JESSE LEO WHITT v. JACQUELINE KING WHITT
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RENDERED:
DECEMBER 9, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001529-MR
JESSE LEO WHITT
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
CIVIL ACTION NO. 03-CI-00261
JACQUELINE KING WHITT
APPELLEE
OPINION
AFFIRMING IN PART AND
VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
BARBER, DYCHE, AND MINTON, JUDGES.
MINTON, JUDGE:
I.
INTRODUCTION.
Jesse Leo Whitt appeals from the findings of fact,
conclusions of law, and judgment that dissolved his marriage to
Jacqueline King Whitt and divided their property.
part and vacate and remand in part.
We affirm in
II.
FACTUAL AND PROCEDURAL HISTORY.
Jesse and Jacqueline were married in 1988 and are the
parents of twin children born in 1989.
In their divorce in
2003, child custody was not an issue; but they could not agree
on how to divide their debts and some of the marital property.
The final decree found that the parties had credit
card debt totaling $36,459.00 at the time of their separation
and that Jacqueline, herself, had paid down that debt to
$22,000.00.
The trial court ordered Jesse to pay Jacqueline
$18,230.00, half of the amount of debt at the time of
separation.
The trial court further ordered Jesse to pay
$694.00 per month in child support, half of the monthly
insurance premium for the children, and “one-half the medical,
dental and other expense not covered by insurance.”
Believing
the decree to be in error in several respects, Jesse filed a
motion for clarification of the decree, as well as a notice of
appeal, in July 2004.
In August 2004, with a new attorney, Jesse filed a
motion for extension of time to submit a proposed decree or, in
the alternative, to file objections to the decree previously
entered.
In September 2004, while this appeal was pending, the
trial court granted Jesse’s motion to file belated objections to
the previously entered decree.
Jesse filed his objections in
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October 2004.
In December 2004, the trial court entered an
amended decree.
Although that amended decree clarified some of
the language in the original decree, it did not disturb the
essential property and debt division set forth in the original
decree.
In April 2005, another panel of this Court ordered that
the amended decree be returned to the trial court, stating that
“[t]he Court is of the opinion that the Bell Circuit Court was
without jurisdiction to amend the judgment of July 2, 2004, due
to the pendency of this appeal.”
Thus, the parties’ briefs and,
consequently, our analysis are based upon only the original
decree.
III.
ANALYSIS.
Jesse raises several issues on appeal, many of which
concern the proper allocation of debts incurred during his
marriage to Jacqueline.
Each issue will be dealt with
separately.
A.
Child Support.
As stated previously, the trial court ordered Jesse to
pay Jacqueline $694.00 per month in child support.
not object to that amount of child support.
Jesse does
But Jesse is
disabled, and his twin children already receive a combined
$740.00 per month as a result of Jesse’s disability.
Kentucky
Revised Statute (KRS) 403.211(14) provides in relevant part that
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“[a] payment of money received by a child as a result of a
parental disability shall be credited against the child support
obligation of the parent.”
The decree contains no language
mandating the statutorily required offset of Jesse’s child
support obligation due to these disability payments received by
his children, which even Jacqueline recognizes as error.
So the
child support portion of the decree must be vacated and remanded
so that the trial court can bring the decree into compliance
with KRS 403.211(14).
B.
Credit Card Debt.
Jesse’s biggest issue on appeal is that the trial
court erred by requiring him to pay half of credit card debt
that Jacqueline incurred.
Before we address the particulars of
this case, however, we must note the proper scope of our review.
Despite the fact that the credit card debt in question
was incurred during Jesse and Jacqueline’s marriage, there is no
presumption that the debt is marital in nature. 1
Rather, in a
dissolution proceeding, debts incurred during the marriage:
are traditionally assigned on the basis of
such factors as receipt of benefits and
extent of participation; whether the debt
was incurred to purchase assets designated
as marital property; and whether the debt
was necessary to provide for the maintenance
and support of the family. Another factor,
of course, is the economic circumstances of
1
Neidlinger v. Neidlinger, 52 S.W.3d 513, 522 (Ky. 2001).
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the parties bearing on their respective
abilities to assume the indebtedness. 2
Furthermore, a court does not necessarily have to divide the
debts equally or in the same proportion as the marital property. 3
Finally, we may reverse a trial court’s division of either debts
or marital property only if that division is an abuse of
discretion. 4
Jacqueline testified that the credit cards were in her
name only and that she had the bills sent to her mother’s
address.
Furthermore, Jesse testified that he was unaware of
Jacqueline’s extensive credit card usage.
Thus, Jesse contends
that he should not be responsible for paying any of Jacqueline’s
credit card debt.
In response, Jacqueline notes that the credit
cards were primarily used to purchase goods and services for the
entire family, such as appliances, clothing, household repairs,
and school supplies.
Furthermore, Jacqueline testified that
Jesse was aware of her credit card debt.
Jesse testified that
he was not aware of the credit card debt.
Determining whom to
believe when the evidence is conflicting is a matter solely
within the discretion of the trial court.
Jacqueline’s testimony, combined with the “credit card
summary” attached to her deposition, is evidence that the credit
2
Id. at 523 (internal citations omitted).
3
Id.
4
Id.
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card indebtedness was apparently incurred to purchase marital
assets and to provide for the care and maintenance of
Jacqueline, Jesse, and their children.
Furthermore, the
parties’ respective incomes are roughly equal, 5 meaning that each
could shoulder an equal amount of the credit card debt.
In
addition, it is uncontested that Jacqueline alone has reduced
the credit card debt from approximately $36,000.00 to
approximately $22,000.00.
Though we may have decided the issue
differently, we cannot say that the trial court’s division of
the credit card debt was so arbitrary, capricious, unreasonable,
or unfair as to constitute an abuse of discretion. 6
Accordingly,
the trial court’s division of Jacqueline’s credit card debt must
be affirmed.
C.
Orthodontia Expenses.
Jesse contends that he should not be required to pay
any share of the children’s orthodontia-related expenses because
5
We note that the trial court listed Jesse’s income from cutting hair
as $500.00 per month. Jesse’s undisputed deposition testimony
provides that his income from cutting hair is between $200.00$350.00 per month. On remand, the trial court shall amend its
decree to reflect Jesse’s testimony.
6
Sherfey v. Sherfey, 74 S.W.3d 777, 783 (Ky.App. 2002) (quoting
Kuprion v. Fitzgerald, 888 S.W.2d 679, 684 (Ky. 1994)) (“'Abuse of
discretion in relation to the exercise of judicial power implies
arbitrary action or capricious disposition under the circumstances,
at least an unreasonable and unfair decision.'”).
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he did not agree that they needed braces. 7
Jesse has not,
however, shown that the children did not reasonably require
braces and the associated orthodontia-related treatment.
Thus,
Jesse has not shown that the trial court abused its discretion
by ordering him to pay for half of the costs associated with
providing braces for his children.
D.
“Other Expense.”
Paragraph four of the judgment section of the decree
states that Jesse is required to pay Jacqueline “one-half of the
cost ($250.00) of the CHA insurance policy of $125.00, one-half
the medical, dental and other expense not covered by insurance.”
Jesse asks that we strike the “other expense” language because
he cannot discern its meaning.
Paragraph four is not a model of clarity.
But we do
not believe that the “other expense” language must be stricken.
Rather, we simply construe that language as requiring Jesse to
pay for half of any medical or dental expenses incurred by the
children (including orthodontia) that is not otherwise covered
by health insurance.
Furthermore, the parties may ask the trial
court for guidance in resolving any actual dispute that may
7
The original decree makes no explicit mention of orthodontia-related
expenses. However, each party seems to agree that Jesse is
responsible for paying half of the orthodontia expenses, presumably
due to the original decree’s requirement that he be responsible for
“one-half the medical, dental and other expense not covered by
insurance.” Although it has previously been essentially rendered a
nullity by this court, we note that the amended decree explicitly
requires Jesse to pay for half of the orthodontia bills.
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arise as to whether a particular expense is covered by this
paragraph.
E.
Paragraphs 4 and 5 of the Decree.
Jesse contends that paragraphs four and five of the
decree section of the original decree are difficult to
understand. 8
We agree.
In their entirety, those paragraphs provide as
follows:
4.
The Respondent [Jesse] shall pay unto
the Petitioner [Jacqueline] the sum of
$694.00 per month in child support and
the sum of $21,018.19 as her share of
equity in marital property within sixty
(60) days of this date.
5.
The Respondent shall be responsible for
the remainder of the credit card debt
of $22,000.00 inasmuch as the Court has
awarded her above one-half the same to
be paid to her directly from
Respondent.
There is no indication as to how the trial court arrived at the
$21,018.19 figure mentioned in paragraph four.
Furthermore, in
paragraph five, the trial court seemingly orders Jesse, the
respondent below, to pay $22,000.00 in credit card debt, even
though paragraph 2(A)c of the judgment section of the decree
orders Jesse to pay only $18,230.00 in credit card debt.
In
addition, paragraph five refers to the respondent as “her,” even
though Jesse is the respondent.
8
In short, paragraphs four and
Jacqueline’s brief does not address this issue.
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five are written in such a manner as to be confusing.
On
remand, the trial court shall clarify those paragraphs.
F.
Division of Bank Account.
Paragraph 2(A)e provides that Jacqueline is to be
awarded half of the savings account at Home Federal Bank in
Middlesboro, the purported balance of which is $2,788.19.
Jesse
contends that the Home Federal savings account contained only
$23.26.
Jacqueline’s brief does not address this issue.
The only evidence in the record on this issue is
exhibit 3 to Jesse’s deposition, which contains two statements
from Home Federal Savings, one dated March 15, 2002, and one
dated March 13, 2003.
The 2002 statement shows that Jesse had
two savings accounts with balances of $58.83 and $0.64,
respectively.
The March 2003 statement lists only one savings
account with a balance of $23.26.
Therefore, it is unclear how
the trial court arrived at the $2,788.19 figure it cites in the
decree.
Thus, this aspect of the decree must be remanded so
that the trial court can either amend the amount it believes
existed in the savings account or, in the alternative, can
explain how it arrived at the $2,788.19 amount.
IV.
CONCLUSION.
The portions of the decree dealing with child support,
division of the Home Federal Savings account, and the recitation
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of Jesse’s income earned from cutting hair are vacated and
remanded for further proceedings consistent with this opinion.
Paragraphs four and five of the “decree” section of the decree
are also vacated and remanded for clarification.
In all other
aspects, the trial court is affirmed.
BARBER, JUDGE, CONCURS.
DYCHE, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Linda J. West
Barbourville, Kentucky
William A. Hayes
Middlesboro, Kentucky
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