Opinion
NO. 2013-CA-000062-MR
07-03-2014
ALBERT W. BARBER, III APPELLANT v. ELIZABETH D. BRADLEY APPELLEE
BRIEF FOR APPELLANT: William L. Wilson, Jr. Owensboro, Kentucky BRIEF FOR APPELLEE: Elizabeth D. Bradley, pro se Owensboro, Kentucky
NOT TO BE PUBLISHED APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE REED RHORER, SPECIAL JUDGE
ACTION NO. 10-CI-00783
OPINION
AFFIRMING
BEFORE: LAMBERT, MOORE AND STUMBO, JUDGES. STUMBO, JUDGE: Albert W. Barber, III, appeals from Findings of Fact, Conclusions of Law and Order of the Daviess Circuit Court in a dissolution of marriage proceeding filed by Elizabeth D. Bradley. Barber argues that the circuit court committed several errors relating to the disposition of marital and non- marital property, and its award of maintenance. We find no error, and Affirm the Order on appeal.
Barber and Bradley were married in 2004. The marriage produced one child, and Bradley brought to the marriage another child from a previous relationship. On May 11, 2010, Bradley filed a Petition in Daviess Circuit Court seeking to dissolve the marriage. Bradley successfully moved to bifurcate the proceeding, with custody, timesharing and child support being adjudicated in late 2010. The remaining issues were continued into 2011 and 2012. A bench trial on the remaining issues was conducted on July 16, 2012, which resulted in the court's Findings of Fact, Conclusions of Law and Order being rendered on December 19, 2012. It is from this final Order that Barber now appeals.
Barber now raises several claims of error relating to the disposition of property, and to its award of maintenance. Barber first argues that the court abused its discretion when it awarded to Bradley one half of the equity from the parties' former marital residence, and failed to award to him the sum of $247,000.00 as his separate and non-marital property. During the marriage, the parties constructed a new marital residence in Owensboro, Kentucky, for the cost of approximately $547,000. The parties stipulated that the value of the home at the time of dissolution was $480,000, and he claims that there are two mortgages on the parcel having a total indebtedness of $340,000. Barber contends that his parents gifted to him the sum of $247,000 to be used in the construction of the home.
Barber maintains that the gift checks were made out to him individually, were denoted as a gift or "inheritance advancement", and were deposited into Barber's individual bank account. Barber's parents testified that these monies were intended solely as a gift to him and not a joint gift to Bradley. Barber's father testified in deposition that he wrote a hand-written letter on October 17, 2007, stating his intent that this gift was to his son only and not to Bradley. Additionally, Barber maintains that his parents executed a form entitled "United States Gift (and Generation Skipping Transfer) Tax Return Form 709" evincing their intention that the monies gifted to him were an advancement toward his inheritance.
Barber directs our attention to KRS 403.190(1), which provides that non-marital property shall be restored prior to the division of marital property. In his view, since the $247,000 sum was clearly a gift, and as gifts are characterized as non-marital property, the trial court abused its discretion in failing to award to him this sum as his non-marital property.
In response, Bradley contends that though the $247,000 was a gift to Barber, it was made to him without conditions. Bradley contends that after the receipt of the gift, Barber then gifted half of the marital home to her by placing the home in both their names and by repeatedly assuring her that the home was as much hers as it was his. Bradley notes that she has physical injuries arising from a 2002 snowmobile accident, and that the layout of the marital home took into account her physical needs. Ultimately, Bradley maintains that though the assets were gifted to Barber, they became marital in nature when Barber voluntarily gifted them again to Bradley by constructing a marital residence with her name on the deed and co-mingling the gifted assets with other marital assets.
In disposing of this issue below, the Daviess Circuit Court determined that 1) Barber's parents gifted the $247,000 to him, which was used to fund the home's construction; 2) testimonial evidence was adduced that Barber assured Bradley on several occasions that the home was one-half hers; 3) Barber and Bradley received a deed to the house demonstrating joint and several ownership; and 4) that the testimony and the deed demonstrated that Barber intended to give one-half of the house to Bradley. The question for our consideration is whether these findings are supported by the record. Findings of fact shall not be set aside unless they are clearly erroneous, and due regard shall be given to the trial court to judge the weight and credibility of the witnesses. CR 52.01; Duncan v. Duncan, 724 S.W.2d 231 (Ky. App. 1987). Where there is evidence to support the findings, the findings should not be disturbed. Payne v. Petrie, 419 S.W.2d 761 (Ky. 1967). Questions of law are reviewed de novo by this Court. Hardin County Schools v. Foster, 40 S.W.3d 865, 868 (Ky. 2001). When there are questions of fact, or mixed questions of law and fact, we review the circuit court's decision pursuant to the clearly erroneous standard. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003).
Barber directs our attention to O'Neill v. O'Neill, 600 S.W.2d 493 (Ky. App. 1980), in support of his claim that the $247,000 he received from his parents did not become the parties' marital property. The Daviess Circuit Court relied on O'Neill in reaching the opposite conclusion. In O'Neill, a panel of this Court set forth four factors that a trial court should consider in determining if a transfer was a gift (in this case, whether it was a gift from Barber to Bradley) and thus was the parties' marital property at the time of dissolution. Those factors are the source of the money, the intent of the donor, the status of the marriage at the time of the transfer, and whether there was any valid agreement that the transferred property was to be excluded from the marital property. Id. at 495. The Daviess Circuit Court applied these factors below in concluding that Barber intended for the $247,000 in home equity to be characterized as marital property.
We find no error in this conclusion. The parties agree that the $247,000 was initially gifted to Barber by his parents. Testimonial evidence was tendered by Bradley that Barber repeatedly told her that the house was "half hers". While it is true that Barber's testimony contradicted this assertion, the trial court is properly positioned to judge the weight and credibility of the testimony. CR 52.01. The trial court's conclusion on this issue is bolstered by the fact that the parties received a deed to the home in their names jointly and severally. The court was presented with evidence upon which it could have relied to reach the opposite result. That is to say, there was sufficient countervailing evidence in the form of Barber's testimony to conclude that the sum at issue remained Barber's non-marital property at the time of dissolution. Where there is credible evidence both ways, the finding will not be disturbed. White v. Howard, 394 S.W.2d 589 (Ky. 1965). Ultimately, the record and the law support the trial court's determination that Barber gifted the $247,000 to Bradley or otherwise merged it with the marital estate. Accordingly, we find no error on this issue.
Barber next argues that the court erred when it failed to give him an offset on jewelry awarded to Bradley. The court disposed of the jewelry, valued at $57,000, as Bradley's non-marital property upon finding that the jewelry was gifted to her. Barber contends that the jewelry was purchased with marital funds as an investment, and that the court therefore erred in characterizing it as Bradley's non-marital property. We find no error in the trial court's disposition of the jewelry. Again, conflicting testimony was presented. Bradley testified that the jewelry was gifted to her by Barber and his mother. Barber, however, contended that the jewelry was a marital investment. Additionally, Barber 's mother testified that she gave a particular piece of jewelry to Bradley with the condition that it either be passed on to any daughter the couple might later have, or alternatively to be given back to Barber's mother if the couple had no female child. Upon considering all of the evidence, the court found Bradley's testimony more persuasive and found all of the jewelry to be gifts and not investment vehicles. The court found as not credible or too non-specific the purported conditional gift from Barber's mother. Because the court's determination is supported by the record, and acknowledging the court's discretion in judging the weight and veracity of the testimony, we find no error in the court's disposition of the jewelry at issue.
Barber's third claim of error is that the court abused its discretion in its disposition of Bradley's retirement account which was funded while she worked for the Commonwealth of Kentucky. That account, consisting of deferred compensation and a retirement system fund, was valued at approximately $30,600. The court also characterized as Barber's retirement fund some stock that had been gifted to Barber by his mother. Upon considering the disposition of these funds, the court found that it was equitable to award to Bradley the deferred compensation and retirement system fund, and to award to Barber the gifted stock. Barber contends that this disposition is inequitable, that the gifted stock is not properly characterized as a retirement fund, and that he was entitled to an offset against Bradley's retirement.
In disposition of these assets, the court found that Barber had no part in the contributions to Bradley's state retirement account, and that it was "equitable" to award it to her. Though it did not expressly characterize Bradley's state retirement account as marital, it is clear that the court regarded it as such, as it noted that "$21,187.05 was contributed to the account by Petitioner [Bradley] during the marriage." KRS 403.190 provides that marital assets are to be divided "in just proportions". Marital assets must be divided justly, but not necessarily equally. Wood v. Wood, 720 S.W.2d 934 (Ky. App. 1986). In disposing of the state retirement account, the court undertook its calculus in the context of all marital and non-marital assets which were subject to distribution. In so doing, the court found as equitable its award to Bradley of the state retirement account. This distribution comports with KRS 403.190 and Wood, and we find no error.
For the same reasons, Barber's contention that the court improperly failed to restore his non-marital and pre-marital property pursuant to KRS 403.190(1) is without merit. The court determined that it was without sufficient "information to make a meaningful and accurate designation and division of the property on various lists supplied by [Barber]", and accordingly characterized the listed assets as marital. Those assets were then disposed of in just proportions pursuant to KRS 403.190, and we find no error.
Barber's fifth argument is that the court abused its discretion when it ordered him to produce for Bradley a yearly statement of activity relating to their daughter's UTMA account at Hilliard Lyons. This asset, like many others herein, was funded by Barber's parents for the apparent purpose of funding their granddaughter's college education. Because the trial court awarded the parties joint custody of the child with equal parenting time, and because both parties are entitled to be fully apprised of the child's college funding, we cannot conclude that the court abused its discretion by ordering that Bradley be apprised on an annual basis of the status of this fund.
Lastly, Barber maintains that the trial court abused its discretion in awarding maintenance to Bradley as it failed to consider all factors set out in KRS 403.200. The court awarded maintenance in the amount of $500 per month for three years. Barber argues that because the court failed to restore to the parties their non-marital property, and failed to value the marital property correctly, the maintenance order should be declared null and void. The corpus of Barber's claim on this issue is that Bradley, who formerly earned approximately $45,000 per year as an attorney working for the Department of Public Advocacy, "is voluntarily unemployed or underemployed and therefore not entitled to any maintenance."
KRS 403.200 addresses maintenance. It provides that,
(1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of a marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(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.
In examining the issue of maintenance, the Daviess Circuit Court considered these factors in Section XIV ("MAINTENANCE"), paragraphs 1 - 10. The court noted that both parties were licensed attorneys, and that the marriage lasted about six years. It addressed the disposition of both marital and non-marital assets, and the standard of living enjoyed by the parties during the marriage. The court found that Bradley quit the practice of law during the marriage, and was therefore unable to support herself through appropriate employment until she reestablished the practice of law. Though it did not recite the elements of KRS 403.200 pro forma, the court did apply the content and purpose of the statute to the facts at bar in reaching its conclusion.
Though not factually analogous, the principles espoused in McGregor v. McGregor, 334 S.W.3d 113 (Ky. App. 2011), are applicable herein. In McGregor, a panel of this court determined that an award of $2000 per month for seven years was not an abuse of discretion considering that the wife left her employment during the marriage to raise a child, and the husband earned substantially more than the wife was likely to earn in the near term. In the matter at bar, the relatively short duration of the maintenance award corresponds to the court's determination that Bradley required a reasonable period of time to reestablish the practice of law. Again, and as with the other areas where the court is vested with discretion, the record may have supported a larger or smaller award, or no award at all. But the question for our consideration is whether the maintenance award was supported by the record and the law. The issue of maintenance falls within the sound discretion of the trial court, and will not be reversed absent an abuse of such discretion. Clark v. Clark, 782 S.W.2d 56 (Ky. App. 1990). Given the totality of the trial record, which the court amply considered, and its proper application of KRS 403.200, we cannot conclude that the trial court abused its discretion by awarding maintenance in the amount of $500 per month for a term of three years. We find no error.
For the foregoing reasons, we affirm the Findings of Fact, Conclusions of Law and Order of the Daviess Circuit Court.
LAMBERT, JUDGE, CONCURS.
MOORE, JUDGE, DISSENTS. BRIEF FOR APPELLANT: William L. Wilson, Jr.
Owensboro, Kentucky
BRIEF FOR APPELLEE: Elizabeth D. Bradley, pro se
Owensboro, Kentucky