MARSH (WILLIAM) VS. MARSH (RHONDA ANN)Annotate this Case
RENDERED: SEPTEMBER 19, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE ELISE GIVHAN SPAINHOUR, JUDGE
ACTION NO. 04-CI-01202
RHONDA ANN MARSH
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BEFORE: LAMBERT, STUMBO, AND THOMPSON, JUDGES.
LAMBERT, JUDGE: William Marsh appeals the Bullitt Circuit Court’s findings
and decree of dissolution of marriage entered on November 21, 2007, and the
supplemental judgment entered on January 3, 2008. After careful review, we
William and Rhonda Marsh were married on October 17, 1975, and
separated on September 1, 2003. On December 2, 2004, William filed a petition
for dissolution of marriage. No further action occurred until October 24, 2005,
when Rhonda filed a motion for maintenance, stating that William earned
approximately $70,000.00 per year, and that she earned approximately $37,000.00
per year. The parties’ 2004 income tax return reflects that William earned
$57,671.00, and that Rhonda earned $32,229.00. In 2006 William earned
$59,966.00, and Rhonda earned $38,718.00.
On January 10, 2007, the trial court entered an order awarding
temporary maintenance in the amount of $250 per week effective October 12,
2006. A trial was scheduled for September 20, 2007. At that trial, the court halted
the presentation of evidence and instructed that a real estate appraiser be appointed
to appraise the parties’ various properties. The court set a new trial date for
November 2, 2007, and the trial was conducted that day.
The court entered its order on November 21, 2007, which provided
that the parties should agree on a personal property appraiser and divide the cost of
that appraiser equally. After an appraiser was obtained, Rhonda was to make two
lists of personal property and provide them to William, who was to have first pick
of the lists. The court noted that during the divorce, Rhonda retained her 2002
Chrysler Sebring with a fair market value of $8,675.00 and that William retained a
1998 Ford Expedition with a fair market value of $8,585.00, but sold it during the
proceedings for $5,500.00. The debt on the Ford was secured by a mortgage on
the parties’ home with a current payoff of $7,400.00. William also retained a 1989
Ford truck with a fair market value of $1,000.00, a 2002 Harley-Davidson
motorcycle which the parties valued at $14,000.00, a Kawasaki Jet Ski valued by
both parties at $1,500.00, and a 1989 Century Fury boat valued at $1,500.00. The
court determined that this left Rhonda with $8,675.00 of value in vehicles and
William with $16,405.81 of value in vehicles and boat and then noted that
William’s value totaled $23,500.00, less the payoff of the loan on a Navigator,
which was $7,094.19. The court makes no other mention of the Navigator until
this portion of the order. The court then ordered William to pay Rhonda $3,865.41
to secure an equal division of the value of the vehicles and the associated debt and
to assume and refinance the third mortgage on the home which financed the
purchase of the Navigator.
The court then determined that the parties had acquired three pieces of
real estate during the marriage: the marital residence on 790 Ellis Cook Road, a
rental property on 3681 Blue Lick Road, and a rental property on 179 Azure Drive.
The Ellis Cook Road property appraised at a fair market value of $255,000.00 with
a first mortgage in the amount of $55,217.00 and a second mortgage in the amount
of $74,134.44, leaving equity of $125,648.56. The court noted that Rhonda
wanted to keep the residence. The Blue Lick property appraised at a fair market
value of $103,000.00 with a mortgage of $74,894.00, leaving equity of $28,105.40.
The Azure Drive property appraised at $100,000.00 with a mortgage of
$81,423.47, leaving equity of $18,576.53. William wanted to keep the two rental
properties. The difference in equity received by Rhonda ($125,648.56) and
William ($46,681.93) was $78,966.63 and the court ordered Rhonda to pay
William one half the difference, or $39,483.32.
The court ruled that William owed Rhonda $4,250.00 in back
maintenance payments. William had a General Electric Savings and Security Plan
through his employer worth $142,003.00 as of December 31, 2006, and an
additional pension plan. Rhonda had $48,523.20 in her 401k through her employer
as of that same date. The court ordered that Rhonda should receive $46,739.00 to
equalize the two retirement accounts and that the pension should be divided by use
of a qualified domestic relations order.
The other marital debts included a Chase credit card with a balance of
$7,200.00 and a Capital One card with a balance of $1,336.00, for a total amount
of debt of $8,536.00. Each party is responsible for one half those debts, or
$4,268.00. The court ordered Rhonda to set off her amount by the money William
owed her, with William to then pay off the debt on the credit cards.
The court ordered William to pay Rhonda $3,300.00 from his savings
and security plan, which she would add to her 401k plan.
The court ordered that William pay Rhonda maintenance of $250.00
per week as permanent maintenance until his or her death or her remarriage. The
court found that the parties were in their fifties with two adult children. The court
found that Rhonda works at Humana and earns $38,000.00 gross annually and that
William works for General Electric and made $63,606.02 in 2006 and that his pay
stub through October 21, 2007, reflected that his 2007 income would be
approximately $89,100.06. His average gross income for the last three years was
$73,235.36. The court found that the parties had a comfortable lifestyle which
included regular vacations, private school for their children, and weekends at the
lake. Out of the three properties, Rhonda did not receive any income producing
real estate. Further, the court found that Rhonda’s monthly living expenses would
be approximately $3,007.83 and her average monthly gross income was $3,166.68.
William’s monthly gross income was $6,102.95 and his monthly expenses were
approximately $2,122.00. The court found that Rhonda lacked the means to
provide for her needs in the context of the standard of living established during the
marriage and awarded maintenance of $250.00 per week.
In a supplemental judgment dated January 3, 2008, the court ordered
William to quitclaim all his right, title, and interest in the Ellis Cook Road property
and for Rhonda to do the same with her interests in the Azure Drive and Blue Lick
Road properties. This appeal followed.
William argues that the trial court committed reversible error in the
amount and duration of maintenance it awarded; in not enforcing compliance with
the civil rules of procedure and the Bullitt Circuit Court local rules; and in its
valuation of some marital assets.
An award of maintenance is subject to the sound discretion of the trial
court and may only be disturbed if clearly erroneous. Powell v. Powell, 107
S.W.2d 222 (Ky. 2003), citing Perrine v. Christine, 833 S.W.2d 825, 826 (Ky.
1992) and Browning v. Browning, 551 S.W.2d 823 (Ky.App. 1977). An award of
maintenance shall not be disturbed absent an abuse of discretion. Gomez v.
Gomez, 168 S.W.3d 51 (Ky.App. 2005).
In Gomez, this Court held that the trial court must consider the factors
in KRS 403.200, which include: (a) the financial resources of the party seeking
maintenance, including marital property apportioned to him, and his ability to meet
his needs independently; (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.
A careful review of the record reveals that the trial court considered
these factors. The divorce decree awarding the maintenance thoroughly details the
financial state of both William and Rhonda, including their respective salaries, the
values of properties awarded to them, the debts and incomes associated with those
properties, and the values of the respective pensions, etc. Thus, we do not find that
the court abused its discretion in awarding the maintenance of $250.00 per week to
Rhonda, given that she was used to a comfortable lifestyle and that the parties had
been married for a significant time.
Furthermore, the court awarded two income bearing properties to
William, so his argument that he must pay the mortgage on these properties out of
his disposable income is without much merit, given that he can use the income
from those properties to pay the mortgage payments. And, as Rhonda argues on
appeal, William will still receive significant tax advantages from the two
properties. Under Clark v. Clark, 782 S.W.2d 56 (Ky.App. 1990), a court’s
consideration of the parties’ post divorce tax position is an entirely appropriate
factor to consider.
William argues that the trial court did not enforce compliance with the
civil rules of procedure and with its own local rules, specifically that Rhonda did
not tender her financial declaration until October 26, 2007, the Friday before trial
was to take place the following Friday. William argues that under CPR 350(14),
Rhonda had to file a pre-hearing statement at least seven days before the trial of the
case and that at the trial, upon objection, the court shall exclude all evidence that
should have been attached in the disclosure statement. We agree with Rhonda that
the fact that William did not object and instead began the presentation of his case
constitutes waiver and the issue was not properly preserved for appeal.
William additionally argues that the court’s valuation of the marital
assets was not proper, including the valuation of the three real properties and the
various motor vehicles. The court appointed an appraiser to value the real
property, and we find this to be proper. The court used the market valuation for
the pick-up truck, jet ski, and the 1989 Century boat, the sale price of the Ford
Explorer, Rhonda’s valuation of her automobile, and the parties’ joint valuation of
the motorcycle at $14,000.00. William now takes issue with the court using the
NADA value of some vehicles and with the court not using his non-expert
testimony regarding his motorcycle, which he claims he wrecked and was worth
less than the original amount he listed. His testimony at trial, however, indicated
this motorcycle was still driveable and thus the court properly accepted both
parties’ valuation of the motorcycle at $14,000.00. William failed to object to the
court’s use of the NADA values of the other vehicles thus the issue was not
preserved, and we will not address it here.
Otherwise, we find the distribution of the marital assets to be proper
and fair. Equity, pension funds, and debts were offset so that an equitable
distribution could be made. We find no errors with this distribution.
For the foregoing reasons, the decree and supplemental judgment of
the Bullitt Circuit Court are affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Mark E. Edison
Alan S. Rubin