the family court erred by ordering
that he “pay Teresa a separate sum of money for the farm’s
tobacco base.”
Troy was awarded the “homeplace farm” and
ordered to pay Teresa an amount equal to her marital share.
Troy asserts that the value of the farm included the 4,552 pound
tobacco base.
Troy argues that by requiring him to pay Teresa
separately for her marital share of the tobacco base, he is
essentially paying her twice for the same asset.
The family court found that the appraisal of the
homeplace farm did not include the tobacco base.
A review of
the appraisal reveals that it utilized a comparable sales
approach, rather than an income or cost approach.
The appraisal
did not indicate that a tobacco base was included; moreover,
there was no mention of a tobacco base on any of the comparable
property.
Considering the evidence as whole, we believe the
family court’s finding that the appraisal did not include the
tobacco base was not clearly erroneous.
We, thus, reject Troy’s
argument that the family court erred by requiring him to pay a
separate sum for Teresa’s marital share of the tobacco base on
the homeplace farm.1
1
We note that the family court sent a “letter” to the parties indicating that
the tobacco base would be valued at $2.00 per pound and requesting Troy’s
counsel to respond if this amount was not acceptable. The civil rules do not
authorize this type of communication and we suggest that a sua sponte order
regarding the court’s intentions would have been more appropriate under the
circumstances.
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Troy also contends the family court abused its
discretion by awarding Teresa attorney’s fees and costs of
$4,000.00.
Specifically, Troy asserts the family court “made no
‘findings’ as to the ‘financial resources’ of the parties.”
KRS 403.220 provides as follows:
The court from time to time after
considering the financial resources of both
parties may order a party to pay a
reasonable amount for the cost to the other
party of maintaining or defending any
proceeding under this chapter and for
attorney's fees, including sums for legal
services rendered and costs incurred prior
to the commencement of the proceeding or
after entry of judgment. The court may order
that the amount be paid directly to the
attorney, who may enforce the order in his
name.
The language of KRS 403.220 is clear - the family court is to
consider the financial resources of the parties.
The court is
not required, however, to make specific findings of fact
regarding those resources.
Hollingsworth v. Hollingsworth, 798
S.W.2d 145 (Ky.App. 1990); Tucker v. Hill, 763 S.W.2d 144
(Ky.App. 1988).
As an award of attorney’s fees and costs is
“entirely within the discretion of the court” and will not be
disturbed on appeal absent an abuse of that discretion.
Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001).
of discretion “implies arbitrary action or capricious
disposition under the circumstances . . . .”
Sherfey, 74 S.W.3d 777, 783 (Ky.App. 2002).
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Sherfey v.
Abuse
In the case at hand, the family court discussed the
financial resources of both parties and specifically pointed out
the vast disparity in their respective income.
We are of the
opinion that the family court did not abuse its discretion by
ordering Troy to pay a portion of Teresa’s attorney’s fees.
Finally, Troy contends the family court erred by
ordering that the judgment in favor of Teresa would bear
interest at the rate of 12%, retroactive to March 5, 2004.
Troy
specifically contends that the family court abused its
discretion by ordering interest to be paid on the judgment. The
court, upon review after both parties filed Ky. R. Civ. P. 59
motions, granted Teresa a judgment of $8,039.00 to equalize the
division of assets between the parties.
This judgment, for the
purpose of accrual of interest, was effective from the date of
entry of the original judgment, March 5, 2004.
Troy asserts
that interest on a money judgment in a dissolution proceeding is
not mandatory and was inappropriate in this case.
Troy argues:
“Teresa received her share of the assets at the same time Troy
received his.
Thus, he had no ‘advantage over Teresa’, nor was
he withholding funds in which she was entitled to receive onehalf.”
Teresa responds that during the pendency of the
proceeding Troy had the benefit of residing at the marital
residence and the benefit of the income produced by the farm.
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Interest on a judgment in a dissolution proceeding is
appropriate, unless there are factors making it inequitable to
require payments of interest.
(Ky.App. 1972).
Young v. Young, 479 S.W.2d 20
As Troy had exclusive possession and use of the
parties’ primary marital asset during the pendency of the
proceeding, we believe an award of interest was proper.
Troy alternatively argues that even if the award of
interest was proper, it was improper to award interest at a rate
of 12%, retroactive to March 5, 2004.
The law is clear that if interest is awarded, the rate
shall be that established by statute.
S.W.2d 41 (Ky.App. 1983).
Courtenay v. Wilhoit, 655
KRS 360.040 establishes that a
judgment shall bear interest at the rate of 12%.
It is equally
clear that:
[N]o distinction can be made between a
judgment based upon a claim for alimony or
maintenance and a judgment based upon any
other legal right. After the judgment is
entered, although it may be subject to
modification at a subsequent date, it is
binding and final until modified; and any
payments which may have become due previous
to such modification constitute a fixed and
liquidated debt . . . .
Whitby v. Whitby, 306 Ky. 355, 208 S.W.2d 68, 69 (1948)
overruled on other grounds by Knight v. Knight, 341 S.W.2d 59
(Ky. 1960).
Thus, we believe that the interest rate of 12%
retroactive to March 5, 2004, the date of entry of the family
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court’s findings of fact, conclusions of law and judgment was
proper.
For the foregoing reasons, the orders of the Trimble
Family Court are affirmed.
VANMETER, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS AND FILES SEPARATE OPINION.
KNOPF, JUDGE, CONCURRING:
While I agree with much of
the reasoning and the result reached by the majority opinion, I
write separately to raise several additional points and to
discuss the matters relating to interest in this case.
With
regard to maintenance, a trial court should first determine a
party’s entitlement to maintenance under the standards set forth
in KRS 403.200(1), and then apply the factors set out in KRS
403.200(2) to determine the amount and duration of maintenance.
In this case, the trial court did the analysis in reverse order.
Nevertheless, the trial court found that Teresa lacks sufficient
property and sufficient income to provide for her reasonable
needs.
Because the trial court made the necessary findings and
they are supported by substantial evidence, I agree with the
majority that the award of maintenance should not be disturbed.
I am more concerned with the trial court’s findings
regarding the value of the tobacco base.
There was no evidence
presented at the hearing that the tobacco base had a value apart
from the appraised value of the real property.
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That evidence
came to the court in a letter written by Teresa’s counsel.
was not a proper method for introducing evidence.
This
Furthermore,
counsel related hearsay evidence regarding an offer made to
purchase the tobacco base.
But while this evidence should only have been
introduced by a witness under oath, Troy was aware that the trial
court had requested this information and he never objected to the
manner in which the evidence was presented to the court.
Consequently, he is barred from raising the issue for the first
time on appeal.
However, I would strongly urge the trial court
to refrain from such practices in the future.
The matter involving interest has proven to be the most
complex and troublesome issue in this case.
While it is not
entirely clear from the parties’ briefs, there were two distinct
matters in the case below which involved an award of postjudgment interest.
appeal.
Only one of those matters is raised in this
The first matter involves the trial court’s October 24,
2004 order finding that Troy owed Teresa $95,243.46 as her share
in the marital real estate and ordering him to pay post-judgment
interest on this amount from March 5, 2004.
The trial court’s
findings and adjustments support the amount of interest owed,
although I question whether the award should have been designated
as retroactive.
Moreover, Troy does not challenge the award of
interest on this amount.
But on the other hand, the benefit
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which Troy received from residing in the marital residence and
receiving income from the farm is not directly relevant to the
question of interest raised in this appeal.
Rather, Troy challenges the trial court’s retroactive
award of post-judgment interest on the equalization payment
ordered by the trial court in its May 7, 2004 order.
In its
March 5 order, the trial court made findings of fact concerning
the value of the tobacco base, the marital income received by
Troy from crop sales, the value of the bank accounts, and the
value of certain marital farm equipment.
But the trial court
neglected to enter a judgment against Troy for an amount to
equalize the division of these assets.
Teresa brought this
oversight to the court’s attention in her CR 59.05 and, in its
May 7 order, the trial court entered a judgment against Troy for
$8,039.00 to equalize the division of these assets.
As the majority correctly points out, the trial court’s
March 5, 2004 order was final and appealable.
Furthermore, fixed
and liquidated debts in dissolution cases bear interest at the
legal rate under KRS 360.040 until paid.2
However, the May 7,
2004 order partially granted CR 59.05 relief and altered the
court’s prior judgment.
Troy makes a compelling argument that
the equalization amount was not fixed and liquidated until the
2
Johnson v. Johnson, 564 S.W.2d 221 (Ky.App. 1978).
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judgment was entered on May 7.
Thus, he reasonably asserts that
post-judgment interest should only run from the later date.
If the trial court had failed to make findings on the
value of these assets in its March 5 order, then I would agree
with Troy that the May 7 judgment would be the final and
appealable order from which post-judgment interest would run.
But since the trial court did make those findings in its initial
order, its May 7 judgment merely included the equalization amount
determined but not included in the earlier judgment.
Thus, the
May 7 judgment could relate back to the date of the March 5
order.
Consequently, post-judgment interest was properly payable
on the judgment from the earlier date.
Accordingly, I agree with
the majority’s conclusion affirming the award of post-judgment
interest on this amount.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Ruth H. Baxter
CRAWFORD & BAXTER, P.S.C.
Carrollton, Kentucky
James L. Theiss
WILLIAMSON, SIMPSON & THEISS
LaGrange, Kentucky
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