YUNG LO v. SUSAN L. LO
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RENDERED: November 21, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001543-MR
YUNG LO
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 00-CI-01011
v.
SUSAN L. LO
APPELLEE
OPINION
AFFIRMING
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BEFORE:
BUCKINGHAM, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
This is an appeal from those portions of a
decree of dissolution dividing the parties’ marital property and
debts.
Upon review of the record, we deem appellant’s arguments
to be either unpreserved or without merit.
Thus, we affirm.
Appellant, Yung Lo, and appellee, Susan Lo, had been
married for twenty-four years when Susan initiated dissolution
proceedings on August 25, 2000.
years of age and Yung was 58.
At that time, Susan was 46
Two children were born of the
marriage who were both emancipated by the date of the decree.
During the marriage, the parties entered, individually and
jointly, into various business ventures.
Yung has a master’s
degree in science and worked during part of the marriage as a
structural engineer.
Susan was the primary caretaker of the
children and also worked in the parties’ businesses.
It is
important to note that the parties kept their finances separate
for a large part of the marriage.
Prior to 1991, the parties lived in Dallas, Texas in a
home still owned by the parties at the time of the dissolution.
In 1991, Susan moved to Kentucky and purchased a business, Ocean
Express, which was a wholesale seafood supplier.
this business in 1995 for $140,000.
Susan sold
In 1995, the parties
entered into a partnership with Susan’s sister and brother-inlaw entitled Lin & Lo, Inc. which operated a restaurant in
Florence, Kentucky called Ming Chinese Garden.
Susan invested
$110,000 from the sale of Ocean Express in Lin & Lo, Inc., while
Yung invested $50,000 in the partnership from the sale of a gas
station.
Yung managed the restaurant from 1995 through 1998.
In 1998, the parties separated and Yung moved back to Texas.
Starting in 1998, Susan managed the restaurant until it closed
in November of 2000 as a result of a federal investigation
regarding the employment of illegal aliens.
In August of 2001,
Lin & Lo, Inc. sold the restaurant for $1,400,000 which included
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a promissory note for $550,000.
After the payment of various
expenses, only $366,248 of the cash paid for the business, which
was kept in an escrow account by the partnership’s attorney,
remained at the time of the dissolution.
The sale of the
restaurant’s personalty yielded $305,000 of which only $90,000
remained in Susan’s bank account after the payment of other
outstanding debts of the restaurant, $35,000 in salary to
herself, $60,000 on a loan, and $80,000 to her sister and
brother-in-law.
After a full hearing on the contested property issues
in which Yung acted pro se, the family court judge entered its
findings of fact, conclusions of law, and decree on June 21,
2002.
The court found that the parties’ interests in Lin & Lo,
Inc./the Ming Chinese Garden restaurant were solely marital and,
thus, equally divided the $366,248 in proceeds from the sale of
the restaurant held in escrow, as well as the $550,000 in
accounts receivable from the promissory note.
In dividing the
remaining marital property, the court awarded the following to
Yung:
the parties’ Texas residence valued at $168,290; $5,422
in life insurance proceeds; his Thrift Savings money market
account valued at $45,497; his IRA valued at $10,425; another
money market account valued at $13,722; his three checking
accounts with balances totaling approximately $30,845; the 1997
Dodge Caravan; and all of the household furnishings.
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Of the
marital property, Susan was awarded:
the $78,707 in proceeds
from the sale of the Florence, Kentucky residence; the Redwood
City, California property valued at $30,000; the parties’ share
of the Tennessee joint venture property valued at $5,000; her
two IRAs with an approximate balance totaling $19,558; the
$35,000 in restaurant salary from Lin & Lo, Inc.; her checking
account balance of $95,000, the majority of which represented
the proceeds from the sale of the restaurant personalty; and the
2001 Nissan Pathfinder.
As to debts of the parties, the court
ordered that Susan would be responsible for any outstanding debt
resulting from the sale of Ocean Express and for the loan on the
Nissan Pathfinder.
The $50,000 debt to Yung’s family was
assigned solely to Yung.
From this division of marital property
and debt, Yung now appeals.
Yung’s first argument is that the lower court erred in
valuing the parties’ Texas, Tennessee, and California
properties.
Specifically, Yung maintains that it was error for
the court to allow Susan to testify as to the value of the
California and Tennessee properties and to rely on an assessment
in valuing the Texas property.
During the hearing in this case,
Yung never objected to Susan’s stated opinion regarding the
value of the California and Tennessee properties.
Nor did Yung
present any evidence of his own regarding the value of these
properties.
It is axiomatic that the trial court must be given
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an opportunity to rule on issues which are the subject of
alleged error.
(1985).
Kaplon v. Chase, Ky. App., 690 S.W.2d 761
Accordingly, Yung’s claim of error as to the valuation
of the California and Tennessee properties is unpreserved.
Similarly, Yung did not present any evidence that the
value of the Texas property was different than the assessed
value, nor did he object to the assessment or argue that the
court should not rely on the assessed value.
In fact, in his
pretrial memorandum, Yung conceded that the appraised value of
the Texas property was $168,000, while contending that the
property was in need of certain repairs.
Hence, this issue was
likewise unpreserved.
Yung next argues that the trial court erred in failing
to divide the net restaurant profits from 1998, 1999, and 2000.
Yung contends that there was evidence that Susan retained and
thereafter dissipated over $146,000 in restaurant profits from
those years when she managed the restaurant, yet the lower court
failed to make any finding on the issue and divide those monies.
In reviewing the record, we see that there was indeed evidence
that large sums of money passed through Susan’s bank account
during those years and that the trial court failed to make any
findings on the issue.
However, Yung never requested a specific
finding on the issue as required by CR 52.04 which provides:
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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 a written request for a
finding on that issue or by a motion
pursuant to Rule 52.02.
Hence, the alleged error was waived.
Whicker v. Whicker, Ky.
App., 711 S.W.2d 857 (1986).
Yung also complains that the lower court was
inconsistent in assessing the values of the parties’ bank
accounts and life insurance policies.
Yung cites in particular
the court’s valuation of Susan’s bank account relying on a
balance from the year 2002, while valuing his bank account based
on a balance from 2000.
As noted in Susan’s brief, the court
apparently relied on financial records from previous years to
value certain of Yung’s assets because he refused to provide
current records of those assets, despite various discovery
orders requiring him to do so.
Yung cannot now be heard to
complain on appeal that the court erred in failing to use a
common valuation date.
Yung next assigns error to the court’s failure to make
a finding on and include in the marital estate $15,314 that
Susan allegedly received from a Jackson National Insurance
policy she cashed in September of 2000.
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Once again, Yung failed
to request a specific finding on the issue as required by CR
52.04.
Hence, the alleged error was waived.
Finally, Yung contends that the trial court erred in
failing to divide the parties’ marital property and debt in
“just proportions” pursuant to KRS 403.190.
Yung maintains that
Susan was awarded substantially more property than he was as
evidenced by the fact that she was allowed to keep her jewelry,
the $146,000 in restaurant profits, and the California property,
while he was assigned sole responsibility for the $50,000 debt
to his family.
As to the jewelry, the trial court found that it
had been given to her by her family and thus it was properly
assigned to Susan as her nonmarital property.
403.190(2)(a).
KRS
As for the $146,000 in restaurant profits from
1998, 1999, and 2000, we have already addressed this issue and
found that Yung waived any error related thereto.
Relative to the $50,000 in family debt, Yung claims
that he borrowed said funds from his brother and sister after
the parties separated.
There is no statutory presumption that
debt incurred during the marriage is marital or that it be
divided equally or in the same proportion as the marital
property.
(2001).
Neidlinger v. Neidlinger, Ky., 52 S.W.3d 513, 522-523
A trial court’s decision regarding the assignment of
debt incurred during the marriage will not be reversed unless
the court abused its discretion.
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Id. at 523.
The only evidence
that Yung was required to pay back said monies was the testimony
of Yung.
Further, said funds were received and disposed of
solely by Yung after the parties separated and thus were not
used for the maintenance and support of the whole family.
See
Neidlinger, 52 S.W.3d at 523; Gipson v. Gipson, Ky. App., 702
S.W.2d 54 (1985).
Accordingly, we cannot say that the trial
court abused its discretion in assigning the entire debt to
Yung.
The division of marital property is likewise reviewed
under an abuse of discretion standard.
App., 564 S.W.2d 221 (1978).
Johnson v. Johnson, Ky.
KRS 403.190 does not mandate an
equal division of marital property, only that the property be
divided in “just proportions”.
663 S.W.2d 219 (1983).
McGowan v. McGowan, Ky. App.,
Given the parties’ complicated finances
and the limited evidence the trial court had before it, we
cannot say that the trial court abused its discretion in the
division of marital property.
For the reasons stated above, the judgment of the
Boone Family Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Voss
Edgewood, Kentucky
Michael Davidson
Suzanne Baumgardner
Lexington, Kentucky
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