MICHAEL K. JUSTICE v. HEIDI D. JUSTICE
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RENDERED:
SEPTEMBER 2, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000601-MR
MICHAEL K. JUSTICE
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
CIVIL ACTION NO. 01-FC-007898
HEIDI D. JUSTICE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND JOHNSON, JUDGES; HUDDLESTON, SENIOR JUDGE. 1
HUDDLESTON, SENIOR JUDGE:
Michael K. Justice and Heidi D.
Justice married on March 23, 2001.
Michael filed a petition
seeking dissolution of the marriage less than eight months
later, on November 2, 2001.
Michael and Heidi reconciled in
December 2001, but finally separated on August 20, 2002.
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
Although Michael has children from a prior marriage, no children
were born of his marriage to Heidi.
Following a two-day bench trial, Jefferson Family
Court equally divided property it determined to be marital and
ordered Michael to pay a portion of Heidi’s attorney’s fee.
On
appeal, Michael claims that the court erred when it determined
that Heidi had made an equal contribution to the acquisition of
marital property, that a bank account and certain tax refunds
were marital property, and that he should be required to pay a
portion of Heidi’s attorney’s fee.
Our review is circumscribed by procedural rules and
statutory and decisional law.
Kentucky Rules of Civil Procedure
(CR) 52.01 instructs us that findings of fact made by the family
court may not be set unless clearly erroneous, that is, not
supported by credible evidence.
And, we must give due regard to
the family court’s opportunity to judge the credibility of
witnesses.
When there is a conflict in the evidence, it is the
family court’s function, not ours, to decide what evidence to
believe. 2
Family courts are given broad discretion to fashion a
remedy in dissolution actions that is fair and is appropriate to
the particular case since no two dissolution cases are alike.
We may only reverse a family court decree when we perceive that
2
See Ghali v. Gahli, 596 S.W.2d 31 (Ky. App. 1980); Adkins v. Meade, 246
S.W.2d 980 (Ky. 1952).
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the court has abused its discretion. 3
This Court, as an
appellate court, exists to correct errors of law made by the
lower courts.
It is not our function to retry cases.
With
these perimeters to our review of the family court’s decree in
mind, we turn to the facts in this case.
Michael is a certified financial manager who owned an
American Express Financial Advisors franchise.
In the year he
and Heidi married, Michael earned some $480,000.00.
his income had declined to $256,000.00 per year.
By 2003,
Heidi was not
employed outside the home during the first eight months of the
marriage.
household.
However, she was responsible for maintaining the
She also helped Michael care for his daughter from a
prior marriage when the child visited on weekends, and, on a few
occasions, helped out in Michael’s office.
In late 2001, Heidi
began working as a registered nurse, a position which paid
$36,000.00 annually.
In its decree, the family court noted the huge
disparity between Michael’s income and Heidi’s income.
Nevertheless, the court determined that each party had
contributed equally to the marriage.
Therefore, it concluded
that Heidi was entitled to half of all the couple’s marital
property.
3
Cochran v. Cochran, 746 S.W.2d 568, 570 (Ky. App. 1988).
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Among the couple’s assets were three cash accounts:
one at Stock Yards Bank (SYB), another at American Express (AmX,
sometimes referred to as the “One” account), and a third at
Citizens Union Bank (CUB).
The court determined that the SYB
account, which at the date of separation had a balance of
$38,900.00, was non-marital and belonged to Michael.
The court
determined that the AmX account, which had a date of separation
balance of approximately $8,449.00, was also non-marital
property and belonged to Michael.
The court found that Michael
had failed to establish that the CUB account, which had a
separation date balance of $61,000.00, contained non-marital
funds, so it determined that the account was marital property.
Half of this account, $30,500.00, was awarded to Heidi.
Heidi and Michael filed joint 2002 federal and state
tax returns.
They were due a federal tax refund of $17,889.00,
and a state refund of $4,455.00, a total of $22,344.00.
Although Michael applied these refunds to his estimated tax for
2003, the family court found that these refunds were marital
property and awarded half, $11,172.00, to Heidi.
Michael owned a SEP individual retirement account and
a money purchase plan.
In 2001, he contributed a total of
$30,000.00 to these two accounts, and in 2002 he contributed
another $30,000.00.
The family court found that the
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contributions made in both 2001 and in 2002 were marital
property and awarded half, $30,000.00, to Heidi.
Finally, the family court determined that Michael had
far greater financial resources than Heidi, and it found that
Michael had caused difficulties for Heidi’s attorney in
obtaining his financial information (a finding Michael
disputes).
Based on these findings, the court ordered Michael
to pay $20,000.00 in legal fees directly to Heidi’s attorney of
record; and it permitted Heidi’s attorney to enforce this award
in his name sixty days following entry of the decree.
Michael moved the family court pursuant to CR 59.05 to
alter, amend or vacate the decree.
When the motion was denied,
he appealed pro se to this Court.
On appeal, Michael insists that the family court erred
when it found that Heidi contributed equally to the marriage and
when it awarded Heidi half the marital assets.
He contends that
his testimony, as well as the testimony of his witnesses, was
more credible than the evidence adduced on Heidi’s behalf.
Thus, he reasons, the court’s findings of fact were not
supported by the evidence.
As pointed out above, the family
court’s finding, if supported by credible evidence as in this
case, must be upheld, even in the face of conflicting evidence.
Michael has failed to show that the findings of fact made by the
family court are clearly erroneous.
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When the parties married, Michael claims, the SYB
account contained approximately $91,566.00 and the AmX account
contained approximately $27,059.00.
Although the family court
found that these two accounts were Michael’s non-marital
property, he insists that the court should have gone farther and
restored to him the amount of money that they contained at the
beginning of the marriage.
The SYB and the AmX accounts had an
aggregate balance of approximately $47,349.00 when the parties
finally separated.
Michael failed to trace to the satisfaction
of the family court the funds that he withdrew from these
accounts, so he was only entitled to the aggregate balance that
existed on the date of separation, the amount he was awarded.
Michael also insists that he produced sufficient
evidence at trial to show that the CUB account contained nonmarital funds.
According to Michael, he transferred $10,000.00
from the AmX account, which contained only non-marital funds, to
the CUB account.
So, he reasons, the CUB account contained at
least that much in non-marital funds.
Furthermore, he claims to
have received cash payments from non-marital stock options and
from a non-marital retirement fund totaling approximately
$46,000.00.
He says that he deposited approximately $30,000.00
of these proceeds into the CUB account.
Accordingly, he
insists, the CUB account contained approximately $40,000.00 of
non-marital funds that the family court failed to return to him.
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Michael has attached to his brief copies of financial
documents that he contends support his argument.
However, he
failed to include any citations to show where these documents
may be found in the record. 4
Nor do the copies contain
pagination from the trial record.
We must conclude that these
documents are outside the trial record, and we will not take
them into consideration in reaching our decision.
In short,
Michael failed to establish by clear and convincing evidence 5
that the CUB account, or any part thereof, was non-marital
property.
The contrary finding by the family court was not
clearly erroneous.
Michael insists that the family court erred when it
awarded Heidi half the contributions that he made in 2001 and
2002 to his retirement accounts.
According to Michael, any
contributions that he made for any specific year were in
actuality made for the prior tax year.
Accordingly, he asserts,
his 2001 contribution was in actuality for the 2000 tax year.
And since he and Heidi were not married in 2000, she was not
entitled to half of the 2001 contribution.
While for tax purposes the 2001 contribution may have
been considered to have been made in 2000, for the purposes of
4
See Ky. R. Civ. Proc (CR) 76.12(4)(iv).
Ky. Rev. Stat. (KRS) 403.190(3) provides that all property acquired during
marriage is presumed to be marital property. The presumption may be rebutted
by clear and convincing evidence. See Underwood v. Underwood, 836 S.W.2d 439,
441 (Ky. App. 1992), and Brosick v. Brosick, 974 S.W.2d 498, 502 (Ky. App.
1998).
5
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defining marital property this is irrelevant.
Michael made the
contribution in 2001 during the marriage, and, as earlier
pointed out, all property acquired during a marriage is presumed
to be marital property.
The family court correctly determined
that Michael failed to rebut this presumption.
Michael argues that the family court erred when it
found that the 2002 tax refunds were marital assets.
He insists
that the tax refunds were counted twice because he deposited the
tax refunds in the CUB account.
He contends that the family
court should have reduced the CUB accounts balance by $22,000.00
before it awarded half to Heidi.
This argument is without merit.
The tax refunds were
acquired during the marriage; thus, they are presumed to be
marital property.
Michael has not rebutted this presumption by
clear and convincing evidence, nor has he shown that the family
court abused its discretion in dividing the refunds.
Finally, Michael argues that the family court erred
when it found that he caused difficulties for Heidi’s attorney
in obtaining his financial information.
was always cooperative.
Michael insists that he
Thus, he says, the court erred when it
ordered him to pay $20,000.00 toward Heidi’s attorney’s fee.
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We
cannot address the merits of this issue since Michael failed to
name Heidi’s attorney as a party to this appeal. 6
Michael seeks in this appeal to re-litigate this
dissolution action de novo.
However, CR 52.01 makes it
abundantly clear that we are not to examine the evidence de
novo, but instead to review the family court’s findings of fact
applying the clearly erroneous standard.
The burden was on
Michael to show that the court’s findings of fact were erroneous
or that the court abused its discretion in making the awards
that it did.
Because he has not met his burden, the decree is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael K. Justice, pro se
Louisville, Kentucky
Stephen H. Miller
FORE, MILLER & SCHWARTZ
Louisville, Kentucky
6
Knott v. Crown Colony Farm, Inc., 865 S.W.2d 326 (Ky. 1993); Beaver v.
Beaver, 551 S.W.2d 23, 25 (Ky. App. 1977).
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