Opinion
NO. 2015-CA-001064-MR
03-03-2017
LAVERTA D. ROOF APPELLANT v. RICHARD L. ROOF APPELLEE
BRIEF FOR APPELLANT: Kimberly Withers Daleure Louisville, Kentucky BRIEF FOR APPELLEE: Mark Hyatt Gaston Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE DEBARRY BROWN, JUDGE
ACTION NO. 12-CI-501548 OPINION
AFFIRMING
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BEFORE: DIXON, J. LAMBERT, AND MAZE, JUDGES. LAMBERT, J., JUDGE: Laverta D. Roof appeals from the Jefferson Circuit Court decree of dissolution of her marriage to Richard L. Roof. Laverta challenges the trial court's award of monthly payments to Richard as well as its denial of the motion to alter, amend, or vacate the judgment. We affirm.
Laverta and Richard were married in January 1969 and had four children, all of whom are emancipated, although their eldest remains in their care because of his debilitating chronic health issues. The Roofs purchased their marital home in 1976. Both parties remained in the home throughout the proceedings, but they no longer lived as husband and wife after August 2011.
Laverta filed the petition for dissolution of marriage on May 22, 2012. The Roofs attempted mediation on two occasions, both unsuccessful. The trial in this matter was held on February 13, 2015. Both parties testified as did Christopher Roof, their son who remains at home.
Laverta stated that the parties were married out of state but returned to Kentucky in 1969. She worked as a waitress at the time, and Richard worked for American Builders Supply. Their first child was born in 1971. In 1973 Laverta began working for the United States Postal Service (USPS), where she remained employed for over thirty years. Since her retirement from USPS, Laverta has accepted temporary work with various agencies. At the time of the hearing she was working for United HealthCare under a contract that was to expire by the end of March 2015.
Laverta further testified extensively about the parties' financial circumstances. Her retirement income from the USPS is from a civil service annuity, purchased in lieu of participation in Social Security. According to Laverta's testimony, acquisition of the annuity was mandatory for USPS employees. The annuity is in pay status, with a monthly gross income of $2,494.00, and a net of $1,331.69 after health insurance for herself, Richard, and her grandson (of whom she has custody) is withdrawn as well as deductions for life insurance policy premiums for Richard and herself. She expected the withdrawal amounts to be reduced after the dissolution, mainly by no longer covering Richard's health and life insurance costs and by becoming Medicare eligible herself.
Laverta also stated that she qualified for disability (she has numerous health ailments) but had thus far not sought that option. Laverta's monthly Social Security payment is $150.00. Christopher receives $700.00 per month in disability payments, $200.00 of which he gives to his mother to pay for the monthly electric bill. Laverta offered various documents in support of her testimony.
Richard testified that he receives a monthly total of $1,128.00 in social security payments plus a small pension from American Builders Supply. Although he had worked at Sears for a number of years, Richard had cashed out his pension after retirement. He also had a cash settlement for a personal injury award. The money was spent on various purchases, including his mower repair business and some lake property. Richard stated that he is currently employed by Bluegrass Training and Rehab, where he works forty hours a week at $15.00 per hour. He also maintains his mower repair business, but only on a part-time basis in the evenings after he returns from his other job.
It was Richard's belief that Christopher's care required a joint effort and that Richard should be allowed to remain in the parties' home in order to effect that. In the alternative Richard stated that he should receive the house instead of Laverta. Unlike her, Richard had not sought pre-approval for the home's refinancing, but he did feel confident that his current employer would help Richard cover the costs of paying Laverta her share of the equity in the home. Richard dropped his request for maintenance and attorney fees at the conclusion of the hearing. Richard did not supply any tax returns to support the testimony concerning his income; in fact he had not filed any returns for the two previous years. Other than his verified disclosure statement, Richard's documentary evidence consisted of tax receipts for two vehicles (namely, a 1990 GMC pickup truck and a 2005 Buick sedan).
The Jefferson Circuit Court entered its findings of fact, conclusions of law, judgment and decree on March 23, 2015. The trial court awarded the marital residence to Laverta, with half of the equity awarded to Richard. Each party received the vehicles used by him or her. Nonmarital property was restored to each party, as were their separate checking accounts. Personal property was divided. Pertinent to this appeal is the following finding:
Petitioner [Laverta] shall pay to Respondent [Richard] the sum of $758.00 per month as an equalization payment of the retirement funds. The Court deems this the most equitable division of the retirement funds, taking into account that Petitioner receives less social security benefits than Respondent due to the nature of the USPS pension.
Laverta's post-judgment motion to alter, amend, or vacate was entered that same date. It was denied by the trial court on June 11, 2015, and Laverta filed the within appeal.
Kentucky Rules of Civil Procedure (CR) 52.01 provides the general framework for the family court as well as review in the Court of Appeals: "In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings 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." See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An appellate court may set aside a lower court's findings made pursuant to CR 52.01 "only if those findings are clearly erroneous."). The Asente Court went on to address substantial evidence:
"[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted). With this standard in mind, we shall address the issues Laverta raises in her brief.
Laverta finds fault with the trial court's award to Richard of $758.00 per month for as long as Laverta receives her civil service annuity. Laverta makes two arguments before this Court. She initially contends that the trial court was without authority to divide Laverta's civil service annuity. Laverta argues that, because the annuity's purchase was mandatory in lieu of social security, it should thus be likewise undividable. See Kentucky Revised Statutes (KRS) 403.190(4). Furthermore, since Richard did not make a claim for any of Laverta's monthly income (and dropped his request for maintenance), Laverta insists that the trial court erred in awarding Richard "$758.00 per month as an equalization payment of the retirement funds." Richard responds that the trial court was merely performing its duty to equitably divide the parties' assets. See KRS 403.190.
The trial court's reasoning behind the pension equalization award to Richard was that it found "this the most equitable division of the retirement funds, taking into account that Petitioner [Laverta] receives less social security benefits than Respondent [Richard] due to the nature of the USPS pension." Evidence in the record concerning the parties' retirement income supports this finding. There was no dispute about the numbers per se, but rather whether a civil service annuity could properly be divided between the parties.
We hold that the trial court did not commit error in awarding the monthly amount to Richard. Even assuming Laverta's argument that the actual benefits were not "subject to division or set-off," the trial court was "at liberty to consider . . . non-prospective . . . benefits in assessing the over-all fairness of the parties' property settlement agreement." Gross v. Gross, 8 S.W.3d 56, 58 (Ky. App. 1999).
Laverta secondly argues that the trial court should not attempt to equalize the parties' retirement income. In this vein she points to the lack of documentation provided by Richard throughout the proceedings, and states that, without such proof, the trial court's findings of fact are not supported by substantial evidence. Laverta further contends that the issue of retirement funds was not reserved for trial, explaining the reason for the lack of documentary evidence on this point.
However, there was no dispute as to the amounts of each party's retirement incomes, and there was more than ample testimony concerning same. The trial court considered the parties' testimony, as well as the documents provided by Laverta, in making its ruling. The award to Richard is roughly equal to the amount that Laverta will save each month by no longer carrying the burden of his health and life insurance costs; thus her pension income should remain nearly equal to what it was prior to the dissolution of marriage. In other words, because she had been pre-approved at her then current income, the trial court's ruling should not affect Laverta's ability to refinance the home and assume the new mortgage rate.
Accordingly, the family court did not abuse its discretion in its pension equalization award to Richard. Asente, supra.
The judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Kimberly Withers Daleure
Louisville, Kentucky BRIEF FOR APPELLEE: Mark Hyatt Gaston
Louisville, Kentucky