WILLIAM GRANT SMITH v. REBECCA JEAN MILLS
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RENDERED:
MARCH 30, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-000367-MR
WILLIAM GRANT SMITH
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE REED RHORER, JUDGE
ACTION NO. 97-CI-01105
v.
REBECCA JEAN MILLS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BARBER, AND KNOPF, JUDGES.
BARBER, JUDGE: Appellant, William Smith (“Bill”), Respondent
below, appeals from the Findings of Fact, Conclusions of Law and
Order upon Exceptions entered by the Franklin Circuit Court, on
January 10, 2000.
Finding no error, we affirm.
The marriage of Bill and Rebecca Jean Mills (“Becky”)
Smith was dissolved by (bifurcated) decreed entered October 9,
1997; the parties property and debts were to be valued as of
October 1, 1997.
Bill raises several issues on appeal over the
calculation of equity, classification of debt, and a credit for
tax refund.
The issue regarding the value of the marital real
estate has been withdrawn, because the real estate has been sold
to third parties.
I
Equity in marital residence
The Domestic Relations Commissioner (“DRC”) determined
that indebtedness on the property was $113,290.00, as of October
1, 1997, leaving equity in the home of $53,459.00.
The DRC
determined that Bill shall be awarded the marital residence, as
he requested, provided that he pays all outstanding indebtedness
and pays one-half of the equity or $26,729.00 to Becky.
The
trial court gave Bill 45 days to obtain the necessary funds to do
so; otherwise, the court ordered that the property be listed for
sale with the proceeds to be split between the parties after
payment for the remaining indebtedness.
Although Bill had paid
the mortgage payments, the court denied his request for a credit
because Bill had occupied the home and benefitted from Becky’s
equity in the home since the separation.
Beck had had to pay
rent since the separation, thus had been unable to build her
equity in the home.
Bill contends that the trial court’s calculation of
equity in the marital real estate was clearly erroneous, because
he was not given credit for reduction in principal for mortgage
payments made from the date of separation to the October 1, 1997
valuation date, and from that date forward.
Bill stated that at
the hearing on the exceptions, Becky’s counsel stipulated that he
was entitled to credit for reduction in principal from October 1,
1997.
Becky contends that the evidence demonstrated that she had
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to find another residence for her and her son and pay rent during
the parties’ separation, while Bill remained in the marital
residence.
Bill notes that the trial court failed to mention the
stipulation regarding credit for mortgage payments; however, he
failed to bring that omission to the trial court’s attention.
Thus we will not consider it on appeal.
CR 52.04 requires a
motion for additional finding of facts when the trial court has
failed to make findings on essential issues.
Failure to bring
such an omission to the attention of the trial court by means of
a written request will be fatal to an appeal.
Cherry v. Cherry,
Ky., 634 S.W.2d 423 (1982).
In support of his argument for a credit, Bill relies
upon Gibson v. Gibson, Ky. App., 597 S.W.2d 622 (1980).
is distinguishable upon it facts.
Gibson
There, the wife and the
parties’ eight year old child had remained in the marital
residence and the husband was required to make the mortgage
payments until the child turned 18.
The court held that the
husband was entitled to reimbursement for any amount of the
mortgage payments that he made since the entry of the decree
which reduced the principal balance of the indebtedness, with the
remaining proceeds divided equally between the parties.
By
contrast, in the case sub judice, Bill remained in the marital
residence, and Becky moved out and paid rent.
There was no
error.
Bill also contends that he should have been given a
credit for certain withdrawals against a home equity loan account
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at Commonwealth Credit Union, because he had no knowledge of the
use of the funds withdrawn, despite his signature on the line of
credit.
Bill does not state where this issue was addressed; it
does not appear to have been decided by DRC or the trial court,
and no request was made for additional findings.
Cherry,supra.
We decline to consider this issue.
II
Equity in the two motor vehicles
The trial court found that the DRC had not placed a
specific value on the parties’ motor vehicles; “however
substantial evidence exists to support [such] a finding . . . .
Based on the evidence, the court finds that the value of the Ford
Truck is $2,880 with no indebtedness, . . . the Pontiac has a
value of $10,867 and an indebtedness of $8,573.55.
Based on the
close relationship in the equity value of the Pontiac and the
actual value of the Ford Truck, the court concludes that the DRC
. . . correctly awarded each party the vehicle in his/her
possession.”
Bill admits that “the testimony and evidence present on
this issue was, at best, confusing.”
Nevertheless, he argues
that the trial court should have used a different loan balance in
valuing Becky’s Pontiac, because the $8,573.33 was the amount of
the original loan at the time of purchase.
Bill failed to bring
this matter to the trial court’s attention by way of a motion for
additional findings; thus, that issue was not preserved for
review.
Cherry, supra.
Regardless, we cannot say that the trial
court’s valuation of the motor vehicles was clearly erroneous.
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As Becky noted, there was other evidence in the records that the
Ford truck had a higher value than found by the trial court;
further, Becky made all the payments on the Pontiac after the
parties divorced.
KRS 403.190 vests the trial court with wide
discretion in the division of marital property.
“We cannot agree
with the appellant that the court erred in its division and award
of marital property to the appellee.
This court may not disturb
the findings of the trial court in a case involving dissolution
of marriage unless those findings are clearly erroneous.”
[citation omitted].
221, 223 (1978).
Johnson v. Johnson, Ky. App., 564 S.W.2d
The trial court did not commit reversible error
concerning the value of the motor vehicles.
III
Classification of debts
The court found that the two debts assigned to Bill by
the DRC - the Farmers’ Bank loan and the State Bank loan - were
correctly determined to be non-marital.
According to Bill, the
Farmers Bank debt of $7,721.11 was for money he had borrowed to
enable the parties’ son, Phillip Mills, to purchase a truck.
Bill contends that they financed what Phillip could afford to pay
on his own, and that the rest was financed through the note with
the bank.
Bill contends that the parties were doing what most
parents do - assisting their son financially - and that it was
error to categorize this as a non-marital debt.
The State Bank
loan, with a balance of $5,983.00, was borrowed for a horse
trailer for Phillip.
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Becky contends that from time to time Bill obtained
loans from both of these banks to finance his construction jobs.
Bill had his own construction bank accounts.
Becky asserts that
she never received any money from these construction jobs and
that none of that money was deposited into the parties joint
checking account at Commonwealth Credit Union.
Becky did not
sign the notes or agree to pay the loans in question.
Becky
notes Phillip’s testimony that the money Bill borrowed for the
horse trailer was a gift to him.
The trial court explained that although the State Bank
debt (for the truck) was incurred during the marriage; the
presumption that it was marital was rebutted by the
“circumstances surrounding the debt between the Respondent [Bill]
and his son; specifically the lack of Petitioner’s [Becky’s] name
being placed on the debt and the reason for which the debt was
incurred.”
According to the DRC’s report, there was some
confusion about the purpose of his debt, and Becky had argued
that Bill used the truck for his construction projects.
Based
upon that the finding that Becky had received no benefit
therefrom, the court concluded the debt was non-marital.
The
trial court also overruled Bill’s exception to the DRC’s report
assigning the Farm Bank (horse trailer) debt to him for the same
reason.
Despite conflict in the evidence, neither the truck nor
the horse trailer was purchased for Becky’s benefit.
Although we
may have reached a different conclusion than did the tier of
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fact, we cannot say that it was clearly erroneous to classify the
debts as non-marital.
IV
Credit for income tax returns
Bill contends that Becky cashed income tax refund
checks issued in 1995, 1996, and 1997, totaling $2,087.40,
without his knowledge, and that he does not know whether the
money was spent by Becky “personally” or to pay marital bills.
The DRC denied Bill’s claim relating to the tax refunds.
filed an exception which the trial court overruled.
separated on or about June 2, 1997.
Bill
The parties
The refunds were for years
during which the parties were married.
It was not clearly
erroneous to deny Bill’s claim relating to the tax refunds.
We affirm the Findings of Fact, Conclusions of Law and
Order of the Franklin Circuit Court.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Roland P. Merkel
Frankfort, Kentucky
Michael L. Judy
Johnson, Judy, True &
Guarnieri
Frankfort, Kentucky
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