GARY FREDERICK BLOEMER v. MARY ELIZABETH BLOEMER
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RENDERED: April 3, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-1066-MR
GARY FREDERICK BLOEMER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EARL O'BANNON, JR., JUDGE
ACTION NO. 93-CI-004893
v.
MARY ELIZABETH BLOEMER
AND
APPELLEE
NO. 96-CA-1071-MR
MARY ELIZABETH BLOEMER
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE EARL O'BANNON, JR., JUDGE
ACTION NO. 93-CI-004893
v.
GARY FREDERICK BLOEMER
APPELLEE
OPINION
VACATING AND REMANDING
* * *
BEFORE:
GUDGEL, CHIEF JUDGE, GARDNER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
divorce case.
This opinion covers two separate appeals from a
We have combined the opinions even though the
appeals were not consolidated.
Both parties appealed those
portions of the judgment which relate to the trial proceedings,
property division, maintenance, and child support.
The second
appeal also questions custody and arrearages.
The parties to this divorce, Gary Frederick Bloemer
(Gary) and Mary Elizabeth Bloemer (Mary), were married on May 23,
1981, separated on July 23, 1993, and filed for dissolution of
the marriage on December 4, 1993.
Three children were born of
the marriage, namely David Edward Bloemer, born November 5, 1985;
Kyle Raymond Bloemer, born August 17, 1988; and Elizabeth Rose
Bloemer, born May 21, 1990.
At the time of the parties' marriage, Gary had finished
his third year in medical school and Mary had just finished her
first year of nursing school.
Gary is presently an orthopedic
surgeon practicing medicine with two other physicians.
After
Mary received her associate degree in nursing, she worked as a
nurse until mid-1987, shortly before the birth of their first
child, at which time she became a full-time homemaker.
A limited decree of dissolution was entered by the
court on August 2, 1994, reserving all outstanding issues,
including the determination of living arrangements for the
parties' three infant children (the decree reflects the parties'
agreement to permanently share joint custody and control of their
children); the establishment of child support obligations for
both parties; the assignment of the parties' non-marital
property; the valuation and equitable division of the parties'
marital estate; and the determination of Mary's entitlement, if
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any, to maintenance.
Mary made a motion for pendente lite
maintenance and child support which was heard by the Domestic
Relations Commissioner on September 20, 1994, and his
recommendation of $8,200.00 a month was upheld by the court's
order of October 27, 1994, without a breakdown between support
and maintenance.
Both sides filed exceptions which were disposed
of in the final order of January 4, 1996.
59.02 motions.
Both parties filed CR
A hearing was held on March 1, 1996 and a final
order was entered on March 15, 1996, which disposed of some of
the property.
In his appeal (96-CA-1066), Gary argues that the trial
court failed to conduct the proceedings in a coherent manner
which deprived both parties of a fair adjudication of the issues
presented.
More specifically, Gary complains that the court
would only allow a two- or three-hour hearing at a time on issues
and that most of the case was tried during motion hour because
the court would not schedule necessary hearings.
Mary disagrees
that the piecemeal hearings worked to Gary's disadvantage but
agrees it was unfair as to her issues.
In general, the
scheduling of trials, hearings, and motions is within the trial
court's discretion and will not be set aside unless there is an
abuse of discretion. CR 40; CR 42.02; CR 43.03; and Gould v.
Charlton Co., Inc., Ky., 929 S.W.2d 734 (1996).
To show an abuse
of discretion, the parties need to point out specific errors in
rulings, which comprises the remainder of Gary's brief and is
what Mary argues in her appeal (96-CA-1071).
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First, Gary contends the trial court abused its
discretion by failing to dispose of the parties' personal
property pursuant to KRS 403.190.
Mary agrees but contends the
major error is in the cost of finishing the basement in the
marital residence.
In Mary's appeal, she contends the court
failed to restore non-marital property and erred in valuing the
medical practice.
The court's findings state that the parties
agreed upon an equal division of property and that an agreement
was to be made.
There never was a complete division although
there were an appraisal and some set-offs in the area of property
division relating to the marital residence, Barren County
property, and the medical practice, reserving the right to
equalize the distribution by picking assets.
The March 15, 1996
order did subsequently divide some more assets.
We agree with
the parties that this is not a complete division of property
contemplated by KRS 403.190.
While an agreed settlement under
KRS 403.180 may be more desirable, many times, as here, the
parties cannot agree as to a complete division and the court must
step in and take the inventory list, characterize the assets as
marital or nonmarital property, assign the nonmarital, and divide
the marital.
Granted, the division of marital property may be
indirectly influenced by, or may directly influence, the award of
child support and maintenance, but a specific complete division
must be made.
complete.
The March 15, 1996 division is a start, but not
Newman v. Newman, Ky., 597 S.W.2d 137 (1980).
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Gary's next argument is that the court's decision in
awarding maintenance was in error for failure to follow KRS
403.200.
Mary contends the award was inadequate.
Maintenance
was decided in the January order, while a partial property
distribution was decided later in March.
Under KRS 403.200,
maintenance can only be awarded if the court finds that the
spouse lacks sufficient property to provide for her reasonable
needs.
Here the cart is before the horse, and the maintenance
issue must be remanded to consider the property disposition.
Low
v. Low, Ky., 777 S.W.2d 936 (1989); Gentry v. Gentry, Ky., 798
S.W.2d 928 (1990); Dotson v. Dotson, Ky., 864 S.W.2d 900 (1993);
and Beckner v. Beckner, Ky. App., 903 S.W.2d 528 (1995).
Gary's final argument is that the trial court failed to
consider the actual needs and expenses of the children in setting
child support.
inadequate.
Mary maintains the support and arrearages are
KRS 403.211(3)(e) allows a court to award a
reasonable amount that is necessary for support, including the
standard of living enjoyed during the marriage where the parties'
income exceeds the guidelines.
S.W.2d 463 (1992).
Redmon v. Redmon, Ky. App., 823
Under KRS 403.212, there are child support
guidelines which serve as a rebuttable presumption for the
establishment of child support.
The court found Gary's gross monthly income was
$31,500, including interest and dividends.
The court noted that
after a division of property, some of the interest and dividend
income may go directly to the wife.
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The court contemplated
"imputed" income to Mary but felt the end result would not
change.
See Keplinger v. Keplinger, Ky. App., 839 S.W.2d 566
(1992).
After noting the chart stopped at $15,000, the court was
hesitant to simply double the figure.
After reciting evidence
before it, the court set child support at $4,000 per month for
three children.
The guidelines under KRS 403.212 establish a beginning
point by creating a presumption.
For the first $15,000 of
combined monthly adjusted gross income, support for three
children amounts to $2,305, as a base.
Under KRS 403.212(5), the
court may use its judicial discretion in determining child
support for the amount of parental income that exceeds $15,000
per month.
Again, we have a problem with the lack of findings
for calculation of support.
The trial court reviewed the
commissioner's combined support and maintenance of $8,200 and
confessed that it didn't know how that figure was reached.
The
court rounded off and split $4,000 for maintenance and $4,000 for
support as a solution.
that we can review.
However, this doesn't give us findings
Later, the court made a division of some
property by its March 15, 1996 order, recognizing this could
change income allocation but made no attempt to adjust support.
Everything except custody, in the parties' appeals, returns us to
a complete division of assets.
Mary also appeals the award of joint custody.
wants joint custody but Mary says it won't work.
The marriage
counselor seemed to think joint custody should work.
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Gary
Both
parties cite Mennemeyer v. Mennemeyer, Ky. App., 887 S.W.2d 555
(1994) for the proposition that a court can change joint custody
to sole custody where one party is acting in bad faith.
Since
this issue can be brought up post decree, the parties and the
court may want to revisit the issue in light of the time it has
taken to complete a trial and appeal.
It is clear to this Court that the judgment needs to be
vacated and sent back for further consideration, beginning with
the division of property.
Realizing that the trial judge has
retired, we suggest that on remand, the trial court review the
entire record and then set a pretrial conference to discuss what
more, if anything, the court needs in order to make a decision.
In light of the time that has passed in litigation, the parties
are advised to consider the status quo and possibly an agreed
judgment, at least as to the property division and child cutody.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court, except for the limited decree of
dissolution, is hereby vacated and remanded for further
proceedings.
GUDGEL, CHIEF JUDGE, CONCURS.
GARDNER, JUDGE, CONCURS IN RESULT ONLY.
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BRIEF FOR APPELLANT/APPELLEE,
GARY FREDERICK BLOEMER:
BRIEF FOR APPELLEE/APPELLANT,
MARY ELIZABETH BLOEMER:
Marcia L. Sparks
Louisville, Kentucky
Victoria Ann Ogden
Louisville, Kentucky
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