DENA R. YOUNG v. TIMOTHY W. YOUNG
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RENDERED:
SEPTEMBER 30, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2004-CA-002144-MR
DENA R. YOUNG
v.
APPELLANT
APPEAL FROM GREEN CIRCUIT COURT
HONORABLE ALLAN RAY BERTRAM, JUDGE
ACTION NO. 04-CI-00016
TIMOTHY W. YOUNG
APPELLEE
OPINION AFFIRMING IN PART
AND REMANDING IN PART
** ** ** ** ** ** ** **
BEFORE: DYCHE AND SCHRODER, JUDGES; ROSENBLUM, SENIOR JUDGE. 1
ROSENBLUM, SENIOR JUDGE:
Dena R. Young appeals from the
Findings of Fact, Conclusions of Law, and Decree of Dissolution
of Marriage entered by the Green Circuit Court on October 8,
2004.
Dena alleges that the circuit court erred in its
distribution of a 1994 Chevrolet truck and in its failure to
distribute a Chevrolet Beretta; in its calculation of appellee
Timothy Young’s child support obligation; by failing to award
1
Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
her maintenance; and in its distribution of a personal injury
award awarded to Timothy during the marriage.
For the reasons
stated below, we affirm in part and remand in part.
Dena and Timothy were married on April 13, 1999.
One
child was born during the marriage, Stanley Wayne Young, born
November 1, 1999.
On January 21, 2004, Timothy filed a petition
for dissolution of the marriage.
A hearing on the outstanding issues relating to the
divorce was held on August 10, 2004.
On October 8, 2004, the
circuit court entered its Findings of Fact, Conclusions of Law,
and Decree.
This appeal followed.
We begin with a general statement of our standard of
review.
Under CR 2 52.01, in an action tried without a jury,
"[f]indings 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.
A
factual finding is not clearly erroneous if it is supported by
substantial evidence.
Owens-Corning Fiberglas Corp. v.
Golightly, 976 S.W.2d 409, 414 (Ky. 1998);
Uninsured Employers'
Fund v. Garland, 805 S.W.2d 116, 117 (Ky. 1991).
Substantial
evidence is evidence, when taken alone or in light of all the
evidence, which has sufficient probative value to induce
conviction in the mind of a reasonable person. Golightly, 976
2
Kentucky Rules of Civil Procedure.
- 2 -
S.W.2d at 414;
2002).
novo.
Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.App.
An appellate court, however, reviews legal issues de
See, e.g., Carroll v. Meredith, 59 S.W.3d 484, 489
(Ky.App. 2001); Hunter v. Hunter, 127 S.W.3d 656 (Ky.App. 2003)
First, Dena contends that the trial court erred by
determining that a 1994 Chevrolet truck was owned by Timothy’s
sister, Peach Rainwater, rather than marital property purchased
and owned by Timothy and subject to distribution.
Dena also
contends that the circuit court failed to provide for the
distribution of a Chevrolet Beretta automobile.
KRS 403.190 provides, in relevant part, as follows:
(1) In a proceeding for dissolution of the
marriage or for legal separation, or in
a proceeding for disposition of
property following dissolution of the
marriage by a court which lacked
personal jurisdiction over the absent
spouse or lacked jurisdiction to
dispose of the property, the court
shall assign each spouse's property to
him. It also shall divide the marital
property without regard to marital
misconduct in just proportions
considering 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
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desirability of awarding the family home
or the right to live therein for
reasonable periods to the spouse having
custody of any children.
(2) For the purpose of this chapter,
"marital property" means all property
acquired by either spouse subsequent to
the marriage except:
(a) Property acquired by gift, bequest,
devise, or descent during the marriage
and the income derived therefrom unless
there are significant activities of
either spouse which contributed to the
increase in value of said property and
the income earned therefrom;
(b) Property acquired in exchange for
property acquired before the marriage or
in exchange for property acquired by
gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a
decree of legal separation;
(d) Property excluded by valid agreement of
the parties; and
(e) The increase in value of property
acquired before the marriage to the
extent that such increase did not result
from the efforts of the parties during
marriage.
(3) All property acquired by either spouse
after the marriage and before a decree
of legal separation is presumed to be
marital property, regardless of whether
title is held individually or by the
spouses in some form of co-ownership
such as joint tenancy, tenancy in
common, tenancy by the entirety, and
community property. The presumption of
marital property is overcome by a
showing that the property was acquired
by a method listed in subsection (2) of
this section.
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“It is well settled that issues pertaining to the
division of marital property upon divorce are reviewed under an
abuse of discretion standard.
An abuse of discretion exists
when the reviewing court is firmly convinced that a mistake has
been made.
A [] court abuses its discretion when it relies on
clearly erroneous findings of fact, or when it improperly
applies the law or uses an[] erroneous legal standard.”
Overstreet v. Overstreet, 144 S.W.3d 834, 838 (Ky.App. 2003)
(citations and internal quotes omitted).
In its October 8, 2004, Findings of Fact, Conclusions
of Law, and Decree of Dissolution of Marriage, the trial court
made the following findings of fact and conclusions of law
regarding the Chevrolet truck:
FINDINGS OF FACT:
. . . .
15. That the 1994 Chevrolet truck, 1500
Series, Vehicle Identification Number
2GCEK19K9R1119127 is currently titled in the
name of the Petitioner’s sister, Peach
Rainwater.
16. That the testimony of the Petitioner
and Peach Rainwater is that said vehicle was
purchased for Peach Rainwater, and that the
Petitioner loaned her money to purchase said
truck.
17. That there has been no evidence
submitted by the Respondent in this action
to overcome the presumption that Peach
Rainwater is the owner of the 1994 Chevrolet
truck set forth hereinabove.
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. . . .
IN ACCORDANCE WITH THE FOREGOING FINDINGS OF
FACT, THE COURT REACHES THE FOLLOWING
CONLUSIONS OF LAW:
. . . .
10. That the 1994 truck is titled in the
name of Peach Rainwater, and based upon the
testimony of the Petitioner and Peach
Rainwater, along with no persuasive evidence
being presented by the Respondent to the
contrary, this Court finds that Peach
Rainwater is the owner of the 1994 truck,
and that said vehicle is not a marital
asset.
In support of her position that the Chevrolet truck
was purchased, and is owned, by Timothy, Dena refers us to the
deposition of Alvin Spoon of Spoon Auto Sales, the lot where the
truck was purchased.
In his deposition, Spoon testified that
Timothy told him that “he was going through a divorce and wanted
to put the truck in his sister’s name.”
It is undisputed that
the truck was placed in Rainwater’s name.
First, the testimony of Spoon is ambiguous.
The
testimony does not demonstrate that the purchase of the truck
was a fraudulent transaction in which Timothy was to be the
actual owner of the truck but was surreptitiously titling it in
his sister’s name in order to defraud his wife.
The testimony
could also be interpreted as Timothy having told Spoon that he
was going through a divorce, and, as an unrelated matter, the
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truck was going to be placed in his sister’s name because the
truck was to be hers and he was lending her the money to buy it.
Further, Timothy and Peach Rainwater testified that
Timothy loaned Rainwater the money to purchase the truck, that
their intent was that Rainwater was to be the owner of the
truck, and that the truck was titled in Rainwater’s name for
that reason.
To the extent this testimony conflicts with
Spoon’s testimony, it was for the circuit court, not this court,
to resolve the discrepancy.
The testimony of Timothy and
Rainwater is substantial evidence supporting the decision of the
circuit court.
We accordingly affirm its determination that the
vehicle is the property of Rainwater and is not a marital asset. 3
Dena also argues that the circuit court failed to
distribute a Chevrolet Berretta automobile.
The trial court
made no findings of fact regarding this vehicle and Timothy does
not mention it in his brief.
Dena provides no information other
than that there was such an automobile owned by the parties.
Without the circuit court’s findings concerning this vehicle we
are unable to undertake a meaningful review of this alleged
marital asset.
We accordingly remand for additional findings
concerning the Berretta automobile.
3
Upon remand, in the event
We note that the loan Timothy made to Rainwater could be construed as
marital property in the nature of an account receivable. However, Dena does
not argue this and the issue is not properly before us.
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there is an undistributed Chevrolet Beretta, the circuit court
should make a distribution in accordance with KRS 403.190.
Next, Dena, who was designated as primary residential
custodian of the parties’ child, contends that the circuit court
erroneously calculated Timothy’s child support obligation.
With regard to this issue the circuit court made the
following findings of fact and conclusions of law:
FINDINGS OF FACT:
. . . .
7. That the Petitioner is currently
employed for Jerry Hall and earns the sum of
$6.00 an hour and works an average of 40
hours a week.
. . . .
8. That the Petitioner has worked various
jobs during the course of his life,
including employment at Cox Interior.
IN ACCORDANCE WITH THE FOREGOING FINDINGS OF
FACT, THE COURT REACHES THE FOLLOWING
CONCLUSIONS OF LAW:
. . . .
4. That the Petitioner shall pay child
support to the Respondent in the amount of
$181.00 per month, and shall continue to pay
the sum of $20.00 per month toward his child
support arrearage, until such time as said
arrearage ahs been paid in full.
The trial court based its child support award upon the
premise that Timothy earned $6.00 per hour and worked 40 hours
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per week for earnings of $240.00 per hour.
No earnings were
imputed to Dena.
Dena contends that the circuit court’s award was
erroneous because in a deposition given in November 2002 in a
personal injury case which arose as a result of a car wreck,
Timothy testified that he was then earning $9.50 per hour.
At the hearing in this matter Timothy testified that
his current salary was $6.00 per hour.
Moreover, Timothy
submitted as an exhibit a pay stub for the period ending July
30, 2004, which reflects a wage of $6.00 per hour.
As noted
above, findings of fact by the circuit court should not be
disturbed unless they are shown to be clearly erroneous.
CR
52.01; McKinney v. McKinney 813 S.W.2d 828, 829 (Ky.App. 1991).
Again, it was for the circuit court to resolve any
conflicting evidence in the record concerning Timothy’s current
wage.
As noted by Dena, Timothy may have been puffing his
income in the personal injury action in order to secure a higher
lost wages award. 4
However, Timothy’s testimony that he
currently earns $6.00 per hour was corroborated by his pay stub
presented as an exhibit at the hearing (See circuit court
record, p. 73).
Together, this testimony and documentation is
4
Dena seems to argue that if Timothy did, in fact, puff his wages in the
personal injury case, then he should be penalized by way of an increased
child support obligation in the present case. We disagree with this view.
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substantial evidence supporting the circuit court’s finding that
Timothy earns $6.00 per hour.
Next, Dena contends that the circuit court erred by
failing to award her maintenance.
KRS 403.200 provides as follows:
(1) In a proceeding for dissolution of
marriage or legal separation, or a
proceeding for maintenance following
dissolution of a marriage by a court
which lacked personal jurisdiction over
maintenance order for either spouse only
if it finds that the spouse seeking
maintenance:
(a) Lacks sufficient property, including
marital property apportioned to him, to
provide for his reasonable needs; and
(b) Is unable to support himself through
appropriate employment or is the
custodian of a child whose condition or
circumstances make it appropriate that
the custodian not be required to seek
employment outside the home.
(2) The maintenance
amounts and for
the court deems
considering all
including:
order shall be in such
such periods of time as
just, and after
relevant 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;
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(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.
Under this statute, the trial court has dual
responsibilities:
one, to make relevant findings of fact; and
two, to exercise its discretion in making a determination on
maintenance in light of those facts.
In order to reverse the
trial court's decision, a reviewing court must find either that
the findings of fact are clearly erroneous or that the trial
court has abused its discretion.
Weldon v. Weldon, 957 S.W.2d
283, 285 (Ky.App. 1997).
With regard to its decision not to award maintenance
the circuit court made the following findings:
FINDINGS OF FACT:
. . . .
7. That the Petitioner is currently
employed for Jerry Hall and earns the sum of
$6.00 an hour and works an average of 40
hours a week.
8. That the Respondent is unemployed at
this time.
9. That the Petitioner has worked various
jobs during the course of his life,
including employment at Cox Interior.
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10. That the Respondent has worked for
Amazon.com, Cox Interior, and other similar
jobs during the course of her life.
11. The Petitioner and Respondent have
similar employment histories and each has
the capacity to make approximately the same
amount of money at this time based upon
their education and work history.
. . . .
IN ACCORDANCE WITH THE FOREGOING FINDINGS OF
FACT, THE COURT REACHES THE FOLLOWING
CONCLUSIONS OF LAW:
. . . .
9. That because the Petitioner has a gross
income of $240.00 per week at this time, and
because both the Petitioner and the
Respondent have similar work histories,
similar educations, and similar prospects
for employment in the future, and for that
reason this Court finds that maintenance is
not appropriate in the above styled action.
While the findings of fact made by the circuit court
are supported by substantial evidence, nevertheless, these
findings are insufficient to be dispositive of Dena’s request
for maintenance.
Specifically, the circuit court failed to make
findings concerning the threshold elements contained in KRS
403.200(1).
Accordingly, we remand for findings on the issues of
whether (1) Dena has sufficient property, including marital
property apportioned to her, to provide for her reasonable
needs; and (2) whether Dena is able to support herself through
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appropriate employment or whether their child’s condition or
circumstances make it appropriate that Dena not be required to
seek employment outside the home.
After making the requisite
findings under KRS 403.200(1), the circuit court should
reconsider Dena’s request for maintenance in light of the
additional findings.
Finally, Dena contends that the circuit court erred by
failing to allot to her an amount related to the $16,416.31
personal injury award Timothy received in December 2003.
In its October 8, 2004, Findings of Fact, Conclusions
of Law, and Decree, the circuit court made the following
findings of fact and conclusions of law related to this issue:
FINDINGS OF FACT:
. . . .
23. That in the Answers to Interrogatories
that were submitted in the personal injury
claim, the Petitioner stated under oath that
he did not have any permanent impairment in
his ability to earn money, and stated that
the maximum lost wages that he was claiming
was the sum of $5,320.00
24. That the Petitioner has testified and
this Court finds that the proceeds received
by the Petitioner in the amount of
$16,416.31 could have been spent for various
marital expenses, repayment of debts, and
other miscellaneous items.
. . . .
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IN ACCORDANCE WITH THE FOREGOING FINDINGS OF
FACT, THE COURT REACHES THE FOLLOWING
CONCLUSIONS OF LAW:
. . . .
14. That the insurance settlement received
by the Petitioner in December, 2003, was
primarily for pain and suffering incurred by
the Petitioner, which is a non-marital
asset, and the remainder of the funds which
could have arguably been considered marital
as compensation for lost wages have been
spent, and for that reason the Petitioner is
not required to reimburse the Respondent for
any money received by him for his personal
injury settlement.
When a personal injury occurs during the marriage, to
the extent that the injury award for loss of earnings and
permanent impairment of ability to earn money is applicable to
the years while the marriage existed, it is marital property,
and to the extent that the award can be prorated to the
remaining years of life expectancy following the dissolution of
marriage, it is nonmarital property.
However, money recovered
as damages for pain and suffering for an injury which occurred
during the marriage is not marital property; the injured party
has simply exchanged property acquired before the marriage,
i.e., good health, free from pain, for money received as
compensation for the loss.
Weakley v. Weakley, 731 S.W.2d 243,
244-245 (Ky. 1987).
The circuit court’s determination that the majority of
the award received by Timothy was for pain and suffering and,
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therefore, nonmarital, is supported by substantial evidence.
The total award in the personal injury action was for
$16,416.31, whereas Timothy claimed lost wages of only
$5,320.00.
Also supported by substantial evidence is the
circuit court’s conclusion that the award has been spent and
there is no monetary asset upon which to base a division.
AS
previously noted (see fn 3, supra.), arguably, the loan to
Rainwater was from the personal injury award and amounts to an
account receivable which may, in part, be subject to division.
However, Dena does not raise this as an issue, and we will
accordingly not discuss this theory on the merits.
For the foregoing reasons the judgment of the Green
Circuit Court is affirmed in part and remanded in part.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffery L. Eastham
Greensburg, Kentucky
Samuel Todd Spalding
Lebanon, Kentucky
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