JOHN D. MAUPIN v. MARY ANN MAUPIN
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RENDERED: JULY 20, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-003054-MR (DIRECT APPEAL)
AND
NO. 1999-CA-003059-MR (CROSS-APPEAL)
JOHN D. MAUPIN
APPELLANT/CROSS-APPELLEE
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS WALLER, JUDGE
ACTION NO. 97-CI-00257
v.
MARY ANN MAUPIN
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON AND TACKETT, JUDGES.
EMBERTON, JUDGE: This case arises from an action for dissolution
of marriage.
John Maupin appeals alleging that the trial court
erred in awarding permanent maintenance to Mary Ann Maupin; that
the court erred when it found there was no agreed value of
certain personal property; and when it ordered the sale of the
marital property at public auction which was allowed to be
purchased by Mary Ann.
Mary Ann cross-appeals alleging that the
trial court awarded an insufficient amount of maintenance and
erred when it denied her attorney’s fees.
The initial issue we address is whether failure to file
a transcript of the proceedings below is fatal to John’s appeal
and Mary Ann’s cross-appeal.
Before the 1976 amendments to our
civil rules, failure to designate the record on appeal resulted
in dismissal.1
Under the current version of Kentucky Rules of
Civil Procedure (CR) 75.07(1), the appellate record shall contain
the original record on file in the circuit clerk’s office in
addition to that designated by the parties.
As noted by the
court in Johnson v. Maloney’s of Olive Hill, Inc.:2
Therefore, it is now possible to bring a
case before this court without designation of
record when the lack of stenographically
recorded evidence or proceedings would make
the filing of the designation an empty
exercise.
John contends that a transcript of the Commissioner’s
hearing is unnecessary because he does not dispute the findings
of fact of the court below but only the application of the law.
Without the transcripts we are not in a position to review any of
the findings of fact and must accept those as found by the trial
court.
We are left, therefore, to review the trial court’s
judgment to determine if it abused its discretion.3
Having
recognized our limited role in this case, we turn to the issues
raised.
The pertinent findings of the trial court are summarized
as follows:
1
See Timmons v. Allen, Ky., 449 S.W.2d 27 (1969);
Motorists Mutual Insurance Co. v. Mercer, Ky., 462 S.W.2d 188
(1970).
2
3
Ky., 569 S.W.2d 704, 706 (1978).
Perrine v. Christine, Ky., 833 S.W.2d 825 (1992).
-2-
A.
REAL ESTATE
The Commissioner finds that the value of
the Taylor County property, which by
agreement is to be awarded to Respondent, is
$55,000.00.
The Bullitt County property was sold when
the parties could not reach an agreement, at
which time Petitioner bought it for
$46,000.00. She paid a 10% buyer’s premium
to the auctioneer, which is the equivalent of
a real estate commission.
The Commissioner finds that Respondent
should pay $4,500.00 to Petitioner to
equalize the property.
B.
PERSONAL PROPERTY
Appraisals were done to determine the
value of the personal property taken by each.
Respondent disputes the Taylor County
appraisal. The Commissioner finds that the
value of the Taylor County property taken by
Respondent is $37,265.00.4 The value of the
Bullitt County property taken by Petitioner
is $10,356.00.
Respondent should pay to Petitioner
$13,454.50 to equalize the division of the
personal property.
C.
PENSION
A qualified domestic relations order
should issue to divide the marital interest
in Respondent’s pension.
D.
SAVINGS AND INVESTMENT ACCOUNT
Respondent has a savings and investment
plan which is held in shares of stock. The
number of shares of stock which were owned at
the date of separation should be equally
divided.
3. Petitioner asserts a claim for
maintenance. She is currently employed with
4
The value of the Taylor County property was later amended
to $29,000 and the property division was adjusted.
-3-
an hourly rate of $6.75 per hour, with little
prospect of increased earnings. Respondent
is employed at Colgate Palmolive with a gross
income in excess of $52,000.00 per year.
The parties were married in excess of
21 years with Respondent being the primary
income producer during that time. While both
parties are in reasonably good health,
Respondent’s earning capacity far exceeds
that of Petitioner. The Commissioner finds
that Petitioner is unable to meet her
reasonable needs through appropriate
employment, and lacks sufficient property to
meet those needs. She should be granted
maintenance of $250.00 per week until her
death, remarriage, or further Order of Court.
4. Each party should pay his or her own
attorney’s fees.
The amount and duration of maintenance are within the
sound discretion of the trial court.5
The trial court considered
the factors set forth in Kentucky Revised Statutes (KRS) 403.200
and found Mary Ann lacked sufficient property to provide for her
reasonable needs and is unable to support herself through
appropriate employment.
sufficient.
We also find the amount awarded
Although Mary Ann’s earnings, combined with the
maintenance award, will not be as great as John’s income, the
award is not unreasonable, unfair, nor unsupported by sound legal
principles so as to constitute an abuse of discretion.
John’s next contention that the trial court erred when
it disregarded an agreement of the parties that the value of
certain personal property was $29,000, is meritless.
The
commissioner entered an amended order on January 7, 1999, in
which he found that an agreement existed and equalized the
5
Russell v. Russell, Ky. App., 878 S.W.2d 24 (1994).
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division of the personal property.
This amendment was adopted by
the trial court on November 22, 1999.
The marital residence was ordered sold and was
purchased by Mary Ann for $46,000.
John now alleges that there
was an agreement that such value was $62,000.
The commissioner
found there was no agreement and we are bound by this finding.
John’s attempt to back-door portions of the transcript below by
inclusion in his brief is contrary to CR 75.01 and is accordingly
disregarded by this court.
Finally, there was no error in the trial court’s
failure to award Mary Ann attorney’s fees.
The court considered
the factors set for in KRS 403.220 and we find no error.6
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Armand I. Judah
Louisville, Kentucky
Rodney Burress
Shepherdsville, Kentucky
6
Poe v. Poe, Ky. App., 711 S.W.2d 849 (1986).
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