Opinion
NO. 2014-CA-001368-MR
06-03-2016
DOUG HEDRICK APPELLANT v. SYLVIA HEDRICK APPELLEE
BRIEFS FOR APPELLANT: Vanessa Lominac Sears London, Kentucky BRIEF FOR APPELLEE: Hailey Scoville Bonham London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE DURENDA LUNDY LAWSON, JUDGE
ACTION NO. 14-CI-00201 OPINION
VACATING AND REMANDING
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BEFORE: ACREE, CHIEF JUDGE; DIXON AND KRAMER, JUDGES. KRAMER, JUDGE: Doug Hedrick appeals from a judgment rendered by the Laurel Circuit Court dissolving his marriage to Sylvia Hedrick, wherein the parties' property was awarded by the court. After careful review, we vacate and remand.
In March 2014, Sylvia Hedrick initiated divorce proceedings, and Doug was personally served with the petition in a timely manner. Doug did not enter an appearance or otherwise participate in the case until after the court entered its decree. On June 13, 2014, Sylvia filed an AOC-238/239 financial disclosure statement verifying the parties had $80,000 of equity in the marital residence; $20,000 of equity in Sylvia's 2012 BMW vehicle; $0 of equity in Doug's 2006 BMW vehicle; $100,000 of cash surrender value in Doug's life insurance policy; $75,000 of cash surrender value in Sylvia's life insurance policy; $3,000 of equity in Sylvia's retirement savings; Sylvia's nominal bank account balance; and Sylvia's $10,000 student loan obligation. No additional financial details were disclosed, and Sylvia made no claim that any of the parties' assets or debts was non-marital.
According to Doug's Motion to Alter, Amend, or Vacate Order, he
was not present at the final hearing due to being advised by the [Sylvia] that he did not need to be there. The parties verbally reached an agreement concerning the division of property. The agreement was properly recited to the Court except for the proceeds from the sale of the marital home. The parties hereto had previously agreed to split those proceeds. The Petitioner advised the Court that she made all the mortgage payments on said property. While payments may have been written from the Petitioner's checking account, she failed to inform the Court that the Respondent deposited all or a portion of his income into her account for payments.
At the final hearing, Sylvia provided her verified disclosure statement and testified regarding the parties' marital assets and debts. According to Sylvia, the fair market value of the martial residence was $200,000.00, and the mortgage balance was $120.000.00. Sylvia testified that she had made all of the mortgage payments herself since the home was purchased in 2002. She further stated the house was listed for sale and that she would continue to make the mortgage payments until the house sold. The court rendered its decree on July 8, 2014, awarding Sylvia the profit from the eventual sale of the martial home, her automobile, and various items of personal property. The court awarded Doug personal property and his automobile.
Thereafter, Doug retained counsel and filed a motion to alter, amend, or vacate the decree, arguing it was unconscionable to award the entire profit from the sale of the marital home to Sylvia and that the parties had previously agreed to evenly divide the proceeds. The court denied Doug's motion, and this appeal followed. Doug continues to contend before this Court that the trial court abused its discretion by awarding the profit from the sale of the marital residence to Sylvia.
We review the court's findings of fact regarding the division of martial property and debt for an abuse of discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001).
A review of the record shows that Doug made no effort to participate in the dissolution action until he filed a motion to alter, amend, or vacate the court's final judgment. While it is well-settled that "[a] party cannot invoke [CR 59.05] to raise arguments and introduce evidence that could and should have been presented during the proceedings before entry of the judgment," KRS 403.190(1) nonetheless places upon the trial court a mandatory process to effectuate an equitable division of marital property. The trial court is required to consider four factors: first, each spouse's contribution to the acquisition of marital property; second, the value of the property set apart to each spouse; third, the duration of the marriage; and fourth, the economic circumstances of each spouse at the time of the division. Typically, based upon KRS 403.190(1), in its findings a trial court: (1) first characterizes each item of property as marital or nonmarital; (2) then assigns each party's nonmarital property to that party; and (3) finally, equitably divides the marital property between the parties. Sexton v. Sexton, 125 S.W.3d 258, 264-65 (Ky. 2004). This adjudication requires the court to engage in at least a good faith effort at fact finding and that these factual findings be included in a written order. Keifer v. Keifer, 354 S.W.3d 123, 126 (Ky. 2011) (citing Anderson v. Johnson, 350 S.W.3d 453 (Ky. 2011)).
Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky. App. 1997). --------
Here, in supporting its seemingly disproportionate award, the family court relied on Sylvia's testimony and found only that Sylvia "made all the [mortgage] payments." Although Sylvia's testimony is vague, presumably she meant that she used her income to pay the mortgage. Under normal circumstances employment income earned during a marriage is marital property. Dotson v. Dotson, 864 S.W.2d 900, 902 (Ky. 1993). So, the fact that Sylvia's employment income was used to pay the mortgage is of limited relevance to the KRS 403.190(1) factors. But because the family court failed to include factual findings relevant to the parties' contribution to marital assets and the parties' circumstances at the time of the dissolution, it has failed to satisfy the requirements of CR 52.01 and its basis for disproportionately dividing the parties' marital property is largely a mystery to this Court. Even after reviewing the record, we remain unable to discern the family court's rationale for awarding the entirety of the equity in the marital home to Sylvia. Cf. Keifer, 354 S.W.3d at 126 (holding that even where the factual basis was clear from the record, the decree was still deficient because the factual basis was not reduced to writing).
Finally we turn to Sylvia's contention that Doug waived his argument on appeal by failing to participate in the proceedings until after entry of the decree. It is well settled that "[a] party cannot invoke [CR 59.05] to raise arguments and introduce evidence that could and should have been presented during the proceedings before entry of the judgment." Hopkins, 957 S.W.2d at 301. However, the judgment was deficient as a matter of law, which allows review by this Court. See Anderson v. Johnson, 350 S.W.3d 453, 458 (Ky. 2011) (a court's failure to engage in at least a good faith effort at fact finding and include those factual findings in a written order allows an appellate court to remand the case for findings even when the complaining party failed to bring the lack of findings to the court's attention).
In conclusion, the trial court failed to make the required findings under KRS 403.190(1) prior to dividing the equity in the marital home. The provisions of KRS 403.190(1) as to the division of marital property require that the trial court divide the property of the parties in just proportions and consider all relevant factors, and CR 52.01 requires a trial court to "find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment . . . ." Herein, the trial court has not met the requirements of CR 52.01 and, therefore, we cannot determine if the requirements of KRS 403.190(1) are met. Having found that the trial court's findings of fact were insufficient, we VACATE and REMAND this matter for further proceedings. On remand the trial court is instructed to conduct additional fact finding to consider the other relevant factors under KRS 403.190(1).
ALL CONCUR. BRIEFS FOR APPELLANT: Vanessa Lominac Sears
London, Kentucky BRIEF FOR APPELLEE: Hailey Scoville Bonham
London, Kentucky