SANDRA GAIL MAYES v. THOMAS MIKE MAYES
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RENDERED: MARCH 10, 2006; 2:00
NOT TO BE PUBLISHED
P.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001708-MR
SANDRA GAIL MAYES
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE REED RHORER, JUDGE
CIVIL ACTION NO. 02-CI-01298
THOMAS MIKE MAYES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM AND McANULTY, JUDGES; PAISLEY, SENIOR JUDGE.1
PAISLEY, SENIOR JUDGE:
Sandra Gail Mayes appeals from the
findings of fact, conclusions of law and decree of dissolution
of marriage entered by the Franklin Circuit Court, Family
Division, on June 8, 2004.
The decree dissolved Sandra’s
marriage to Thomas Mike Mayes.
Sandra claims that the circuit
court failed properly to designate and award the marital
property, erred in not allowing her to present certain medical
1
Senior Judge Lewis G. Paisley sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Ky. Rev. Stat. (KRS) 21.580.
evidence, in denying her periodic or permanent maintenance and
in failing to award the full amount of her attorney’s fees,
physicians’ fees, deposition and court costs.
Sandra and Mike met in Cookeville, Tennessee, where
Sandra was employed as a bookkeeper, and Mike as an
administrator at the Cookeville Regional Medical Center.
were previously divorced.
Both
Mike moved into Sandra’s residence
shortly before they were married on June 14, 1997.
Then, in
1998, Mike was discharged from his position at the medical
center.
He accepted a position as a physician recruiter at
Sumner Regional Medical Center in Gallatin, Tennessee.
sold her premarital residence in Cookeville.
Sandra
The net proceeds
of the sale, $56,053.88, were used by the couple to buy a house
and farm in Gallatin, where they lived until October 2000 when
Mike was discharged from the Sumner Regional Medical Center.
Sandra worked throughout this period.
In January 2001, Mike was
hired to serve as the executive director of the Kentucky
Pharmacists’ Association.
The couple sold the Gallatin property
and moved to Franklin County in Kentucky, where they rented a
house.
Sandra worked at a furniture company, and then at the
Franklin County Board of Education as an accounts payable clerk.
The couple separated on September 12, 2002.
Sandra filed a
petition for dissolution of marriage on September 22, 2002.
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The
couple did not own any real property at the time of the
separation.
There was a considerable disparity between the incomes
of the parties at the time of the trial.
Sandra was earning an
average annual salary of approximately $25,000.00, whereas
Mike’s annual salary as executive director of the Kentucky
Pharmacists’ Association was approximately $100,000.00.
additionally receiving various retirement benefits.2
He was
We note
also, however, that Mike was sixty-five years old at time of the
trial, and suffered from various health problems.
He testified
that he was probably going to retire at end of 2004.
It appears
from the record that Mike’s retirement income would consist of
approximately $65,000.00: approximately $52,000 from two
retirement accounts and $13,000.00 from Social Security.
In November, 2002, Mike was ordered to pay Sandra
$1,000 per month in temporary maintenance.
In the period
immediately following the filing of the petition for
dissolution, Sandra made unauthorized withdrawals from the
couple’s joint accounts in the amount of $22,468.47.
She also
incurred debt on the couple’s credit cards during the pendency
of the dissolution action totaling approximately $13,000.00.
2
There is some dispute about the amount of the retirement benefits actually
being drawn by Mike at the time of the trial. Sandra claims they totaled
approximately $65,000.00 annually, including payments totaling $42,000.00
annually from the Texoma Medical Center Employees’ Pension Plan. In his
brief, Mike maintains that there is no evidence that at the time of the trial
he was receiving these benefits from the Texoma Plan.
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Sandra has various health problems.
She suffers from
genital herpes, which she claims she contracted from Mike.
She
also suffers from fibromyalgia, anxiety, depression and a heart
murmur.
Extensive evidence of the parties’ financial status
and Sandra’s medical condition was provided to the trial court.
After conducting a hearing, the court entered its findings of
fact, conclusions of law and decree of dissolution of marriage.
The court restored to Mike the bulk of two substantial accounts
that were deemed to be non-marital property, and declined to
order any additional maintenance payments to Sandra.
This
appeal by Sandra followed.
Our standard of review on appeal is as follows:
CR
52.01 states in part that “[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.”
CR 52.01.
“A finding of fact is not clearly
erroneous if it is supported by substantial evidence.”
Asente, 110 S.W.3d 336 (Ky. 2003).
Moore v.
Legal issues will be
reviewed de novo and conclusions of law will not be set aside
absent an abuse of discretion.
777 (Ky.App. 2002).
Sherfey v. Sherfey, 74 S.W.3d
An abuse of discretion “implies arbitrary
action or capricious disposition under the circumstances, at
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least an unreasonable and unfair decision.”
Sherfey, 74 s.W.3d
at 783 (citation omitted).
Sandra’s first argument on appeal concerns the court’s
characterization of two substantial accounts, the Hartford
Annuity and the Pershing Account, as non-marital property.
Mike owned the Hartford Annuity at the time of the
marriage.
The value of the account on the date of the marriage
was $186,770.58.
No deposits or withdrawals were made to or
from the account during the course of the marriage.
The value
of the account at the time of the hearing was $251,457.70.
The trial court concluded that the entire value of the
account, including the increase in its value during the course
of the marriage, was non-marital property.
The court reasoned
that the increase in the value of the account during the
marriage was not due to the joint efforts of Sandra and Mike.
Sandra argues that she nonetheless should have
received some portion of the account, although she does not
explain why the court’s determination that the property is nonmarital is erroneous.
KRS 403.190 states in relevant part that
marital property “[m]eans all property acquired by either spouse
subsequent to the marriage except: . . . 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
the marriage.”
KRS 403.190(2)(e).
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Clearly, the initial sum in
the account at the time of marriage was Mike’s non-marital
property.
Sandra claims that Mike played an active role during
the marriage in the investment and handling of the account.
However, Mike’s financial planner, Charles A. Sewell, testified
in his deposition that there were no contributions or add-ons to
that annuity during the marriage.
“[A] mere increase in value
of non-marital property remains non-marital property.”
Daniels
v. Daniels, 726 S.W.2d 705, 706 (Ky.App. 1986) overruled on
other grounds by Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky.
2001).
The trial court did not therefore abuse its discretion
in concluding that the entire amount of the Hartford Annuity is
Mike’s non-marital property.
At the time of the marriage, Mike also owned the
Pershing Account, which contained $122,072.67.
On February 5,
1998, he deposited $200,000.00 into the account.
He received
this sum as part of a severance package following the
termination of his employment at the Cookeville medical center.
On February 6, 1998, Mike changed the account to a joint account
with Sandra with survivorship.
No other deposits were made into
the account during the marriage.
Between 1998 and 2000, over
$200,000.00 was withdrawn from the account to pay for joint
marital living expenses and renovations to the couple’s home.
The value of the account is now $157,960.67.
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The court found that the Pershing Account is Mike’s
non-marital property in the amount of $122,072.67, the value of
the account at the time of the marriage.
The court further
determined that the increase in the value of the account
($35,888.00) is marital property because the account increased
in value during the marriage at least in part because of the
deposit of $200,000.00 in marital funds.
The trial court evenly
divided this marital property between Sandra and Mike.
Sandra
therefore received $17,944.00.
Sandra argues that the trial court erred in finding
that only $35,888.00 of the Pershing Account constituted marital
property, contending that there is no basis in the record or the
law for such a finding, and that there is no proof that the
funds withdrawn from the Pershing Account were either from the
marital or the non-marital side.
But Sandra has not indicated
any evidence that the remaining $122,072.67 could possibly
constitute marital property, since she herself concedes that the
account contained that amount of Mike’s non-marital property at
the time of the marriage.
Sandra insists nonetheless that the court abused its
discretion in not dividing the entire account equally between
the parties, especially in light of the fact that she was not
awarded the sum realized from the sale of her non-marital
residence.
The trial court found that Sandra sold her pre-
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marital residence for $56,053.88 on June 24, 1998.
The proceeds
were deposited into the couple’s joint checking account.
Within
two weeks, over $58,000.00 was withdrawn from the account,
leaving a balance in the account of approximately $38,000.00.
These findings of fact are supported by substantial evidence in
the record.
The trial court further noted that Sandra had
testified that the down payment on the home and farm the couple
bought in Gallatin, Tennessee, was made from the proceeds of her
home.
The court concluded, however, that those proceeds were
not otherwise adequately traced to any specific assets currently
owned by the parties.
In KRS 403.190(2)(b), marital property is
defined, in part, as “all property acquired
by either spouse subsequent to the marriage
except: ··· (b) Property acquired in
exchange for property acquired before the
marriage or in exchange for property
acquired by gift, bequest, devise or
descent.” Subsection (3) of KRS 403.190
creates a presumption that all property
acquired during the marriage is marital
property, but permits this presumption to be
overcome by proof that the property was
acquired as in subsection (2) of the
statute. Numerous decisions of this Court
and the Court of Appeals have construed this
statutory provision and from these decisions
there has emerged the concept of “tracing”
although this term is nowhere found in the
statute.
Chenault v. Chenault, 799 S.W.2d 575, 578 (Ky. 1990).
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Although we recognize that the Kentucky Supreme Court in
Chenault relaxed some of “the draconian requirements laid down
in earlier cases,” it nonetheless reiterated that Kentucky will
“adhere to the general requirement that nonmarital assets be
traced into assets owned at the time of dissolution[.]” Id. at
579.
There was no evidence offered to trace the assets beyond
Sandra’s own testimony that the money from the sale of her
premarital residence had been used as a down payment on the
Gallatin farm.
That farm had been sold by the time the
dissolution proceedings were instituted, and no evidence was
offered to trace the assets any farther.
The court did not
therefore abuse its discretion in concluding that Sandra was not
entitled to a larger share of the Pershing Account to make up
for the proceeds of the sale of her house.
The next contested asset consists of several quarter
horses.
Mike owned one horse at the time of the marriage, and
the couple purchased seven more during the course of the
marriage.
The horses have an estimated value of $16,450.00.
Mike testified that the market for such horses is very weak at
the present time and it was unlikely they could get that much if
they were sold.
Mike has control over the horses, and he spent
$3,315.00 in 2002 and $11,705.00 in 2003 for their food and
board.
He is currently paying approximately $1,200.00 per month
for upkeep of the horses.
The court determined that the seven
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horses acquired by the parties during the marriage were marital
property.
The court further concluded that Mike had expended
amounts of money in excess of the total value of the horses on
their upkeep while the dissolution action was pending.
Sandra
argues that Mike had the opportunity to manage the use of the
horses; to enjoy their benefits; and negotiate for their sale
and the purchase of other horses during the pendency of the
action.
This appears to be a purely speculative contention.
Substantial evidence in the record supports the court’s
findings, and it did not abuse its discretion in awarding the
horses to Mike.
Sandra also makes the general argument that the
disparity between what she received and what Mike received in
the property division is so great as to be erroneous on its
face.
She claims that her award totaled $16,000.00 as opposed
to Mike’s $291,000.00.
We note that if the Hartford Annuity and
the non-marital portion of the Pershing Account are subtracted
from Mike’s total award, we are left with approximately
$12,000.00.
Furthermore, as the trial court noted, Sandra
withdrew large sums of money from the marital accounts during
the pendency of the action, and also received $18,000 in
maintenance payments during that period.
The property division
was not therefore so unjust as to constitute an abuse of
discretion.
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The second argument is that the trial court erred in
excluding testimony pertaining to Sandra’s alleged contraction
of genital herpes from Mike.
Sandra states that during pre-
trial discovery, Mike would not admit that he gave Sandra the
disease or that she had contracted it during their marriage.
She further states that she attempted to introduce “testimony on
other documentary evidence at trial that Mike admitted orally
and in writing that her condition arose during the marriage and
was caused by him.”
Appellant’s brief at 10.
There is no
citation to the record in the appellant’s brief.
Mike has
argued that this issue was not preserved for our review;
certainly, the “appellant fails to cite with reference to the
record showing whether the issue was properly preserved for
review and, if so, in what manner.” Forester v. Forester, 979
S.W.2d 928, 931 (Ky.App. 1998).
More significantly, we fail to see how evidence that
Mike gave Sandra genital herpes could be a factor in determining
whether she was entitled to a higher amount of maintenance.
Sandra maintains that it was necessary to have this information
introduced, since otherwise the court would be left with the
unanswered question as to when her disabling condition arose.
The record shows that the court did admit the depositions of
three physicians and a counselor who testified regarding
Sandra’s health and mental condition.
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Dr. Tony Dotson
specifically testified that the onset of the genital herpes
occurred in November 1997 (well after Sandra’s marriage to Mike)
and described her condition and symptoms fully.
He also opined
that Sandra had contracted the disease from Mike.
The court was
therefore made fully aware that Sandra may have contracted
herpes from Mike during their marriage.
The court concluded
that Sandra is “presently in relatively poor health by reason of
her genital herpes, fibromyalgia, heart murmur, depression, and
sleep apnea. In spite of the condition of her health Ms. Mayes
testified that she has missed only three or four days of work
because of her health in the last 18 months.
And none of her
doctors place any restrictions on her activities because of her
health problems.”
We do not see how further evidence of Mike’s
alleged culpability in this matter could permissibly have
influenced the court’s decision.
Sandra next argues that the court abused its
discretion in failing to award her any future maintenance.
KRS 403.200 states in relevant part as follows:
(1) In a proceeding for dissolution of
marriage or legal separation . . . the court
may grant a 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
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(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.
Sandra contends that she is entitled to receive future
maintenance because her marriage to Mike thrust her into
financial instability, with no home and insufficient income to
meet her needs.
She maintains that if she had not married Mike,
her home in Cookeville, Tennessee, would have been paid off by
now, and she would have kept her good job there.
In her present
situation, she does not own her home, and her monthly expenses
of $3,748.94 exceed her net monthly income of $1,589.64.
Sandra
has provided evidence that she requires expensive topical
medicine and counseling to treat her herpes; she argues that the
court failed to recognize this in refusing to grant her any
further maintenance.
The trial court concluded as follows on the issue of
maintenance:
By reason of the marital personalty which
has been awarded to Ms. Mayes herein, and by
reason of the joint debts that Mr. Mayes
paid during the pendency of this action, and
by reason of the numerous unilateral
withdrawals Ms. Mayes made from marital
funds during the pendency of this action,
and by reason of the substantial payments of
temporary maintenance that Mr. Mayes made to
Ms. Mayes during the pendency of this
action, the Court declines to order that
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additional maintenance shall be awarded to
Ms. Mayes.
The decision to award maintenance is within the sound
discretion of the trial court.
We may disturb that ruling only
if the trial court abused its discretion or made its ruling
based on clearly erroneous findings of fact.
107 S.W.3d 222, 224 (Ky. 2003).
Powell v. Powell,
Although Sandra has correctly
stated that her current income is considerably lower than
Mike’s, and has also stated that her expenses are far greater
than her current income, she fails to explain how she was able
to manage before her marriage, when presumably her expenses were
similar and she was also paying a mortgage on her house.
The
trial court noted Mike’s testimony as to his health problems and
his plans potentially to retire at the end of 2004.
In the
light of this testimony, the decision to award maintenance could
not be based on the assumption that Mike would continue to work
as executive director of the Kentucky Pharmacists’ Association
into the indefinite future.
The record indicates that such a
retirement would have the effect of reducing Mike’s income by
more than half, to approximately $65,000.00, thereby
considerably narrowing the gap between his and Sandra’s incomes.
The trial court was also clearly influenced in its decision by
Sandra’s unauthorized withdrawal of large sums of money from
various marital accounts during the pendency of the action.
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We
cannot say that the trial court abused its discretion in
refusing to award Sandra any further maintenance, especially in
light of the relatively short duration of the marriage.
Finally, Sandra argues that the trial court erred in
failing to award her the full amount of her fees and costs.
KRS 403.220 allows a court to award attorney’s fees in
a divorce action.
It states in relevant part as follows:
The court from time to time after
considering the financial resources of both
parties may order a party to pay a
reasonable amount for the cost to the other
party of maintaining or defending any
proceeding under this chapter and for
attorney’s fees, including sums for legal
services rendered and costs incurred prior
to the commencement of the proceeding or
after entry of judgment.
Although our case law supports an award of fees if
there is a gross imbalance or significant inequality in the
financial resources of the parties, see Sexton v. Sexton, 125
S.W.3d 258, 273 (Ky. 2004); Beckner v. Beckner, 903 S.W.2d 528,
530 (Ky.App. 1995), the ultimate determination remains within
the broad discretion of the court.
[E]ven if a disparity exists, whether to
make such an assignment and, if so, the
amount to be assigned is within the
discretion of the trial judge. There is
nothing mandatory about it.
Thus, a trial
court’s ruling on attorney fees is subject
to review only for an abuse of discretion.
The test for abuse of discretion is whether
the trial judge’s decision was arbitrary,
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unreasonable, unfair, or unsupported by
sound legal principles.
Id. at 272 (citations omitted).
The total sum of Sandra’s expenses, which include her
legal fees, court costs, and deposition fees, is $16,052.70.
The court ordered Mike to reimburse her in the amount of
$5,000.00.
The court also noted that Mike had already paid
deposition fees and related costs in the amount of $3,082.60,
pursuant to an earlier order.
The trial court also found that
Sandra had paid some of her attorney’s fees with marital funds.
Under these circumstances, we do not believe that it was
unreasonable or unfair of the court to order Mike to pay only a
portion of Sandra’s fees.
For the foregoing reasons, the findings of fact,
conclusions of law and decree of dissolution of marriage entered
by the Franklin Circuit Court, Family Division, are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Judy
Frankfort, Kentucky
James Dean Liebman
Frankfort, Kentucky
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