JACK HAROLD EALY v. DEBRA LOUISE EALY
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RENDERED:
SEPTEMBER 26, 2003; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001294-MR
JACK HAROLD EALY
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 00-CI-00094
DEBRA LOUISE EALY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, DYCHE, AND JOHNSON, JUDGES.
BUCKINGHAM, JUDGE.
Jack Harold Ealy appeals from the Bell
Circuit Court’s decree of dissolution of marriage that divided
the marital property and awarded maintenance to Debra Louise
Ealy in the amount of $3,000.00 per month for life.
Furthermore, the circuit court ordered Jack to pay all the
outstanding marital debts.
On appeal, Jack argues that the circuit court clearly
erred and abused its discretion when it awarded the majority of
the marital property to Debra and ordered him to pay all the
debts.
Further, he argues that maintenance was not appropriate,
but even if it were, the circuit court erred in awarding such a
high amount for such a long period of time.
Also, Jack argues
that the circuit court failed to make sufficient factual
findings to support its decision.
Finding that the circuit
court did not err or abuse it discretion, we affirm its
decision.
After nearly 28 years of marriage, Debra filed for
divorce in the Bell Circuit Court.
At Jack’s request, the
circuit court entered an interlocutory decree of dissolution,
ending the marriage while reserving the issues of maintenance
and division of the marital property and debt.
On May 16, 2002, the circuit court entered a final
decree of dissolution and awarded to Debra the marital
residence, including all the furniture, appliances, and
furnishings; an adjoining lot and building; one-half of the
Ealys’ prints; one-half of Jack’s firearms; and one-half of
Jack’s mutual fund account.
The circuit court awarded Jack his
ownership interest in Jackrock, LLC, a coal mining company; his
oil lamp collection; one-half of the prints; one-half of his
firearms, and all of his workshop equipment.
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The circuit court
ordered Jack to pay the mortgage on the marital home; the
current balances on all credit cards; the 2001 property taxes
for the home; all medical expenses up to May 16, 2002; Debra’s
legal fees; and to provide medical insurance for Debra.
Furthermore, the circuit court awarded Debra maintenance in the
amount of $3,000.00 per month for life with an offset for any
future social security benefits.
Being unsatisfied with the
circuit court’s judgment, Jack appealed to this court.
MARITAL PROPERTY AND MARITAL DEBT
Jack argues that the Bell Circuit Court erred and
abused its discretion regarding the division of the marital
property and the marital debts.
According to KRS1 403.190, when
dividing marital property, a court must consider all relevant
factors including:
(a) Contribution of each spouse to
acquisition of the marital property,
including contribution of a spouse as
homemaker; (b) Value of the 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, including the
desirability of awarding the family home or
the right to live therein for reasonable
periods to the spouse having custody of any
children.
KRS 403.190(1).
Jack argues that the circuit court failed to
properly consider these factors.
1
Kentucky Revised Statutes.
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According to Jack, he was the sole provider of
monetary support and the sole contributor to acquiring all the
marital property.
Although he admits that Debra’s contribution
as a full-time homemaker and mother had value, Jack insists that
the circuit court should have placed greater weight on his role
as the sole monetary provider and should have given him no less
than 50 percent of the marital property for his contribution to
the marriage.
According to Jack’s calculations, Debra received
property that was worth in excess of $144,610.85 while he only
received property worth somewhat over $84,240.85.
Thus, he
concludes Debra received property in excess of her contributions
to the marriage.
Furthermore, Jack complains that Debra
received almost all the marital property plus over $40,000.00 in
temporary maintenance, while he has been ordered to pay all the
marital debt and has been reduced to living in a small onebedroom apartment.
Jack also argues that the circuit court erred and
abused its discretion by requiring him to assume all the marital
debts, which total $87,124.22.
Jack argues that $8,947.20 of
this debt was incurred by Debra after they had separated.
Citing Neidlinger v. Neidlinger, Ky., 52 S.W.3d 513 (2001), and
Bodie v. Bodie, Ky. App., 590 S.W.2d 895 (1979), Jack argues
that any debt incurred by a party to a divorce is not presumed
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to be marital.
He asserts Debra incurred over $8,000.00 in debt
for her sole benefit after their separation and without his
knowledge; therefore, she should be responsible for at least
that amount.
Debra and Jack were married for over 27 years.
During
that time, Debra was a full-time housewife and mother who raised
the couple’s two daughters.
While it is true that the court
awarded the majority of the marital property to Debra, the
property awarded to her, such as the marital residence, does not
generate income.
However, the circuit court did award Jack his
full interest in Jackrock LLC, which generates millions of
dollars in coal sales each year.
Jack argues that “under no circumstances” would he be
entitled to less than 50 percent of the marital property.
disagree.
We
The statute does not require that the marital
property be divided equally; rather, it requires that it be
divided in “just proportions” after consideration of the
aforementioned factors.
KRS 403.190.
Considering the duration
of the marriage, Debra’s contribution as a homemaker, and the
fact that Debra was awarded property that did not generate
income like the business awarded to Jack, we cannot say that the
court abused its discretion in dividing the marital property.
See Johnson v. Johnson, Ky. App., 564 S.W.2d 221, 222 (1978)
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(“KRS 403.190 vests in the trial court wide discretion in the
division of marital property”).
As to the portion of the decree ordering Jack to pay
the marital debts, he particularly objects to paying the Sears
debt, which he states is $3,947.20, and the Community Trust Bank
debt, which he states is $5,000.
Noting that debts are not
presumed to be marital (see Neidlinger and Bodie, supra), he
argues that these debts were incurred by Debra after the parties
separated and should have been assigned to her.
Debra explains in her brief that the Sears debt was to
finish their kitchen after Jack left and that the Community
Trust Bank debt was a result of a $5,000 check that Jack left
her on the night of their separation.
She states that he told
her to use it to pay marital expenses and that she did.
Jack
does not dispute Debra’s statements in his reply brief.
Debra also states in her brief that the bulk of the
marital debt was incurred in connection with the start-up costs
of Jackrock LLC.
Further, she states that two debts incurred as
college loans for the children were voluntarily assumed by Jack.
He does not dispute either statement in his reply brief.
“[I]ssues pertaining to the assignment of debts
incurred during the marriage are reviewed under an abuse of
discretion standard.”
(2001).
Neidlinger, Ky., 52 S.W.3d 513, 523
As the Sears debt was incurred to improve marital
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property and the bank debt was incurred to pay marital debts, we
conclude that the court did not abuse its discretion in refusing
to assign them to Debra.
Likewise, in light of the respective
financial abilities of the parties, we find no abuse of
discretion in the assignment of all the parties’ indebtedness to
Jack.
MAINTENANCE
Jack argues that the circuit court erred when it
awarded maintenance to Debra.
Citing KRS 403.200, Jack argues
that a party to a divorce is entitled to maintenance only upon a
finding that the party lacks sufficient property, including any
marital property awarded, to provide for his or her reasonable
needs and the party is unable to support himself or herself
through appropriate employment.
Citing Perrine v. Christine,
Ky., 833 S.W.2d 825 (1992), Jack argues that Debra received
nearly $200,000.00 in marital property and temporary maintenance
and is debt free; thus, she has sufficient property to meet her
reasonable needs.
Due to her medical condition, the circuit court
concluded that Debra cannot work.
Jack admits that Debra
suffers from cystinuria, which causes her tremendous pain and
frequent hospitalization.
However, despite her medical
condition, he maintains that she is capable of working.
Jack
claims that other members of Debra’s family also suffer from
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cystinuria and that they work.
should be able to work, too.
Thus, he maintains that she
Also, he claims that Debra’s
treating physician, Dr. William S. Muse, Jr., never stated in
his deposition that she is disabled, handicapped, or medically
limited from working.
Jack argues that Debra raised two
children, kept their home, and even briefly ran a crafts store.
Thus, he argues that she is capable of working.
Jack also contends that even if the circuit court did
not err in awarding maintenance, it still erred in awarding such
a large amount for such a long duration.
According to KRS
403.200, when determining the appropriateness, the amount, and
the duration of maintenance, a trial court must consider the
following factors:
(a) The financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his ability
to meet his needs independently, including
the extent to which a provision for support
of a child living with the party includes a
sum for that party as custodian; (b) The
time necessary to acquire sufficient
education or training to enable the party
seeking maintenance to find appropriate
employment; (c) The standard of living
established during the marriage; (d) The
duration of the marriage; (e) The age, and
the physical and emotional condition of the
spouse seeking maintenance; and (f) The
ability of the spouse from whom maintenance
is sought to meet his needs while meeting
those of the spouse seeking maintenance.
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KRS 403.200(2)(a)-(f).
Jack argues that since Debra is capable
of working, the duration should have been no longer than needed
for Debra to obtain the necessary training to get a job.
Jack
insists that he and Debra had a standard middle-class marriage,
and, since she has no debt, he does not believe that her
standard of living has decreased from that which was established
during the marriage.
Furthermore, Debra has no emotional
problems, and, according to Jack, her medical condition does not
preclude her from working.
Pointing to his 2000 federal tax return, Jack argues
that he grosses only $4,873.75 per month; however, the circuit
court ordered him to pay both maintenance and the outstanding
marital debt.
In addition, Jack claims that his monthly
expenses are $3,212.00.
Jack argues that he cannot pay
maintenance, the marital debt, and his own monthly expenses and
still have enough money to meet his reasonable needs.
Jack cites Weldon v. Weldon, Ky. App., 957 S.W.2d 283
(1997), in which this court held that the trial court abused its
discretion when it awarded an ex-wife maintenance in the amount
of $1,200.00 per month for life.
Jack argues that the circuit
court has ordered him to pay twice as much maintenance as the
ex-husband in Weldon; therefore, he concludes that the circuit
court abused it discretion when it awarded Debra maintenance for
life.
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Debra owned and operated a craft store for six months
during the 1990’s, which she was forced to close due to her
medical condition.
Debra’s treating physician, Dr. Muse
testified that Debra’s medical condition, cystinuria, causes her
to frequently and repeatedly form and pass kidney stones.
This
causes Debra tremendous amounts of pain and requires her to be
frequently hospitalized.
Dr. Muse opined that this severely
limits her ability to find and retain work.
Also, before Jack became a partner in Jackrock, LLC,
he worked as a mine superintendent and earned approximately
$100,000.00 per year.
Furthermore, after he and Debra had
separated, Jack also entered into a partnership in another coal
mining company, Kentucky Darby.
Given these facts, the Bell
Circuit Court did not abuse its discretion in making the award.
Furthermore, we hold that the circuit court did not
err when it awarded Debra maintenance for life.
Maintenance is
presumed to be for life unless rebutted or otherwise ordered by
the circuit court.
680 (1981).
Combs v. Combs, Ky. App., 622 S.W.2d 679,
The circuit court found that Debra was not
employable due to her medical condition.
Jack failed to rebut
this finding.
SUFFICIENT FINDINGS OF FACT
Jack cites Hollon v. Hollon, Ky., 623 S.W.2d 898
(1981), and argues that a trial court must set forth sufficient
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findings of fact to support its decision regarding the division
of marital property and debt and the awarding of maintenance.
He insists that the circuit court made only one factual finding,
that the marriage lasted 28 years.
According to Jack, the
circuit court failed to make factual findings regarding: 1)
either his or Debra’s contribution to the marriage, 2) the value
of the marital property, 3) either his or Debra’s economic
circumstances, 4) Debra’s financial resources, 5) the time
necessary for Debra to acquire sufficient education or training
to enable her to find work, and 6) his ability to meet his needs
while paying maintenance to Debra.
However, according to CR 52.04:
A final judgment shall not be reversed or
remanded because of the failure of the trial
court to make a finding of fact on an issue
essential to the judgment unless such
failure is brought to the attention of the
trial court by written request for a finding
on that issue or by a motion pursuant to
Rule 52.02.
Jack failed to request the circuit court for specific findings
of fact; thus, he waived this issue.
See Underwood v.
Underwood, Ky. App., 836 S.W.2d 439, 445 (1992); Cherry v.
Cherry, Ky., 634 S.W.2d 423, 425 (1982); Whicker v. Whicker, Ky.
App., 711 S.W.2d 857, 860 (1986).2
2
It appears to us that the reasoning in the Hollon case has limited
application to the particular fact situation where basic statutory
requirements were not met. The Kentucky Supreme Court appeared to so
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CONCLUSION
The circuit court’s factual findings were supported by
substantial evidence.
It neither erred nor abused its
discretion regarding either marital property, marital debts, or
maintenance.
Also, since Jack failed to file a motion for more
specific findings of fact, he waived that issue for appeal.
Thus, we affirm the Bell Circuit Court’s May 16, 2002, decree of
dissolution.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Otis Doan, Jr.
Harlan, Kentucky
Neil Ward
Pineville, Kentucky
limit Hollon in Cherry, and the cases of Underwood and Whicker
followed this rationale.
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