TAMARA LOUISE HALE v. MICHAEL ALLAN HALE
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RENDERED:
MARCH 17, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2004-CA-002546-MR
TAMARA LOUISE HALE
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 02-CI-00339
v.
MICHAEL ALLAN HALE
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
McANULTY, SCHRODER, AND VANMETER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order awarding the
husband $31,757.49 for damage to the marital residence the court
found the wife was responsible for while she was in possession
of the property.
We reject the wife’s argument that the husband
failed to meet his burden of proof that she was the cause of the
damage.
However, upon review of the record, we adjudge that the
trial court used an erroneous before-damage valuation of the
property in determining that the husband was entitled to his
full repair costs.
Accordingly, we vacate the award and remand
for recalculation of damages using the $98,000 before-damage
valuation of the property.
Appellee, Michael Hale, filed for divorce from
appellant, Tamara Hale, on April 3, 2002.
At the hearing set
for December 16, 2003, the attorneys for both parties announced
that the parties had reached an agreement resolving all property
matters and thus there was no need for a hearing.
It is
undisputed that a separation agreement existed on December 16,
2003.
However the agreement was not signed on that date.
On
February 6, 2004, Michael filed a motion to enforce the
settlement agreement, stating that Tamara had refused to sign
the agreement that the parties had reached on the date of the
scheduled hearing.
On February 10, 2004, the court entered an
order scheduling a hearing on the motion for February 17, 2004.
Subsequently, on March 12, 2004, the court reset the hearing
date for April 20, 2004.
On April 27, 2004, the separation
agreement was filed in the record showing that the agreement had
been signed by both parties on April 20, 2004.
It is undisputed
that the agreement signed by the parties on April 20, 2004, was
the same agreement that existed on December 16, 2003.
The parties’ separation agreement provided, among
other things, that Michael would get the marital residence and
would pay Tamara $71,000 for her interest in the marital
residence and his retirement benefits.
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The agreement also set
forth specific terms of the transfer of the property.
The
agreement stated that Tamara would have exclusive possession and
use of the property until the closing transaction on the
property, which could not occur any earlier than February 2,
2004.
The agreement also provided that Tamara would not damage,
destroy, or impair the property while in her possession.
It was undisputed that when Michael took possession of
the marital residence on February 3, 2004, after Tamara had
moved out, there was assorted damage to the property.
The
damage included gouges in the hardwood floors, burns in the
carpet, chipped and broken bathroom tiles, a cracked and broken
toilet bowl, a cracked vanity top, a split door jam, garbage
strewn about, flea infestation, and a wooden stake driven into
the air conditioner unit.
Accordingly, on May 6, 2004, Michael
filed a motion for set-off of the cost of repairing the damage
against the $71,000 Michael was to pay Tamara under the
separation agreement.
A hearing on the matter was held before
the domestic relations commissioner on June 17, 2004.
On July
13, 2004, the domestic relations commissioner entered her report
recommending that Michael be awarded $15,000 for the damage to
the property to be set-off from the $71,000 owed to Tamara.
In
her findings, the commissioner specifically found that, although
the total cost of the repairs was approximately $31,000, the
reduction in value of the property as a result of the damage was
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between $13,000 and $18,000, and thus Michael could receive no
more than that amount in damages.
exceptions to the report.
Both parties thereafter filed
On November 12, 2004, the court
granted the exceptions of Michael to the extent he sought the
full cost of the repairs - $31,757.49.
The court specifically
found that the full repair cost was less than the difference in
the fair market value of the property before and after the
damage.
This appeal by Tamara followed.
Tamara’s first argument is that the trial court erred
in awarding Michael the full amount of the repair costs because
that amount was more than the reduction in the value of the
property as a result of the damage.
Both parties agree that
under Ellison v. R & B Contracting, Inc., 32 S.W.3d 66, 70 (Ky.
2000), the full amount of repair costs for damage to real
property is recoverable only if the injury to the property is
temporary – where the cost to restore the property to its
original state is less than the amount by which the injury
decreased the property’s value.
And Tamara does not dispute
that the full cost to restore the property to its original state
was $31,757.49 or the appraised value of the property after the
damage.
Where the parties disagree is to the value of the
property before the damage to the property occurred.
At the June 17, 2004, hearing, Ken Smith, the real
estate appraiser who appraised the property before and after the
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damage, testified to the value of the property.
Smith testified
that he conducted an appraisal of the property before the damage
on December 11, 2003, and his final appraisal valuation on that
date was $98,000.
Smith then testified as to the damage he
observed to the property on February 7, 2004, and to the value
of the property after the damage – between $80,000 and $85,000.
Smith’s full written appraisal report from the December 2003
appraisal was also admitted as an exhibit.
The report clearly
stated that the estimated market value of the property as of
December 11, 2003, was $98,000.
However, a letter from Ken
Smith dated June 1, 2004, was also admitted as an exhibit in
which Smith lists the specific damages he observed in the
February 7, 2004 inspection of the property.
The last sentence
of said letter states, “Subject to repair estimates the
appraised value of $115,000 on the December 11, 2003 appraisal
would be reduced to an estimated range of $80,000 to $85,000.”
The domestic relations commissioner in her report used
the $98,000 before-damage valuation in concluding that the
$31,757.49 in repair costs was greater than the reduction in
value of the property as a result of the damage, which was
between $13,000 and $18,000.
Accordingly, the commissioner
recommended awarding Michael a $15,000 set-off.
the exceptions, the trial court stated:
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In ruling on
THE COURT HEREBY FINDS that the Petitioner
should be entitled to the cost of repair of
the damages to his property. The estimates
tendered for repair of that damage total
$31,757.49, and there was no direct evidence
to dispute these costs. The Court further
finds that the repair costs are less than
the difference in the fair market value
attributed to the project in the report of
Ken Smith dated June 1, 2004 that was
admitted into evidence, when one utilizes a
mid point range of his current valuation of
the home, as was suggested by the
Commissioner.
The trial court apparently used the $115,000 beforedamage valuation of the property in determining that the full
repair costs were less than the reduction in value of the
property as a result of the damage.
A trial court’s findings of
fact in domestic matters will not be disturbed unless they are
clearly erroneous.
1980).
Ghali v. Ghali, 596 S.W.2d 31 (Ky.App.
If supported by substantial evidence, the trial court’s
finding of fact is not clearly erroneous.
Greene, 385 S.W.2d 954 (Ky. 1964).
Black Motor Co. v.
In our view, the $115,000
before-damage valuation of the property used by the trial court
was not supported by substantial evidence.
Ken Smith, who was called by Michael as a witness,
clearly testified on direct at the hearing on June 17, 2004,
that the market value of the property as of his December 11,
2003, appraisal was $98,000, which was consistent with his final
estimated market value in the written appraisal from that date.
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We would note that this appraisal was conducted for the purpose
of valuing the parties’ real property in the dissolution action
and the written appraisal report contained very detailed
information about the property and comparable properties.
While
the written appraisal report indicated that the PVA’s value of
the property along with a 35-acre tract of land was $120,000,
the final estimated market value “of the real property that is
the subject of this report” was clearly stated to be $98,000.
And there was no other evidence offered regarding the value of
the property.
Accordingly, there was no substantial evidence to
support the before-damage valuation figure of $115,000 in the
June 1, 2004, letter from Ken Smith or as accepted by the trial
court.
Hence, the trial court erred in finding that the full
repair costs were less than the reduction in value of the
property due to the damage.
We, therefore, vacate the court’s
award of damages and remand for a recalculation of damages using
the before-damage valuation of the property of $98,000.
Tamara’s next argument is that, as a matter of law,
Michael is not entitled to an award of damages when he knew the
damage to the property existed at the time he signed the
settlement agreement in April 2004.
This argument was never
raised below, hence it is unpreserved and precluded from our
review.
See Kaplon v. Chase, 690 S.W.2d 761 (Ky.App. 1985).
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Tamara’s final argument is that Michael failed in his
burden of proof that Tamara was responsible for the property
damage.
It was undisputed that the parties’ divorce was a
protracted and bitter one.
The evidence adduced at the hearing
established that Tamara moved her belongings out of the marital
residence on January 31, 2004.
On that same date, Michael
showed up at the residence with a load of his furnishings and
with some of his friends to help him move.
At this point, a
dispute arose over whether Tamara had agreed to allow Michael to
move in early if he paid her a certain amount of money.
The
police were called and Michael was made to leave because the
most recent court order gave Tamara exclusive possession of the
property.
Michael testified that he could not move the next
day, February 1, because he had a funeral to go to, and could
not move the following day, February 2, because he had to work.
The parties’ son, Jack Hale, testified that he went to the house
the day after his mother moved and observed the extensive damage
to the property.
Michael testified that he first saw the damage
to the property when he entered the house on February 3, 2004.
Tamara testified that she did not cause any of the
damage to the house.
She maintained that when she was last in
the house on January 31, 2004, none of the complained of damage
existed.
However, David Graham, who helped Tamara move,
admitted that there was a scratch on the dining room floor as a
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result of moving the china cabinet or refrigerator.
Also, the
parties’ daughter, Kathleen Hale, who was in the house during
the first part of the day of the move, testified that she
observed a large scratch on the wood floor and burn marks on the
carpeting that looked to be caused by acid.
Kathleen testified
that when she confronted Graham about scratching the floor, he
said he didn’t care.
According to Kathleen, when she left the
house on the day of the move, she did not see any other damage
to the house.
Kathleen acknowledged, however, that the damage
had to have been caused during the time that her mother had
possession of the house.
Although there was no direct evidence in the instant
case that Tamara personally caused the damage in the marital
residence, there was sufficient circumstantial evidence to find
that she was responsible for the damage.
A civil claim may be
proved by circumstantial evidence so long as it goes far enough
to induce a reasonable conviction that the facts sought to be
proved are true and tends to eliminate other rational theories.
United Electric Coal Companies v. Brown, 354 S.W.2d 502, 503
(Ky. 1962); City of Louisville v. LaFollette, 470 S.W.2d 599,
600 (Ky. 1971).
The evidence established that Tamara was in
exclusive possession of the marital residence at the time the
damage was inflicted on the property.
Tamara was at the
residence moving on January 31, 2004, and according to the
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testimony of Jack Hale, the property was in the damaged
condition the next day, February 1, 2004.
There was also
evidence that at least some of the damage was inflicted
intentionally – carpet burns, stake through the air conditioner,
and broken toilet and vanity.
Neither party disputes that the
divorce was bitter and that the parties were involved in a
dispute over taking possession of the property the day before
the damage was discovered.
Accordingly, the trial court did not
err in finding that Tamara caused the damage to the property.
For the reasons stated above, the order of the Boyd
Circuit Court is vacated and the cause remanded for further
proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Stephen McGinnis
Greenup, Kentucky
John F. Vincent
Ashland, Kentucky
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