WILLIAM D. LOGSDON, JR. v. OLLIE LOGSDON
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RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002240-MR
WILLIAM D. LOGSDON, JR.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 03-CI-00022
v.
OLLIE LOGSDON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND WINE, JUDGES; MILLER,1 SPECIAL JUDGE.
WINE, JUDGE:
On January 1, 2003, Ollie Logsdon, filed a
petition for dissolution of marriage in Bullitt Circuit Court,
case no. 03-CI-00022.
William D. and Ollie Logsdon were married
for twenty-four years with no children being born of the
marriage.
A hearing for temporary maintenance was held on May
23, 2003, before the domestic relations commissioner (DRC), John
Schmidt.
1
Neither Appellant, William, nor his counsel was
Retired Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution.
present at this hearing.
The Appellee, Ollie, presented proof
to the court, and the DRC recommended temporary maintenance of
$1,406 per month be awarded to Ollie.
William requested the
court suspend or set aside this recommendation on three separate
occasions and each time the request was denied.
On August 14,
2003, the trial court entered a judgment ordering maintenance of
$1,406 per month until a Qualified Domestic Relations Order
(QDRO) was in place, at which time the award would be reduced to
$250 per month.
The judgment further ordered William to pay the
arrearages in maintenance owed from April 9, 2003, plus the
legal interest on each payment.
William was held in contempt of
court for failure to pay up to this point, and Ollie was granted
dissolution of the marriage.
The DRC tendered two reports and
recommendations to the court on December 21, 2004, and August
22, 2005.
On August 25, 2005, a court order was entered for
William to pay $5,000 immediately for Ollie’s medical
necessities and living expenses.
The order reiterated that the
temporary maintenance order remained in effect through the
pendency of the action.
On October 11, 2005, the Bullitt
Circuit Court adopted the two reports of the DRC.
followed.
This appeal
We now affirm.
William first contends that the trial court erred in
the amount and duration of temporary maintenance.
It is well
established in the Commonwealth that the amount and duration of
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maintenance under Kentucky Revised Statutes (KRS) 403.200 is a
matter within the sound discretion of the trial court.
v. Russell, 878 S.W.2d 24, 26 (Ky.App. 1994).
Russell
Further, “unless
absolute abuse is shown, the appellate court must maintain
confidence in the trial court and not disturb the findings of
the trial judge.”
1990).
Clark v. Clark, 782 S.W.2d 56, 60 (Ky.App.
See also Platt v. Platt, 728 S.W.2d 542 (Ky.App. 1987).
It has also been established in the Commonwealth that all
motions regarding temporary alimony or maintenance, pending an
appeal to the Court of Appeals or motions seeking to enforce
such payments, “shall be within the jurisdiction of the trial
court, and orders of the trial court entered pursuant to a
proper proceeding shall not be superseded.
489 S.W.2d 524, 527-28 (Ky.App. 1972).
Penrod v. Penrod,
A temporary maintenance
order is interlocutory and not subject to review.
Cannon v.
Cannon, 434 S.W.2d 48 (Ky. 1968); Lebus v. Lebus, 382 S.W.2d 873
(Ky. 1964).
In this case, William argues that the only information
considered before the DRC was Ollie’s motion, and thus prompts
this Court to review the evidence that was used by the trial
court in refusing to modify, set aside, or suspend the temporary
maintenance award.
The law is clear that the trial court has several
options after receiving the report and recommendations of the
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DRC.
The court may adopt the report, modify the report, reject
it in whole or in part, receive further evidence, or send the
report back to the commissioner with instructions for further
proceedings.
Kentucky Rules of Civil Procedure (CR) 53.06(2).
After having been served with notice of the filing of the
report, any objections to the report must be filed within ten
days according to CR 53.06(3).
The Supreme Court has held that
it is not an abuse of discretion for the trial court to consider
untimely objections to a DRC report.
S.W.2d 713, 716-17 (Ky. 1997).
Eiland v. Ferrell, 937
“The rule of the court is not to
disturb a commissioner’s report which has been confirmed by the
circuit court, unless against the weight of the evidence.”
v. Blackburn, 299 S.W. 164, 165 (Ky. 1927).
Goff
If the report is
accepted by the court, it then becomes the finding, conclusions,
and opinion of the court to the extent that it was adopted.
Warner v. Sanders, 455 S.W.2d 552 (Ky. 1970).
The relevant statutory basis for an award of
maintenance is found in KRS 403.200 that provides, in part:
(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
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needs; and
(b)
(2)
Is unable to support himself
through appropriate employment
. . . .
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 . . .;
(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.
In Perrine v. Christine, 833 S.W.2d 825, 826 (Ky.
1992), the Supreme Court stated:
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Under this statute, [KRS 403.200] 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. In order to
reverse the trial court’s decision, a
reviewing court must find either that
the findings of fact are clearly
erroneous or that the trial court has
abused its discretion.
In this case, Ollie filed a motion for temporary
maintenance on August 11, 2003.
The matter was set for a
hearing before the DRC and neither the Appellant nor his counsel
was present for the hearing to submit any proof on this issue.
The circuit court rules clearly allow a party before the DRC to
introduce proof, call witnesses, and cross-examine as if the
proof were being given before a presiding judge.
William
contends that the court did not fairly consider his ability to
provide for his own reasonable needs in granting the temporary
maintenance award.
Because William failed to appear at the
hearing or offer any proof of his ability, combined with the
evidence that was presented to the commissioner and adopted by
the court, we find that the award for temporary maintenance was
properly set at $1,406 effective as of April 9, 2003.
William also refers to the DRC’s report of December
21, 2004, which states, “Petitioner asserts a claim for
maintenance.
The Commissioner finds that she has sufficient
assets and income to meet her reasonable needs and maintenance
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should terminate as of April 8, 2004.”
this finding.
William mischaracterizes
At the time this recommendation was made, William
was already under a court order to pay temporary maintenance to
Ollie.
Based on the division of non-marital and marital
property and enforcement of the QDRO, the Commissioner found
Ollie able to meet her own reasonable needs.
Until those orders
were adopted by the court, Ollie had no access to any of the
liquid assets of the dissolution, and thus the temporary
maintenance order was proper.
William next contends that the trial court erred in
the division of the marital real estate.
The DRC’s reports were
adopted by the court and thus those findings became the findings
of the court.
William points the court to Walters v. Walters,
782 S.W.2d 607 (Ky. 1989), which is entirely distinguishable
from these facts.
Based on the record and findings of the DRC,
we see no reason to discuss this case as it simply does not
apply to these facts.
William argues that the trial court improperly applied
the Brandenburg test for the classification and division of the
marital property, and points the Court instead to Travis v.
Travis, 59 S.W.3d 904 (Ky. 2001).
William presented absolutely
no evidence to rebut the classification of the property at issue
as marital.
Improvements to non-marital property were dealt
with specifically and addressed in Brandenburg v. Brandenburg,
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617 S.W.2d 871 (Ky.App. 1981), and in that context Brandenburg
is properly applied here.
It is not the job of the Court of
Appeals to consider new evidence that is presented upon appeal.
We look to find error or abuse by the trial court.
On this
issue William’s argument is misplaced and we find no error.
William’s third contention is that the trial court
committed reversible error in finding William owned more than
one stock (retirement) account.
Based on the record of the
trial court and the two reports of the DRC that were adopted by
the court, we find that there has been no abuse of discretion or
error.
The second DRC report provided additional findings to
clarify William’s accounts and pension.
These reports were
adopted by the court on October 11, 2005, and we find no reason
to disturb this decision.
In a last attempt, William contends that the trial
court committed reversible error by not enforcing the Civil
Rules or the Bullitt Circuit Court local rules.
This Court has
reviewed the entire record and series of pleadings in this case.
The DRC allowed both parties to file additional evidence and
documentation to supplement the record.
Both parties filed
additional information with the DRC which was then considered
for the reports before their adoption.
We find no evidence of
disregard for the civil or local rules in this case.
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The Courts have articulated that “even if there was
some doubt in the minds of the court concerning the findings of
the lower court, those findings cannot be set aside, since it
would require more than just a doubt in our minds to so do.
Warner v. Sanders, 455 S.W.2d 552, 554 (Ky. 1970).
The findings
of the DRC, adopted by the Bullitt Circuit Court, are supported
by the evidence of record.
For all the foregoing reasons, we affirm the decision
of the Bullitt Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark E. Edison
Shepherdsville, KY
John E. Spainhour
Elise Givhan Spainhour
Susan Shimp Torok
Shepherdsville, KY
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