HOWARD (CRYSTAL GAYLE) VS. HOWARD (MARK ANTHONY)Annotate this Case
RENDERED: OCTOBER 3, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
CRYSTAL GAYLE HOWARD
APPEAL FROM GREENUP FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 06-CI-00310
MARK ANTHONY HOWARD
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BEFORE: ACREE AND VANMETER JUDGES; HENRY, SENIOR JUDGE.
ACREE, JUDGE: Crystal Howard appeals from a decree issued by the Greenup
Family Court which dissolved her marriage to Mark Howard, awarded the parties
joint custody with Mark as the primary residential custodian, and divided marital
property between the parties. The case was decided after a seven-day evidentiary
hearing, and the family court issued exhaustive factual findings. After reviewing
the family court’s order and the evidence, we affirm.
The parties were married in 1996 and separated after almost ten years.
Crystal filed for divorce on May 16, 2006. At that time, the parties’ two children
were five and three. Crystal was awarded temporary custody of the children with
visitation rights awarded to Mark. Thereafter, the parties experienced difficulty
during visitation exchanges and were repeatedly in court. Each parent made
allegations reflecting on the other parent’s suitability to have custody of their
children. Several days’ worth of deposition testimony was taken from both parents
and a court-ordered custodial evaluator. The evidentiary trial in this matter lasted
seven days, spread out over the course of several months, and each party was
permitted to call numerous witnesses. The family court entered an order, dated
August 27, 2007, awarding the parties joint custody, with Mark designated as
primary residential custodian and Crystal receiving standard visitation with the
children. The family court’s order also divided marital property and debts between
the parties. This appeal followed.
Crystal first argues that the family court abused its discretion by
naming Mark primary residential custodian. The statute governing custody awards
is KRS 403.270(2), and its applicable sections read as follows:
(2) The court shall determine custody in accordance with
the best interests of the child and equal consideration
shall be given to each parent[.] The court shall consider
all relevant factors including:
(a) The wishes of the child's parent or parents . . . as to
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with
his parent or parents, his siblings, and any other person
who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and
(e) The mental and physical health of all individuals
(f) Information, records, and evidence of domestic
violence as defined in KRS 403.720[.]
The standard for reviewing a family court’s factual determinations in awarding
custody is whether or not the findings are clearly erroneous. Kentucky Rule of
Civil Procedure (CR) 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986).
Subsections (a) and (b) of the statute have little bearing on our review of this case
since both parents expressed unequivocally their desire for custody, and the
children were too young to be interviewed regarding their wishes.
In determining which custody arrangement would be in the best
interests of the parties’ children, the family court gave due consideration to the
children’s interaction with each other, their parents, and other relatives. KRS
403.270(2)(c). During the pendency of this action, each parent obtained a courtordered custody evaluation. Both of the experts consulted expressed the opinion
that either Mark or Crystal would be a suitable custodian for the children. Further,
the family court noted that the children were close to both parents, as well as to the
grandparents and other relatives on both sides of their family.
KRS 403.270(2)(d) directs the family court to consider the children’s
adjustment to their home, school and community. This factor weighed slightly
more in Mark’s favor. Although Crystal is originally from Ohio and her extended
family members still live there, the parties resided in Greenup County for the entire
decade of their marriage. Both children were born in Greenup County, where
Mark has a large network of extended family, and the parties had previously
intended that their children would attend Grey’s Branch Elementary.
After the parties separated in May 2006, Crystal briefly moved in with
her parents, taking the children to live in Minford, Ohio without obtaining Mark’s
input. She also enrolled their son in kindergarten there without informing Mark or
even listing him as a parent on school forms. Mark further testified that Crystal’s
decision to move resulted in the termination of their son’s participation in sports
The family court noted that the children appeared to be happy in either
home. One of the experts who performed a custodial evaluation actually
recommended a split custody arrangement; the children to spend alternating weeks
with each parent. Crystal, however, was completely opposed to this suggestion,
thereby compelling the family court to decide.
Finally, the statute directs the family court to consider the mental and
physical health of everyone involved, as well as any acts of domestic violence.
KRS 270.403(2)(e) and (f). On appeal, Crystal argues that the family court erred
in finding that these factors supported designating Mark as primary residential
custodian. The family court found no evidence of domestic violence, but
expressed some concern about Crystal’s judgment based on some of the incidents
alleged by Mark. The allegations made by these parties against each other are
salacious in nature. We have familiarized ourselves with the specific behaviors
alleged and reviewed the evidence in the record, including the parties’ deposition
testimony and the transcript of the seven-day evidentiary proceeding, and have
concluded that the allegations need not be detailed here.
With regard to the family court’s finding that there was no evidence of
domestic violence, we note that KRS 403.270(2)(f) refers to the definition of that
term found in KRS 403.720. Applying that definition, the family court correctly
determined that there was no evidence of domestic violence between these parties
or toward their children. Moreover, eyewitness testimony to every alleged violent
act ranged from affirming the allegations to flatly denying they occurred. CR
52.01 states that “due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” The Kentucky Supreme Court has found
this rule to apply in child custody disputes. Reichle, 719 S.W.2d at 444.
Crystal takes issue with the family court’s concern regarding “her
judgment involving her children when it comes to sexual behavior” – a concern
apparently factored into the family court’s analysis under KRS 403.270(2)(e). She
argues that the family court misjudged the credibility of the witnesses whose
testimony supported allegations that she had behaved improperly. As previously
noted, this Court is not permitted to lightly dismiss a trial court’s assessment of
witness credibility. Further, even if we determined that the family court’s factual
finding on one element of the statute was clearly erroneous, Crystal would not be
entitled to a reversal of the custody decision. KRS 403.270(2) instructs the family
court to give consideration to “all relevant factors” in determining which custody
arrangement will promote the children’s best interest, including the nine factors
listed in subsections (2)(a)-(i)(emphasis supplied). Thus, the family court is clearly
permitted to consider other factors bearing on the children’s best interests. Since
the family court’s overall factual determination regarding the children’s best
interests is not clearly erroneous, the custody award must be affirmed.
Crystal’s second claim is that the family court abused its discretion in
its distribution of marital property and debts of the parties. KRS 403.190 governs
the disposition of property in a divorce action. The family court is required to
divide the property in just proportions and without regard to marital misconduct,
unless that misconduct involves improper dissipation of marital assets. Lawson v.
Lawson, 228 S.W.3d 18, 21 (Ky.App. 2007). Crystal contends that Mark
dissipated marital assets when he closed the gas station and convenience store
owned by the parties in May 2006. Dissipation may be found “when marital
property is expended (1) during a period when there is a separation or dissolution
impending; and (2) where there is a clear showing of intent to deprive one’s spouse
of her proportionate share of the marital property.” Brosick v. Brosick, 974 S.W.2d
498, 500 (Ky.App. 1998). Dissipation requires proof by a preponderance of the
evidence. Id. at 502.
The family court heard conflicting testimony from multiple witnesses
regarding the financial condition of the business owned by the parties during their
marriage and known as Route 7 Quick Stop. It is unnecessary to refer to all of the
testimony here. However, the omission of any portion of the evidence regarding
the Route 7 Quick Stop should not be taken as an indication that this Court is
unaware of all of the evidence before the family court. Crystal’s testimony
generally painted a rosy picture of the business. She described it as sufficiently
profitable to support the lifestyle of the parties’ family and to provide frequent
loans to members of the extended Howard clan. According to Crystal, she had no
notice that Mark intended to close the business before he did so on Mother’s Day
2006. She was surprised to arrive at the store that evening to find about twenty
people emptying the store of inventory, fixtures, and equipment. Crystal also
testified that Mark sold these items for far less than their value. Finally, she denied
any knowledge of the whereabouts of the business’s records.
Mark, on the other hand, testified that the store was unable to turn a
profit. At one point, he was contacted while working out of town by a store
employee because Route 7 Quick Stop’s accounts were over $40,000.00 in the
negative. He introduced checks for significant sums of money from another
business in which he had part ownership, claiming that these cash infusions were
keeping Route 7 Quick Stop afloat. The family court also heard testimony that the
business’s actual bank deposits frequently totaled less than the amount reflected on
the deposit tickets. According to Mark, he and Crystal discussed closing the store
and she indicated a lack of interest in Route 7 Quick Stop’s future. Mark told the
family court that he decided to close the store on a Sunday because it was
scheduled to receive a delivery of gas the following day, and there was no money
to pay for it. He also denied any knowledge as to the location of the business’s
The family court found the business had $90,000.00 in equity and
entered an order allowing ten days for either party to buy the other’s share for
$45,000.00. If neither party chose that option, then the property would be sold and
the proceeds remaining after paying off any indebtedness would be split equally.
The family court considered the issue of dissipation and expressed its concern with
the evidence introduced by the parties.
The most confusing part of the testimony that was
given had to do with the way the store was run . . . .
Neither party had the store appraised by an expert. The
testimony was that the inventory in January 2006 was
about $50,000. It was guessed that it would be about the
same at the time of closing. There was testimony that
Mark Howard took items out of the store and that some
of the inventory as well as the fixtures were sold.
However, there was testimony that Mrs. Howard would
take money from deposit tickets and the exact amount of
that is unknown. There was testimony that Mr. Howard
put money from [his other business] into the accounts
and he wants an offset of the money put into the store for
items that were sold. With out [sic] anymore [sic]
definite testimony than what was presented at the hearing
herein in regards to this matter, the Court can do nothing
[more] than to come to the conclusion that neither party
shall be entitled to anything more from the inventory or
fixtures of the store [than] what they have already
(Order entered August 27, 2007). Crystal has not demonstrated that the family
court committed clear error in finding that she did not adequately prove dissipation
of marital assets. Thus, the finding must be upheld on appeal. CR 52.01.
Finally, Crystal argues that the family court erred in finding that she
and Mark owed debts to two of his family members – Mark’s brother, Scott,
($37,000), and Mark’s nephew, Jason Sipple, ($6,000). Crystal disputed the
validity of these debts, claiming that Mark was seeking to diminish the parties’
marital assets to the benefit of his family members.
The family court heard evidence that the parties had borrowed various
sums of money from Scott over the years. Further, there was testimony that some
of that money was borrowed at Crystal’s behest. Once the debt grew large enough,
Scott became concerned about protecting his right to recover the money, and the
parties signed a note acknowledging the debt to Scott. Mark transferred some
equipment to Scott who accepted it in partial satisfaction of the debt. The brothers
agreed that the equipment was worth $30,000.00, and the family court ordered
Mark to pay the remaining $7,000.00. Crystal denied any knowledge of this debt,
but Mark and Scott testified that she knew about it. The family court was faced
with a credibility contest, and CR 52.01 directs this Court to respect the family
court’s determination, and we do so.
Crystal also challenged the propriety of a $6,000.00 check written to
Mark’s nephew when the Route 7 Quick Stop closed. Both Mark and Jason
testified that Jason had done electrical repair work necessary to the store’s
operation. Moreover, Jason was present on the night Mark closed the store and
assisted in the actual closing. Jason testified that, prior to the store’s closure, he
had been content to wait for his uncle to pay him for the electrical work because he
did not immediately need the money. Once again, the determination of which
witness gave the more credible testimony was properly made by the family court.
We have further determined that the family court’s factual findings regarding the
entity known as Multiple Restoration, Inc. and the farms in Kentucky and Ohio
were not clearly erroneous.
Because we find none of the determinations by the Greenup Family
Court to be clearly erroneous or an abuse of that court’s considerable discretion,
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Marie Moraleja Hoover
Tracy D. Frye