EDWARD W. BISHER v. VICKIE JO BISHER and VICKIE JO BISHER AND MICHAEL L. JUDY, ESQ. v. EDWARD W. BISHER
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RENDERED:
August 16, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001392-MR
EDWARD W. BISHER
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 98-CI-01192
v.
VICKIE JO BISHER
AND:
APPELLEE
NO.
2001-CA-001462-MR
VICKIE JO BISHER AND
MICHAEL L. JUDY, ESQ.
CROSS-APPELLANTS
CROSS-APPEAL FROM KENTON CIRCUIT COURT
HONORABLE PATRICIA M. SUMME, JUDGE
ACTION NO. 98-CI-01192
v.
EDWARD W. BISHER
CROSS-APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND KNOPF, JUDGES.
DYCHE, JUDGE:
Edward W. Bisher appeals from an order of the
Kenton Circuit Court awarding Vickie Jo Bisher more than half of
the parties’ marital assets, ordering him to pay sixty-five
percent of Vickie’s post-separation debts, and to pay
maintenance.
Vickie and her attorney cross-appeal the trial
court’s judgment assigning marital debt to Vickie and denying her
motion to recover attorney fees.
We affirm.
Ed and Vickie were married on September 11, 1971.
During their marriage, Ed owned and operated Data Design, a sole
proprietorship that designs and sells business forms.
Vickie’s
employment during the marriage consisted of a brief stint as a
secretary, and she occasionally assisted Ed with his business.
Primarily, Vickie served as a homemaker and caretaker for the
couple’s three children.
When the parties separated on April 11,
1998, Vickie was a full-time student at Northern Kentucky
University majoring in Art Education.
Ed filed for divorce on June 19, 1998.
For
approximately twenty months after filing for divorce, Ed
continued to pay the two mortgages against the marital home,
taxes, utilities, and insurance premiums.
Ed, however, refused
to provide funds for Vickie’s educational and daily living
expenses.
To meet her needs, Vickie used credit cards, loans
from her parents, and unilaterally withdrew $25,000.00 from the
parties’ personal line of credit.
During the litigation of this matter, the trial court
held hearings concerning the division of marital assets and debts
between the parties, as well as Vickie’s request for maintenance
and attorney fees.
In its June 1, 2001, amended findings of
fact, conclusions of law, and judgment, the trial court dissolved
the marriage.
Further, the trial court awarded Ed the business,
valued at $132,123.00, the business bank account of $15,475.00
and a $5,500.00 life insurance policy that Ed unilaterally
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redeemed.
Vickie received the marital home valued at
$187,200.00, a 1992 Volvo automobile valued at $5,210.00, and a
checking account containing $3,846.14.
Each party also received
$229,321.44 from the equal division of their pensions.
Thus, Ed
received $382,419.74, or 47.3% of the marital assets while Vickie
was awarded $425,577.88, or 52.7% in marital assets.
Concerning marital debt, the trial court divided the
mortgage debts of $98,558.58 equally between the parties,
assigning each $49,279.29.
Vickie’s post-separation debts of
$25,000.00 from the line of credit withdrawal, $16,217.00 loaned
from her parents, and $28,897.79 in credit card expenses were
divided sixty-five percent to Ed and thirty-five percent to
Vickie.
Thus, Ed was ordered to pay $45,574.61 of the debt with
Vickie being assigned debts of $24,540.18.
In all, the trial
court assigned Ed $94,853.90 and Vickie $73,819.47 of the marital
debt.
The trial court also awarded Vickie maintenance in the
amount of $1,500.00 per month until Vickie’s graduation or June
2002, whichever comes first.
to $750.00 per month.
own attorney fees.
Thereafter, maintenance was reduced
Each party was ordered to pay his or her
These appeals followed.
Ed presents three arguments for our review.
First, Ed
argues that the trial court abused its discretion in dividing the
marital assets by awarding Vickie over half of the marital equity
despite his superior financial contributions.
We disagree.
The trial court possesses “wide discretion” in
distributing marital property.
Lykins v. Lykins, Ky. App., 34
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S.W.3d 816, 819 (2000).
Even with wide discretion, marital
property must be distributed according to KRS 403.190.
Pursuant
to this statute, after assigning each spouse his or her nonmarital property, the trial court must divide the marital
property in “just proportions,” without regard to marital
misconduct and in light of the following factors:
each spouse’s
contribution to the acquisition of marital assets, including
homemaking duties; the value of each spouse’s non-marital
property; the duration of the marriage, and the economic
circumstances of each spouse at the time of distribution.
KRS
403.190(1)(a)-(d); Russell v. Russell, Ky. App., 878 S.W.2d 24,
25 (1994).
Here, Vickie received $43,158.14 more in marital assets
than Ed.
However, in formulating this award, the trial court
thoroughly and completely considered the non-marital property
awarded to each spouse, the duration of the couple’s twenty-seven
year marriage, Vickie’s contributions as a homemaker, and Ed’s
income contributions.
The trial court also considered Vickie’s
age, health and that, as an unemployed college student aspiring
to become an art education teacher, she will never enjoy an
income that will equal the economic condition she enjoyed during
her marriage.
The record shows that Ed, on the other hand, will
continue to attain a six-figure income.
Thus, we believe that
the circuit court’s findings supported its division of the
couple’s assets. Since this division of marital assets was fair,
equitable, and in conformity with KRS 403.190, we affirm.
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Second, Ed argues that the trial court erred in
ordering him to pay sixty-five percent of Vickie’s postseparation debts.
In support of this argument, Ed asserts that,
since he provided for all of Vickie’s needs and complied with all
orders regarding maintenance, Vickie should be completely
responsible for all debts she incurred prior to her maintenance
award in January 2000.
We disagree.
There is no presumption that marital debts must be
divided equally or in the same proportions as marital property.
Neidlinger v. Neidlinger, Ky., 52 S.W.3d 513, 523 (2001).
Neidlinger also provides guidance concerning the assignment of
debt:
Debts incurred during the marriage are
traditionally assigned on the basis of such
factors as receipt of benefits and extent of
participation, whether the debt was incurred
to purchase assets designated as marital
property, whether the debt was necessary to
provide for the maintenance and support of
the family, and the economic circumstances of
the parties bearing on their respective
abilities to assume the indebtedness.
Id. (citations omitted).
In the matter presently before us, the trial court
found that Vickie used credit cards, an interest free loan from
her parents, and money borrowed from a line of credit to pay for
clothes, food, utilities, telephone, and medical bills.
This
debt was necessary since Ed did not pay maintenance from April
11, 1998, until January 2000.
In fact, Ed did not financially
assist Vickie with daily needs until ordered to pay maintenance.
Additionally, the trial court considered the fact that Ed is
better able to pay these debts since he was awarded the asset
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with the most consistent cash flow, his business.
Since the
court considered the factors propounded in Neidlinger, we believe
that the trial court did not abuse its discretion in the
assignment of debt.
Ed argues that Neidlinger is “on all fours” with the
case presently before us.
We disagree.
In Neidlinger, the
husband was paying maintenance and child support to his former
wife.
However, the wife incurred an additional $26,000.00 of
debt for her personal benefit and to send their child to an
expensive private school.
The Kentucky Supreme Court held that
the wife was responsible for the additional $26,000.00 in debt
because, if those debts were assigned to the husband, then she
would unilaterally increase the husband’s financial obligation.
Id. at 523.
Hence, under Neidlinger, Ed would have a valid
argument only if he had been ordered to pay monthly maintenance
and the household bills since the date of separation and Vickie
incurred these debts despite Ed’s financial assistance.
In this case, the record clearly shows that Vickie was
not receiving any maintenance from Ed when she incurred the
credit card, line of credit, and parental loan debts.
Further,
the record reflects that Ed refused to pay for any of Vickie’s
daily living expenses until ordered to do so by the trial court
in January 2000.
Thus, the trial court’s division of this debt
to Ed was proper because the record fails to establish that
Vickie created a marital debt despite Ed’s financial assistance.
Ed also argues that the trial court erred in awarding
Vickie maintenance.
Ed further argues that the trial court
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awarded Vickie an excessive amount in maintenance and failed to
properly define the duration of the award.
Again, we disagree.
The amount and duration of maintenance is within the
sound discretion of the trial court.
Gentry v. Gentry, Ky., 798
S.W.2d 928, 937 (1990); Combs v. Combs, Ky. App., 622 S.W.2d 679,
680 (1981); and Browning v. Browning, Ky. App., 551 S.W.2d 823
(1977).
It is also within the trial court’s discretion to
terminate a maintenance award upon the recipient’s death or
remarriage.
Russell, Ky. App., 878 S.W.2d 24, at 26(1994); Van
Bussum v. Van Bussum, Ky. App., 728 S.W.2d 538, 539 (1987).
In
awarding maintenance, the trial court must determine whether
Vickie lacked sufficient property to meet her reasonable needs
and is unable to support herself through appropriate employment
according to the standard of living established during the
marriage.
KRS 403.200; Casper v. Casper, Ky., 510 S.W.2d 253
(1974).
The record reveals that the trial court thoroughly
considered the circumstances of both parties prior to awarding
maintenance.
The trial court found that, unless it assigned the
entire marital estate to Vickie, she could not provide for her
reasonable needs.
Maintenance was necessary because Vickie would
have no income until she graduates from Northern Kentucky
University.
Even then, her income, a teaching salary, will be
approximately eighty-two percent lower than Ed’s income.
Vickie’s emotional and physical problems will also hinder her
ability to support herself.
With these facts, maintenance was
proper.
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In her cross-appeal, Vickie presents two arguments for
our consideration.
First, Vickie argues that the trial court
erred in assigning her approximately $73,000.00 in marital debt.
We reject this argument.
As previously discussed, there is no presumption that
marital debts must be divided equally or in the same proportions
as marital property.
Neidlinger, 52 S.W.3d at 523.
The trial
court does not abuse its discretion in distributing marital debts
upon dissolution when it divides the marital debts in light of
its distribution of marital assets.
Russell, 878 S.W.2d at 26.
In this case, Vickie received $425,577.88, or 52.7% in marital
assets, which included the marital home and half of the couple’s
pensions.
The trial court assigned Vickie $73,819.47 of the
marital debt.
Given the fact that Vickie obtained the bulk of
the marital estate and was responsible for approximately fortyfour percent of the marital debt, the trial court’s findings
support its distribution of the family’s marital debts.
Consequently, the trial court did not abuse its discretion.
Finally, Vickie argues that the trial court erred by
failing to award her attorney fees and costs.
We find this
assertion to be completely without merit.
KRS 403.220 authorizes a trial court to order one party
to a divorce action to pay a “reasonable amount” for the attorney
fees of the other party, but only if there exists a disparity in
the relative financial resources of the parties in favor of the
payor.
Sullivan v. Levin, Ky., 555 S.W.2d 261, 263 (1977),
overruled on other grounds, Hale v. Hale, Ky., 772 S.W.2d 628
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(1989).
But even if a disparity exists, whether to make such an
assignment and, if so, the amount to be assigned is entirely
within the discretion of the trial court.
Wilhoit v. Wilhoit,
Ky., 521 S.W.2d 512, 514 (1975).
In this case, Vickie received more of the marital
assets and equity, an award of maintenance, and was assigned
fewer debts.
Under these facts, it is clear that no disparity of
financial resources existed in Ed’s favor.
Thus, the trial court
properly refused to award Vickie attorney fees.
The judgment of the Kenton Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT/
CROSS-APPELLEE:
BRIEF FOR APPELLEE/
CROSS-APPELLANTS:
Nick Benson
BENSON AND SCHULTZ, P.S.C.
Walton, Kentucky
Michael L. Judy
JOHNSON, JUDY, TRUE &
GUARNIERI, LLP
Frankfort, Kentucky
Thomas R. Willenborg
Covington, Kentucky
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