ROBERT T. DENNIS v. CAROL J. DENNIS
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RENDERED:
August 13, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002179-MR
ROBERT T. DENNIS
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE THOMAS MERRILL, JUDGE
CIVIL ACTION NO. 97-FC-00630
v.
CAROL J. DENNIS
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
GUDGEL, Chief Judge; HUDDLESTON and KNOPF, Judges.
HUDDLESTON, Judge. Robert T. Dennis appeals from a Jefferson Circuit
Court order that resolved issues concerning the disposition of marital
property.
We find no error, and affirm.
On May 30, 1980, Robert and Carol J. Dennis were married.
They are the parents of two children: Nicole Dennis, born June 30,
1986; and Bryan Dennis, born November 24, 1987. The parties separated
on August 15, 1996.
Carol was awarded the sole custody of Nicole
and Bryan, and Robert was ordered to pay $150.00 per week as child
support.
In May 1997, Carol’s employment with the Naval Ordinance
Station was terminated, and she was transferred to the Naval Ordinance
Station in Huntsville, Alabama. Carol’s annual income is $51,128.00.
Robert is a self-employed carpet installer with an imputed annual
income of $30,000.00.
A hearing was held on July 23, 1997. Robert did not appear,
nor did he request a continuance,1 and the family court ordered Robert’s
response to Carol’s petition for dissolution stricken from the record.
Based on evidence presented at the hearing, the family court made
findings of fact, reached conclusions of law and entered a decree
of dissolution of marriage.
This appeal followed.
The sole issue Robert argues on appeal is that the family
court erred in dividing the marital property.
He insists that the
family court did not divide the marital property in “just proportions”
as required by Ky. Rev. Stat. (KRS) 403.190. He argues that the family
court abused its discretion by giving more weight to his lack of contribution
to the marriage rather than other factors listed in KRS 403.190(1),
such as the value of the property and the duration of the marriage.
Carol insists that we need not address the merits of Robert’s
argument because he failed to preserve this issue for review. Carol
argues that Robert’s failure to file a Ky. R. Civ. Proc. (CR) 52.02
motion seeking reconsideration or additional findings to support its
decree waived his right to attack the findings of facts made by the
family court.
We disagree.
CR 52.04 provides that a trial court's
failure to make a finding of fact is not a ground for reversing or
remanding the decree unless the failure was brought to the court's
attention by a written request for a finding or by appropriate motion.
Where the trial court has considered an issue and made findings, however,
CR 52.04 does not require the adversely affected party to object to
or to request reconsideration of those findings as a precondition
of appellate review. Cf. CR 52.03. As discussed more fully below,
the family court made findings with respect to the division of marital
1
Robert’s counsel’s motion to withdraw was granted on July
15, 1997.
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property. These findings, and the consequent division of the marital
estate, are thus subject to review despite Robert’s absence from the
hearing or his failure to move the trial court to reconsider or to
clarify its ruling. Review being appropriate, we turn to the substance
of Robert’s appeal.
KRS 403.190 only requires that the distribution of marital
property be just; there is no requirement that marital property be
equally divided. Russell v. Russell, Ky. App., 878 S.W.2d 24 (1994).
Relevant factors to the division include the contribution of each
spouse to the acquisition of the property, the value of the property
given to each spouse, the duration of the marriage, and the economic
circumstances of each spouse.
KRS 403.190.2
The family court awarded Carol two-thirds of the equity
in the marital home ($15,180.00) after it was sold, a 1997 Dodge ($19,500.00
less $18,000.00 in debt), her CSRS government pension ($30, 488.00),
and ordered her to pay her Capital One credit card debt ($2,000.00).
The remaining assets, the one-third of the equity in the marital home
($7,590.00) after it was sold, a 1978 Ford ($500.00), a 1970 tractor
2
KRS 403.190 provides, in relevant part, that the court is
to assign each spouse's non-marital property to the respective
spouse and to divide the remainder in just proportions considering
all relevant factors including:
(a) Contribution of each spouse to acquisition of
the marital property, including contribution of a spouse
as homemaker;
(b) Value of the property set apart to each spouse;
(c) Duration of the marriage; and
(d) Economic circumstances of each spouse when the
division of property is to become effective, including
the desirability of awarding the family home or the right
to live therein for reasonable periods to the spouse
having custody of any children.
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($3,500.00), a 1972 Subaru ($500.00), and a 1982 Ford van ($1,500.00)
were awarded to Robert.
In making this allocation, the family court considered all
relevant factors listed in KRS 403.190. Based on Carol’s testimony,
the family court found that Robert had made little or no contribution
to the children, either during the marriage or after the separation;
and since the separation, he had failed to pay child support or make
contributions to the marital residence, including mortgage payments,
taxes, insurance or maintenance.
The family court accepted Carol’s
testimony as to the character and fair market value of the property.
The family court found that the marriage lasted 17 years. Further,
the family court considered other factors, such as Carol having custody
of the children and the resulting economic impact of the custody award.
In short, the family court considered all relevant factors in making
its decision.
Robert relies on Dotson v. Dotson, Ky., 864 S.W.2d 900 (1993),
to support his argument that it is reversible error for the court
to put more weight on the factor of “contribution of each spouse to
the acquisition of marital property” over the other statutory factors.
In Dotson, the Supreme Court said:
We agree that upon remand the trial court should make a
reapportionment of marital property, giving the factor of
“contribution of each spouse to acquisition of the marital
property” only such weight as is fairly reflected by the
evidence in this specific case, while also giving appropriate
weight to the other statutory factors.
Dotson, 864 S.W.2d at 902. As indicated above, the family court made
appropriate findings of fact and considered each of the relevant factors
set out in KRS 403.190(1).
Thus, this argument is without merit.
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The division of marital property is within the discretion
of the trial court. Herron v. Herron, Ky., 573 S.W.2d 342, 344 (1978).
KRS 403.190 vests the trial court with broad discretion in the division
of marital property.
(1978).
Johnson v. Johnson, Ky. App., 564 S.W.2d 221
The trial court is the finder of fact and its decree may
not be reversed unless it is based upon findings that are clearly
erroneous or unless it results otherwise from an abuse of discretion.
Reichle v. Reichle, Ky., 719 S.W.2d 442 (1986); Borjesson v. Borjesson,
Ky., 437 S.W.2d 191, 193 (1969); Smith v. Smith, Ky., 429 S.W.2d 387,
391 (1968). The decree from which Robert appeals is not clearly erroneous
nor a result of an abuse of discretion.
The decree is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melanie Straw-Boone
LANDRUM & SHOUSE
Louisville, Kentucky
Robert G. Stallings
STALLINGS & STALLINGS
Louisville, Kentucky
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