TERRY LEE LEAR v. SHEILA DEATHERAGE LEAR
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RENDERED: March 12, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001018-MR
TERRY LEE LEAR
v.
APPELLANT
APPEAL FROM ROCKCASTLE CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 96-CI-00235
SHEILA DEATHERAGE LEAR
APPELLEE
OPINION
REVERSING AND REMANDING
* * * * * * * * * *
BEFORE:
EMBERTON, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal by Terry Lee Lear (Terry)
from an order of the Rockcastle Circuit Court in the parties’
dissolution of marriage action.
At issue is the award of sole
custody to appellee, Sheila Deatherage Lear (Sheila); child
support; and the division of the parties’ property and debts.
After reviewing the arguments of the parties, the record, and the
applicable authorities, we reverse the judgment of the trial
court and remand.
The parties were married on September 12, 1986.
The
marriage produced one child, Justin Blaine Lear (Justin), who was
seven at the time the dissolution action was commenced.
On
October 3, 1996, Sheila filed a petition to dissolve the
marriage.
Justin.
The petition sought, inter alia, sole custody of
In his response, Terry sought joint custody of Justin
with Sheila serving as the primary physical custodian.
On
October 29, 1996, an agreed order was entered granting the
parties temporary joint custody of Justin, setting child support,
and establishing visitation.
Contested divorce depositions were
conducted, following which the case was taken under submission by
the trial court.
Each party tendered a proposed decree.
On
January 23, 1998, the trial court entered the findings of fact,
conclusions of law, and decree of dissolution tendered by Sheila.
Thereafter, Terry filed a motion to alter, amend, or vacate, or
in the alternative, to make additional findings or, in the
alternative, for a new trial.
The motion was overruled.
This
appeal followed.
We first address Terry’s last enumerated argument
wherein he alleges that the trial court committed reversible
error by adopting in whole the factual findings and decree
tendered by Sheila’s trial counsel.
Under the circumstances of
this case, we agree.
Following a motion by Sheila for the trial court to
take the case under submission, the trial court entered an order
directing the parties to file proposed findings of fact and a
proposed decree of dissolution.
Sheila’s trial counsel tendered
his proposed finding of fact and decree on January 8, 1998.
On
January 23, 1998, without alteration, the trial court entered the
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findings of fact, conclusions of law, and decree of dissolution
tendered by Sheila’s trial counsel.
The delegation of the clerical task of drafting
proposed findings of fact and conclusions of law under the proper
circumstances does not violate the trial court's fact-finding and
decision-making responsibility.
S.W.2d 628, 629 (1982).
Bingham v. Bingham, Ky., 628
Bingham illustrates circumstances under
which delegation of this function is proper.
In Bingham, the
record revealed that the trial court was thoroughly familiar with
the proceedings and facts of the case and that it had prudently
examined the proposed findings and conclusions.
This was
evidenced by the fact that the trial court made several additions
and corrections to reflect its decision in the case.
Id.
Unlike in the Bingham case, here the record does not
disclose that the trial court had a thorough familiarity with the
proceedings or that it made a prudent examination of the tendered
findings and conclusions.
following:
This determination is supported by the
(1) the case was tried by deposition and hence the
trial court was not directly involved in the taking of evidence,
either personally or through a domestic relations commissioner;
(2) the trial court adopted the findings, conclusions, and decree
tendered by Sheila’s counsel exactly as prepared, without making
any changes so as to evidence that it had made an independent and
prudent review of the tendered document; and, (3) as noted
hereinafter, the findings of fact and conclusions of law tendered
by Sheila’s trial counsel were deficient such that, in any event,
remand on several of the individual issues is warranted.
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See
also Callahan v. Callahan, Ky. App., 579 S.W.2d 385 (1979) (the
appellate courts of this state have universally condemned the
practice of adopting findings of fact prepared by counsel);
Kentucky Milk Marketing & Anti-Monopoly Commission v. Borden Co.,
Ky.,
456 S.W.2d 831 (1969) (to the extent that the court
delegates its power to make findings of fact and draw
conclusions, this is not good practice); United States v.
Forness, 125 F.2d 928 (1942) (requirement that the trial judge
file findings of fact has important purpose of evoking care on
the part of the trial judge in ascertaining the facts); Rule of
Civil Procedure (CR) 52.01 (in all actions tried upon the facts
without a jury or with an advisory jury, the court shall find the
facts specifically and state separately its conclusions of law
thereon and render an appropriate judgment).
The findings of fact and conclusions of law and decree,
insofar as they relate to the issues on appeal, are accordingly
vacated and the case is remanded for an independent evaluation of
the issues by the trial court.
In furtherance of the proceedings
on remand, we will briefly consider and offer instructions
regarding the individual issues raised by Terry in this appeal.
Terry alleges that the trial court erred in granting
Sheila sole custody of Justin when the evidence submitted showed
no lack of cooperation nor any reasonable basis for said ruling.
In its judgment awarding sole custody of the parties' child to
appellee, the trial court stated simply that, "[t]he parties are
the parents of one infant child, Justin Blaine Lear, age 7 years.
. . . [t]he best interests of said child will be served by
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placing custody with the mother.”
In child custody cases, the
trial court must consider all relevant factors including those
specifically enumerated in KRS 403.270(1) in determining the
"best interests of the child."
App., 804 S.W.2d 17, 18 (1991).
McFarland v. McFarland, Ky.
In so doing, it is mandatory
under CR 52.01 that the facts be found specifically.
Id.
On
remand, the trial court should proceed pursuant to these
principles.
Terry claims that the trial court erred in not
following the statutory guidelines in calculating his child
support obligation by not giving him credit for health insurance
paid; by not considering prior court ordered child support; and
by failing to make findings as to the parties’ respective
incomes.
Sheila acknowledges that the calculation of Terry’s
child support obligation fails to include a credit for the cost
of the child’s health insurance and that Terry is entitled to
have his child support obligation recalculated since the original
calculation excluded this deduction.
KRS 403.212(2)(g)[1.]
excludes from the combined gross incomes of both parents the cost
of health insurance coverage for the child.
On remand, the trial
court should factor this into its child support calculations.
KRS 403.212(2)(g)[1.] & [2.] require a credit for child
support to a prior born child.
The computation in the record
corresponding to the calculated weekly obligation of $63.39 fails
to account for child support payments made by Terry for the
support of his prior born child by a previous marriage.
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On
remand, the trial court should calculate Terry’s child support so
as to consider this obligation.
Any deviation from the
guidelines should be accompanied by a written finding or specific
finding on the record by the court, specifying the reason for the
deviation.
KRS 403.211(2).
Terry contends that the trial court erred in awarding
Sheila an interest in the marital residence merely by relying on
a figure testified to by Sheila without any supporting evidence.
Sheila’s testimony relating to this issue was as follows:
Q. [by John E. Clontz, attorney for
appellee] Now he owned the residence that you
all occupied while you were married, before
you got married?
A.
Yes.
Q. But it had a debt on it and that debt was
paid while you were married?
A. We paid on it some. I am not sure that
it was even . . . he told me that it wasn’t
on the house, that it was a personal loan.
Q. Are you making a claim to any amount of
money that was paid to reduce the principle
amount for the debt while you were married?
A. Just some things that I had done to the
house that we had worked on and stuff to make
the house a little better.
Q.
Describe those changes to the court.
A. Like the inside, a lot of painting, a lot
of papering. The outside, there was painting
of the trim and everything, the upkeep of the
house.
Q. How much have you valued those
improvements to be?
A.
Right now, I have no idea.
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Q. Well, how much money are you claiming
that he owes you then if he keeps that
property?
A.
Around $800.00.
. . . . .
Q. [by Debra H. Lambert, attorney for
appellant] You testified that during the
time that you lived in the house that you all
did some painting and papering, just general
upkeep of the house. Is that correct?
A.
Yes.
Q. Did you all add on to the house or do
anything other than repairs and upkeep?
A.
No.
Q. And you mentioned earlier in your
testimony that you had no idea the value of
the improvements but mentioned the figure of
$800.00. Is that an amount of money that you
think Mr. Lear owes you or that Terry owes
you?
A.
Approximately.
Q.
How did you come up with that amount?
A. Because I tried to think
paint was. I tried to think
wallpaper and there was some
different things that we had
cost.
of how
of how
blinds
put up
much the
much the
and
that
The trial court made the finding that “during the
marriage the parties made payments on the non-marital debt owed
by respondent and the debt was reduced by approximately
$3,600.00.
Further the parties made improvements to respondent’s
non-marital land.”
Based upon this finding, the trial court
awarded Sheila “$800.00 as her share of the marital reduction of
respondent’s non-marital debt and improvements to his mon-marital
land.”
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As used in KRS 403.190 in referring to restoration of
the property of each spouse, the word "property" means equity.
Robinson v. Robinson, Ky. App., 569 S.W.2d 178, 181 (1977)
overruled on other grounds by Brandenburg v. Brandenburg, Ky.
App., 617 S.W.2d 871 (1981).
Brandenburg sets forth a
methodology for separating out marital and non-marital equity in
a home owned by one of the parties at the time of marriage.
Here, Sheila was awarded $800.00 based upon her estimation of the
cost of wallpaper, paint, and blinds.
There is no claim that the
funds used to finance these improvements were her non-marital
property, and there is no evidence appearing in the record
regarding the equity in the home at the time of the marriage or
upon separation.
The fact that the parties expended $800.00 on
home improvements over the course of their ten-year marriage,
absent proof that the funds were non-marital and absent an equity
analysis under Brandenburg, does not support the $800.00 awarded
to Sheila.
On remand, the trial court should make an award of
the marital portion of the equity in the home pursuant to the
principles set forth in Brandenburg.1
Terry next argues that the trial court erred in failing
to assign the marital debt owed to Terry’s parents.
Terry
testified that during the period that he was on strike against
his employer, Gibson Greeting Cards, he borrowed various sums of
1
The Brandenburg formula is not mandatory; however,
any alternative procedures utilized must establish the
relationship between the contributions of the parties.
Brandenburg, 617 S.W.2d at 872.
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money from his parents.
He further testified that he had paid
back $3,000 of the debt and that, as of December 1997, he still
owed his parents $17,000 on the debt.
In its findings of fact,
the trial court stated,
Respondent’s testimony concerning a marital
debt owed to respondent’s mother was not
sufficient to establish the existence of a
debt. There was no proof on the amount owed
at separation, whether the initial $1,000.00
had been paid, the dates and times other
credit was extended or the amount that would
be a non-marital debt (used by respondent to
pay child support from prior marriage).
Further, any transactions after August 15,
1988[,] between respondent and his mother
would have been credit on an open account and
the right [] to sue for any amount is now
time barred by KRS 413.120.
KRS 413.120(6) requires that an action for an injury to
the rights of the plaintiff, not arising on contract and not
otherwise enumerated in KRS 413.120, be commenced within five
years after the cause of action accrued.
effective on August 15, 1988.
This provision became
We disagree that an action for
“any transactions” between Terry and his mother after August 15,
1988, would necessarily be time-barred by the statute of
limitations.
Debts accrued during a marriage are presumed to be
marital debt.
(1986).
Daniels v. Daniels, Ky. App., 726 S.W.2d 705, 706
On remand, the trial court should undertake an
independent review of the evidence and determine if any of the
amounts allegedly borrowed by Terry from his mother represent a
legitimate marital debt subject to division between the parties.
Terry contends that the trial court erred in awarding
Terry’s non-marital grill to Sheila.
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The opinion of the trial
court does not include a finding as to whether the grill is the
non-marital property of Terry.
On remand the trial court should
make a finding as to whether the grill is non-marital.
If it is,
the grill should be awarded to Terry as his non-marital property.
Terry maintains that the trial court erred in ordering
the parties to file a joint income tax return for 1997.
The
trial court’s finding states merely that “[t]he parties should be
ordered to file a joint income tax return for the 1997 tax year,”
and the decree then implements this finding.
Terry argues that
he should not be required to file a joint return with Sheila
because the parties lived separate and apart for all of 1997 and
because he is entitled to various deductions and withholdings
exclusive to himself.
Sheila argues that the ordering of joint
returns was appropriate because she is entitled to a half-share
of a National Labor Relations Board back wages award to Terry
and, “[t]he court’s decision to require a joint income tax return
for 1997 enables Sheila to receive her share of this marital
property. . . . [t]o do anything else would allow Terry to
receive a windfall from the excessive amounts withheld by his
employer.”
The joint-return requirement was made in conjunction
with the awarding of one-half of the NLRB award to Terry.
We
disagree with Sheila that the failure of the parties to file
joint returns “would allow Terry to receive a windfall.”
It is
not necessary for the parties to file joint returns in order for
Sheila to receive her distribution of her share of the NLRB
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award.
Terry can be ordered to pay Sheila’s share of the refund
without the additional step of filing joint returns.
A trial court has authority regarding tax issues.
Shmitz v. Shmitz, Ky. App., 801 S.W.2d 333, 336 (1990) (decision
to require parties to file joint tax return rests within the
discretion of the trial court).
This authority should be
exercised so as to maximize the amount available for the care of
the children.
See Hart v. Hart, Ky. App., 774 S.W.2d 455 (1989)
(trial court should allocate income tax exemption for dependent
children among divorced spouses so as to maximize amount
available for care of children).
On remand, the trial court
should ascertain and make appropriate findings regarding whether
the filing of a joint return will result in an overall tax
advantage to the parties.
The trial court should exercise its
authority to require Terry to file a joint return only if it is
ascertained that a joint return will result in an overall
advantage to the parties so as to maximize the amount of funds
available for the care of the child.
Terry contends that the trial court erred in failing to
assign the marital interest in the parties’ respective retirement
accounts.
Terry argues that each party is entitled to 50% of the
equity in the other’s retirement account.
Sheila argues that the
trial court properly awarded each party his or her individual
retirement account in its general award in which “[e]ach spouse
is assigned his or her personal effects and any other property
now standing in the name of said spouse not disposed of in this
decree.”
Pension benefits earned in the course of the marriage
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are marital property subject to division.
See Owens v. Owens,
Ky. App., 672 S.W.2d 67 (1984) (vested pension benefits divisible
marital property); Poe v. Poe, Ky. App., 711 S.W.2d 849 (1986)
(nonvested benefits subject to distribution).
On remand, the
trial court should treat the pension benefits earned in the
marriage as marital property and make an equitable division of
those pension benefits, which may include awarding each party his
or her individual account.
Terry asserts that the trial court erred in failing to
address the credit card debts owed by the parties.
Sheila
maintains that the decree did properly assign the credit card
debts to her in that portion of the decree which states that,
“[e]ach spouse is assigned his or her personal effects and any
other property now standing in the name of said spouse not
disposed of in this decree.”
We disagree that this residual
property disposition adequately assigns the credit card debts to
Sheila.
On remand, the trial court should more specifically
assign these debts to Sheila.
For the foregoing reasons, the judgment of the trial
court is reversed and remanded for further proceedings consistent
with this opinion.
KNOPF, JUDGE, CONCURS IN RESULT ONLY.
EMBERTON, JUDGE, DISSENTS.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John E. Clontz
Mt. Vernon, Kentucky
Debra Hembree Lambert
Mt. Vernon, Kentucky
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