EMMA MARIE RUNYON v. RONALD RUNYON
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RENDERED: February 25, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000618-MR
EMMA MARIE RUNYON
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE EDDY COLEMAN, JUDGE
ACTION NO. 96-CI-01201
v.
RONALD RUNYON
APPELLEE
OPINION
AFFIRMING IN PART -VACATING AND REMANDING IN PART
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND MILLER, JUDGES.
GUIDUGLI, JUDGE.
Emma Marie Runyon appeals from the Findings of
Fact, Conclusions of Law, and Supplemental Decree of Dissolution
of Marriage of the Pike Circuit Court.
We affirm in part and
vacate and remand in part.
Emma Marie Runyon (“Emma”) and Ronald Douglas Runyon
(“Ronald”) were married in 1986.
The marriage produced one
child, Will, who is now 13 years old.
The parties separated in
August, 1996, and Emma later filed the instant action seeking
dissolution of the marriage.
The matter proceeded before the
Special Commissioner (“the Commissioner”).
One or more hearings
on the petition were conducted, and on August 12, 1997, the
Commissioner submitted a Report and Recommendations to the Court
for its consideration.
The Report and Recommendations made (in
relevant part) the following uncontested findings of fact:
1) Prior to the marriage, Ronald purchased a
parcel of real property for $14,600. His
down payment and monthly payments totaled
$6,400 at the time of marriage, with an
$8,200 balance.
2) Prior to the marriage, Ronald purchased a
flood-damaged trailer for $4,500. The
trailer was renovated, partially furnished,
and relocated to the real property.
Approximately two years after the marriage,
the parties borrowed $50,000 to make
additions to the trailer.
3) When the petition for dissolution was
filed, Emma’s monthly gross income was
approximately $649. Ronald’s annual income
was approximately $57,120.
4) The parties purchased a 1996 Mazda on
which they owed approximately $14,000.
Ronald leased a 1996 Chevrolet for $499 per
month. His employer reimbursed him in the
amount of $600 per month, including insurance
and repair costs. The parties also owned a
Chevrolet Celebrity and an MG Midget.
5) Ronald had approximately $86,000 in a
retirement account. During the marriage, he
withdrew approximately $20,000 of this amount
to purchase a motorcycle. Emma’s retirement
was valued at approximately $400.1
The Commissioner recommended to the Circuit Court that
Ronald be awarded the real property and improvements, subject to
the condition that Emma was allowed to live with the parties’ son
in the home until he reached age 18.
It was recommended that
Ronald be responsible for the mortgage on the parcel, and that if
1
After the Report and Recommendations were issue, Emma filed
a claim to recover damages arising from an automobile accident.
Testimony was introduced that the value of the claim was
approximately $5000.
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the parties could not agree on the disposition of the parcel, it
should be sold when Will reached age 18 with the proceeds
allocated 30% to Emma and 70% to Ronald.
The Commissioner further recommended that the parties
be awarded joint custody of Will, with Emma being the primary
custodian.
It was recommended that Ronald pay $629.20 in child
support pursuant to KRS child support guidelines.
The DRC found
that Emma had no claim against Ronald’s retirement.
Finally,
Emma was to receive the 1996 Mazda and the Chevrolet Celebrity,
with Ronald receiving the Chevrolet Tahoe, MG Midget,
motorcycle.
and
Under the recommendation, Emma would be responsible
for the monthly payment on the Mazda.
Thereafter, Emma filed exceptions to the Report and
Recommendations.
She argued therein that she was entitled to
sole custody of Will, since Ronald had visited him only once
during the prior year.
She sought an order relating to which
party would be responsible for repairs of the marital home until
it was sold, and requested a 50/50 division of the marital home
proceeds.
She also sought ½ each of the furniture, Ronald’s
retirement, and the equity in the motorcycle.
The matter then went before the Circuit Court, which
rendered Findings of Fact, Conclusions of Law, and Supplemental
Decree of Dissolution of Marriage.
The Court adopted every major
recommendation of the Commissioner, altering the Report only to
make note of Emma’s automobile accident claim (see Footnote 1),
to order Ronald to pay for any repairs to the marital residence
costing in excess of $1000, and to address attorney fees.
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Emma moved to alter, amend or vacate the Supplemental
Decree.
That motion was sustained as to her request that the
Decree set forth Ronald’s obligation to pay the mortgage payment
on the marital residence, and in all other respects was
overruled.
This appeal followed.
Emma now argues that the Circuit Court’s division of
marital property was improper and constitutes an abuse of
discretion.
Specifically, she maintains that other than the home
furnishings and the 1996 Mazda, which likely does not exceed its
loan value, the only substantial item of value she received was a
30% future interest in the marital home.
She further notes that
the home cannot be liquidated for another 5-6 years.
In
contrast, she points to the property received by Ronald - a
$20,000 motorcycle, the pension valued at approximately $68,000,
and a 70% interest in the marital home.
By her calculations,
Emma received less than 20% of the marital estate.
This figure,
she argues, clearly is inequitable and runs afoul of the
statutory guidelines.
She seeks a greater share of the marital
estate, including a lump sum payment representing a one-half
interest in Ronald’s retirement.
Kentucky Revised Statues (KRS) 403.190 addresses the
division of marital property.
It states in relevant part that
(1) In a proceeding for dissolution of the
marriage . . . or in a proceeding for
disposition of property following dissolution
of the marriage . . . , the court shall . . .
divide the marital property . . . in just
proportions considering all relevant factors
including:
(a) Contribution of each spouse to
acquisition of the marital
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property, including contribution of
a spouse as homemaker;
(b) Value of 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. . . .
The trial court is vested with wide discretion in
determining what constitutes “just proportions,” and such a
determination will be reversed only upon a finding that the
discretion was abused.
(1989).
Davis v. Davis, Ky., 777 S.W.2d 230
Our review begins with the principle that the trial
judge is presumptively correct in his rulings and that we shall
not tamper with his conclusions absent a showing of clear error.
City of Louisville v. Allen, Ky., 385 S.W.2d 179 (1964).
In the matter at bar, the parties’ primary assets are
the residence and Ronald’s retirement.
We believe there is a
sufficient basis in the record for concluding that the residence
was divided in just proportions.
Emma received the use of the
residence for approximately 6 years and 30% of its equity
thereafter, while paying 30% of the taxes and insurance, and any
maintenance costs under $1000.
Ronald will receive 70% of the
equity, while making the mortgage payment, paying 70% of the
taxes and insurance, and any necessary maintenance costing in
excess of $1000.
Though there are other ways in which the this
asset could have been properly divided, the existing scheme
clearly comports with KRS 403.190(1) and does not constitute an
abuse of discretion.
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Our examination of the Circuit Court’s disposition of
Ronald’s retirement leads us to a different conclusion.
The
record appears to indicate that the retirement is a marital
asset, having accrued during the pendency of the marriage.
generally, KRS 403.190(2).
See
As such, it would be subject to
division between the parties under KRS 403.190(1).
The Circuit
Court did not expressly find it to be a marital asset, however,
and on this point we must remand for further findings of fact.
If said retirement is found to be a marital asset, in
whole or in part, KRS 403.190(1) subjects it to division in just
proportions.
This is not to say that every marital asset must be
divided, nor that every asset must be divided equally.
v. Quiggins, Ky. App., 637 S.W.2d 666 (1982).
Quiggins
Rather, the
marital estate as a whole must be divided in just proportions.
Had Emma received most or all of the marital home, for example,
clearly the Court could exercise its sound discretion by awarding
most or all of the retirement to Ronald.
Since the marital home
was apportioned more or less equally (when taking into account
Ronald’s non-marital contribution and his ongoing mortgage
obligation), we must conclude that the retirement must also be
subject to division if the Circuit Court on remand finds it to be
marital property.
Again, while we recognize that the Circuit Court’s
rulings are presumptively correct, Allen, supra, and are
reluctant to tamper with those rulings, we must conclude that if
the retirement is found to be a marital asset,
the marital estate is not a just proportion.
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Emma’s share of
If the retirement
is found to be a marital asset, it must be subject to
apportionment between the parties.
Emma also briefly argues that the division of the
maintenance and repair costs for the marital home is inequitable.
As we noted above, we must conclude that the Circuit Court’s
division of the home and its associated costs was equitable
considering Ronald’s non-marital contribution and his ongoing
obligation to pay the mortgage.
While we recognize that Emma’s
obligation to make repairs under $1000 is a heavy burden given
her income, we cannot go so far as to conclude that the Circuit
Court abused its discretion on this issue.
Lastly, Emma argues that the Circuit Court’s award of
joint custody was erroneous.
She maintains that Ronald visited
Will on only one occasion during the first year of the divorce,
and that he had little interest in pursuing legal visitation.
As
such, Emma seeks to have the Circuit Court’s order of joint
custody reversed, with instructions that sole custody be awarded.
KRS 403.270 provides that custody should be determined
in accordance with the best interest of the child, and sets out
several relevant factors.
It states in relevant part:
(1) The court shall determine custody in
accordance with the best interests of the
child and equal consideration shall be given
to each parent. The court shall consider all
relevant factors including:
(a) The wishes of the child's
parent or parents as to his
custody;
(b) The wishes of the child as to
his custodian;
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(c) The interaction and
interrelationship of the child with
his parent or parents, his
siblings, and any other person who
may significantly affect the
child's best interests;
(d) The child's adjustment to his
home, school, and community; and
(e) The mental and physical health
of all individuals involved.
As a general rule, a trial court has broad discretion
in determining the best interest of a child when awarding child
custody.
Krug v. Krug, Ky., 647 S.W.2d 790, 793 (1983).
In
reviewing a child custody determination, the standard of review
is whether the factual findings of the trial court are clearly
erroneous.
Reichle v. Reichle, Ky., 719 S.W.2d 442, 444 (1986);
Basham v. Wilkins, Ky. App., 851 S.W.2d 491, 493 (1993).
Findings of fact are clearly erroneous if they are manifestly
against the weight of the evidence or not supported by
substantial evidence.
(1967);
Wells v. Wells, Ky., 412 S.W.2d 568, 571
Poe v. Poe, Ky. App., 711 S.W.2d 849, 852 (1986).
A
trial court's decision on an award of custody will not be
disturbed absent an abuse of discretion.
Dudgeon v. Dudgeon,
Ky., 458 S.W.2d 159, 160 (1970); Cherry v. Cherry, Ky., 634
S.W.2d 423, 425 (1982).
In the matter at bar, virtually no findings of fact
were made relating to the issue of custody.
Kentucky Rule of
Civil Procedure (CR) 52.01 applies in child custody cases and
requires the trial court to find facts either on issues raised in
the pleadings or on issues which are mandated to be considered by
statute.
See Stafford v. Stafford, Ky. App., 618 S.W.2d 578, 580
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(1981), overruled on other grounds by Largent v. Largent, Ky.,
643 S.W.2d 261 (1982).
Since failure of the trial court to make
adequate findings of fact was not brought to its attention as
required by CR 52.04, any deficiency was waived.
See Cherry v.
Cherry, Ky., 634 S.W.2d 423, 425 (1982); Holland v. Holland, Ky.
App., 679 S.W.2d 835, 836 (1984).
Emma has not directed our
attention to any facts in the record which would serve as a basis
for tampering with the Circuit Court’s custody order, and our
review of the record has uncovered no such facts.
Accordingly,
we find no error on this issue.
For the foregoing reasons, the Findings of Fact,
Conclusions of Law, and Supplemental Decree of Dissolution of the
Pike Circuit Court are vacated and remanded for a determination
of whether Ronald’s retirement is marital property and, if so,
for division thereof in accordance with this opinion.
is in all other respects affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Shelia P. Singleton
Pikeville, KY
Michael de Bourbon
Pikeville, KY
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The Decree
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