BRENDA C. TRAYNER; MICHAEL L. JUDY v. LYNN A. TRAYNER
Annotate this Case
Download PDF
RENDERED: JUNE 6, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-000963-MR
BRENDA C. TRAYNER;
MICHAEL L. JUDY
APPELLANT
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 96-CI-00184
v.
LYNN A. TRAYNER
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
COMBS, McANULTY, and PAISLEY, Judges.
COMBS, JUDGE.
Brenda Trayner appeals from the Decree of
Dissolution and Final Order of the Boyle Circuit Court entered
on February 6, 2002.
She contests three aspects of the order:
(1) the finding that she dissipated marital funds; (2) the
denial of her request for permanent maintenance; and (3) an
award of only $1,500 to reimburse her for costs and attorney’s
fees totaling approximately $60,000.
The appellee, Lynn Trayer,
has not filed a brief in this Court.
After reviewing the
record, we conclude that the trial court erred in failing to
award maintenance to the appellant.
We reverse that portion of
the judgment and remand this case for an appropriate award.
In
all other respects, we affirm.
The parties were married in 1969, and they separated
in April of 1998.
During their thirty-year marriage, they
accumulated assets worth nearly $1,000,000 and enjoyed a
comfortable life-style.
The primary source of Lynn’s income
came from Trayner Welding, Inc., a business that was wholly
owned by the parties.
During the last twelve years of the
marriage, Brenda performed bookkeeping services for the business
for which she received a salary of $300 per week.
The parties
had additional income from a farming operation and from
investment dividends.
Their gross income for the last three
years of the marriage can be summarized as follows:
Year
Lynn’s income
Brenda’s income
1996
$ 106,590
$ 19,840
1997
140,189
20,190
1998
121,700
6,022
Brenda’s income for 1998 was greatly reduced because
her employment with Trayner Welding was terminated upon her
separation from Lynn.
Three years intervened between the
separation and the final hearing in January 2001.
time, Brenda was not employed on a full-time basis.
During that
-2-
She worked
part time as a sales clerk during the 1998 holiday season, but
she was unable to find suitable full-time employment.
Accordingly, she was awarded maintenance pendente lite in the
sum of $1,250 per month.
However, she had to make frequent
motions in the trial court to collect her award.
In March 1999, the parties agreed to the equal
division of the following portion of their assets:
retirement
and pension funds, mutual funds, stocks, the cash surrender
value of a life insurance policy, and a vacation fund.
However,
they could not agree on the division of the realty or any of the
remaining items of personalty.
Therefore, the trial court
ordered that the remaining marital property be sold at auction.
The auction resulted in approximately $260,000 in
proceeds.
Lynn purchased $219,000 worth of property
representing:
the marital residence, household furnishings,
business equipment, and a fully furnished recreational vehicle.
Brenda purchased about $40,000 worth of personalty.
In order to
equalize the distribution of the property, the trial court
awarded Brenda $200,000 of the $260,000 proceeds of the sale.
The remainder was placed in escrow.
Subsequently, the trial
court addressed complaints by both parties that the other had
failed to bring numerous items of personal property to the
auction to be sold.
The legal battle was long and acrimonious.
-3-
In November 2000 and in January 2001, the domestic
relations commissioner conducted a hearing on the remaining
issues.
Among the several claims he considered were Lynn’s
contentions: (1) that Brenda failed to account for the proceeds
of a dividend check for $65,000 received by the parties in March
1998; (2) that she failed to account for two certificates of
deposit (CDs) for $30,000 each that were owned jointly prior to
the separation; and (3) that she dissipated the marital estate
in the amount of several thousand dollars by purchasing jewelry,
furs, and designer clothes immediately prior to the separation.
The parties also presented proof as to Brenda’s claim for
permanent maintenance and for her costs and attorney’s fees.
Instead of filing a formal report containing his
recommendations to the trial court, the Commissioner announced
his rulings at the end of the hearing and filed his notes into
the record.
He found that Brenda failed to prove that she was
unable to find suitable employment or that she had insufficient
funds to meet her reasonable needs.
Thus, he concluded that
Brenda was not entitled either to maintenance or to
reimbursement for her attorney’s fees and costs.
He also found
that Brenda had taken marital funds upon leaving the marital
home and that she had dissipated marital funds immediately prior
to the separation.
Finding $72,000 to be approximately one-half
of the total amount secreted or dissipated, he deducted that
-4-
amount from her share of the remaining marital property being
held in escrow.
The Commissioner allowed Lynn to raise issues at the
final hearing that were not included on the agenda -- including
Lynn’s claim that Brenda had appropriated the $60,000 in CDs.
In order to give Brenda the opportunity to document her
counterclaim that the funds had been spent on marital
enterprises, the Commissioner allowed an additional sixty days
for offering proof.
Nonetheless, the Commissioner did not
change his recommendations, and both parties took exceptions to
several of his rulings.
The trial court affirmed the
Commissioner’s rulings and incorporated them into its final
order with one exception:
attorney’s fees.
it awarded Brenda $1,500 for her
This appeal followed.
As a preliminary point, we note that Lynn failed to
file a brief.
Procedurally, we would be justified in imposing
sanctions against Lynn as provided in CR1 76.12(8)(c), as
follows:
(i)
1
accept the appellant’s statement of
the facts and issues as correct; (ii)
reverse the judgment if appellant’s
brief reasonably appears to sustain
such action; or (iii) regard the
appellee’s failure as a confession of
error and reverse the judgment
without considering the merits of the
case.
Kentucky Rules of Civil Procedure.
-5-
Since Brenda has not invoked the rule to seek a penalty, we
shall avoid either extreme of summarily reversing the trial
court or accepting in toto Brenda’s version of the facts.
See,
Scott v. Scott, Ky.App., 80 S.W.3d 447 (2002), and Whicker v.
Whicker, Ky.App., 711 S.W.2d 857 (1986).
Instead, we have
reviewed the record in its entirety and have elected to address
the issues on their merits.
Brenda first argues that the trial court abused its
discretion is charging against her share of the marital estate
the sum of $72,000 -- one-half of the amount that the
Commissioner determined she diverted from the estate for her own
use.
Our review of the record reveals no error on this point.
Brenda did not take any exceptions to the
Commissioner’s finding that she took $15,000 from a dividend
check in the amount of $25,000 received by the parties in April
1998.
Thus, the trial court’s deduction of $7,500 (her share)
was not preserved for our review.
We also find no error with respect to the remaining
amounts secreted -- the two CDs worth $60,000 and the $65,000
dividend check received by the parties in March 1998.
Brenda
acknowledged taking the $65,000 check and putting the funds in
her own name.
She testified that she put $20,000 in their joint
checking account from which the parties paid their 1997 income
taxes.
The Commissioner gave her credit for that amount.
-6-
She
also testified that she paid $5,000 in cash toward a debt owed
to a relative.
The Commissioner declined to give her any credit
for that amount because she had no receipt or other
documentation to verify her claim.
She testified that she used
the remaining amount to pay attorney’s fees and costs incurred
in the dissolution.
Thus, of the $45,000 remaining after
payment of taxes, the court deducted $22,625 from her share of
the marital estate.
We find no abuse of discretion in holding
Brenda accountable for these funds and in charging her share of
the escrow amount accordingly.
We also find no error with respect to the court’s
treatment of the two CDs.
As with the check for $65,000, there
is no dispute that Brenda cashed the CDs and placed the $60,000
in her own name.
She attempted to show that she put $20,000 of
the proceeds in a joint checking account and that she had spent
the remaining $40,000 to build and furnish a new sunroom in the
marital home earlier in the year.
However, she offered no
documentation to support these contentions.
We have examined
the record (including the documentation Brenda filed after the
hearing), and we are not persuaded that any portions of these
funds were spent for a marital purpose.
Finally, with respect to the property issues, we find
no error in the trial court’s determination that Brenda
dissipated $22,520 –- one-half the amount which it found she
-7-
spent on clothes, jewelry, and furs during March and April of
1998.
Brenda distinguishes her behavior from that of the
dissipating spouse in arguing that she did not gamble the money
away in Las Vegas or spend it on a cruise.
Barringer, Ky., 514 S.W.2d 114 (1974)].
[Barringer v.
However, dissipation
broadly encompasses spending funds for any non-marital purpose
in contemplation of divorce with the intent to deprive a spouse
of marital property.
Robinette v. Robinette, Ky.App., 736
S.W.2d 351, 354 (1987).
The evidence supports the court’s finding that
Brenda’s expenditures constituted a dissipation of the marital
estate.
Her purchases were all made within a month or two of
the separation.
She admitted that she went on a spending spree
after she learned that her husband was having an affair with a
woman in Ohio and at a time when she was contemplating leaving
the marriage.
Parenthetically, she did not select items that
arguably could be used or enjoyed by both of the parties.
Instead, her purchases virtually illustrated Robinette’s
definition of “dissipation.”
As a set-off, Brenda alluded to several lavish
expenditures made by Lynn shortly before the separation.
The
court properly credited Brenda for those items as to which she
offered proof.
Brenda presented no evidence to support her
allegation that Lynn had expended funds in order to maintain the
-8-
extra-marital affair.
We conclude that the findings of the
trial court are supported by the record, and we find no abuse of
the court’s discretion in charging $72,000 against Brenda’s
share of the estate.
See, Perrine v. Christine, Ky., 833 S.W.2d
825, (1982).
Brenda also argues that the trial court erred in
failing to award permanent maintenance to her.
The court wholly
accepted the Commissioner’s unsubstantiated finding that Brenda
failed to establish her entitlement to maintenance.
It does not
appear that either the Commissioner or the trial court conducted
a careful analysis of the factors as set forth at KRS2 403.200
prior to ruling on the issue of maintenance.
We recognize that
the statute leaves “[t]he amount and duration of maintenance . .
. within the sound discretion of the trial court.”
Russell, Ky.App., 878 S.W.2d 24, 26 (1994).
Russell v.
We cannot disturb a
determination of the court with respect to maintenance unless
the discretion is “absolutely abused.”
728 S.W.2d 542, 543 (1987).
Platt v. Platt, Ky.App.,
Nevertheless, we are compelled to
agree with the appellant that the court did indeed abuse its
discretion in this case with respect to the issue of
maintenance.
This case presents a classic situation with respect to
an award of maintenance.
2
Combs v. Combs, Ky.App., 622 S.W.2d
Kentucky Revised Statutes.
-9-
679 (1981).
The marriage was long term and entailed a high
standard of living for both parties.
Lynn owns a successful
business; historically, he has earned a six-figure income.
In
contrast, Brenda, who was fifty-two years of age at the time of
the hearing, is both unemployed and essentially unemployable.
She presented evidence that she suffers from a series of medical
conditions, including fibromyalagia, depression, anxiety, and
venous varicosities.
Even if the trial court found that these
medical conditions would not prevent her from working, Brenda
would not qualify for anything other than an entry-level
position.
skills.
She has a high school education with no specialized
Other than keeping the books for the family business,
she had no significant work-related experience.
The Commissioner emphasized that Brenda received
$425,000 in cash; he believed that to be an amount that would
suffice to meet her needs.
However, Brenda testified that she
had to use most of that money to purchase and furnish a home and
to meet her expenses during the period of three years between
the parties’ separation and the final hearing —- expenses that
far exceeded her temporary maintenance award of $1,250 per
month.
In addition, she incurred costs involved in the
dissolution proceeding.
Brenda testified that she had only
$50,000 remaining from the division of marital property.
Consequently, she is unable to meet her reasonable needs –-
-10-
needs which include hundreds of dollars each month in health
insurance premiums, co-pays, and prescription drugs alone. She
must support these expenses on a minimum wage salary and the
interest from her investments.
Lynn did not provide evidence of his current income -nor did he file any statement of his current living expenses.
Other than testifying that he “couldn’t afford” to pay
maintenance, he presented no substantive evidence of his alleged
inability to do so.
On remand, we direct the trial court to
enter an award guided by a consideration of all the relevant
factors set forth at KRS 403.200, justifying its final award
with appropriate findings in light of that statute.
Brenda argues that the trial court erred in failing to
make a greater award for her attorney’s fees and costs.
She
emphasizes that because of Lynn’s vexatious and harassing
behavior, she was required to make several motions before the
court to compel him to pay the temporary maintenance as ordered.
Brenda paid her attorney more than $40,000.
She spent
an additional sum in excess of $15,000 on experts and
appraisers.
The record reveals the parties to be equally
intransigent, contentious, and litigious.
They both made heavy
demands on the trial court, requiring its resolution of numerous
matters of lesser import.
Their credibility toward each other
and the court was frequently strained.
-11-
The allocation of attorney’s fees is entirely within
the discretion of the court.
Moss v. Moss, Ky.App., 639 S.W.2d
370, 373 (1982); Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975).
We are not persuaded that the trial court abused its discretion.
The judgment of the Boyle Circuit Court is reversed
with respect to the maintenance issue alone, and the case is
remanded with directions that the trial court enter an
appropriate award in favor of the appellant.
In all other
respects, the judgment is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
Michael L. Judy
Frankfort, Kentucky
No brief filed for appellee
-12-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
