JAMES ROY WHITLOW v. CONNIE KINGREY WHITLOW AND JAMES S. SECREST, SR.
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RENDERED: June 30, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NOS.
1999-CA-000138-MR & 1999-CA-000172-MR
JAMES ROY WHITLOW
APPELLANT/CROSS-APPELLEE
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 1997-CI-00116
v.
CONNIE KINGREY WHITLOW AND
JAMES S. SECREST, SR.
APPELLEES/CROSS-APPELLANTS
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON, AND KNOPF, JUDGES.
KNOPF, JUDGE:
James Roy Whitlow (Roy) appeals from a December
16, 1998, decree of the Allen Circuit Court dissolving his
marriage to the appellee, Connie Whitlow, and winding up the
parties’ marital estate.
Roy maintains that the trial court
incorrectly characterized some of his non-marital property as
marital, that it misconstrued Connie’s waiver of her interest in
his pension, and that it abused its discretion by awarding Connie
maintenance.
Connie cross-appeals from the same decree.
She
maintains that the trial court awarded her insufficient
maintenance and insufficient attorney fees, and that it misstated
two of the maintenance award’s conditions.
Being unpersuaded by
any of these allegations of error, we affirm.
The parties were married in June 1970, when Connie was
nineteen and Roy twenty-six.
Roy was working as a truck driver
for Kimball International, Connie had just finished high-school
and was working in her father’s restaurant.
Two months prior to
the marriage, Roy purchased approximately 73 acres of farm land.
He paid $3,000.00 down and agreed to pay the $12,000.00 balance
in 3 annual installments.
He also purchased farming equipment
and a few head of cattle.
Following the marriage, Roy continued
to work for Kimball International, and he and Connie operated the
small farm.
Eventually the couple acquired a residence in
Scottsville, Kentucky, improved the farm with barns and a tool
shed, purchased additional livestock, acquired additional farm
land (approximately 107 acres), and acquired a vacant lot in
Scottsville next to the home of Roy’s mother.
The couple also
raised three children, all of whom had become adults before this
action began.
Connie dedicated herself primarily to homemaking.
She also helped on the farm, and, later in the marriage, when the
children were grown, worked outside the home, principally at
Pizza Hut where she was employed from late 1990 until 1997.
Early that year, Connie’s father, whose home was close
to that of the Whitlows, became terminally ill.
Connie devoted
herself increasingly to caring for him, until in May 1997, she
was granted a three-month leave of absence from her job so that
she might care for him full time.
Connie’s father died in
August 1997, shortly before Connie’s leave of absence expired.
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During this same period, Roy and Connie’s relationship broke
down.
In early June 1997, there were two angry confrontations
between them.
Connie claims that on both occasions Roy
threatened to kill her.
Roy admits that he confronted her
angrily and even admits that on one of the occasions he pointed a
gun at her and said that he ought to kill her, but he denies
having harmed her or having threatened her in such a way that she
could have thought herself in any real danger.
In any event, on
the evening of June 13, 1997, Roy drove Connie to the police
station and left her there.
She contacted a friend and arranged
to stay at a shelter for abused women.
lived with each other since then.
Connie and Roy have not
Indeed, they have been ordered
apart by an emergency protective order and a domestic violence
order.
At the shelter Connie began to see a psychiatrist who
diagnosed her as being depressed and as having an anxiety
disorder.
He prescribed an anti-depressant and medication to
help her sleep.
This psychiatrist later concluded that Connie
was suffering from post-traumatic stress syndrome.
These
diagnoses have been confirmed by Connie’s family physician and by
a psychiatrist Roy hired to examine her.
Meanwhile, concerned
about her father, Connie left the shelter after about two weeks
and returned to the marital residence.
the residence was burglarized.
Shortly after her return,
Frightened by the burglary,
Connie preferred not to spend the night at her former residence,
and so began a somewhat nomadic existence.
She returned to the
residence during the day, but slept sometimes at her father’s
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house, while he was alive, sometimes with friends, sometimes in
her car, sometimes with her daughter, and sometimes in a motel.
As noted, Connie’s father died approximately one month
after she returned from the spouse abuse shelter and near the end
of her leave of absence from Pizza Hut.
Feeling overwhelmed by
recent events, Connie requested that Pizza Hut extend her leave,
but the company refused.
When Connie failed to return to work at
the scheduled time, her employment was terminated.
Between then,
August 1997, and the final hearing before the trial court in
October 1998, Connie did not return to work of any sort.
Her
doctors unanimously agreed that she was incapable of doing so and
that she would likely remain disabled for the foreseeable future.
The matter was initially tried before a domestic
relations commissioner, whose report the trial court adopted in
toto, after considering the parties’ exceptions thereto.
The
final decree dissolved the parties’ twenty-seven year marriage
and divided the marital estate roughly equally.
In determining
the estate’s assets, the court acknowledged Roy’s $3,000.00 nonmarital contribution to the acquisition and improvement of the
73-acre farm (a total expenditure of $28,000.00) and calculated
(using the Brandenburg formula)1 that his non-marital interest
had come to be worth approximately $9,300.00 from a total value
of the farm of approximately $87,000.00.
Roy maintains that the
entire 73-acre farm should have been deemed his non-marital
property.
He bases this claim on the assertion that the farm and
1
Brandenburg v. Brandenburg, Ky. App., 617 S.W.2d 871
(1981).
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its improvements were paid for from proceeds derived from the
yearly sale of calves and that the calves derived, ultimately,
from the few head of cattle he purchased with non-marital funds
shortly before the marriage.
Even were we to assume that Roy had established the
source of the funds used to purchase and improve the farm,2 his
claim rests on a misunderstanding of KRS 403.190.
That statute
does indeed provide, as Roy notes, that property acquired during
the marriage in exchange for non-marital property remains nonmarital and that the increase in value during the marriage of
non-marital property is also non-marital.
These rules, however,
refer to specific items of property, the specific cows Roy bought
prior to the marriage, for example, and contemplate either the
exchange of those specific pieces of property or their passive
appreciation.
eventualities.
Roy’s claim is based on neither of these
His claim is based on the production of calves in
the ordinary course of farming.
The general rule, of course, is
that property acquired during the marriage is marital, and this
includes income derived from non-marital business assets, such as
Roy’s cattle, particularly when, as in this case, the assets have
been made productive through the efforts of the parties.
Goderwis v. Goderwis, Ky., 780 S.W.2d 39 (1989); Marcum v.
Marcum, Ky., 779 S.W.2d 209 (1989); Sousley v. Sousley, Ky., 614
S.W.2d 942 (1981).
Revenue from the sale of calves is income in
this sense, and thus its reinvestment in the farm, if that is in
2
In fact, however, he made no attempt to trace farm revenues
into particular expenditures.
-5-
fact what was done with it, was a marital contribution.
The
trial court did not err, therefore, in apportioning the marital
and non-marital shares of the 73-acre farm.
The trial court awarded Connie half of Roy’s pension to
the extent that it accrued during the marriage.
Roy maintains
that Connie waived her marital claim to any share of his pension
and that the trial court misconstrued her waiver.
Roy’s
contention is based on a “Designation of Beneficiary” form Connie
executed in December 1994.
The form, provided by Kimball
International’s Retirement Plan, is used to record the
designation of someone other than an employee’s spouse as
recipient of the plan’s survivorship benefits. The section of
Kimball International’s form creating that consent provides as
follows:
The undersigned legal spouse of this employee
consents to the appointment of a beneficiary
(as indicated above) other than the
undersigned spouse and releases and waives
any rights of any kind to the proceeds that
may become payable under the plan.
At Roy’s behest (under duress and in response to his
coercion, Connie claims), Connie executed this form in favor of
their children.
The trial court ruled that Connie’s waiver
extended only to survivorship benefits and not to the pension
itself.3
Roy maintains that Connie consented, in essence, to
3
The trial court noted that, under federal law, qualifying
pension plans are required to provide for the designation of
alternative survivorship beneficiaries and that such designations
are valid only if consented to by the employee’s spouse. While
there is little doubt that Kimball International’s pension plan
is indeed subject to federal regulation, this fact seems not to
have been established on the record. We are precluded,
(continued...)
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have the pension treated for all purposes as his non-marital
property.
As this Court has noted, there is a distinction between
a pension, as an accrued asset, and the right to benefits
therefrom.
Brosick v. Brosick, Ky. App., 974 S.W.2d 498 (1998);
Glidewell v. Glidewell, Ky. App., 859 S.W.2d 675 (1993).
The
accrued asset is what is subject to division upon divorce.
It
was the right to benefits, however, on condition of Roy’s death
(“proceeds payable under the plan”), that was addressed and
affected by the “Designation of Beneficiary” form Connie
executed.
We agree with the trial court that her waiver of those
benefits, assuming the waiver valid, had no bearing on the
division of the asset, which was properly deemed marital in large
part and awarded accordingly to both parties.
Poe v. Poe, Ky.
App., 711 S.W.2d 849 (1986).
In addition to various items of personalty, the trial
court awarded Connie the marital residence, valued at $41,000.00,
and the unimproved farm land (the 107-acre farm), valued at
$77,000.00.
It awarded Roy the improved farm, the farm
equipment, the livestock, and the vacant lot near Roy’s mother’s
house in Scottsville.
The court also ordered Roy to pay Connie
maintenance in the amount of $500.00 per month “until such time
as either party dies, the respondent remarries or engages in
unmarried cohabitation; the petitioner retires; or there is a
3
(...continued)
therefore, from considering what bearing if any federal law has
on the question of Connie’s waiver.
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substantial and continuing change in either party’s
circumstances.”
In awarding maintenance, the trial court found that
Connie suffered from a mental disability, which impaired her
capacity to work, and that she had not been awarded incomeproducing property sufficient to support herself.
As noted
above, the evidence of disability included the testimonies of
three physicians, one of whom had experience performing
disability evaluations for the Social Security Administration.
The evidence also included Connie’s testimony to the effect that
Roy had been excessively controlling and abusive throughout the
marriage, culminating in threats to kill her.
Roy maintains that
the trial court erred in finding Connie eligible for maintenance.
He denies Connie’s allegations of abuse, insists that she is
capable of supporting herself through work, and contends that the
maintenance award stemmed from the court’s improper consideration
of his alleged fault.
KRS 403.200(1) provides that the trial court may award
maintenance upon a finding that the spouse seeking it "(a) lacks
sufficient property, including marital property apportioned to
him, to provide for his reasonable needs; and (b) is unable to
support himself through appropriate employment . . . ."
In
Casper v. Casper, Ky., 510 S.W.2d 253 (1974), our Supreme Court
held that, under this statute, the trial court is to determine
whether the spouse seeking maintenance lacks sufficient property
to meet her reasonable needs and is unable to support herself
through appropriate employment according to the standard of
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living established during the marriage.
In Perrine v. Christine,
Ky., 833 S.W.2d 825, 826 (1992), the Court further explained
that,
[u]nder this statute [KRS 403.200], the trial
court has dual responsibilities: one, to make
relevant findings of fact; and two, to
exercise its discretion in making a
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.
Roy is correct in noting that marital fault is not to
bear on the maintenance determination except in limited
circumstances to prevent a windfall to the party seeking
maintenance whose fault contributed significantly to the break up
of the marriage.
(1987).
Platt v. Platt, Ky. App., 728 S.W.2d 542
We are not persuaded, however, that the trial court’s
decision contravened this principle.
As the commissioner
repeatedly explained in response to Roy’s objections to Connie’s
testimony, evidence of Connie’s mental state was directly
relevant to the issue of her claimed inability to work, and
evidence of Roy’s alleged mistreatment of her was directly
relevant to the issue of her mental state.
The commissioner
assured the parties that she would consider the disputed evidence
for no other purpose; the record suggests nothing to the
contrary.
The medical evidence amply supports the finding that
Connie is disabled,4 and the relatively modest maintenance award,
4
Indeed, apparently Connie has since qualified for Social Security Disability benefits of
approximately $280.00 per month. What bearing, if any, her disability award might have on her
entitlement to maintenance is a matter that must be addressed in the first instance by the trial
(continued...)
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considerably less than Connie requested and half the amount of
her temporary maintenance, refutes Roy’s assertion that he has
been subjected to a punitive ruling.
The trial court did not
abuse its discretion, therefore, by awarding too much
maintenance.
Nor are we persuaded that it awarded too little.
On
cross-appeal, Connie asserts that the trial court abused its
discretion by awarding maintenance in an amount insufficient to
meet her reasonable needs.
She notes that she was awarded
$1,000.00 per month temporary maintenance and maintains that her
insurance and medical expenses have increased since that award
was determined.
She acknowledges that, as noted above,
maintenance awards have been entrusted to the sound discretion of
the trial court.
(1997).
Weldon v. Weldon, Ky. App., 957 S.W.2d 283
But relying on Beckner v. Beckner, Ky. App., 903 S.W.2d
528 (1995) and Leitsch v. Leitsch, Ky. App., 839 S.W.2d 287
(1992), she insists that this discretion is abused unless the
maintenance award is sufficient to meet the recipient’s
reasonable needs as established during the marriage.
Temporary maintenance, of course, is usually an
unreliable guide to permanent maintenance because, as in this
case, it is typically awarded without consideration of the final
property settlement.
Connie’s citation of Beckner and Leitsch,
moreover, underscores the difficulty of comparing cases in this
area of the law, where myriad different factors may bear on the
4
(...continued)
court.
-10-
decision and consequently where each case is to a large extent
unique.
Beckner involved the denial of any maintenance to a
relatively young former spouse from a marriage that had not yet
accumulated any significant marital property and who had
sacrificed the development of her career in order to raise the
couple’s children and maintain their home.
One of the
fundamental purposes of maintenance being to provide such
homemaker spouses with the opportunity to become meaningfully
self-supporting, this Court ruled that the trial court’s failure
to provide at all for that opportunity was an abuse of
discretion.
Connie, unlike the wife in Beckner, has been awarded
substantial marital property and significant, albeit modest,
maintenance.
There is no indication here that the division of
the marital estate is so limited as, in effect, to bar Connie
financially from achieving a meaningful independence.
Leitsch concerned the right to maintenance of a former
husband who suffered from muscular dystrophy and whose condition
had become totally disabling.
Here again the marital estate had
not accumulated much property, and it was established that the
husband had extraordinary medical needs which were certain to be
continuing.
The trial court awarded no maintenance despite
evidence that the husband’s disability income was insufficient
and that he had been relying for basic expenses on the charity of
friends.
Because freedom from this sort of dependency for
spouses who are unable to become self-supporting is another of
the fundamental purposes of maintenance, this Court held that the
trial court’s denial of any maintenance in these circumstances
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was an abuse of discretion.
Like the husband in Leitsch, Connie
is unable, at least for the present, to be self-supporting.
It
is to be hoped in Connie’s case that she will one day be able to
resume working, but in the meantime the distribution of the real
property (including the marital residence) worth approximately
$120,000.00, and the award of maintenance of $500.00 per month is
well calculated, unlike the settlement in Leitsch, to provide for
Connie’s basic needs.
The maintenance award is modest, as we
have observed, but given the modest standard of living
established during the marriage, and given the limitations
imposed by age and poor health on Roy’s ability to earn income,
particularly his ability to farm, we are not persuaded that the
award was an abuse of the trial court’s discretion.
Connie also maintains that the trial court
inappropriately conditioned the duration of her maintenance on
Roy’s retirement and failed to specify what was intended by the
provision in the decree terminating the award if Connie cohabits.
We are not persuaded that the trial court abused its discretion.
When Roy retires, Connie will become entitled to a share of his
pension.
It is to be hoped that that entitlement will adequately
replace Connie’s maintenance, but in any event Roy’s retirement
will mark the substantial equalizing of the parties’ incomes.
It
is within the trial court’s discretion to terminate maintenance
at that point.
Weldon, supra.
It is well established,
furthermore, that, to affect a maintenance regime, a recipient’s
“cohabitation” must amount to more than a casual or trial
relationship.
Cook v. Cook, Ky., 798 S.W.2d 955 (1990); Combs v.
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Combs, Ky., 787 S.W.2d 260 (1990).
The trial court did not abuse
its discretion by declining to specify within the award itself
the type or extent of cohabitation.
Finally, the trial court awarded Connie attorney fees
in the amount of $5,500.00.
Connie and her attorney complain
that this amount is inadequate.
Legal costs prior to this appeal
had exceeded $13,000.00, they claim, and had been exacerbated by
Roy’s having changed counsel several times.
The trial court is accorded very broad discretion to
award or deny attorney fees.
KRS 403.220; Hollingsworth v.
Hollingsworth, Ky., 798 S.W.2d 145 (1990).
Such awards are to be
based on the relative financial resources of the parties, and
only when the parties’ resources are grossly disparate is an
award mandated.
Beckner, supra; Glidewell, supra.
We are not
persuaded that the parties’ resources are so disparate here as to
mandate a greater allowance for attorney fees than the trial
court awarded.
basic fee.
The court’s order provides for a substantial,
The property awarded to Connie will enable her to pay
any fees in excess of that amount.
The trial court having given
adequate consideration to the parties’ financial resources and
having awarded an attorney fee reasonably based thereon, its
decision will not be disturbed on appeal.
In sum, the dissolution of a long marriage is almost
always a traumatic event for both parties, and the Whitlows’
divorce is no exception.
Trying to see the parties through their
initial shock and anger and disappointment and to fashion a
decree that will give them an opportunity eventually to resume
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productive, independent lives is one of the hardest tasks the
trial courts face.
Our domestic relations statutes provide a
framework for the fashioning of such decrees, but within that
framework the trial courts have been entrusted with broad
discretion.
We are persuaded that the trial court neither
disregarded the statutory framework nor abused its discretion in
this case.
The marital estate benefitted from the property Roy
brought to the marriage, but most of the benefit derived from the
parties’ marital efforts added to that property later.
Connie
devoted herself to working within the home and to raising the
couple’s children and thus relied upon Roy to provide her with a
retirement.
Any waiver of that retirement would need to be
unmistakably expressed.
The trial court did not err by ruling
that her purported waiver of survivorship benefits was not the
complete waiver that Roy claimed.
Connie’s early marriage and
long devotion to her home and family, to say nothing of the
effect of Roy’s alleged mistreatment, have left her ill prepared
to support herself through employment.
An award of maintenance
in addition to the property settlement was therefore justified.
Roy’s increasingly limited earning capacity, in turn, justifies
the modesty of that award.
Roy’s income, finally, and Connie’s
lack thereof, justify an award of Connie’s attorney fees, but
Connie’s property award enables her to bear a portion of those
fees herself.
For all these reasons, we affirm the December 16,
1998, decree of the Allen Circuit Court.
ALL CONCUR.
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BRIEFS FOR APPELLANT/CROSSAPPELLEE:
BRIEFS FOR APPELLEES/CROSSAPPELLANTS:
David Goin
Harrison & Goin Law Firm
Scottsville, Kentucky
James S. Secrest, Sr.
Secrest & Secrest
Scottsville, Kentucky
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