MILLS (CHRISTOPHER D.) VS. MILLS (ANGELA V.)Annotate this Case
RENDERED: OCTOBER 17, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CHRISTOPHER D. MILLS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JERRY J. BOWLES, JUDGE
ACTION NO. 05-CI-502249
ANGELA V. MILLS
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BEFORE: CLAYTON AND VANMETER, JUDGES; KNOPF,1 SENIOR
CLAYTON, JUDGE: Christopher D. Mills (Chris) appeals the May 23, 2006,
post-decree order and judgment dividing his pension equally between him and the
appellant, Angela V. Mills (Angela). We affirm.
Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
Chris and Angela were married October 16, 1993, and have two
children. They were divorced by a decree of dissolution entered on December 2,
2005, but the decree reserved the marital property and debt issues. To resolve the
outstanding property issues plus custody and visitation issues, the parties
participated in mediation on January 16, 2006. As a result of the mediation, the
parties reached an agreement that addressed child support, maintenance, custody,
visitation, unreimbursed medical expenses, marital debts, and division of
“tangible” personal property.2
Although Chris’s pension and 401(k) savings plan (plan) was listed on
both parties’ mandatory case disclosures, it was not mentioned in the mediation
agreement. Chris had provided information that, as of June 30, 2005, the plan was
valued at $22,106.74. On February 13, 2006, Angela made a motion for the court
to divide the plan or order them back into mediation so that they could address the
division of the plan. A hearing was held on April 19, 2006, and after the hearing,
the family court entered a May 23, 2006, order dividing the value of the plan
equally between the parties.
Subsequently, on May 31, 2006, Chris moved, pursuant to Kentucky
Rules of Civil Procedure (CR) 52.04, for additional findings of fact, but the family
court denied his motion on June 13, 2006. Chris specifically wanted the court to
find whether or not Chris’s retirement plan had been disclosed to the parties prior
to the marital settlement agreement [the mediation]. This appeal followed.
There was no amended or supplemental decree incorporating the mediation agreement for any
Chris claims that the division of the plan was contemplated during the
mediation, and Angela counters that the plan was omitted from division during the
mediation session. Neither party disputes that the retirement plan is marital
property. The family court determined in its order that the mediated agreement did
not include the division of the plan, that the retirement plan was marital property,
and as such, subject to division. Thereupon, the family court awarded each party
one-half the funds held in the account as of June 30, 2005.
The division of marital property is within the sound discretion of the
trial court and will not be disturbed unless we find an abuse of discretion.
Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001). In dividing marital property,
appurtenant to divorce, the trial court is guided by KRS 403.190(1), which requires
that division be accomplished in “just proportions.” Keeping in mind that findings
of fact shall not be set aside unless clearly erroneous and that due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses
and the evidence, we find no abuse of discretion in the court’s finding that the
mediated agreement omitted any consideration of the plan and the court’s
subsequent division of the retirement plan.
Furthermore, we find no abuse of discretion by the court in its
response to Chris’s CR 52.043 motion asking for a specific finding about the
disclosure of the plan by Chris to Angela prior to the execution of the mediated
Chris’s motion was styled as one pursuant to CR 54.04 but since CR 52.04 addresses findings
on essential issues of fact and CR 54.04 addresses allocation of costs, the record is sufficiently
clear that Chris’s motion was brought under CR 52.
settlement agreement. The family court held that it had made such a finding
because, in its original order, it stated the plan was disclosed by both parties on
their mandatory case disclosure forms. Clearly, a finding of fact is not clearly
erroneous if supported by substantial evidence. Moore v. Asente, 110 S.W.3d 336
Chris also contends in his brief that the family court failed to respond
to his CR 52.04 motion because it did not address the relevant factors found in
KRS 403.190 that are to be used in dividing marital property. A perusal of Chris’s
CR 52.04 motion for additional findings of fact, however, contains no such
request. Therefore, in light of the mandatory nature of CR 52.04, it was not
necessary for the family court to do so. And KRS 403.190 gives the court wide
discretion in its division of marital property so long as it is “in just proportions.”
Here, we find no abuse of discretion.
Furthermore, Chris argues that the parties’ intent to mediate property
issues indicates that the retirement plan was addressed by the mediated agreement,
and that contract principles demonstrate an abuse of discretion by the court. We
Our analysis of the facts indicates that the parties had many issues to
consider within the tight time constraints of the mediation session and simply
omitted dealing with the retirement plan. Furthermore, the mediated agreement, on
its face, deals with the parties’ property only when it references an attached
document, which lists “tangible” property given to Angela. The attached
document contains items that range from a car to a purple flower arrangement.
Simply put, the list is labeled in the agreement as “tangible” property and
everything on the list meets the definition of tangible property. But, as the court
observed in its order, a retirement plan is not characterized as a tangible piece of
property. Additionally, nothing in the agreement states that the mediated
agreement purports that this mediation agreement covers every possible issue
and/or there will be no future discussion about the issues covered in the agreement.
Regardless of our analysis, decisions of the family court concerning
the division of marital property are within the discretion of that court, and we will
not disturb those decisions except for an abuse of that discretion. Davis v. Davis,
777 S.W.2d 230 (Ky. 1989). Moreover, the appellate courts of the Commonwealth
have repeatedly held that “domestic cases require a greater degree of deference to
the determinations made by trial courts.” Marcum v. Marcum, 779 S.W.2d 209,
212 (Ky. 1989); see also Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990).
Therefore, we are not authorized to substitute our own judgment for that of the trial
court when the trial court's decision is sound and supported by the record.
For the foregoing reasons, the May 23, 2006, order and judgment is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Daniel J. Canon
Thomas E. Clay
Barbara A. Sullivan