MARY SUE PIERCE v. BRUCE PIERCE
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RENDERED: MARCH 31, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000016-MR
MARY SUE PIERCE
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE WILLIAM T. CAIN, JUDGE
ACTION NO. 96-CI-00185
v.
BRUCE PIERCE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, HUDDLESTON AND JOHNSON, JUDGES.
BARBER, JUDGE: The appellant, Mary Sue Pierce, and appellee,
Bruce Pierce, were married on June 24, 1978.
separated on February 15, 1996.
marriage.
The parties
Three children were born of the
One of the children reached majority prior to the
dissolution of the marriage.
Both parties are employed, Bruce as
a farmer and Mary with the Pulaski County Board of Education.
Both parties provided the trial court with tax returns showing
their 1997 income to be approximately the same.
The parties
agreed to joint custody of their two minor children, with the son
staying with Bruce, and the daughter staying with Mary.
The
parties also entered into property division stipulations.
Mary
received funds from the division of marital property in the sum
of $184,473.08.
Appellant objects to the following findings in the
Decree of Dissolution:
1.
DIVISION OF MARITAL PROPERTY:
Chief among Mary’s
objections is the trial court’s holding that seventy-five percent
(75%) of the real property owned by the parties was non-marital.
Prior to the marriage, Bruce was deeded two tracts of land.
The
trial court found the value of the two tracts to be $94,000.00.
Bruce submitted copies of checks purporting to be for the
purchase price of the property.
These checks were drawn on
Bruce’s private bank account, and were paid prior to the parties’
marriage.
Mary claims that the funds for these properties were
funds borrowed prior to the marriage, but paid back during the
marriage.
Bruce asserts that the purchase price of the property
was paid with funds he had prior to the parties’ marriage, and
funds which were a gift from his father.
Mary did not introduce
evidence showing that Bruce did not have such funds available to
him prior to the parties’ marriage.
Such a showing is necessary
prior to any finding that the payments made were made from
marital funds.
Culver v. Culver, Ky. App., 572 S.W.2d 617
(1978).
The record in this case reveals that Bruce made five
payments to his father by checks from the parties’ joint account,
during the marriage.
$81,500.00.
The sum of these payments equals
An additional payment of $12,000.00 was made by
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Bruce prior to the marriage, on June 13, 1978.
was borrowed from Citizens Bank.
$93,500.00.
This $12,000.00
The sum of these payments is
No evidence was submitted by either party as to
whether these funds were related in any way to the purchase of
the real property.
Various improvements were made to the real property and
the marital residence during the marriage.
Evidence regarding
the value of these improvements was submitted to the trial court,
which found that the improvements increased the value of the real
property by twenty-five percent (25%).
Mary claims that the trial court erred when it found
that seventy-five percent (75%) of the real property was nonmarital, and belonged to Bruce.
The trial court awarded Mary
fifty percent (50%) of the value of the improvements to real
property.
Mary asserts that as Bruce could not prove that the
funds used to purchase the property was non-marital, or that the
purchase was completed prior to the parties’ marriage, the
property was improperly classified as non-marital.
Kentucky law mandates a finding that property is
marital only where it can be proven that the funds used to
purchase or improve the property were marital or co-mingled
funds.
(1999).
Bischoff v. Bischoff, Ky. App., 987 S.W.2d 798, 800
The evidence before the trial court only proved that the
improvements to the real property were made during the marriage,
or with funds obtained during the marriage.
That evidence,
coupled with the finding that the property was purchased prior to
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the marriage, requires a finding that only the improvements are
marital property, subject to division.
2.
DIVISION OF FARM RELATED INCOME OR BENEFITS: Mary
objected to the trial court’s ruling with regard to various items
of property not discussed in the Findings of Fact, Conclusions of
Law and Decree of Dissolution.
She asked that the trial court
divide the value of various farm-related income and expenses,
including the value of grain in storage at the time of the
parties’ separation, tax deductions based on farm equipment
depreciation, a farm operation tax credit, agriculture support
payments made to Bruce, and tax refunds for the years 1996 and
1997.
Mary asserts that she should have been permitted to
“use” one-half (1/2) of the farm equipment depreciation on her
1996 and 1997 taxes.
Both parties filed separate tax returns
during the years 1996 and 1997.
The record shows that this farm
equipment was part of the property awarded to Bruce and related
solely to his employment as a farmer.
The parties entered into a
stipulation dividing the value of the farm equipment prior to the
dissolution of the marriage. The record reflects that Mary was
provided with a marital share of the value of such equipment.
Under such circumstances, she was not entitled to a portion of
this deduction.
Mary also asserts that she should have been awarded a
portion of the Farm Operation Tax Credit.
The record is devoid
of any evidence tending to show the value of the credit, if any,
or whether it should be found marital property subject to
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division.
For this reason, the Court affirms the trial court and
holds that this Farm Operation Tax Credit was not subject to
division.
The crops which were sold by Bruce during 1996 were not
grown or harvested until after the parties’ separation.
not contribute to the sowing, raising or harvesting of
Mary did
these
crops, and should not rightfully be entitled to a share in any
profit made thereon.
Additionally, Mary claims that she should have been
entitled to one-half (1/2) of the tax refund received by Bruce
for the years 1996 and 1997.
The evidence before the trial court
showed that the parties filed separate refunds for those years.
Based upon such a showing, we believe that the trial court was
correct in refusing to apportion the individual refunds obtained
by either party.
3.
TREATMENT OF THE BANK ACCOUNTS IN THE NAMES OF THE
MINOR CHILDREN:
The trial court found that during the course of
the parties’ marriage, they and their family members made
financial gifts to the three children of the marriage with the
advice of a C.P.A.
The trial court stated that these gifts were
set up in compliance with the Uniform Gifts to Minors Act of
Kentucky, and put into accounts in the names of the three
children.
The trial court held that these accounts were not
subject to division.
Mary objects to this finding, and claims
that the funds were not gifts to the children, but were simply a
college education fund, which should be divided between the
parties if the children do not choose to go to college.
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The trial court relied on the testimony of the C.P.A.
and the parties in holding that these accounts were the sole
property of the children.
evidence showing otherwise.
Mary has failed to present any
The record shows that all three
children pay individual income taxes on the accounts, and that
the accounts have always been held in the names of each minor
child.
Under such circumstances, it would be error to divide
these funds among the parties.
This Court affirms the trial
court’s finding that these accounts belong solely to the
children.
4.
FAILURE TO AWARD APPELLANT MAINTENANCE:
Mary
objects to the failure of the trial court to award her
maintenance.
The trial court found that Mary was employed on a
“full-time” basis.
Mary disputes this contention, and states
that she will be required to deplete her assets to maintain her
standard of living.
Mary states that such an inequitable result
should not be condoned by this Court, and relies upon Wood v.
Wood, Ky. App., 720 S.W.2d 934 (1986), as support for this
contention.
Kentucky law requires that a spouse must establish that
she lacks sufficient property to provide for her reasonable needs
and is unable to support herself through reasonable employment
prior to being awarded maintenance.
S.W.2d 900 (1993).
Dotson v. Dotson, Ky., 864
Although Mary asserts in her brief that she
lacks sufficient property to maintain her standard of living, the
record is devoid of evidence on that issue.
The record shows
that she owns a home, real property, and substantial cash assets.
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Additionally, her tax records show an annual income of
approximately $20,000.00.
Based on the extremely limited
evidence in the record, the trial court found that each party’s
assets were sufficient to maintain the standard of living enjoyed
during the marriage.
Mary has failed to establish that the trial
court’s finding was clearly erroneous.
For this reason, the
trial court’s decision must be affirmed.
5.
CHILD SUPPORT: Mary asserts, without citation to
supporting evidence, that her income is far less than that of the
Bruce, and that he should pay increased child support as a
result.
The only evidence as to income in the record in this
action is the parties’ tax returns, which show approximately
equal income for the most recent year, 1997.
Additionally, the
report submitted by the Domestic Relations Commissioner, who
conducted a hearing as to child support, found that based upon
the parties’ income, Bruce should pay $109.00 a month in child
support.
The trial court so ordered.
Absent any evidence to the
contrary, this Court must affirm that finding.
The appellate court is constrained from overturning the
findings of the trial court unless they are clearly erroneous,
especially in domestic relations cases.
911 S.W.2d 612 (1995).
Aton v. Aton, Ky. App.,
The trial court’s findings in the present
case have not been shown to be clearly erroneous, and appear to
be supported by the evidence contained in the record.
Mary
failes to cite to specific portions of the record on appeal
showing otherwise.
For the foregoing reasons, the decision of
the trial court is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert E. Gillum
Somerset, Kentucky
Paul F. Henderson
Somerset, Kentucky
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