JOHN WILLIAM CULVER v. JOYCE PARKER CULVER
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RENDERED: September 11, 1998; 10:00 a.m.
MODIFIED: September 25, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1997-CA-000989-MR
AND
1997-CA-001141-MR
JOHN WILLIAM CULVER
APPELLANT/CROSS-APPELLEE
APPEALS FROM WHITLEY CIRCUIT COURT
HONORABLE FARMER H. HELTON, SPECIAL JUDGE
ACTION NO. 88-CI-174
v.
JOYCE PARKER CULVER
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
* * * * * * *
BEFORE:
COMBS, KNOPF, and KNOX, Judges.
KNOPF, JUDGE: This is an appeal and cross appeal from a decree of
dissolution and orders dividing marital property, restoring nonmarital property and allocating marital debt.
Finding that the
trial court erred in retrospectively applying the 1996 amendment
to KRS 403.190(4), we affirm in part, reverse in part, and remand
for further proceedings.
The appellant, John William Culver, and the appellee,
Joyce Parker Culver, were married in 1969, and separated on March
28, 1988.
Joyce filed a petition for dissolution of the marriage
shortly thereafter.
For various reasons, the trial court did not
enter a decree of dissolution until February 28, 1996.
The court
reserved the issues with respect to property division for later
adjudication.
The court entered findings of fact, conclusions of
law and a judgment dividing the marital assets on March 19, 1997.
The court modified that order by another order entered on April
10, 1997.
John now brings an appeal from those orders, and Joyce
cross-appeals on several issues.
Both John and Joyce take exception to the trial court’s
division of their respective retirement plans.
Joyce has a
Kentucky Teacher’s Retirement Plan, which is classified as nonmarital property and exempt from distribution pursuant to KRS
161.700(2).
The trial court calculated the value of her
retirement plan at $468,000.00. John has a pension from his
former employer, Whayne Supply Company, with an estimated value
of between $425,000.00 and $500,000.00, and which the trial court
valued for distribution at $475.000.00.
The trial court included
both plans in the division of marital property, but awarded each
plan to its respective owner.
The primary issue on appeal concerns the application of
the 1996 amendment to KRS 403.190(4). Prior to 1996, KRS
403.190(4) provided that if retirement benefits of one (1) spouse
are exempted from classification as marital property, then the
retirement benefits of the other spouse shall also be exempted.
This court held that the clear meaning of the statute required
that the other spouse’s retirement benefits had to be exempted,
even when the value of that spouse’s benefits greatly exceeded
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that of the exempt spouse’s benefits.
App., 908 S.W.2d 124, 125 (1995).
Turner v. Turner, Ky.
Recognizing the potential
inequity of such a situation, the General Assembly amended KRS
403.190(4) to limit the exemption.
1996 Ky. Acts ch. 328,§ 2(4).
Under the current statute, which became effective on July 15,
1996, the level of exemption provided to the spouse with the
greater retirement benefit shall not exceed the level of
exception provided to the other spouse.
John argues that the trial court improperly treated
both pension plans as marital.
He points out that the version of
KRS 403.190(4) in effect at the time of the entry of the
dissolution decree would require that both his and Joyce’s
retirement plan be treated as non-marital.
In the alternative,
he contends that the trial court arbitrarily valued his pension
plan in excess of the stipulated value of $404,048.00.
If the
1996 amendment to KRS 403.190(4) is applied, then John asserts
that the $63,952.00 of Joyce’s teacher’s pension should be
treated as marital property.1
Joyce cross appeals from the trial court’s treatment of
the pension plans.
Joyce contends that since her teacher’s
retirement plan is treated as non-marital property, she is
1
Regardless of which version of KRS 403.190(4) is applied,
John’s argument is incorrect. None of Joyce’s teacher retirement
benefits may be treated as marital property, or considered as an
economic circumstance during the division of marital property.
KRS 161.700(2).
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disqualified from receiving any regular retirement benefits under
the Social Security Act, either in her own right or as John’s
spouse.2
Therefore, she states that the trial court should have
included John’s retirement pension and his Social Security
benefits to determine whether his retirement benefits exceeded
hers.
Had the trial court properly applied the 1996 amendment to
KRS 403.190(4)and considered sources of retirement benefits,
Joyce argues that all of his pension plan should have been
treated as marital property and divided equally.
As a matter of law, we find that the statute in effect
on the date of the entry of the dissolution decree applies when
considering the treatment of exempt pensions.
KRS 446.080(3)
provides that "[n]o statute shall be construed to be retroactive,
unless expressly so declared."
Nonetheless, legislation has been
applied to causes of action which arose before its effective date
and in the absence of an express declaration that the provision
is to be so applied, where the courts have determined that the
provision was remedial or procedural in nature and that
retroactive application of the provision was consistent with the
legislative intent.
(1997).
Spurlin v. Adkins, Ky., 940 S.W.2d 900, 901
As explained in Peabody Coal Co. v. Gossett, Ky., 819
S.W.2d 33 (1991):
2
However, Joyce did not present any evidence to the trial
court that she is disqualified from receiving Social Security
benefits.
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A retrospective law, in a legal sense, is one
which takes away or impairs vested rights
acquired under existing laws, or which
creates a new obligation and imposes a new
duty, or attaches a new disability, in
respect to transactions or considerations
already past. Therefore, despite the
existence of some contrary authority,
remedial statutes, or statutes relating to
remedies or modes of procedure, which do not
create new or take away vested rights, but
only operate in furtherance of the remedy or
confirmation of such rights, do not normally
come within the legal conception of a
retrospective law, or the general rule
against the retrospective operation of
statutes. In this connection it has been
said that a remedial statute must be so
construed as to make it effect the evident
purpose for which it was enacted, so that if
the reason of the statute extends to past
transactions, as well as to those in the
future, then it will be so applied although
the statute does not in terms so direct,
unless to do so would impair some vested
right or violate some constitutional
guaranty.
Id. at 36; quoting, 73 Am.Jur.2d Statutes § 354 (1974).
In this case, the trial court applied the 1996
amendment to KRS 403.190(4) to the division of the pension plans,
even though the dissolution decree was entered more than four (4)
months prior to the effective date of the statute. The correct
date for valuation of marital assets is the date of the
dissolution decree.
(1990).
Clark v. Clark, Ky. App., 782 S.W.2d 56, 62
Trial courts often enter a bifurcated dissolution
decree, reserving the property distribution issues for later
adjudication.
Since all property acquired prior to the entry of
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the decree is presumed to be marital, Stallings v. Stallings,
Ky., 606 S.W.2d 163, 164 (1980), entry of the decree serves to
fix the rights of the parties as of that date.
We agree that the 1996 amendment to KRS 403.190(4) was
remedial.
The General Assembly intended to ameliorate the effect
of the literal language of the prior version of the statute as
interpreted in Turner v. Turner supra.
However, a retrospective
application of the 1996 amendment to KRS 403.190(4) would operate
to impair the vested rights of the parties.
We appreciate that
this result works a hardship on Joyce, and that it runs against
the General Assembly’s intent in enacting the amendment to KRS
403.190(4).
Nonetheless, we must reverse the trial court’s
division of the pension plans and remand for consideration under
the law in effect prior to July 15, 1996. The court’s ruling on
this issue renders Joyce’s cross-appeal moot.
As for John’s argument that the trial court arbitrarily
valued his pension in excess of its “stipulated” value, the
record refutes his contention.
In her statement of marital
assets and liabilities, filed with the trial court on April 16,
1996, Joyce valued John’s pension plan at $404,048.00.
This
amount was based upon a statement from Whayne Supply Company for
the period ending December 31, 1994.
Since pensions must be
valued as of the date of the entry of the dissolution decree, the
trial court was not bound to accept this earlier figure.
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John also argues that the trial court improperly
considered his disability income and Social Security benefits as
marital property.
Yet curiously, Joyce contends that the trial
court erred by not considering John’s Social Security benefits in
its division of the pension plans.
In fact, the trial court
merely assumed that Joyce would receive one-half of John’s Social
Security benefits upon reaching age sixty-two (62).3
We agree
with John that disability income and Social Security benefits are
not divisible marital assets.
However, we find no indication in
the trial court’s orders that these benefits were included in the
value of the pension plans.
John next argues that the trial court’s award of 360
shares of non-marital stock was clearly erroneous because it was
not supported by the record.
On March 19, 1997, the trial court
entered a decree finding that the parties accumulated 13,025
shares of Whayne Supply stock during the marriage.
The court
valued the shares at $70.00 each, for a total of $911,750.00
In response to a motion to alter, amend or vacate the
judgment, pursuant to CR 59.05, the trial court entered an
amended judgment on April 10, 1997.
The trial court found as
follows:
The best evidence the Court can find of
record is that the Respondent [John], some
eighteen months prior to the marriage of the
3
As stated above, Joyce disputes this assumption.
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parties, purchased 740 shares of Whayne
Supply Company stock. The Petitioner [Joyce]
says that she cashed two (2) $1,000.00 Bank
Certificates for a value of $2,000.00 and
paid it on this purchase. At the time of
this purchase the stock had a value of
approximately $28.00 a share. The
installment records cited by the Petitioner
referred to a purchase of 735 shares in 1972
on an installment bases. This, the Court
finds, does not support her contention that
she helped pay for the 740 shares. However,
the Court will accept her testimony that she
invested $2,000.00 in the original purchase
of her pre-marital money. At the price of
$28.00 a share this would entitle her to 72
shares and after the five to one split
amounted to 360 shares. The Respondent, the
Court finds, is entitled to, after the five
to one split, 3,340 shares of this purchase.
[D]educting the 3,700 shares from the 14,875
shares leaves 11,175 shares as marital
property.
Record on Appeal [ROA] at pp. 266-67.
John argues that the trial court’s findings are not
supported by the record.
He contends that the trial court erred
in accepting Joyce’s testimony that she cashed two (2) $1,000.00
certificates of deposit prior to the marriage in order to
purchase the stock.
Thus, he contends that the trial court
should not have designated the 360 shares as marital property.
We disagree.
factual dispute.
John’s argument essentially concerns a
The trial court was faced with competing
testimony concerning Joyce’s contribution to the pre-marital
stock purchase.
The trial court resolved this issue against John
based on Joyce’s testimony that she supplied $2,000.00 of her own
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funds for the purchase.
“Findings of fact shall not be set aside
unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the
witnesses”.
CR 52.01.
Furthermore, the appellant did not
provide this Court with a copy of the trial transcript, as
required by CR 75.01. When the evidence is not presented for
review, this Court is confined to a determination as to whether
the pleadings support the judgment, and on all issues of fact in
dispute we are required to assume that the evidence supports the
findings of the lower court.
Porter v. Harper, Ky., 477 S.W.2d
778, 779 (1972).
Likewise, we cannot review John’s arguments concerning
the allocation of marital debt, and the trial court’s failure to
credit him for payments made during separation.
Nor do we find
any basis to set aside the trial court’s apportionment of the
marital assets as clearly erroneous.
In dividing marital
property, the court is authorized to “divide the marital property
without regard to marital misconduct in just proportions” after
considering all relevant factors.
KRS 403.190(1).
In the
absence of a trial transcript, we cannot find the trial court’s
allocation of marital property to be unconscionable.
Lastly, John contends that the trial court failed to
restore his premarital interest in the marital residence.
find no error in the trial court’s calculations.
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We
The record
reflects that the marital residence was worth $200,000.00;
$17,500.00 of which came from John’s premarital assets.
The
trial court awarded the $182,500.00 marital interest in the house
to Joyce.
The court also factored John’s $17,500.00 non-marital
contribution into the calculation separately.
However, this
interest was offset by the trial court’s decision to charge John
with eight (8) years rental value of the marital residence and
furniture.
Therefore, the allocation was based on substantial
evidence and will not be disturbed.
Accordingly, the judgment of the Whitley Circuit Court
is affirmed in part, reversed in part and remanded for further
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT/
CROSS-APPELLEE:
BRIEF FOR APPELLEE/
CROSS-APPELLANT:
Gerald L. Greene
Greene & Lewis
Pineville, Kentucky
R. Gregory Lathram
Barbourville, Kentucky
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