JAMES VERNON HARMON, JR. v. KAREN JEAN SMITH HARMON; AND HON. DAVID GOIN
Annotate this Case
Download PDF
RENDERED:
AUGUST 4, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-000874-MR
JAMES VERNON HARMON, JR.
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 02-CI-00350
v.
KAREN JEAN SMITH HARMON;
AND HON. DAVID GOIN
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND MINTON,1 JUDGES, HUDDLESTON,2 SENIOR JUDGE.
BARBER, JUDGE:
This appeal is brought from a dissolution of
marriage proceeding originating in Allen County, Kentucky.
On
September 18, 2002, Appellee, Karen Jean Smith Harmon (Karen)
filed for a divorce from Appellant, James Vernon Harmon, Jr.
(James).
1
Judge John D. Minton, Jr. concurred in this opinion prior to his resignation
effective July 25, 2006, to accept appointment to the Kentucky Supreme Court.
Release of the opinion was delayed by administrative handling.
2
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.
The parties were married June 15, 1985, in
Mississippi.
During the early years of the marriage, both
parties worked full-time outside the home.
In 1990, Karen
temporarily left her job due to pregnancy.
Following the birth
of their daughter, she returned briefly to work.
Karen again
quit after the couple moved to Kentucky in early 1991.
wanted to be a full-time mother and homemaker.
She
Karen’s
employment status soon became a point of contention between the
parties.
At the time of the parties’ separation in 2002, Karen
still had not returned full-time to the work force.
A final hearing began before the Domestic Relations
Commissioner (DRC) on March 4, 2004, recessed and completed on
April 5, 2004.
At the time of the final hearing, Karen worked
one day a week at a Nashville, Tennessee dry cleaner.3
salaried position with Arvin-Meritor.4
Jay had a
Following the hearing,
the DRC issued his Final Trial Report on October 22, 2004.
Each party filed a motion to reconsider with the DRC.
Karen requested reconsideration on the issue of an award of
attorney fees to her.
This issue had been omitted from the
Final Trial Report despite it having been raised at the hearing.
3
Karen drove
and worked an
been employed
hearing date,
to the dry cleaner from Allen County. She earned $8.50 per hour
average of 10-11 hours on the day she worked. Karen had also
part-time by H & R Block at the time of the March 4, 2004
but this position had ended by the April 5, 2004 hearing date.
4
James began working for Bowling Green Metalforming on April 12, 2004. He
testified to the same at the April 5, 2004 hearing. His salary at his new
position was to be $53,000 per year.
-2-
James requested reconsideration on the issues of visitation,
marital debt, property allocations, and maintenance.
motions were heard on December 16, 2004.
Said
The DRC granted
Karen’s motion and awarded her $1,000.00 for attorney fees.
James’ motion was denied except for his request related to
visitation of the parties’ child.
The parties then filed exceptions with the circuit
court.
Karen took exception to the amount and duration of
maintenance.
She also took exception to the amount of attorney
fees awarded her attorney.
James took exception to the
maintenance award and the marital debt and property allocations.
The exceptions were heard March 21, 2005.
The circuit court
overruled both parties’ exceptions per order entered March 31,
2005.
The court concluded that the DRC’s recommended Findings
of Fact were “supported by substantial probative evidence and
that his recommended conclusions of law reflect[ed] a correct
application of the law” and adopted them in their entirety.
Accordingly, the Findings of Fact, Conclusions of Law, and
Decree of Dissolution of Marriage was entered March 31, 2005.
James now appeals to our court.
Kentucky Rule of Civil Procedure 52.01 states in
pertinent part, for actions tried without a jury, “Findings of
fact shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
-3-
judge the credibility of the witnesses.
The findings of a
commissioner, to the extent that the court adopts them, shall be
considered as the findings of the court.”
As a result, when the
trial court adopts the recommendations of the Commissioner,
those recommendations fall under the same standard of review as
applied to a trial court’s findings.
See Greater Cincinnati
Marine Service, Inc. v. City of Ludlow, 602 S.W.2d 427, 429,
(Ky. 1980) and Wells v. Sanor, 151 S.W.3d 819, 822 (Ky.App.
2004).
Our court cannot disturb the findings of a trial court
in a case involving dissolution of marriage unless those
findings are clearly erroneous.
Cochran v. Cochran, 746 S.W.2d
568, 569, 570, (Ky.App. 1988), (citing Johnson v. Johnson, 564
S.W.2d 221 (Ky.App. 1978)), see also Rife v. Fleming, 339 S.W.2d
650, 652, (Ky. 1960).
We first examine James’ arguments.
raised by James:
Four arguments are
(1) The trial court erred by awarding Karen
maintenance; (2) the trial court erred and abused its discretion
in the amount and duration of maintenance awarded; (3) the trial
court abused its discretion by not requiring Karen to refinance
the mortgage on the marital home; and (4) the trial court abused
its discretion by awarding attorney fees to Karen.
We first
examine James’ arguments related to the trial court’s award of
maintenance to Karen.
Maintenance is governed by KRS 403.200, which states:
-4-
(1) In a proceeding for dissolution of marriage
. . . 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
(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 order shall be in such
amounts and for such periods of time as the court
deems just, and after considering all relevant
factors including:
(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 the party as
custodian;
(b) The time necessary to acquire
sufficient education or training to enable the
party seeking maintenance to find appropriate
employment;
(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.
-5-
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.
S.W.2d 825, 826 (Ky. 1992).
Perrine v. Christine, 833
A trial court’s decision regarding
maintenance will not be reversed unless the trial court abused
its discretion or based its decision on findings of fact that
are clearly erroneous.
Powell v. Powell, 107 S.W.3d 222, 224
(Ky. 2003).
Findings of fact are not clearly erroneous if
supported by substantial evidence.
Black Motor Company v.
Greene, 385 S.W.2d 954 (Ky.App. 1964), (citing Massachusetts
Bonding & Insurance Co. v. Huffman, 340 S.W.2d 447 (Ky. 1960)).
Substantial evidence has been conclusively defined by Kentucky
courts as that which, when taken alone or in light of all the
evidence, has sufficient probative value to induce conviction in
the mind of a reasonable person.
Secretary, Labor Cabinet v.
Boston Gear, Inc., a Div. of IMO Industries, Inc., 25 S.W.3d
130, 134, (Ky. 2000).
Further, the test for abuse of discretion
is whether the trial judge’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.
With the foregoing in mind, we turn to the DRC’s Final Trial
Report which was adopted by the circuit court in its entirety.
The Final Trial Report stated, in pertinent part:
-6-
When considering whether or not to
award maintenance in this case, the
Commissioner must first find that Karen
meets the standard requirements for
maintenance set forth in KRS 403.200(1).
She must lack sufficient property to provide
for her reasonable needs and be unable to
support herself through appropriate
employment. Karen has not been a full time
member of the work force for a number of
years and the property awarded to her is not
income producing. Should there be a finding
that she meets the standard, then KRS
403.200(2) directs a Court to consider a
number of relevant factors. This is a
marriage of long duration, and [James]; by
virtue of his past history and experience in
the work place will always have the ability
to earn much greater income. The parties
have incurred some credit card debt, but it
is not extraordinary and a great deal of
that debt should be eliminated from the
proceeds of the sale of the john boat. The
Commissioner gathers from the evidence as a
whole that the parties’ lifestyle has not be
(sic) extravagant, but rather could be
described as comfortable.
The Commissioner Concludes and Finds
that Karen does meet the requirements of KRS
403.200(1). The Commissioner Finds that
[James] should pay maintenance in an amount
of $500.00 per month for a period of eight
years, through and including October, 2012.
In reaching this conclusion, the
Commissioner is also factoring in the
Finding that Karen should be responsible for
making the mortgage payment on the marital
residence.5 The marital residence should be
awarded to Karen and at some point in time,
no later than coinciding with the last
maintenance payment, [James] should execute
a Quitclaim Deed conveying to Karen all of
his right, title and interest in and to the
5
The monthly mortgage payment on the marital home was $387.00 according to
Karen’s Sworn Asset and Liabilities Statement filed October 10, 2003,
contained in the record.
-7-
real estate and Karen should make her best
efforts to refinance and remove [James’]
name from the mortgage unless she sells the
real estate.
The Commissioner is also factoring in
the Finding that Karen is awarded a one-half
interest in [James’] 401K account at Arvin
Meritor and counsel should prepare the
appropriate Qualified Domestic Relations
Order for approval by the Court. The
balance of [James’] retirement accounts are
awarded to him as his marital property.
In making these findings, the
Commissioner has reviewed the income and
expenses of the parties as well as giving
consideration of the debt assigned
hereinabove.
We believe that the DRC failed to make proper findings
of fact related to whether Karen satisfied KRS 403.200(1)(a).
Specifically, he failed to find whether Karen was unable to
support herself through appropriate employment.
However, we can
reasonably infer from the DRC’s findings that he found that
Karen was unable to do the same at the time of the final
hearing.
We then turn our attention to the amount and duration
of the maintenance award.
We believe the amount and duration of the maintenance
awarded was neither erroneous nor an abuse of discretion.
Karen
was awarded $519.00 per month in child support and averaged
$405.17 per month from her dry-cleaning job.
Based on these
figures, Karen’s monthly expenses, her recent re-entry into the
workforce, her level of attained education and training, and the
-8-
long duration of the marriage, we believe the amount and
duration of maintenance award was appropriate.
The trial court
properly considered all factors of KRS 403.200(2) and the record
in rendering its decision and thus did not abuse its discretion
nor base its decision on findings of fact that were clearly
erroneous.
James’ next argument is that the trial court abused
its discretion by not requiring Karen to refinance the joint
debt on the parties’ marital home.
Karen was awarded the
marital home in its entirety, as well as, the mortgage attached
thereto.6
However, there were no definite timelines established
related to transfer of title and the refinancing of the
mortgage.
It was found that these acts should occur “at some
point in time, no later than coinciding with the last
maintenance payment.”
While not ideal, we do not believe the
court abused its discretion.
There is no statutory requirement
that an individual who is awarded the marital home in its
entirety remove their former spouse from the mortgage attached
to the marital home.
Given the parties’ circumstances, we
believe the trial court’s decision on this issue was neither
unreasonable nor unfair.
James’ final argument is that the trial court abused
its discretion by awarding attorney fees of $1,000.00 to Karen.
6
For some reason, this award was contained within the Maintenance section of
the DRC’s Final Trial Report.
-9-
We disagree.
An award of attorney fees in a dissolution
proceeding is permitted pursuant to KRS 403.220.
Such an award
is entirely within the trial court’s discretion.
Glidewell v.
Glidewell, 859 S.W.2d 675, 679 (Ky.App. 1993).
The only
requirement is that there be a disparity in the financial
resources of the parties.
Id.
It has been held an abuse of
discretion to award attorney fees against one party when the
parties’ financial resources are roughly equal.
809 S.W.2d at 715.
Drake, supra,
Karen earned less than $500.00 per month
while James earned more than $4,000.00.
In this instance,
financial inequality justified the award.
Therefore, we affirm
the trial court’s award of attorney fees to Karen.
For the reasons set forth above, we affirm the Allen
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
D. Bailey Walton
Bowling Green, Kentucky
David Goin
Scottsville, Kentucky
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
