JOY EDISON JOHNSON v. COLE TORRANCE JOHNSON
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RENDERED:
NOVEMBER 22, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001631-MR
JOY EDISON JOHNSON
v.
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE KRISTI GOSSETT, JUDGE
CIVIL ACTION NO. 04-CI-00430
COLE TORRANCE JOHNSON
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** ** **
BEFORE: BARBER, JUDGE; HUDDLESTON AND PAISLEY, SENIOR JUDGES.1
HUDDLESTON, SENIOR JUDGE:
Joy Edison Johnson and Cole Torrance
Johnson were married on February 12, 1992.
born of the marriage.
No children were
On November 9, 2004, Cole filed a
petition for dissolution of marriage in the Family Court
Division of Carter Circuit Court.
A final hearing was held on May 17, 2005.
On June 7,
2005, a decree dissolving the marriage, distributing nonmarital
1
Senior Judges Joseph R. Huddleston and Lewis G. Paisley sitting as Special
Judges by assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution and KRS 21.580.
and marital property, and denying Joy’s request for maintenance
was entered.
On July 8, 2005, the decree was modified to
provide that Joy was not entitled to any of Cole’s postdissolution disability benefits.
On appeal, Joy contends that the circuit court erred
when it failed to award her maintenance.
Kentucky Revised
statutes (KRS) 403.200, which addresses maintenance awards,
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 the absent
spouse, 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 that party as custodian;
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(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.
Under this statute, the family court has dual
responsibilities: first, to make relevant findings of fact; and
second, to exercise its discretion in making a determination on
maintenance in light of those facts.
Before we can reverse the
family court's decision, we must find either that the findings
of fact are clearly erroneous or that the family court abused
its discretion.2
In its decree, the family court made the following
findings of fact and reached the following conclusions of law
relevant to its maintenance decision:
FINDINGS OF FACT
. . . .
[Joy’s] non-marital property consists of the
real property underlying the mobile home
that was the parties’ residence. By
stipulation the court finds this land to be
[Joy’s] non-marital property. The court
finds [Cole’s] non-marital property to
2
Weldon v. Weldon, 957 S.W.2d 283, 285 (Ky.App. 1997).
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consist of a food processor, Ocean City Real
Fishing [sic], a 1968 boat, and a 1979
Kawasaki.
The court finds the marital property of the
parties to consist of typical household
furniture and furnishings, two automobiles,
one Harley Davidson motorcycle, a Fleetwood
mobile home, and [Cole’s] pension and
annuity.
During the marriage the parties acquired a
2004 Chevrolet Cavalier that has been in
[Joy’s] possession during the pendency of
this action. The court finds that it has a
fair market value of $13,000.00 with a
$6,000.00 debt and therefore resulting
equity of $7,000.00. [Cole] has had
possession of a 2002 Chevrolet Silverado
with a fair market value of $17,000.00 and
no debt. The parties also acquired a 1994
Harley Davidson with a fair market value of
$7,500.00 and no debt. [Cole] has an
interest in a pension and an annuity. The
court finds that the full value of both of
these assets was acquired during the
marriage and that both benefit plans are
entirely marital in nature. The fair market
value of the annuity is $31,270.18. No
evidence was presented as to the fair market
value of the pension.
During the parties marriage a 16X80
Fleetwood mobile home was purchased at the
price of $29,000.00. No evidence was
presented as to the current fair market
value of this mobile home. The mobile home
was purchased in 1998 or 1999. To purchase
this mobile home $7,000.00 was taken from a
joint account of the parties and invested in
the purchase of the mobile home.
Additionally, [Joy] received a lump sum
award of Social Security Disability backpay
during the marriage in the amount of
$21,039.12 and this was invested entirely in
the purchase of the mobile home. [Joy]
additionally received $1,431.00 representing
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Social Security Disability backpay and this
was used to purchase the air conditioning
that went with the mobile home.
Additionally [Cole] borrowed $10,000.00 from
his annuity to do a minimal amount of dozer
work on the property to prepare it for the
mobile home, and to purchase a $2,500.00
outbuilding located on the property. It is
unclear what the remaining balance of this
$10,000.00 went toward. $5,000.00 of the
$10,000.00 is still owed and [Cole] is in
fact repaying this amount to his annuity at
the rate of 8% interest.
As stated above both parties have been
declared disabled by the Social Security
Administration. Both parties suffered a
disability and were declared disabled during
the marriage.
. . . .
The only debts of the parties include the
$6,000.00 debt owed with regard to the 2004
Chevrolet Cavalier and the $5,000.00 debt
owed to [Cole’s] annuity plan.
[Joy’s] sole source of income is in the form
of Social Security Disability benefits and
is in the amount of $804.00 per month. The
court finds [Joy’s] reasonable expenses to
be in the amount of $1,354.00 per month.
This amount includes the $525.00 monthly car
payment on the Chevrolet Cavalier. This
amount does not include the amount [Joy]
testified she tithed to her church or the
amount she sends monthly to Saint Jude’s
Children’s Hospital.
[Cole’s] sole source of income is in the
form of Social Security Disability benefits
in the amount of $1,400.00 per month.
[Cole] has a gross monthly income of
$2,500.00. The court finds [Cole’s]
reasonable expenses to be in the amount of
$2,060.00 per month. This does not include
the Chevrolet Cavalier car payment that he
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has been making during the period of
separation and does not include the full
amount set forth on [Cole’s] exhibit with
regard to rent and medical expenses in as
much as his testimony was contrary to that
set forth in said exhibit. [Cole] currently
suffers from hepatitis, diabetes, and
arthritis. He was declared disabled in
1997. [Joy] suffered with cancer in 1992
and subsequently a stroke. She was declared
disabled shortly thereafter.
CONCLUSIONS OF LAW
. . . .
The court concludes that the non-marital
property of each party identified above
should be restored to them.
The court concludes that [Joy] should
receive the following marital property:
2004 Chevrolet Cavalier, the washer and
dryer, one half of value of [Cole’s] pension
and [Cole’s] annuity, the outbuilding and
the 16X80 Fleetwood mobile home. [Joy]
should also be awarded one half of the
cookware and towels as well as all personal
property currently in her possession other
than as may be specified hereinbelow.
[Cole] should be awarded the 2002 Chevrolet
Silverado, the 1994 Harley Davidson, one
half of his pension, one half of his
annuity, one half the cookware and towels,
the 25-06 rifle, the rods and reels, the JVC
television, the broiler oven, and the tools.
[Cole] should also have all personal
property currently in his possession other
than as specified hereinabove.
Perhaps the biggest decision before this
court is the nature of the Social Security
Disability backpay received by [Joy]. The
court concludes that the entirety of said
sums are [sic] marital in nature. It is
with reference to Bischoff v. Bischoff, 987
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S.W.2d 798 [Ky.App. 1998], that the court
reaches this conclusion. The court
concludes that [Joy’s] Social Security
Disability backpay benefits became marital
property when they were invested in the
parties’ residence.
The court concludes that [Joy] should be
responsible for the indebtedness associated
with the 2004 Chevrolet Cavalier and that
[Cole] should be responsible for the loan
owed to his annuity.
The value of the marital property awarded to
[Joy] herein, excluding the value of the
pension, as the court has no evidence as to
this value, is in the amount of $54,400.00.
The value of the marital property awarded to
[Cole], again excluding the value of the
pension, is in the amount of $40,000.00.
The court finds this to be an equitable
distribution of the marital estate in light
of the relative economic circumstances of
the parties. While [Joy] is awarded a
greater percentage of the marital estate,
[Cole] has triple [Joy’s] monthly income.
Pursuant to Gross v. Gross, 8 S.W.3d 56 [Ky.
App. 1999], the court concludes that it is
entitled to consider this fact in the
overall division of the marital estate.
The court concludes that although [Joy’s]
expenses exceed her income, that she is not
entitled to maintenance from [Cole]. The
court reaches this conclusion after the
division made herein of the marital estate
and after full consideration of [Cole’s]
health. The court concludes that [Cole] has
no ability to satisfy an award of
maintenance.
. . . .
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The findings of fact incorporated into the decree are
supported by substantial evidence and, consequently, are not
clearly erroneous.3
We cannot conclude that the family court abused its
discretion in failing to award Joy maintenance.
While the court
found that Joy has an income of only $804.00 per month and
expenses of $1,354.00, a $550.00 per month shortfall, $525.00 of
the deficit is associated with the monthly car payment on the
2004 Chevrolet Cavalier she was awarded.
The deficit is
temporary and, when paid off, her income will be substantially
in line with her reasonable needs.
Moreover, the property
distributed to Joy provides for a debt-free residence consisting
of land and a 1,280 square foot mobile home.
And, the marital
property distribution provides her $14,400 more than Cole.
While Cole does have income that is three times Joy’s,
he, unlike Joy, does not have a debt-free residence and must
incur a monthly rental expense for housing.
Although it is
true, as the family court noted, that Joy “suffered with cancer
in 1992 and subsequently a stroke” and has been declared
disabled, it is also true that Cole suffers from hepatitis,
diabetes and arthritis.
KRS 403.200(f) requires family courts,
in making maintenance decisions, to consider “[t]he ability of
3
Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App. 2005).
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the spouse from whom maintenance is sought to meet his needs
while meeting those of the spouse seeking maintenance.”
While
Cole does currently have a $460.00 per month surplus, we believe
KRS 403.200(f) mandates consideration of his health and the
necessity of accumulating some savings to off-set future healthrelated expenses.
In summary, the family court’s findings of fact in
support of its maintenance decision are not clearly erroneous
and, in light of those findings, it did not abuse its discretion
in declining to award Joy maintenance.
For the foregoing reasons, the decree is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Jeffrey Scott
Grayson, Kentucky
Stephen McGinnis
McBRAYER, McGINNIS, LESLIE &
KIRKLAND
Greenup, Kentucky
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