VANHORN (JAMES FRANKLIN) VS. VANHORN (RHONDA D.)
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RENDERED: SEPTEMBER 10, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001295-MR
JAMES FRANKLIN VANHORN
v.
APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 09-CI-00027
RHONDA D. VANHORN
APPELLEE
OPINION
VACATING AND REMANDING
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BEFORE: COMBS AND CLAYTON, JUDGES; LAMBERT,1 SENIOR JUDGE.
COMBS, JUDGE: James Franklin VanHorn appeals from a decree of dissolution
of marriage entered May 29, 2009 in Greenup Family Court. After our review, we
vacate and remand for additional proceedings.
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
James and Rhonda D. VanHorn were married on January 18, 1997.
Rhonda petitioned for dissolution of the marriage in January 2009. No children
were born of the marriage.
A final hearing was conducted on May 26, 2009. The court’s findings
of fact, conclusions of law, and decree of dissolution were entered two days later
on May 28. Relevant to this appeal, Rhonda was awarded one-half of the pension
benefit earned by James between the date of the marriage and the date of the
separation. Two firearms were assigned to Rhonda as part of her non-marital
property, and James was ordered to pay the costs of Rhonda’s health insurance
benefits for a period of twelve months. Subsequently, James filed a motion to
alter, amend, or vacate. The motion was granted in part by order entered June 10,
2009. This appeal followed.
James contends that the family court erred by effectively awarding
maintenance to Rhonda in the form of her health insurance premiums. James
argues that Rhonda, a registered nurse, did not show -- nor did the trial court -- find
that she lacked sufficient property to provide for her reasonable needs and that she
was unable to support herself through appropriate employment. We agree.
An award of maintenance is within the sound discretion of the family
court and will not be disturbed on appeal absent an abuse of discretion. Gentry v.
Gentry, 798 S.W.2d 928 (Ky.1990). However, when considering whether an
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award of maintenance is appropriate, Kentucky Revised Statute(s) (KRS)
403.200(1) requires the family court to make two distinct findings of fact:
In a proceeding for dissolution of marriage . . . 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
(b) Is unable to support himself through appropriate
employment . . . .
These findings of fact are mandatory and must be made part of the record in order
to support an award of maintenance. Hollon v. Hollon, 623 S.W.2d 898 (Ky.
1981). Moreover, a party is not required to request more specific findings under
Kentucky Rule(s) of Civil Procedure (CR) 52.04 in order to preserve for appeal the
trial court’s failure to make mandatory findings under the provisions of KRS
403.200(1). Id.
In this case, the family court made no findings with respect to
Rhonda’s ability to provide for her reasonable needs or her ability to support
herself through appropriate employment. Instead, the court found that James had
“violated the standard Order of this Court when dropping [Rhonda] from his
medical insurance coverage without prior Court approval and without notice to
[Rhonda].” Decree at 3.
We have searched the record and have found no order directing James
to continue paying for Rhonda’s health insurance premium during the period of
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separation. Nor is there any argument that this portion of the decree represents a
purge order with respect to James’s civil contempt. Therefore, upon remand, the
family court shall reconsider its award of maintenance and shall make findings of
fact as required by KRS 403.200(1).
Next, James contends that the family court erred in its attempt to
divide the marital component of his pension benefit. In its decree, the court
concluded that Rhonda was “entitled to one-half the pension that accumulated on
behalf of [James] during his time of employment. This shall be computed by
utilizing the time period of 1992 until the parties separated November 1st, 2008.”
Decree at 4. Following James’s motion to alter, amend, or vacate, the court
amended the order to provide as follows: “[Rhonda] shall receive her portion of
the pension computed by using the dates of January 18, 1997 [the date the parties
were married] to November 1, 2008 [the date of their separation].” James argues
that the family court erred by referring to any period beyond 2004 (the date on
which he retired and stopped earning pension benefits) and by distributing to
Rhonda a portion of an unknown sum. We agree.
KRS 403.190 provides that all property acquired by either spouse
after the marriage and before a decree of legal separation is presumed to be marital
property; the family court shall divide the marital property in just proportions. In
this case, the portion of James’s pension acquired after the marriage and before the
order of dissolution is subject to division. However, without reference to the
specific marital and non-marital components of James’s pension, neither the parties
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to the action, nor the plan administrators who will be involved in the actual
division of the pension, can determine how much money is due to either party.
Without knowing the value of Rhonda’s marital share of James’s retirement
benefit, the family court is unable to determine whether an award of maintenance
is appropriate under the provisions of KRS 403.200. On remand, the family court
must determine the value of each party’s non-marital assets and the value of the
marital assets to be distributed to each of them.
Finally, James contends that the family court erred by assigning two
firearms to Rhonda as her separate, non-marital property. James contends that
Rhonda’s possession of the firearms violates federal law as she is the subject of a
domestic violence order (DVO) duly issued by the Greenup Family Court.
Evidence presented during the final hearing indicates that the DVO is still in effect.
Under provisions of the Federal Gun Control Act, 18 U.S.C.
§922(g)(8), it is unlawful for any person who is subject to a court order restraining
her from “harassing, stalking, or threatening an intimate partner” to possess a
firearm. Rhonda does not contend that the provisions of the Act do not apply to
her under the facts and circumstances of this action. Instead, she argues that the
trial court did not err by assigning them to her since a third-party may be appointed
to take possession of the weapons until such time as she is no longer bound by the
firearms restriction. We agree with this solution.
Our review of the record indicates that there was sufficient evidence
from which the court could (and did) conclude that the firearms were Rhonda’s
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non-marital property. However, upon remand, the family court must make proper
provision for the safeguarding or “escrowing” the firearms until such time as
Rhonda may be permitted to assume possession of them.
We vacate the findings of fact, conclusions of law, and decree of
dissolution of marriage of the Greenup Family Court and remand this matter for
further proceedings.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Jeffrey Scott
Grayson, Kentucky
Roger R. Cantrell
Greenup, Kentucky
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