PAUL D. WHITEWOOD v. CHERYL A. WHITEWOOD AND JAMES L. THEISS
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RENDERED: SEPTEMBER 21, 2007; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001882-MR
PAUL D. WHITEWOOD
v.
APPELLANT
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 05-CI-00226
CHERYL A. WHITEWOOD
AND JAMES L. THEISS
APPELLEES
OPINION
AFFIRMING IN PART;
REVERSING AND REMANDING IN PART
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BEFORE: NICKELL, STUMBO, AND THOMPSON, JUDGES.
STUMBO, JUDGE: Paul D. Whitewood appeals from an order of the Oldham Family
Court arising from an action initiated by Cheryl A. Whitewood to dissolve the parties’
marriage. Paul argues that the trial court abused its discretion in failing to order specific
visitation times with the parties’ youngest child, and in the valuation and division of
marital property. He also claims errors in the allocation of debt, the amount and duration
of maintenance, the order requiring him to provide life insurance, and the allocation of
attorney fees. For the reasons stated below, we affirm the order on appeal in all respects
except for the issue of specific visitation times.
Cheryl and Paul were married in Indiana in 1982. The union produced two
daughters who are now in their mid-to-late teens. The parties and their children have
resided in at least four states during the course of the marriage, having moved to
accommodate Paul’s employment. Paul possesses an engineering degree and at the time
of filing was employed by Honeywell. He earns approximately $100,000 per year.
Cheryl has been employed part-time, and sought to be at home with the children when
they were not in school. At the time of filing, she was employed at National City Bank
earning approximately $24,000 per year.
Cheryl filed a petition for dissolution of marriage on March 29, 2005, in
Oldham Family Court. The proceeding proved contentious, and after proof was taken,
the Family Court rendered a series of orders addressing custody, division of assets,
maintenance and related matters. The adjudication of these issues culminated in findings
of fact, conclusions of law and order rendered February 16, 2006, which disposed of the
remaining issues. The court awarded joint custody of the children, with Cheryl serving as
primary custodian and Paul awarded visitation of the younger daughter Kaitlyn, then
nearly 15 years of age, every other weekend and during a portion of the summer. The
order addressed only the remainder of the 2006 calendar year, and provided that
thereafter Paul and Kaitlyn would visit with each other by mutual consent. At the time
the order was rendered, he lived near Chicago, and the court ordered the parties to
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alternate providing transportation to and from Chicago for the visitation. It is noteworthy
that the court did not award visitation with the parties’ older daughter Brittney. At the
time the order was rendered, Brittney was 17 years old and had expressed a desire not to
be subject to a visitation order. Because she had almost reached the age of majority, and
because of her expressed desire not to see her father, the trial court reluctantly included
only Kaitlyn in the visitation order.
The order also divided the parties’ marital and non-marital property,
including two homes, a 1978 Piper airplane, retirement accounts and a motorcycle. Both
parties filed motions to alter, amend or vacate, which the court resolved by an order
rendered on August 9, 2006. Though the February 16, 2006, order remained substantially
intact, typographical errors were corrected and other minor amendments were made.
This appeal followed.
Paul first argues that the trial court abused its discretion in the award of
visitation with the parties’ youngest daughter Kaitlyn. In establishing visitation, the court
noted that Kaitlyn, who was then in the 8th grade, asked that the court limit visitation to
once per month in order to accommodate her varied school and extracurricular
commitments. To facilitate the scheduling, the court ordered visitation to occur on
various dates in 2006. It further held that, “[v]isitation beyond calendar year 2006 will be
up to arrangement between Mr. Whitewood and Kaitlyn, cognizant of both of their
schedules.” It is with this latter provision - i.e., addressing 2007 and beyond - with which
Paul takes issue. He contends that the court abused its discretion in failing to order
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specific dates and times of visitation, instead leaving the scheduling of visitation to the
judgment of his minor child. He seeks an order reversing the award of visitation and
remanding it to the trial court for the entry of a specific visitation schedule.
KRS 403.320(1) states,
A parent not granted custody of the child is entitled to
reasonable visitation rights unless the court finds, after a
hearing, that visitation would endanger seriously the child’s
physical, mental, moral, or emotional health. Upon request of
either party, the court shall issue orders which are specific as
to the frequency, timing, duration, conditions, and method of
scheduling visitation and which reflect the development age
of the child. (Emphasis added).
We have examined those portions of the videotaped trial proceedings
referenced by Paul in his brief, and are persuaded that he reasonably requested a
visitation order which was specific as to the frequency, timing, duration, conditions and
method of scheduling. Paul and his counsel used phrases like “the exchanges need to be
coordinated” and “specific times” in requesting visitation beyond 2006. This is sufficient
to satisfy KRS 403.320(1), and gives rise to the mandatory statutory requirement that the
order be specific as to the timing of visitation. As now ordered, it appears that Kaitlyn,
who is still a minor, could submit to visitation - if at all - in a manner solely of her
choosing. While this is not to say that she would be unreasonable in that regard, the
statutory law operates to avail the parties - as well as Kaitlyn - of more definite and
predictable visitation scheduling. Accordingly, we reverse on this issue and remand the
matter for visitation scheduling in conformity with KRS 403.320(1).
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Paul next argues that the trial court abused its discretion in the valuation
and division of marital property. He first maintains that the court erred in deducting an
anticipated 6% sales commission from net equity in the marital residence. The residence
was valued at $266,500, from which the first and second mortgage were deducted leaving
the parties’ net equity. From that amount, the court deducted what it anticipated would
be a 6% sales commission incurred when the parcel was sold. Since the parcel was never
sold and Cheryl retained possession of it, Paul argues that the court erred in reducing the
parcel’s equity (and thus its marital value) by the 6% commission. We note that while
the home was valued at more than $266,000, the mortgage totaled nearly $240,000,
leaving little equity. With the six percent deduction, the trial court found the net equity to
be only $10,887. All of the mortgage debt was assigned to Cheryl.
KRS 403.190 provides that marital property shall be divided in just
proportions. It does not require a 50-50 division between the parties. As such,
mathematical precision is not required, and the court’s deduction of the anticipated 6%
commission is not erroneous since the resulting division still comports with KRS
403.190. As such, we find no error.
Paul also maintains that the trial court improperly valued a Harley Davidson
motorcycle at Paul’s purchase price rather than the estimated value provided by Paul’s
appraiser. Paul paid $15,125.50 for the motorcycle in January, 2005. Eight months later
during the trial proceeding, Paul produced evidence that its value was $10,995. Paul
claims that the trial court erred in valuing the motorcycle at the purchase price rather than
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the appraisal value, since the court attributed its value to him for purposes of dividing the
marital property.
We find no error on this issue. The trial court is vested with discretion in
accepting Cheryl’s tendered valuation of the motorcycle - which was based on the NADA
value - rather than that of Paul’s expert. As such, evidence exists in the record upon
which the trial court reasonably based its estimate of the motorcycle’s value. And as
noted above, the court is only required to divide the marital property “in just
proportions.” Thus, imprecision in the valuation process - if any - is subsumed by the
broad discretion granted the court by KRS 403.190.
Paul’s third argument is that the trial court erred in its allocation of the
parties’ marital debt. Specifically, he claims that the court’s allocation of a $6,219 credit
card debt to him was improper, and directs our attention to Neidlinger v. Neidlinger, 52
S.W.3d 513 (Ky. 2001) in support of same. Neidlinger set forth factors for the court to
consider in allocating debt, including the parties’ economic circumstances, the
participation in creating the debt and the benefits received from the debt. He maintains
that the record does not support an allocation of 100% of this debt to him, and seeks an
order reversing on this issue.
Paul correctly notes that there is no statutory scheme for allocating debt.
Neidlinger is helpful, however, and states that in addition to the factors set forth above,
the court also may look to the “economic circumstances of the parties bearing on their
respective abilities to assume the indebtedness.” Neidlinger, supra. This opinion further
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states that there exists no presumption that the debts must be divided equally or in the
same proportions as the marital property.
In the matter at bar, it is uncontroverted that Paul earns more than four
times the income earned by Cheryl. This fact, taken alone, operates to justify the court’s
allocation of additional debt to Paul. Furthermore, Cheryl was ordered to pay various
debts including an $1,800 National City Visa bill and the mortgages previously
discussed. In sum, there is no basis for concluding that the trial court’s allocation of debt
ran afoul either of Neidlinger or general principles of equity, and as such we find no
error.
Paul’s fourth argument is that the court erred in the duration and amount of
maintenance it awarded to Cheryl. The court awarded maintenance in the amount of
$750 per month until May, 2016. Paul claims that this award constitutes an abuse of
discretion because Cheryl was awarded the marital residence, $30,000 in retirement
funds, was allocated little debt and earns $24,000 per year. He argues that she has
sufficient property to meet her reasonable needs, and that the court erred in failing to so
rule.
KRS 403.200 states,
(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
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(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;
(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.
The trial court expressly examined these factors in determining that
Cheryl was entitled to an award of maintenance in the amount of $750 per month for
approximately 10 years. In its findings of fact, the court noted Cheryl’s income and
other financial resources, including marital property apportioned to her, the standard
of living during the marriage, the duration of the marriage, and Paul’s ability to pay
maintenance while meeting his own needs. This analysis was sufficient to satisfy
KRS 403.200, and was supported by competent evidence of record. Accordingly, we
find no error. Similarly, we find no basis for altering the effective date of the
maintenance and child support award.
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Paul further argues that the trial court abused its discretion in requiring him
to maintain life insurance while also paying maintenance and child support. The court
ordered Paul to maintain $100,000 in life insurance for the time period he owed child
support, and an additional $50,000 in coverage for the time period he owed maintenance.
The trial court has broad discretion in requiring a party to maintain insurance for the
duration of a child support obligation, Graham v. Graham, 595 S.W.2d 720 (Ky.App.
1980). Paul has offered little in support of his claim of error on this issue, and again we
find no basis for altering the order on appeal as it relates to this issue.
Paul’s final argument is that the trial court abused its discretion in its award
of attorney fees and costs. The court ordered Paul to pay $8,000 of the $10,000 owed by
Cheryl for attorney fees, and 80% of the cost incurred to appraise the airplane. He
maintains that these awards were not supported by the record because Cheryl has
sufficient assets to pay these fees and costs, and because he had to file motions for
contempt arising from Cheryl not permitting visitation and access to personal property.
KRS 403.220 provides that the trial court may award reasonable attorney
fees after considering the financial disparity of the parties. Though Cheryl receives
maintenance and child support, she continues to earn one-fourth of Paul’s income and has
a diminished standard of living relative to that enjoyed during the marriage. When
considering all of the facts, we cannot conclude that the court abused its discretion in
awarding the attorney fees and costs to Cheryl. We find no error.
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For the foregoing reasons, we reverse and remand the order on appeal as it
relates to Paul’s visitation with Kaitlyn, and in all other respects affirm.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Bryan Gowin
Louisville, Kentucky
James L. Theiss
LaGrange, Kentucky
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