KEENEY (WILLIAM) VS. KEENEY (SUSAN)
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RENDERED: FEBRUARY 4, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001021-MR
WILLIAM KEENEY
v.
APPELLANT
APPEAL FROM GREENUP FAMILY COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 08-CI-00743
SUSAN KEENEY
APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON AND STUMBO, JUDGES.
ACREE, JUDGE: William Keeney appeals that portion of the April 24, 2009
decree of dissolution entered by the Greenup Family Court which characterized a
settlement award in his favor, made pursuant to the Federal Employers’ Liability
Act (FELA), 45 United States Code (USC) 51, et seq., as marital property and
awarding a portion to his ex-wife, Susan Keeney. For the following reasons we
affirm.
Before this Court, William fails to state in his brief how his claims of error
were preserved and he also fails to cite to the record, both of which are required by
Kentucky Rules of Civil Procedure (CR) 76.12(4)(c)(v). Consequently, we shall
accept the statement of facts contained in Susan’s brief which does comply with
the Rules.
The relevant facts are that Susan and William were married on March 17,
1995. During their marriage, William was employed at CSX Transportation, Inc.
On February 10, 2006, William was injured on the job and did not work thereafter.
He filed a claim pursuant to FELA which was still pending when the parties
separated on October 3, 2008. The family court entered an order requiring William
to immediately report any settlement to the court and to Susan’s attorney and,
further, that there was to be no dissipation of the proceeds.
In mid-February 2009, William revealed in his deposition that he had settled
the FELA claim on November 20, 2008, and received two lump sum payments
totaling $312,272.00, plus a monthly benefit of $2,607.00. He also acknowledged
spending approximately $50,000 of the proceeds, primarily for the purchase of a
new vehicle.
All contested issues were addressed at the final hearing on April 14, 2009,
including William’s contempt for the court’s order regarding the FELA
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settlement.1 The parties were given the opportunity to present evidence as to the
character and value of their assets, including the FELA settlement proceeds.
To establish that the FELA settlement was non-marital property, William
offered into evidence the FELA settlement agreement and release. The documents
did not present any breakdown of the proceeds into categories of lost past wages,
lost future wages, medical expenses, pain and suffering, etc., nor did they, in any
other way, shed light on the marital or non-marital character of the settlement
proceeds.2 Over Susan’s objection that the documents speak for themselves,
William was allowed to testify that the settlement documents did not specify that
any portion was to compensate him for past wages or future wages, but was simply
to compensate him for his “injury.”
On April 24, 2009, the family court entered its Findings of Fact,
Conclusions of Law, Decree of Dissolution of Marriage and Order. Regarding the
FELA settlement proceeds, the family court stated:
[William] admits he violated the Court’s Order when he
utilized some of the FELA proceeds. He received
$307,272.00 plus another $12,000.00. The bulk of the
money was received November 20th, 2008. He purchased
a Cadillac Escalade in the amount of $47,000.00 with
part of the money. He also purchased a dirt bike for
$2,200.00 for his son. He also purchased Christmas
presents with the money. He relates there is over
1
We note that the family court had previously granted the motion to withdraw filed by William’s
original attorney; Mr. Lyon, who represents William in this appeal, promptly informed Susan’s
counsel of the settlement upon entering his appearance. Ultimately, William was found to be in
contempt of the family court’s order and sanction was imposed. However, that issue is not
relevant to the matter before us.
2
William’s FELA claim was contested in Jefferson Circuit Court, but he presented no pleadings
indicating the categories of his claims which might have shed some light on the issue.
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$200,000.00 of the money left and it is in First and
People’s Bank. . . .
[William] introduced a copy of the settlement and final
release from the FELA claim. The Court has examined
those documents and cannot determine from those
documents what the money was paid for. In other words,
there is no documentation to show how much of the
money was for pain and suffering, lost wages, medical
expenses, etc. Without that documentation, which was
the burden of [William], the Court is bound to find that
the money is marital property which is to be divided
between the parties. . . .
From the proceeds of the FELA settlement, the parties’
credit card debt shall be paid there from. The remaining
proceeds from the FELA settlement, except as otherwise
set out herein, shall be divided equally between the
parties as same has not been proven to be non-marital
property. . . .
(Decree, entered April 24, 2009).
William filed a timely “Motion to Vacate, Alter or Amend.” He did not file
a motion for additional findings. He argued to the family court that it had erred in
determining that all of the lump sum FELA settlement proceeds were marital
assets; however, he pointed to no evidence to support his claim of error.
The family court denied William’s motion. This appeal followed.
When determining how to divide the property of divorcing spouses, the
family court must first make findings of facts. CR 52.01. Then, “[i]t is the duty of
the trial court to apply statutory standards [i.e., Kentucky Revised Statutes (KRS)
403.190] to the [findings of] facts . . . and to make a just division of the marital
property.” Herron v. Herron, 573 S.W.2d 342, 344 (Ky. 1978). On review, the
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family court’s “[f]indings of fact shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” CR 52.01. “The Court of Appeals then should . . .
determine if there has been an abuse of discretion” in the application of those
statutory standards. Herron, 573 S.W.2d at 244.
In this case, the family court properly considered William’s evidence that all
or a portion of his FELA settlement proceeds were non-marital. The evidence
included that William received the settlement proceeds after the parties were
married and before they were divorced. Because “[a]ll property acquired by either
spouse after the marriage and before a decree of legal separation is presumed to be
marital property,” KRS 403.190(3), the family court correctly concluded that it
was William’s burden to overcome that presumption with evidence establishing
what portion of his settlement with CSX, if any, was non-marital. Browning v.
Browning, 551 S.W.2d 823, 825 (Ky. App. 1977) (“The burden is on the Appellant
to prove by clear and convincing proof that” that property presumed marital by
operation of KRS 403.190(3) is non-marital.). William failed to do so.
The settlement document William presented said nothing about the character
of his award sufficient to overcome the presumption of KRS 403.190(3). On the
other hand, the family court was aware that William was unable to work for more
than three years before the parties’ marriage terminated. The family court was also
aware that in addition to the lump sum payments, William was to receive future
monthly payments of $2,607. These two facts make unreasonable the inference
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William urges – “that the bulk, if not the entirety of the settlement . . . was for pain
and suffering and loss of future wages, neither of which constitute marital
property.” (Appellant’s brief, p. 5). Considering that William had no income for
three years before the marriage ended and was going to be receiving separate
future monthly payments, it is more reasonable to infer that the bulk if not the
entirety of the settlement was for wages William lost during the marriage. As our
Supreme Court said in Weakley v. Weakley,
When the injury occurs during the marriage, the recovery
allowable for loss of wages and permanent impairment of
the power to earn money is . . . a replacement for the
ability of the injured party to earn money that otherwise
would have been earned during the marriage. Both the
injured party and the spouse of the injured party had an
expectation that those earnings would have continued but
for the injury. Loss, during the marriage, of ability to
earn money which otherwise would have been earned
during the marriage is a loss to the marital estate.
Weakley v. Weakley, 731 S.W.2d 243, 244 (Ky. 1987).
Simply arguing that the FELA settlement is “property having both
marital and non-marital components[,]” (Appellants’ brief, p. 4), is not sufficient
to overcome the presumption of KRS 403.190(3). Even if it could be inferred that
the settlement is a mixed asset, the family court would have to speculate as to what
percentage is marital and what percentage is non-marital. The presumption of
KRS 403.190(3) frees the court from the perils of such speculation. Again, it fell
to William to provide proof sufficient to identify the specific amount of the
settlement proceeds that were non-marital. William’s uncertainty whether the non-
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marital portion represented merely “the bulk [or] the entirety” of the proceeds
assures us that even William himself can do no more than speculate.
The family court determined the FELA award was marital property because
William failed to demonstrate otherwise. The facts determined by the family court
are not clearly erroneous. The family court’s application of the law to those facts
does not indicate an abuse of discretion.
Finally, William contends the family court erred when it failed to make
additional findings of fact following his “Motion to vacate, alter, or amend” the
order. William argued before the family court that the order of April 24, 2009, did
not take into account any of the factors enumerated in KRS 403.190(1) which
instruct courts how to divide marital assets. We disagree.
KRS 403.190(1) instructs a family court to divide marital assets as follows:
[The court] shall divide the marital property without
regard to marital misconduct in just proportions
considering all relevant factors including:
(a) Contribution of each spouse to acquisition of the
marital property, including contribution of a spouse as
homemaker;
(b) Value of the property set apart to each spouse;
(c) Duration of the marriage; and
(d) Economic circumstances of each spouse when the
division of property is to become effective, including the
desirability of awarding the family home or the right to
live therein for reasonable periods to the spouse having
custody of any children.
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KRS 403.190(1). The statute does not require a circuit court to consider these
factors for each item of marital estate; rather, the court is to make an equitable
division of the marital estate as a whole. Similarly, we review the family court’s
division as a whole. Day v. Day, 302 S.W.3d 86, 89 (Ky. App. 2009) (appeal of
finding entire workers’ compensation settlement was marital property and
reviewing “division of marital property as a whole”). It was therefore not
improper for the family court to fail to apply the provisions of KRS 403.190(1) to a
single marital asset, so long as it appears from the record the statutory factors were
applied to the assets as a whole. Our review of the record reveals the family court
took into account the work history of the parties, their relative income, their
respective non-marital property and the debt and equity they had accrued during
the marriage. The family court’s refusal to make more specific findings with
respect to the FELA award alone was not erroneous.
For the foregoing reasons, we affirm the Greenup Family Court’s Findings
of Fact, Conclusions of Law, Decree of Dissolution of Marriage and Order.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James W. Lyon, Jr.
Greenup, Kentucky
Gordon J. Dill
Ashland, Kentucky
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