VINCENT J. GIBNEY v. LENA G. SANDLIN
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RENDERED: October 31, 2003; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001704-MR
VINCENT J. GIBNEY
APPELLANT
APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA BRAMLAGE, JUDGE
ACTION NO. 97-CI-01100
v.
LENA G. SANDLIN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI AND PAISLEY, JUDGES.
GUIDUGLI, JUDGE.
Vincent J. Gibney (hereinafter “Vincent”)
appeals from the Boone Family Court’s order entered July 10,
2002, which determined that he must pay his ex-wife, Lena G.
Sandlin (hereinafter “Lena”) the sum of $55,481.50 as her
interest in a jointly held SEP/IRA account and denied his motion
to alter, amend or vacate the court’s order of November 7, 2001,
which refused to hold Lena in contempt of court.
We affirm.
The parties hereto began cohabitating in July, 1985,
and were married on April 7, 1990.
They separated on December
1, 1996, and a decree of dissolution was entered on January 15,
1998.
The court reserved on all other issues pending before the
court.
Thereafter, numerous attempts were made to resolve the
remaining issues dealing with the parties’ real estate and
personal property.
Settlement of the various property issues
was accomplished in piece-meal fashion.
Eventually, the
division of the majority of the assets was accomplished and
Vincent takes issue with the Family Court’s disposition of a
ruby ring and the date upon which the jointly held SEP/IRA
account is to be valued and distributed.
We shall address each
issue separately and develop additional facts as necessary.
We will address the issue of the ruby ring first.
In
distributing the personal property, the Family Court awarded the
ring to Vincent.
Testimony reveals that the ring was given to
Vincent by a girlfriend when he was a 15-year-old high school
sophomore.
Vincent claimed it to be an expensive heirloom ring.1
The ring had been re-set by a local jeweler in the early 1990’s
and two diamonds were added to the setting.
Upon separation in
November, 1996, Lena maintained possession of the ring until
July, 2001, when she turned the ring over to her attorney who
1
Although the appraised value was suppressed, Vincent’s exhibit number 1,
filed with the Family Court on November 6, 2001, states an appraised value of
$34,500.00.
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subsequently gave it to Vincent’s attorney.
When Vincent
finally received the ring, he claimed it did not contain the
original ruby or the newly added diamonds.
As such, he had the
ring re-appraised and had it confirmed that the ring now
contained a synthetic ruby and synthetic diamonds.
When Lena
did not respond adequately to his demands, Vincent filed a
motion to hold her in contempt for violating the court’s order
for failing to return his ruby ring.
A hearing was held on November 5, 2001, in which both
parties testified and the deposition of a local jeweler was
admitted.
Based upon the evidence presented, the Family Court
concluded that Vincent had not presented sufficient evidence
that “when he left the ring with (Lena) there was a genuine ruby
in the ring or that (Lena) was the person who switched the
synthetic ruby for the genuine ruby.”
Based upon Vincent’s lack
of evidence, the court denied the motion to hold Lena in
contempt of court.
On appeal, Vincent argues that the Family Court erred
in placing the burden of proof and the risk of non-persuasion on
him and not on Lena.
We disagree.
At the hearing, there was
conflicting testimony as to the quality of the stones in the
ring at different periods of time.
Based on evidence presented,
the trial court determined that it had not been proven that Lena
did not return the ring in the condition it was when she took
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possession upon separation in 1996.
five years after separation.
The hearing was held some
Testimony revealed the ring had
been materially modified prior to the separation.
Based upon
the significant time lapse and lack of specific evidence
concerning the condition of the ring upon separation, the Family
Court could not determine whether Lena had altered the ring.
In
that she had returned the ruby ring as ordered, the court had no
alternative but to dismiss the contempt motion.
“Findings of
fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.”
CR 52.01.
See also
Blakeman v. Schneider, Ky., 864 S.W.2d 903, 905 (1993); M.P.S.
v. Cabinet for Human Resources, Ky. App., 979 S.W.2d 114 (1998).
The Family Court did not err in its holdings or place the burden
of proof improperly upon Vincent.
the same ruby ring?
The issue then became, was it
Conflicting evidence was presented and the
Family Court made detailed findings based upon the contradictory
evidence.
The findings were based upon substantial evidence and
not clearly erroneous.
While another court may have ruled
differently based upon the same facts, upon review we cannot say
that the Boone Family Court erred in its determination to deny
the motion for contempt.
The second issue raised by Vincent concerns the date
upon which the SEP/IRA account should be valued and divided.
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Vincent contends that the account should be valued on the date
the account is actually disbursed.
The Family Court ordered the
account be valued on the date of entry of the decree
dissolution.
1998.
The date of the divorce decree was January 15,
The first motion relative to the SEP/IRA account was
filed by Lena on May 8, 2000, in which she requested “[c]opies
of all financial statements concerning the SEP IRA Fund.”
Thereafter, in Lena’s pre-trial memorandum filed February 28,
2001, she requested that the funds be divided equally.
In the
joint pre-trial memorandum filed March 27, 2001, Vincent
accepted Lena’s position as to the SEP/IRA account.
In fact,
attached to the joint memorandum as Plaintiff’s [Vincent’s]
exhibit 6 is a summary of the account in question.
In this
exhibit, Vincent suggests a distribution to Lena of the SEP/IRA
account based upon its value as to the date of the last
statement prior to the dissolution.
Vincent used this amount
($111,029.00) despite the fact that the last figure given in the
account summary listed the value of the account at $126,878 as
of June 30, 2000.
Following the final hearing before the Family Court on
April 23, 2001, the court entered its findings of fact and
conclusions of law on May 29, 2001.
the court made the following finding:
As to the SEP/IRA account,
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24. The Husband opened a SEP account
with Kemper in 1983. The parties have
stipulated to Petitioner’s Exhibit 6 which
shows that in 1985 when the parties began
cohabitating the account had a balance of
$66.00 non-marital money. The balance of
the SEP account when the Decree of
Dissolution was entered was approximately
$111,029.00.
Based upon this finding, the court concluded that:
7.
The Wife will receive one-half (1/2) of
the SEP account from the date the parties
began cohabitation, July 1985, to the Decree
of Dissolution, January 15, 1998 minus the
Husband’s $66.00 non-marital money. Unwed
cohabitants may claim an interest in
property acquired during the relationship if
the existence of a joint venture or
partnership is evident. Glidewell v.
Glidewell, Ky. App., 790 S.W.2d 925 (1990).
8.
It is the opinion of this Court, after
considering that the Wife received
$100,000.00 advancement from the proceeds of
the sale of the marital home as well as
approximately $55,000 from the SEP account,
and personality and vehicles, that each
party shall pay his or her own attorneys’
fees. Hollingsworth v. Hollingsworth, Ky.
App., 798 S.W.2d 145 (1990).
Following the entry of the May 29, 2001, order, the
parties could not agree on the amount to be divided in the
SEP/IRA account, since by then the funds had decreased
significantly in value.
As such, Lena was forced to file a
motion seeking division of the account based upon the December,
1997 value.
Eventually the matter came on for another hearing
before the Family Court on July 9, 2002.
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Reviewing its previous
orders and the arguments of the parties, the Family Court
entered its July 10, 2002, order which required Vincent to pay
$55,481.50 to Lena.
Specifically, the court held:
1.
The Court grants the Respondent’s
Motion to release her one half share of the
SEP account as of the date of entry of the
Decree of Dissolution. This amount was
determined to be $111,029.00 minus $66.00,
which was the Petitioner’s non-marital
interest. The Respondent’s one half share
is $55,481.50.
Vincent appeals from that order.
On appeal, Vincent contends that the court’s order
dividing the SEP/IRA account is unclear, incorrect and unjust.
We disagree.
While we agree with Vincent that the unnecessary
and lengthy time lapse between the entry of the decree of
dissolution and the order dividing the jointly held account
resulted in “fluctua[tion] due to market condition,” we do not
agree that the result is unfair or incorrect.
Vincent contents
that if the value had increased (as opposed to decreased) then
Lena would be arguing that it wasn’t fair.
To avoid this
situation, he contends that each party should receive his/her
percentage share (in this case 51% and 49%) on the day the funds
are actually divided.
He cites no statutory authority or case
law for his position and we have not uncovered any that supports
his position.
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In Clark v. Clark, Ky. App., 782 S.W.2d 56, 62 (1990),
this Court held that the correct date for such evaluation is the
See also KRS 403.190; Armstrong
date of the dissolution decree.
v. Armstrong, Ky. App., 34 S.W3d 83 (2000); Stallings v.
Stallings, Ky., 606 S.W.2d 163 (1980).
We believe the ruling
set forth above is applicable to the facts herein.
It is clear
that the law considers marital property to be that which is
accumulated by the parties during the marriage.
Upon
dissolution, the parties start anew as single persons and the
individual efforts are rewarded accordingly.
In this case, the
Family Court evaluated the marital assets as of the date of
dissolution and divided them accordingly.
It is obvious that
the court took into consideration the numerous assets and
liabilities which the parties possessed on that date and
attempted to make an equitable distribution thereof.
The value
of the SEP/IRA on that date was part of the overall evaluation
and distribution of the parties’ pre-marital, marital and postmarital assets and liabilities.
The court made sufficient
findings as to factors set forth in KRS 403.190 (Disposition of
property) and those findings are supported by substantial
evidence found in the record.
As such, we will not disturb the
court’s findings on this matter.
We defer to the sound
discretion of the trial court in its ruling in that we do not
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believe it abused its discretion in dividing the SEP/IRA account
as of the date of dissolution.
For the foregoing reasons, we affirm the orders
entered by the Boone Family Court dealing with the ruby ring and
the SEP/IRA account.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Beverly R. Storm
Covington, KY
N. Jeffrey Blankenship
Florence, KY
Michael L. Williams
Southgate, KY
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