HOWARD (CLIFFORD) VS. HOWARD (BILLIE SUE)Annotate this Case
RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 06-CI-00600
BILLIE SUE HOWARD,
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BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
ACREE, JUDGE: This is an appeal from orders of the Greenup Circuit Court
dividing the marital property of Billie Sue Sowards (formerly Howard) and
Clifford Howard and otherwise relating to their action for the dissolution of their
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute
marriage. Clifford contends that the circuit court committed several errors in
dividing the parties’ property, retirement accounts, and bank assets. We disagree
and affirm the circuit court.
Billie Sue and Clifford were married on March 23, 1999, and
separated in September or October of 2006. The trial court dissolved the parties’
marriage on July 23, 2007. There were several contested property issues. Billie
Sue and Clifford owned two homes: a condo located on Deering Court and a
second residence on Gilley Street. The couple also owned several water craft
including a small boat, a houseboat, and a Seadoo jet ski. Both parties had
individual retirement and bank accounts. In dividing the parties’ property, the trial
court awarded Billie Sue the Deering Court condo and awarded Clifford the home
on Gilley Street. Clifford received the houseboat and jet ski and also the proceeds
from the sale of the smaller boat, which was sold after the parties separated. The
trial court awarded each party his or her respective retirement and bank accounts.
Following the entry of the trial court’s judgment, Clifford moved to
alter, amend, or vacate the order. The trial court denied the motion. This appeal
We review the findings of facts in a dissolution action only to
determine if they are clearly erroneous. CR 52.01; Sexton v. Sexton, 125 S.W .3d
258 (Ky. 2004); Ghali v. Ghali, 596 S.W.2d 31 (Ky.App. 1980). CR 52.01 states,
Findings of fact shall not be set aside unless clearly
erroneous, and due respect shall be given to the
opportunity of the trial court to judge the credibility of
Decisions concerning the division of marital property are within the
sound discretion of the trial court, and we will not disturb those decisions except
for an abuse of that discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky.
2001). In Cochran v. Cochran, 746 S.W.2d 568 (Ky.App. 1988), this court stated,
The property may very well have been divided or valued
differently; however, how it actually was divided and
valued was within the sound discretion of the trial court.
In Lawson v. Lawson, 228 S.W.3d 18, 21 (Ky.App. 2007),
In dividing marital property, including debts, appurtenant
to a divorce, the trial court is guided by Kentucky
Revised Statute 403.190(1), which requires that division
be accomplished in “just proportions.” This does not
mean, however, that property must be divided equally.
. . . It means only that the division should be
accomplished without regard to marital misconduct and
in “just proportions” considering all relevant factors.
Cochran, 746 S.W.2d at 570 (internal citations omitted).
Clifford argues that the trial court committed reversible error in its
unjust and inequitable distribution of the parties’ physical and real property assets.
According to Clifford’s calculations, which include substantial deductions to the
value of each of the boats he was awarded due to repairs and depreciation, the trial
court’s property division deprived him of $13,295.35. We are unconvinced that
the disparity in the awarded assets is as substantial as alleged by Clifford. We also
note that Clifford’s calculations fail to account for the $17,000.00 in debt Clifford
brought into the marriage and which was subsequently paid off during the
marriage. Overriding in our review is that the division of marital assets, as
discussed above, is within the trial court’s discretion. Cochran, 746 S.W.2d at
570. We find no abuse of that discretion here.
As to the retirement and individual bank accounts, nothing requires
the equal division of these accounts. As stated previously, the only requirement is
that marital property be divided in “just proportions.” Again, we reiterate that
“just” does not necessarily mean “equal.” Lawson, 228 S.W.3d at 21. The trial
court did not ignore these accounts but simply decided, in the context of the
comprehensive property division, that it was not necessary to divide these
particular assets. We are not convinced that this was an abuse of discretion.
A trial court’s decision that does not appear to divide assets on a fiftyfifty basis, at first blush, may appear less than equitable. However, having
examined the record and considered the arguments of the parties, and while
another court may have divided the marital property differently, we cannot say that
any finding of the circuit court in this case was based on less than substantial
evidence or that any of this circuit court’s determinations were clearly erroneous.
For the foregoing reasons, the Greenup Circuit Court’s orders entered
in this case on July 24, 2007, and August 8, 2007, are affirmed.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Tracy D. Frye
Gordon J. Dill