HEIDI SUE HUTCHERSON v. KENNETH RAY HUTCHERSON
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RENDERED: JUNE 2, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1998-CA-001969-MR
HEIDI SUE HUTCHERSON
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE HUGH W. ROARK, JUDGE
CIVIL ACTION NO. 94-CI-01748
v.
KENNETH RAY HUTCHERSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON and KNOPF, Judges.
HUDDLESTON, Judge:
Heidi Hutcherson appeals from a Hardin Circuit
Court decree distributing the marital assets from her marriage to
Kenneth Hutcherson.1
The issues presented are:
(1) whether the
circuit
in
the
court
erred
awarding
Kenneth,
in
absence
of
sufficient evidence, all of the funds from the marital home except
for the undisputed amount of the nonmarital contribution of Heidi;
1
In her appellate brief, Heidi has failed to include a copy
of one of the orders that she is appealing from — namely, the
circuit court’s July 15, 1998, decree.
Heidi is required to
include it in her brief pursuant to Kentucky Rule of Civil
Procedure (CR) 76.12(4)(b)(vi).
and (2) whether the circuit court erred in failing to redetermine
maintenance after the court altered the property division.
The Hutchersons were married for approximately eight
years.
In 1994, Kenneth filed a petition for the dissolution of
marriage, claiming that their marriage was irretrievably broken.
While
they
tried
to
reconcile
their
marriage,
they
were
unsuccessful.
Following years of proceedings, the commissioner filed
recommendations with the circuit court.
The commissioner made
recommendations regarding the distribution of marital property in
an equitable manner and the assignment of nonmarital property.2
As part of the dissolution proceedings, the court ordered
the sale of the marital home, and the profits from the sale were
$42,000.00.
The parties had used nonmarital funds to construct
their first residence.
While neither party disputed that Heidi
contributed
Kenneth
$5,601.16,
claimed
$42,000.00 from his retirement account.
amount was only $20,000.00.
that
he
contributed
Heidi alleged that the
The commissioner recommended that
Kenneth receive only $14,398.84 as nonmarital property and Heidi
receive $5,601.16.
The remaining profits were considered marital
property and divided equally.
After considering the economic
situations of the parties and applying Kentucky Revised Statute
(KRS) 403.200, the commissioner recommended that neither party be
awarded maintenance.
2
Because the distribution of the marital property by the
circuit court is not disputed, it is unnecessary to set out the
specific scheme used in distributing the marital property.
-2-
The circuit court chose, as is its prerogative, not to
accept
the
commissioner's
recommended
conclusions of law in their entirety.3
findings
of
fact
and
The court determined that
Kenneth’s nonmarital contribution to the first marital residence
was $40,000.00 from his retirement account.
Heidi had contributed $5,601.16.
The court agreed that
In awarding Heidi her full
nonmarital property contribution, the court placed the entire
investment loss burden on Kenneth.
He received only $36,398.84.
In following the recommendation of the commissioner, the
circuit court declined to award maintenance to either party. Heidi
had requested it, but the court concluded that Kenneth did not have
the financial resources to make additional payments and to continue
to support himself.
After holding a hearing on Heidi’s motion to
alter, amend or vacate the court’s previous order, the circuit
court declined to award Heidi maintenance or to alter the court’s
findings of fact as to the nonmartial contributions of the parties
to their first marital residence and the division of profits from
the sale of the third marital residence.
This appeal followed.
Heidi argues that Kenneth failed to prove by clear and
convincing evidence that he was entitled to all of the funds from
the sale of the marital home except for the undisputed amount of
the nonmarital contribution of Heidi.4
We disagree.
3
See CR 53.06(2) (“The court after hearing may adopt the
[commissioner's] report, or may modify it, or may reject it in
whole or in part, or may receive further evidence, or may recommit
it with instructions.”).
4
In Underwood v. Underwood, Ky. App., 836 S.W.2d 439 (1992),
we questioned the validity of applying the “clear and convincing
evidence” standard in this type of case noting the language of
(continued...)
-3-
Under KRS 403.190, all property acquired during marriage
is presumed to be marital property.5
A party can overcome this
presumption by establishing that the property falls within an
exception found in KRS 403.190(2).6
In
this
case,
Kenneth
presented
evidence
that
he
contributed $42,000.00 of nonmarital property from his retirement
account towards the couple’s first marital home.
In response,
Heidi disputed this amount and alleged that Kenneth contributed
only $20,000.00 in nonmarital property to the first marital home.
After
considering
the
evidence,
the
commissioner
recommended that Heidi receive her nonmarital property and that the
remainder be split equally.
the
commissioner’s
The circuit court declined to follow
recommendation
and
instead
awarded
Heidi
$5,601.16 and Kenneth $36,389.99.
When both parties have presented conflicting evidence on
an issue, the fact-finder must make a factual determination.
The
fact-finder may accept some evidence and reject other evidence
because it is within the purview of the fact finder to determine
credibility and the weight to be given to evidence.7
4
(...continued)
Kentucky Rule of Evidence (KRE) 301 and the discussion of KRE 301
in Robert Lawson’s Kentucky Evidence Law Handbook § 10.00 (2d ed.
1984). The standard of proof in this cases is probably no greater
than a preponderance of evidence.
5
Brosick v. Brosick, Ky. App., 974 S.W.2d 498, 502 (1998).
6
Chenault v. Chenault, Ky., 799 S.W.2d 575, 578 (1990).
7
Calloway v. Calloway, Ky. App., 832 S.W.2d 890, 893 (1992)
(“It is axiomatic that the findings of fact of the lower court
shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the
(continued...)
-4-
The circuit court chose to not follow the recommendation
of
the
commissioner
$36,398.84.8
and
awarded
Heidi
$5,601.16
and
Kenneth
Under this distribution, Heidi received the entire
amount of her nonmarital contribution to their first home, while
Kenneth realized a loss of nonmarital property in the amount of
$3,601.16.
After the circuit court found that Kenneth contributed
$40,000.00 to the first marital home, the court proceeded to place
the entire burden of the loss on him.
We cannot say that the
circuit court abused its discretion in failing to award Heidi
additional profits from the sale of the marital home.
Heidi also avers that the circuit court erred in failing
to
award
her
maintenance
after
the
court
modified
the
recommendations of the commissioner. In particular, she notes that
the circuit court erred in failing to fact find on this issue.
However, the record refutes this argument.
As
the
Kentucky
Supreme
Court
said
in
Perrine
v.
Christine,9
Under
[KRS
403.200],
responsibilities:
the
trial
court
has
dual
one, to make relevant findings of
fact; and two, to exercise its discretion in making a
7
(...continued)
credibility of witnesses.”).
8
In her brief, Heidi states that “[t]he commissioner found
that Ken was entitled to $20,000.00 and Heidi was entitled to
$5,601.16 as their non-marital contributions . . . .” Under CR
53.06, the commissioner files a report containing recommended
findings of fact and conclusions of law.
It is ultimately the
responsibility
of
the
circuit
court
to
make
the
final
determinations. CR 53.06(2).
9
Ky., 833 S.W.2d 825 (1992).
-5-
determination on maintenance in light of those facts. In
order to reverse the trial court’s decision, a reviewing
court must find either that the findings of fact are
clearly erroneous or that the trial court has abused its
discretion.10
In its July 15, 1998, order, the circuit court clearly
articulates its basis for denying Heidi's request.
The court
believed that Heidi had failed to substantiate her financial need
for maintenance and that Kenneth did not have the means to pay it.
The court clearly considered her motion for maintenance and decided
maintenance was not warranted.
We cannot say that the circuit
court’s findings of fact were clearly erroneous or that the court
abused its discretion in declining to award maintenance.11
The decree is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Dwight Preston
LEWIS & PRESTON
Elizabethtown, Kentucky
James T. Kelley
Elizabethtown, Kentucky
10
Id. at 826.
11
Clark v. Clark, Ky. App., 782 S.W.2d 56, 60 (1990)
(“[M]aintenance determinations are within the sound discretion of
the trial court. In such matter, unless absolute abuse is shown,
the appellate court must maintain confidence in the trial court and
not disturb the findings of the trial judge”) (citations omitted).
-6-
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