JUDITH CLAIRE ROLWING V. RAYMOND H. ROLWING
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RENDERED: August 8, 1997; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 95-CA-001095-MR
and
NO. 96-CA-001856-MR1
JUDITH CLAIRE ROLWING
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
CIVIL ACTION NO. 91-CI-001702
V.
RAYMOND H. ROLWING
APPELLEE
OPINION AND ORDER
DISMISSING APPEAL NO. 95-CA-001095-MR
AND
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
APPEAL NO. 96-CA-001856-MR
** ** ** ** ** ** **
BEFORE:
EMBERTON, HUDDLESTON and SCHRODER, Judges.
HUDDLESTON, JUDGE. Judith Claire Rolwing appeals from three orders
that distributed property between her and her former husband,
1
These two cases were appealed separately and at different
times to this Court.
We consider the issues raised in each
together.
Raymond H. Rolwing, and denied her request for maintenance, an
attorney's fee and expert witness fees.
The procedural history of this case is complicated and is
important to the issues we consider.
married in 1986.
Judith and Raymond were
However, by 1991, they were no longer living
together, and, on December 28, 1992, their marriage was dissolved.
The court reserved several issues for later disposition, one being
the division of property between Judith and Raymond.
A
decided
a
Raymond.
"supplemental
number
of
order,"
issues
in
entered
September
26,
1994,
contention
between
Judith
and
As pertinent to this opinion, that order provided that
Judith was entitled to one-half the contributions made during the
marriage to Raymond's pension plan at the University of Cincinnati,
that is one-half of $140,696.00.
The order also determined Judith
and Raymond's interest in the marital residence and directed that
Judith purchase Raymond's share by a date certain. The court noted
that Raymond had made unknown dollar amounts of mortgage payments
on the house and instructed the parties to prepare a schedule of
payments that had been made so that those amounts could be set-off
against the equity in the home.
The party making less payments was
then
for
to
payments.
reimburse
the
other
one-half
the
difference
in
Finally, the court instructed each party to continue to
pay one-half the mortgage payments until the residence was sold.
Lastly, the order stated it was final and appealable.
Judith made a motion to alter, amend or vacate the
supplemental order.
On March 28, 1995, an order was entered
2
clarifying some aspects of the supplemental order not at issue here
and denying Judith's request for maintenance, an attorney's fee,
and expert witness fees.
At this point, Judith filed her first
appeal, No. 95-CA-001095-MR, in which she contests the court's
division of Raymond's pension plan and the denial of maintenance,
an attorney's fee, and expert witness fees.
The parties continued to spar in the circuit court.
Raymond filed a motion in aide of execution in which he claimed
that Judith owed him a total of $25,938.00.
This precipitated a
series of hearings which culminated in the court requesting the
parties to file a memorandum with stipulations as to those items on
which the parties agreed.
Both Raymond and Judith filed stipula-
tions, but the items purportedly agreed to were not identical.
The court then made a ruling in which it states, as
pertinent to the issues raised here, that the parties agreed: (1)
that Judith was owed $70,348.00 from Raymond's pension plan; (2)
that Raymond had paid $58,232.00 in mortgage payments up to January
1995; (3) that the difference between Raymond's payments on the
mortgage and Judith's payments at the date of Judith's purchase of
the residence was $11,032.00; and (4) that the outstanding loan
balance on the house at the time of closing was $85,082.00.
The
order went on to divide various credit card debts using the date of
separation, rather than the date of dissolution, as the operative
starting point.
Finally, based upon extensive findings, the court
concluded that Judith owed Raymond $19,924.94, plus interest at the
rate of twelve percent from September 26, 1994.
3
Following entry of this final order, Judith filed a
motion to alter, amend or vacate which was denied. Thereafter, she
filed her second appeal, No. 96-CA-001856-MR, in which she contests
the court's division of equity in the marital residence and the
treatment of mortgage payments and credit card debts.
The issue of the division of Raymond's pension plan,
raised in case No. 95-CA-001095-MR, is first under consideration.
To begin with, we do not believe that the supplemental order
entered September 26, 1994, which determined Judith's interest in
the plan was final and appealable.
Obviously, the court made
further orders and determinations which altered provisions made in
the order.
Further, the order contemplated continued interaction
with the court because not all the issues between the parties were
resolved.
The fact that neither party raised the issue of finality
is not a bar to our considering it sua sponte.
563 S.W.2d 716, 717 (1978).
Hook v. Hook, Ky.,
Our view of the September 26, 1994,
order is similar to the Supreme Court's view of the judgment it
considered in Hale v. Deaton, Ky., 528 S.W.2d 719, 721 (1995):
The judgment entered by the trial court in the proceeding
before us could not and does not adjudicate all the
rights of all the parties.
Actually, it merely prefaces
the entry of additional orders by the trial court, their
context being dependent upon facts developed by the
accounting required by the judgment.
was interlocutory and nonappealable.
4
The . . . judgment
That the circuit court included finality language in its September
order is irrelevant.
Hook, supra; Hale, supra at 722.
In any event, the questions raised by Judith regarding
her portion of Raymond's pension plan are now moot by virtue of the
order entered May 1, 1996, in which the court notes that, based
upon its review of the record and the arguments made to it, the
parties agree on the amount Judith is entitled to from Raymond's
pension plan. Judith's motion to alter, amend or vacate that order
does not mention the ruling on the pension plan.
Therefore, that
issue is settled and need not be considered by this Court.
We consider that the remaining issues raised in Judith's
first appeal are incorporated by reference in the second appeal and
proceed to consider them.
The first of those issues is her
contention that the circuit court erred when it failed to award her
maintenance.
She contends that there is a great disparity in
income and that the court did not make sufficient findings in its
March 28, 1995, order to support its denial of maintenance.
In
that order the court found that Judith had sufficient marital and
nonmarital property apportioned to her to provide for her needs.
Whether
to
award
maintenance
is
within
the
sound
discretion of the circuit court. Its decision will not be reversed
absent abuse of that discretion. Gentry v. Gentry, Ky., 798 S.W.2d
928, 937 (1990); Clark v. Clark, Ky.App., 782 S.W.2d 56, 60 (1990).
Before an award of maintenance is proper it must be established
that the spouse seeking maintenance lacks sufficient property,
including the marital property apportioned to her, to provide for
5
her own needs and that she is unable to support herself through
employment outside the home.
Dotson v. Dotson, Ky., 864 S.W.2d
900, 902 (1993); Gentry, supra at 936.
Given that Judith has been awarded at least $360,000.00
upon dissolution of the marriage, that she is employed by Proctor
& Gamble at a salary of $50,000.00 per year, and that she acquired
the marital residence (worth approximately $374,000.00), we cannot
say that the circuit court abused its discretion when it found that
she has sufficient property and income to support herself so that
maintenance is unnecessary.
Drake v. Drake, Ky.App., 721 S.W.2d
728, 730 (1986); Owens v. Owens, Ky.App., 672 S.W.2d 67, 69 (1984).
Judith next argues that the court should have awarded her
an attorney's fee and expert witness fees.
In its March order, the
court denied the fee requests because it found that Judith had
sufficient income and property from which to pay these fees.
Ky.
Rev. Stat. (KRS) 403.220 allows the court, after considering the
financial resources of the parties, to award costs and attorney
fees in its discretion.
Such an award is entirely within the
discretion of the trial court; it is not mandatory.
Wilhoit v.
Wilhoit, Ky., 521 S.W.2d 512, 514 (1975); Underwood v. Underwood,
Ky.App., 836 S.W.2d 439, 444 (1992).
For the reasons outlined in
the discussion of maintenance, above, we do not believe the court
abused its discretion in denying Judith the fees she sought.
Turning to other issues raised by Judith, we first
consider
the
modification
of
the
home
mortgage
reallocation of equity in the marital residence.
6
balance
and
In its May 1,
1996, order, the circuit court noted certain figures that Judith
and Raymond agreed to regarding the home.
One of those figures was
the mortgage balance on the date of the sale and another was the
amount
of
money
Raymond
had
paid
toward
the
mortgage
before
completion of the sale. Judith contends that the court should have
used the amount outstanding on the mortgage as stated in the
September order.
She argues that the court, in its May 1996 order,
had no authority to alter the amounts stated in the September
order.
We disagree.
First, as noted above, the September order
was not a final and appealable order.
Therefore, the court could
reconsider any matter contained therein until a final adjudication.
Bank of Danville v. Farmers Nat'l Bank of Danville, Kentucky, Ky.,
602 S.W.2d 160, 164 (1980).
Judith also objects on the ground that
different judges rendered the September 1994 and May 1996 decisions.
She argues that a successor judge does not have the ability
to review her predecessor's orders.
merit.
This argument is without
As Herring v. Moore, Ky.App., 561 S.W.2d 95, 98 (1977),
makes clear, a successor judge may reconsider issues upon timely
motion or sua sponte.
Since the September order was not final, the
successor judge had the authority to interpret and apply that
order.
With
regard
to
the
merits
of
the
issue
regarding
adjustment of the mortgage balance and the equity in the marital
residence, there was no error.
The court took figures upon which
the
that
parties
agreed
and
found
7
Raymond's
payments
on
the
mortgage exceeded Judith's by $11,032.00.
It thereupon ordered
Judith to pay Raymond one-half of that amount.
This method was in
accordance with that contemplated by the September order and not in
error.
A similar method has been approved in Drake v. Drake,
Ky.App., 809 S.W.2d 710, 712 (1991).
Judith next contends that the court erred in allocating
the marital debts and mortgage payments.
matters within the court's discretion.
Issues of valuation are
Clark, supra at 60.
The
findings of the court are not subject to reversal unless they are
clearly erroneous.
Cochran v. Cochran, Ky.App., 746 S.W.2d 568,
569 (1988). The circuit court considered all the evidence and made
a decision on the debts and mortgage payments that is supported by
substantial evidence of record.
That decision is not clearly
erroneous and, thus, will not be reversed.
Judith continues by insisting that the court erred by not
making specific findings upon her motion regarding matters disposed
of in the May 1996 order.
Judith's motion to alter, amend or
vacate made in the circuit court goes partly to the merits of the
decision and partly to the issue of the court's authority to
interpret the September 1994 order and does not seek, for instance,
merely clarification.
With respect to the merits of the decision,
the court was not obligated to make further findings when it had
already made sufficient findings in the May 1, 1996, order.
As
Judith's
to
argument
pertains
to
the
authority
of
the
court
consider the case, we have answered this contention above by
determining that the court did have this authority.
8
Finally, Judith argues that the court erred in granting
post-judgment interest to Raymond from September 26, 1994, on the
$19,924.94 found to be owing to him.
We agree with this argument.
Post-judgment interest is authorized from the date of judgment by
KRS 360.040.
The date of judgment was May 1, 1996 -- the date that
all claims between Judith and Raymond were settled.
While Raymond
may be entitled to prejudgment interest, it must be at a rate not
exceeding the legal rate of interest, or eight percent.
360.010.
KRS
Because the decision to award prejudgment interest is
within the discretion of the circuit court, Church and Mullins
Corp. v. Bethlehem Minerals
Co., Ky., 887 S.W.2d 321, 325 (1992),
the case will be remanded for purposes of determining whether
prejudgment interest should be awarded.
In conclusion, with regard to appeal No. 96-CA-001856-MR,
we affirm in part, reverse in part and remand for a determination
as to whether Raymond should be awarded pre-judgment interest on
the sum of $19,924.94.
Appeal No. 95-CA-001095-MR is dismissed.
ALL CONCUR.
ENTERED:
August 8, 1997
/s/ Joseph R. Huddleston
JUDGE, COURT OF APPEALS
9
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John R. Elfers
Covington, Kentucky
Stephen D. Wolnitzek
WOLNITZEK, ROWEKAMP, BENDER
& BONAR, P.S.C.
Covington, Kentucky
10
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