GILLIAM (THERESA) VS. GILLIAM (PAUL D.)Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE BETH LEWIS MAZE, JUDGE
ACTION NO. 06-CI-00157
PAUL D. GILLIAM
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; NICKELL, JUDGE; GRAVES, SENIOR
NICKELL, JUDGE: In this dissolution of marriage case, Theresa Gilliam
(Theresa) alleges the Rowan Circuit Court erred in dividing the marital real estate
and overruling her requests for maintenance and attorney’s fees in its order entered
July 3, 2007. We disagree and affirm.
Theresa’s fourteen-year marriage1 to Paul D. Gilliam (Paul) was
dissolved by interlocutory decree on May 25, 2007. Division of property and debts
was reserved for later resolution. Items to be divided included household goods,
vehicles, heavy equipment and several parcels of land, one of which was the site of
the marital home. Some of the parcels were owned in partnership with another
Each party filed a prehearing statement identifying his/her non-marital
and marital assets and debts. Both had worked for a telephone company for about
three decades and as a result had accrued significant retirement accounts which
were substantially equal in value. Paul retired in March of 2002 but quickly
returned to work with a telephone company in another capacity. Theresa retired in
February of 2006. She, too, returned to work with a telephone company but is
earning less than half of her prior hourly wage. Neither could calculate the portion
of benefits amassed prior to the marriage and neither sought any portion of the
other’s retirement account.2
Both parties were deposed and they were the only witnesses to testify
at the final hearing on June 6, 2007. Paul evinced a desire to retain all the marital
property and accept all outstanding debt associated with the property. Only one of
The couple married in 1992, separated on March 22, 2006, and on May 23, 2006, Theresa
petitioned for dissolution of the marriage. No children were born to the couple. Both Paul and
Theresa have children from prior marriages.
Although cited by neither party nor the trial court, KRS 403.190(4) directs that if retirement
benefits of one party are not considered in the property settlement, an equal level of retirement
benefits of the other spouse will also be excepted from consideration.
the five tracts of land, the marital home, was appraised. The appraisal done at
Paul’s request valued the marital home, which sits on nearly six and one-half acres
and has a detached garage, at $200,000.00. In contrast, the appraisal of the same
tract, done at Theresa’s request, valued the home at $261,000.00. The court split
the difference and valued the marital home at $230,000.00 which was consistent
with an appraisal previously performed on Countrywide’s3 behalf.
In her prehearing statement and in her testimony at the final hearing,
Theresa suggested two other tracts of land be sold and the proceeds divided
equally. At the final hearing, Theresa’s attorney stated he did not believe the
properties could be accurately valued. No appraisals of these parcels were entered
into evidence. The first parcel was called the Johnny Wilson tract. Paul testified it
was purchased for $12,500.00 which he considered to be a bit high at the time.
The trial court permitted Paul to state his lay opinion that the value of the property
was still about $12,500.00. Theresa did not challenge Paul’s statement as to value
nor did she offer her own estimate.
Paul testified a second tract of land, which is in the flood plain, was
purchased for $45,000.00 and is probably worth about $40,000.00 today. Again,
Theresa did not challenge Paul’s statement of value nor did she offer a
Theresa requested maintenance because she has returned to work but
is earning only $11.00 an hour. She receives $900.00 a month in retirement
Countrywide provided financing for the home at one point.
benefits and pays monthly rent of $900.00 to her parents. A few months after her
retirement she withdrew about $50,000.00 from her retirement account and gave it
to her parents as a gift. Had she not made this withdrawal, her monthly retirement
benefits would be $1,200.00. She withdrew other funds from her retirement
account to pay off her son’s truck and to pay bills.
As soon as Paul completed his testimony at the final hearing, the court
issued its ruling from the bench. In addition to distributing personalty, tools and
vehicles, about which there appears to be no dispute in this appeal, the court
awarded the marital home and other real estate; directed Paul to pay Theresa
$20,834.50; negotiated a payment plan for Paul to make timely payment to
Theresa; overruled Theresa’s request for maintenance because the trial court did
not deem this to be a case justifying a maintenance award; and overruled Theresa’s
request for attorney’s fees because the court normally required each party to pay its
own attorney fees. Thereafter, the court offered her notes and asked which
attorney wanted to reduce the court’s verbal ruling to a written order for the court’s
signature. Both attorneys said they had been unable to keep up with the court’s
verbal ruling but ultimately one volunteered to try his hand at drafting the order.
At no time did anyone question the trial court’s verbal ruling.
On July 3, 2007, an order was entered. Thereafter, no one sought
additional findings, moved for a new trial, or moved to alter, amend or vacate the
court’s order. On August 3, 2007, Theresa filed a notice of appeal attacking the
order entered on July 3, 2007. This appeal followed. We now affirm.
At the threshold of our analysis, we note a failure to comply with the
requirements of CR4 76.12(4)(v) which mandates each appellant’s brief contain:
An "ARGUMENT" conforming to the statement of
Points and Authorities, with ample supportive references
to the record and citations of authority pertinent to each
issue of law and which shall contain at the beginning of
the argument a statement with reference to the record
showing whether the issue was properly preserved for
review and, if so, in what manner.
(Emphasis added.) The mandatory statement of preservation saves “the appellate
court the time of canvassing the record in order to determine if the claimed error
was properly preserved for appeal.” Elwell v. Stone, 799 S.W.2d 46, 47-8
(Ky.App. 1990) (citing 7 Bertelsman and Phillips [sic], Kentucky Practice, CR
76.12(4)(c)(iv) [now (v)], Comment 4 (4th ed. 1989 PP). When review of an
unpreserved issue is desired, counsel may request palpable error review under CR
61.02. When an appellant fails to specify how and where an issue was preserved,
this Court may strike the brief or review the case only for manifest injustice. Id.
Theresa’s brief advances two arguments on appeal, but fails to tell us
whether, where or how the allegations were preserved for our review. There is
also no request for us to undertake palpable error review. Furthermore, the record
shows no objection to any of the trial court’s rulings. Due to Theresa’s
noncompliance with CR 76.12, we would be well within our authority to strike her
Kentucky Rules of Civil Procedure.
brief. However, for reasons explained elsewhere in this opinion we will not
impose such a drastic sanction.
VALUATION OF MARITAL PROPERTY
Theresa’s first complaint is that the trial court distributed two
unappraised parcels of land without knowing their value. Theresa had suggested
the court order the parcels to be sold and the proceeds divided. She now argues the
court’s order did not fairly and equitably divide the couple’s marital property. We
Theresa did not voice her objection to the property distribution to the
trial court in writing or in open court. Additionally, she did not move for a new
trial under CR 59.01 or move to alter, amend or vacate the order under CR 59.05.
In her prehearing statement, and again in her testimony, she asked that the parcels
be sold, but we deem a request during a proceeding to be materially different from
an objection to a court order. Here, the allegation was not properly preserved for
our review because the trial court was not given the opportunity to correct its
alleged error before the complaint was submitted to us for review. Little v.
Whitehouse, 384 S.W.2d 503, 504 (Ky. 1964); CR 46. Thus, review is denied and
the trial court’s distribution of the marital real estate is affirmed.
Theresa’s second complaint is that the trial court denied her request
for attorney’s fees without undertaking the necessary review required by Kentucky
Revised Statutes (KRS) 403.220. Awarding attorney's fees is within the trial
court’s discretion and will be disturbed only if the trial court has abused its
discretion. Giacolone v. Giacolone, 876 S.W.2d 616, 620-21 (Ky.App. 1994)
(citing Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990); and Wilhoit v. Wilhoit, 521
S.W.2d 512 (Ky. 1975)). A trial court need not make specific findings on whether
a party is entitled to attorney’s fees; it need only “‘consider’ the financial resources
of the parties” and any award it makes must be reasonable. Hollingsworth v.
Hollingsworth, 798 S.W.2d 145, 148 (Ky.App. 1990).
Based upon the record before us, it does not appear the trial court
considered the financial resources of Theresa and Paul before overruling Theresa’s
request for attorney’s fees. However, we cannot say that with certainty because
Theresa neither objected to the court’s verbal ruling from the bench nor to the
court’s written order. Nor did she request a specific finding explaining the court’s
review of the finances of the parties. Therefore, the issue was not preserved and
we must deny review. Little, supra.
Like the award of attorney’s fees, whether to grant maintenance also
lies solely within a trial court's sound discretion. Theresa claims she was entitled
to maintenance because she submitted a list of expenses that exceeded her income.
Maintenance may be awarded if the requesting spouse cannot otherwise provide
for his/her reasonable needs and cannot support himself/herself “through
appropriate employment.” KRS 403.200(1). While Theresa has returned to work
earning about one-half of her pre-retirement wage, she testified she did not want to
resume working at the telephone company and besides, a similar position paying
$20.00 an hour, her prior wage, was no longer available with her former employer.
As with the other allegations of error, Theresa did not object to the trial court’s
decision when it was issued from the bench, nor did she file appropriate postjudgment motions to give the trial court an opportunity to correct any errors before
appealing to this Court. Again, the issue is not preserved and we must deny
review. Little, supra.
For the foregoing reasons, the order of the Rowan Circuit Court is
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
W. Jeffrey Scott
Earl Rogers, III