MICKEY DAVID CRISWELL v. DIANA CRISWELL (NOW EVERMAN)
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RENDERED: JUNE 23, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000750-MR
MICKEY DAVID CRISWELL
APPELLANT
APPEAL FROM CARTER FAMILY COURT
HONORABLE KRISTI HOGG GOSSETT, JUDGE
CIVIL ACTION NO. 03-CI-00254
v.
DIANA CRISWELL (NOW EVERMAN)
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.1
COMBS, CHIEF JUDGE; MINTON, JUDGE; HUDDLESTON, SENIOR
MINTON, JUDGE:
In this dissolution of marriage case, Mickey
David Criswell contends that the family court erred in dividing
the marital property and in awarding maintenance to his ex-wife,
Diana Criswell (now Everman).
1
We agree with Mickey, and we
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 Kentucky Revised Statutes (KRS) 21.580.
vacate the family court’s judgment and remand for further
proceedings consistent with this opinion.
Mickey and Diana’s twenty-year marriage was dissolved
by decree entered in 2003.
At that time, they also settled the
issues of custody, support, and visitation of their minor son,
Justin.
But they failed to agree on property division and
maintenance.
Much later, the family court issued findings of
fact, conclusions of law, and a judgment resolving the remaining
property distribution and maintenance issues.
In the judgment, the family court awarded a
certificate of deposit worth approximately $8,000.00, a marital
asset, to Justin.
The judgment also awarded the marital
residence to Diana subject to Mickey’s nonmarital and marital
interest.
The family court ruled that Diana could live in the
marital residence rent-free until August 1 following Justin’s
graduation from high school.
After Justin’s graduation, the
judgment required Diana to pay Mickey $20,000.00 for his
nonmarital interest in the residence and $52,000.00,
representing Mickey’s share of the marital value of the
residence.
The family court also attempted to divide the parties’
retirement funds.
problematic.
We find that attempted division is
The family court’s findings on division of the
retirement funds are as follows:
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Respondent [Diana] has a pension
through the County Employee Retirement
System with a value as of December 31,
2003[,] of $10,682.00. This pension is not
subject to division pursuant to statute.
However, it is and should be considered in
the overall division of marital property.
Petitioner [Mickey] has an annuity through
his employment with a value as of
December 31, 2003[,] of $55,554.07. This
annuity is entirely marital property as is
Respondent’s retirement benefit. Petitioner
further has a pension with a value as of
June 2004 of $128,448.02. This pension has
both marital and non-marital components
although no evidence was presented as to the
relative value of each. The court concludes
that Respondent’s retirement benefit, with a
valuation date as of entry of the decree of
dissolution of marriage, should be divided
in half and with that figure representing
one[-]half of the total to be deducted from
Petitioner’s annuity again with a valuation
date as of entry of the decree of
dissolution of marriage. After offsetting
the amount as indicated[,] the remaining
balance of the annuity should be equally
divided between the parties. The court
further concludes that the marital component
of Petitioner’s pension should be divided
equally between the parties.
After the family court denied his motion to alter, amend, or
vacate, Mickey filed this appeal.
Mickey first argues that the family court erred by
awarding the certificate of deposit to Justin instead of finding
it to be a marital asset and dividing it in just proportions.
We agree.
In his deposition, Mickey testified that the
certificate of deposit was acquired with marital funds.
Similarly, Diana testified that the certificate was purchased
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with marital funds but that Justin’s name was placed on it for
tax purposes because Justin “could draw so much interest and we
[Diana and Mickey] wouldn’t have to claim it.”
Diana also
testified that she believed that she and Mickey would “just
split” the certificate.
Thus, it is evident that neither Mickey
nor Diana intended for Justin to be the true owner of the
certificate since both of them agreed that the certificate was a
marital asset.
KRS 403.190 requires a court to divide a marital
asset in just proportions.
The judgment does not cite, nor have
we independently located, any authority permitting a court to
award a marital asset to a third party.
Thus, the trial court
abused its discretion when it awarded the certificate of deposit
to Justin.2
On remand, the certificate must be treated as a
marital asset and divided between Mickey and Diana in just
proportions.
A more difficult issue raised by Mickey is the family
court’s attempted division of the various retirement funds.
Mickey contends that the family court erred by awarding Diana a
disproportionate share of the retirement funds.
We cannot reach
the merits of Mickey’s contention, however, because the trial
court did not make sufficient factual findings on this issue.
2
Davis v. Davis, 777 S.W.2d 230, 233 (Ky. 1989) (holding that the
trial courts have wide discretion in dividing property, and an
appellate court reviews that division for abuse of discretion).
-4-
The judgment does not identify the law relied upon to
exempt Diana’s county employee retirement funds from division;
but we presume that the family court relied upon KRS 61.690(1),
which exempts, among other things, county employee retirement
funds from “execution, attachment, garnishment, or any other
process[.]”
And although he takes issue with other aspects of
the trial court’s division of the retirement funds, Mickey does
not argue that Diana’s retirement should be subject to division.
So we express no opinion as to whether the trial court erred in
finding Diana’s retirement to be exempt from division.3
But we do find that the trial court erred by not
offsetting the value at dissolution of Diana’s exempt retirement
account against the value at dissolution of Mickey’s retirement
accounts, as is required by KRS 403.190(4).
That subsection
provides in relevant part that “[i]f the retirement benefits of
one spouse are excepted from classification as marital property,
or not considered as an economic circumstance during the
division of marital property, then the retirement benefits of
the other spouse shall also be excepted, or not considered, as
the case may be.
3
However, the level of exception provided to
Curiously, Professor Graham and Justice Keller’s learned treatise on
domestic relations seems to state that a spouse’s county employee
retirement funds are exempt from division only if the other spouse’s
funds are also exempt from division. See GRAHAM & J. KELLER,
KENTUCKY PRACTICE, DOMESTIC RELATIONS LAW § 15.21 (2nd ed. West
Group 1997). However, we see no textual support in KRS 61.690 for
that proposition.
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the spouse with the greater retirement benefit shall not exceed
the level of exception provided to the other spouse.”
Thus, the
family court should have exempted an amount from Mickey’s
retirement equal to the amount exempted from Diana’s retirement.
On remand, the family court must correct this oversight.
Another area of concern with the trial court’s
attempted division of the retirement funds is that it does not
find the value of the retirement accounts as of December 8,
2003, the date of the dissolution of marriage.4
The trial
court’s order mentions the various funds’ values as of
December 31, 2003, and June 2004; but those dates are not
legally significant.
On remand, the parties must provide the
family court with evidence upon which the court may rely to
establish the value of their separate retirement accounts as of
December 8, 2003.
Most importantly, the family court attempted to divide
the marital portion of Mickey’s retirement fund, despite the
fact that, by its own admission, it had no evidence in the
record upon which to base a finding of the nonmarital and the
marital components of Mickey’s retirement account.
An order
like this one that purports to divide half of an unknown sum is
in error here because neither the parties to the dissolution,
4
See, e.g., Armstrong v. Armstrong, 34 S.W.3d 83, 86 (Ky.App. 2000)
(“[i]t is clear, however, that pension and profit sharing plans
should be valued on the date of the divorce decree.”).
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nor the account custodians who may be involved in the actual
division of the funds, can determine how much money is due to
either Mickey or Diana.5
Thus, on remand, the trial court must
find the value of Mickey’s retirement fund as of December 8,
2003, and then provide clear direction to the parties and others
for the proportional division of the retirement funds.
Knowing the precise amount of Diana’s marital share of
Mickey’s retirement fund is also crucial because an award of
maintenance is premised upon a finding that the spouse receiving
maintenance does not have sufficient property to meet his or her
reasonable needs.6
In the case before us, the family court
awarded Diana maintenance.
Obviously, the amount Diana receives
from Mickey’s retirement fund will have a bearing on whether she
is entitled to maintenance and, if so, in what amount.
Additionally, the amount she receives from the certificate of
deposit could have a bearing on whether Diana has sufficient
property to meet her reasonable needs.
So we cannot review the
merits of Mickey’s argument that the trial court erred by
awarding Diana maintenance until we know with certainty the
5
See, e.g., 16B Am.Jur.2d Constitutional Law § 920 (2005) (providing
that the void for vagueness doctrine applies to court orders, as
well as statutes).
6
KRS 403.200(1).
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value of the property she will receive.7
On remand, once the
value of the parties’ assigned nonmarital assets and the divided
marital assets is finally determined, the trial court must visit
the issue of maintenance anew.
For the foregoing reasons, the judgment is vacated as
to the certificate of deposit, the division of the retirement
funds, and the award of maintenance to Diana; and this case is
remanded for further proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mary Hall Sergent
Ashland, Kentucky
W. Jeffrey Scott
Grayson, Kentucky
7
See GRAHAM & J. KELLER, KENTUCKY PRACTICE, DOMESTIC RELATIONS LAW
§ 16.3 (2nd ed. West Group 1997) (“[m]aintenance awards must be made
after nonmarital property is assigned and marital property is
divided. KRS 403.200(1)(a) evaluates a spouse’s needs for
maintenance by requiring the spouse seeking maintenance to
demonstrate a lack of sufficient property, including marital
property apportioned to him or her, to provide for his or her
reasonable needs. Because the maintenance statute depends on a
prior allocation of marital property, no maintenance award made
prior to an equitable division can be upheld.”) (emphasis added).
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