FORREST A. HOBBS v. RUTH ANN HOBBS And MARK H. GASTON, ESQ.
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001550-ME
FORREST A. HOBBS
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE CARL HURST, SPECIAL JUDGE
ACTION NO. 02-FC-504667
RUTH ANN HOBBS
And
MARK H. GASTON, ESQ.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; MILLER, SENIOR JUDGE.1
MILLER, SENIOR JUDGE: Forrest A. Hobbs (Forrest), pro se, brings
this appeal from "Findings of Fact, Conclusions of Law and
Decree of Dissolution of Marriage," entered July 6, 2004, from
the Jefferson Family Court.
Before us, Forrest argues that the
family court erred in the award of custody; the amount of child
support; the amount and duration of maintenance; the failure to
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.
assess interest in the division of the marital residence; and
the award of attorney fees.
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 family court are supported by substantial
evidence and are not an abuse of discretion, and that there was
a correct application of the law, we affirm.
Forrest and Appellee Ruth Ann Hobbs (Ruth) were
married on January 20, 1979, one week after Ruth graduated from
high school.
Army.
Forrest served sixteen years in the United States
During the moves associated with the military, Ruth
worked various jobs such as secretary, cashier, and resident
apartment manager.
The parties separated briefly in the 1980s.
Their only child, a son, was born in 1992.
In November, 1994,
Forrest retired from the military and worked in several
management positions before taking employment in 1998 as a
letter carrier with the United States Postal Service.
In 1999,
Ruth began working as a teacher's aide with her son's public
elementary school.
On November 19, 2002, after twenty-three
years of marriage, the parties separated.
At the time of the
separation, Forrest, 42, was earning $50,000.00 to $55,000.00
per year.
Ruth, 41, was earning $11,000.00 annually.
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Ruth, through counsel, filed for dissolution on
November 25, 2002, and Forrest, through counsel, counterpetitioned one month later.
On April 23, 2003, the parties
appeared before Family Court Judge Patricia Walker Fitzgerald
and agreed to equal time with their son, alternating nights and
weekends; division of personal property, with the exception of
vehicles; and continued payment of $1,500.00 per month by
Forrest to Ruth.
Mediation of the remaining terms was
unsuccessful.
At a case management conference before Judge
Fitzgerald on September 29, 2003, the parties agreed to share
joint custody and to continue to share equal time with their
minor son; accept the appraised value of the home, including
$35,000.00 in equity; division of personalty; division of
Forrest's retirement by Qualified Domestic Relations Order
unless offset by other assets; maintenance of life insurance by
Forrest with the minor child as beneficiary; and responsibility
by Forrest for the Fleet credit card debt and by Ruth for the
Capital One credit card debt.
Remaining issues were heard on January 14, 2004,
before Special Judge Carl Hurst.
Both parties appeared with
counsel and the family court made the following findings, now
contested on appeal by Forrest:
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E. . . . That [Ruth] and [Forrest] shall be
awarded joint custody of the parties[']
minor child with [Ruth] being declared the
minor child's primary custodial parent and
residential custodian.
F. That [Forrest] shall pay unto [Ruth],
without reduction based upon the parties[']
time share, child support in the sum [of]
$529 dollars per month which is based upon
the Kentucky Child [S]upport Guidelines,
taking into consideration [Ruth's]
maintenance award and maintaining health
insurance on the parties['] minor child by
wage assignment. The parties shall split
any extraordinary uncovered medical, dental,
orthodontic, vision, counseling or other
expense incurred on behalf of the parties[']
minor child with [Ruth] paying 36% and
[Forrest] 64% within 30 days of receipt of
final bill.
G. That the within marriage is an old
Fashion [sic] marriage, one where [Ruth]
stayed home, forgoing a career in order to
care for [Forrest] and raise the parties[']
child without the development of business
necessary skills, a decision that was
condoned and encouraged by [Forrest]. As
such it is deemed that [Ruth] is awarded
life time maintenance at a rate that will
help her meet her expenses and live a life
that she has come to enjoy at the rate of
$1,384 per month, by wage assignment, until
she dies, remarries or cohabitates with a
person of the opposite sex on a permanent
basis.
H. [Ruth] shall be awarded sole possession
of the parties['] marital residence.
[Forrest] shall Quitclaim his interest
therein unto [Ruth] upon the presentation of
such deed. [Forrest] shall receive his
equity interest from the parties['] marital
residence through [Ruth's] waiver of her
marital portion of [Forrest's] military
retirement for a period of six years
commencing January 2004. [Ruth] shall be
free to assign transfer covey [sic] or
otherwise sell her interest therein.
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[Ruth] shall assume responsibility for the
indebtedness on the parties['] marital
residence . . . and the debt owed to MSD
thereon. . . .
* * * * *
K. [Forrest] shall pay unto counsel for
[Ruth] the sum of $3,400 in attorney fees
upon entry of this order.
* * * * *
After his counsel withdrew, Forrest proceeded with this appeal
pro se.
No brief was filed on behalf of Appellee Ruth or
Appellee Mark H. Gaston, Esq.
Forrest first takes issue with the family court's
findings as to custody, because although the court awarded the
parties joint custody in accord with their pre-trial agreement,
the court further named Ruth as "the minor child's primary
custodial parent and residential custodian."
As the Kentucky
Supreme Court noted in Fenwick v. Fenwick, 114 S.W.3d 767, 77879 (Ky. 2003), the term "primary residential custodian" is not
defined in the Kentucky statutes, however, the trial court is
authorized to appoint such a custodian, in keeping with the best
interests of the child:
A child cannot simultaneously reside with
both parents, and in most cases, the child
will spend more time with one parent than
the other – a fact that, in many cases,
mirrors the family's situation prior to the
parents' separation. Accordingly, in joint
custody arrangements, the parties will often
agree, or the court will designate, that one
of the parents will act as the "primary
residential custodian."
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(citations omitted)(emphasis added).
"[E]ven in joint custody
cases, there is a primary custodian and the issue is not where
the child stays."
(Ky.App. 1992).
Chalupa v. Chalupa, 830 S.W.2d 391, 393
"[D]esignating a party as the primary
residential custodian logically confers on that party:
(1) the
primary role in minor day-to-day decisions concerning the child;
(2) the responsibility for providing a residence, i.e., a 'home
base,' for the child, and (3) the normal routine care and
control of the child."
Fenwick, 114 S.W.3d at 779.
In keeping with the above, at the trial the court told
the parties that, despite joint custody, it was imperative to
have a primary residential custodian to allow the child a home
"to run to."
This was understood without objection.
As
indicated above, this was within the court's discretion, and did
nothing to denigrate the agreement of the parties as to joint
custody.
We find no misapplication of the law.
Forrest next contends that the family court erred in
the award of child support, alleging that the court did not
utilize maintenance, military retirement, or health care in its
computation of gross income, and further alleging that Ruth is
voluntarily underemployed.
Our review of this factual
contention is subject to the following standard:
As are most other aspects of domestic
relations law, the establishment,
modification, and enforcement of child
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support are prescribed in their general
contours by statute and are largely left,
within the statutory parameters, to the
sound discretion of the trial court. KRS
403.211-KRS 403.213; Wilhoit v. Wilhoit,
Ky., 521 S.W.2d 512 (1975). This discretion
is far from unlimited. Price v. Price, Ky.,
912 S.W.2d 44 (1995); Keplinger v.
Keplinger, Ky.App., 839 S.W.2d 566 (1992).
But generally, as long as the trial court
gives due consideration to the parties'
financial circumstances and the child's
needs, and either conforms to the statutory
prescriptions or adequately justifies
deviating therefrom, this Court will not
disturb its rulings. Bradley v. Bradley,
Ky., 473 S.W.2d 117 (1971).
Van Meter v. Smith, 14 S.W.3d 569, 572 (Ky.App. 2000).
Stated
another way, this court will not disturb the trial court's
findings unless the decision was arbitrary, unreasonable,
unfair, or unsupported by sound legal principles.
Downing v.
Downing, 45 S.W.3d 449, 454 (Ky.App. 2001).
Herein, the court awarded to Ruth $529.00 per month in
child support, and despite Forrest's contentions otherwise, the
court specifically relied on the Kentucky Child Support
Guidelines (Kentucky Revised Statutes [KRS] 403.212), and
considered the financial considerations of the parties and
Ruth's employability.
As such, the findings are supported by
substantial evidence and we are unable to conclude that the
family court abused its discretion in awarding child support.
Forrest next contends that the family court erred as
to the amount of maintenance, alleging that it failed to
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consider KRS 403.200(2)(f), which states that any “maintenance
order shall be in such 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.”
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
maintenance. Id. and Calloway v. Calloway,
Ky.App., 832 S.W.2d 890, 894 (1992).
In awarding maintenance to Ruth of $1,384.00 per month, the
court considered that Ruth stayed home, "forgoing a career in
order to care for [Forrest] and raise the parties['] child
without the development of business necessary skills, a decision
that was condoned and encouraged by [Forrest]."
There was also
undisputed evidence that Forrest's annual income exceeded Ruth's
annual income by a five to one ratio.
The amount of maintenance
is within the sound discretion of the circuit court.
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Gentry v.
Gentry, 798 S.W.2d 928, 937 (Ky. 1990).
Pursuant to Perrine v.
Christine, 833 S.W.2d 825, 826 (Ky. 1992), our standard of
review is whether the trial court abused its discretion, based
on clearly erroneous findings of fact.
Herein, the findings of
the family court are supported by substantial evidence, thus we
find no abuse of discretion in awarding this amount of
maintenance to Ruth.
Ralph next argues error by the family court in setting
the duration of maintenance for Ruth's lifetime.
In Combs v.
Combs, 622 S.W.2d 679, 680 (Ky.App. 1981), this Court construed
an order of the trial court setting the duration of maintenance
"until further orders of the court" as a permanent award of
maintenance that may be rebutted.
In Combs, the Court indicated
that the duration of maintenance must have a direct relationship
to the period over which the need exists and the ability to pay.
As in Combs, Forrest has failed to rebut Ruth's showing that her
needs do not have the potential to be materially different
anytime soon or that she will become more self-sufficient
anytime soon.
Courts have upheld maintenance for longer periods
than that initially deemed necessary to allow the spouse the
time to acquire the skills necessary to support themselves.
Clark v. Clark, 782 S.W.2d 56, 61 (Ky.App. 1990).
See
Although Ruth
has helped to support the family through multiple clerical
positions and is currently employed as a teacher's aide, given
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her age, high school education, and the fact that her workforce
experience was subject to the multiple moves necessitated by a
military family lifestyle, leaving her without any continuity at
any one particular job, the duration of the maintenance herein
is supported by substantial evidence and does not amount to an
abuse of discretion.
Forrest additionally argues that the family court
erred in failing to assess interest in the division of the
marital residence.
The court awarded the residence to Ruth,
requiring her to assume the remaining indebtedness but providing
Forrest his equity in the home through Ruth's waiver of the
marital portion of Forrest's military retirement for a period of
six years.
Forrest argues that the court erred by failing to
assess interest on this equity at the legal rate of 12% pursuant
to KRS 360.040.
Our standard of review on a question of division of
property is stated as follows:
"[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 court."
Cochran v. Cochran, 746
S.W.2d 568, 569-70 (Ky.App. 1988) (citation omitted).
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We decline to disturb the family court’s rulings.
Our
review of the record indicates that there was no discussion at
trial of payment of interest and the decree is silent as well.
As such, KRS 360.040 is inapplicable at this time.
See
Courtenay v. Wilhoit, 655 S.W.2d 41 (Ky.App. 1983).
Lastly, Forrest complains error in the family court’s
order requiring him to pay 85% of Ruth's attorney fees, or
$3,400.00.
In support, he argues that because Ruth's attorney
also represented her in an automobile accident, it is unknown if
this amount included time spent on the other litigation.
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.
S.W.3d 258, 272 (Ky. 2004).
Sexton v. Sexton, 125
Ruth's attorney indicated before
the court that his fees for the dissolution action were
$4,000.00.
The record supports the family court’s findings.
There was no abuse of discretion.
For the foregoing reasons, the judgment of the
Jefferson Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Forrest A. Hobbs, pro se
Louisville, Kentucky
No brief for appellee Ruth A.
Hobbs
No brief for appellee Mark H.
Gaston
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