Opinion
NO. 2012-CA-001919-MR
07-03-2014
TONIA NOE ROSE APPELLANT v. JASON ROSE APPELLEE
BRIEF FOR APPELLANT: Malenda S. Haynes Grayson, Kentucky BRIEF FOR APPELLEE: W. Jeffrey Scott Grayson, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CARTER FAMILY COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 11-CI-00549
OPINION
AFFIRMING
BEFORE: JONES, MAZE, AND MOORE, JUDGES. MAZE, JUDGE: Appellant, Tonia Rose, appeals the ruling of the Carter Family Court following the dissolution of her marriage to Appellee, Jason Rose. Specifically, Tonia appeals from the trial court's Findings of Fact and Conclusions of Law concerning the distribution of the parties' marital assets. Because we find no error in the trial court's distribution of the marital estate, we affirm.
Background
Jason and Tonia married on November 23, 2008. Just over three years later, Jason filed for dissolution of the marriage, and the events of the divorce action revealed the following uncontested facts.
During their marriage, Jason was employed as a part-owner in a cement business while Tonia had, but lost, a job as a journalist. The parties lived in Jason's pre-marital home located on his mother's farm which Jason used to raise cattle for sale. During their marriage, the parties purchased a hay mower, a hay rake, a pickup truck, a Kubota utility vehicle, several head of cattle, and a horse. In addition, they held checking and savings accounts, and Jason held a 401(k) retirement account which, at the time of trial, he valued at around $895.00.
Each party filed Preliminary and Final Verified Disclosures of their property and its value. As marital property, Jason listed the utility vehicle, valued at $5,000; the hay mower, valued at $3,000; the hay rake, valued at $1,500; the pickup truck, valued at $3,500; his 401(k) account, valued at $895; and the bank accounts. He lists as non-marital a Kubota tractor and the home in which he and Tonia lived. As marital property, Tonia listed, inter alia, the hay rake and hay mower, both unvalued; two horses, unvalued; the pickup truck, valued at $7,200; the utility vehicle, valued at $10,000; and the bank accounts. She listed several items as non-marital, including a horse, for which she provided no estimated value.
Following a single day of testimony in July 2012, the trial court issued its Findings of Fact, Conclusions of Law and Decree of Dissolution on August 30, 2012. The court found debt against the home totaling nearly $63,000 and debt approaching $24,000 secured by the Kubota tractor, which it found to be Jason's pre-marital asset. The court valued the utility vehicle, hay mower, and bank accounts at $5,000, $3,500, and $700, respectively. Despite Tonia's claim that Jason dissipated his retirement account after their separation, the court valued the 401(k) account at $895 and found that Jason properly withdrew funds from his retirement account "to pay debt of the parties" incurred during the marriage.
Based on these findings, the court awarded Jason the utility vehicle, the hay mower, the pickup truck, and his 401(k). The court further awarded Jason the home and "certain farm equipment and tools" both of which it deemed to be pre-marital; and it assigned him all of the marital debt except Tonia's medical debt. Tonia received the "household items of personalty ... that she wanted" and had testified regarding. She also received from Jason $6,000 for her interest in the marital estate.
Later in the same order, however, the court referenced the settlement amount of $12,000 as "a fair, just, and equitable distribution" to Tonia. This was later corrected upon requests for clarification from both parties.
Finally, despite Tonia's claim at trial that the scores of cattle on the farm were marital, the trial court found that the evidence did not definitively show
how much of the cattle was [Jason's] or how much was owned by other family members and it appears that [Jason] has been largely responsible for the acquisition, feeding, and caring for [the cattle] ... without significant contribution by [Tonia]. The Court received little or no evidence as to the value of this marital property.Accordingly, the trial court deemed the indeterminable number of cattle to be marital property but it did not assign it a value.
Tonia subsequently filed a motion pursuant to Kentucky Rules of Civil Procedure (CR) 59.05, requesting that the court alter, amend, or vacate its August 30 order. Specifically, she asked, inter alia, that the trial court make additional findings as to the marital or non-marital nature, as well as the value, of the pickup truck, hay rake, cattle, and horse. Jason also asked the trial court to clarify the amount he was to pay Tonia. In response to these motions, the trial court entered an Amended Order on October 10, 2012, which clarified only the amount of Tonia's settlement award, $6,000. Tonia moved the court to alter, amend, or vacate this order. The court summarily denied that motion and this appeal follows.
Standard of Review
We review the division of marital property as we would any issue tried outside the presence of a jury. We will not set aside the trial court's findings of fact unless they are clearly erroneous. See CR 52.01. A factual finding is clearly erroneous only if it is unsupported by substantial evidence in the record. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Finally, we review the legal issues surrounding the trial court's distribution of property de novo. See Hunter v. Hunter, 127 S.W.3d 656, 659; see also Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001).
Analysis
As a preliminary matter, we note that the record before us does not include the video record of the July 2012 hearing at which Jason and Tonia testified and following which the trial court entered its orders. Hence, we find our efforts to resolve the issues on appeal distinctly, but not fatally, impaired. Nevertheless, we must reiterate that "[i]t is the responsibility of the appellant to see that the record is prepared and certified by the clerk within the time prescribed by CR 73.08...." Ventors v. Watts, 686 S.W.2d 833, 834 (Ky. App. 1985); see also CR 98(2)-(3) and CR 75.07(1)-(2).
As a result of this lack of video record, we address below only those issues which we believe are clearly resolved by what record is available to us. For those that are not, we must assume that the omitted record supports the decision of the trial court. See Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky. 1985).
On appeal, Tonia first alleges that the trial court failed to properly consider the factors found in KRS 403.190, as required. KRS 403.190(1) states
In a proceeding for dissolution of the marriage or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse's property to him. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:To quote Tonia, she alleges that "the trial court failed to make consider [sic] any factors in KRS 403.190(1) except for subparagraph (a) ...The court did not make any findings or indicate that it considered the remaining provisions of KRS 403.190(1) as to the value of the property ..., the duration of the marriage, or the economic circumstances of the parties." Accordingly, she contends that distribution of the marital estate was unjust. We disagree.
(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.
The court's findings of fact include the respective values of the utility vehicle, the hay mower, the parties' checking and savings accounts, and Jason's 401k account. The court also found that Jason possessed certain pre-marital property, such as farm equipment and various tools, and that Tonia's personal property remained to be distributed to her. This directly contradicts Tonia's assertion that the trial court did not consider the "value of the property to be distributed to each party." KRS 403.190(1)(b).
Furthermore, the court expressly contradicted Tonia's allegation when it stated, "under KRS 403.190 and all factors set forth therein, and the believable, creditable, evidence submitted at the final hearing, the payment to Respondent in the sum of $6,000 is a fair, just, and equitable distribution to her of the value of the marital property." Though a court's order must be more than a mere recitation of requisite language, the order in the present case was indeed more, as it illustrated consideration of the proper statutory factors.
We look to the limited record on appeal to resolve Tonia's more imperative allegation that the trial court failed to make vital factual findings or distributions and that its distribution of the marital estate was unjust. Specifically, she claims that the trial court's order failed to address or distribute her horse, the cattle, the hay rake, and Jason's 401(k).
In her verified disclosures, Tonia listed the horse, "Mable," as her non-marital property. In the trial court's order, it specifically granted to Tonia "items of personalty about which [she] gave testimony that she wanted distributed to her." Hence, the court's order properly dispensed with Tonia's horse.
Concerning the cattle, of which Tonia claims the court "did not make a division," we agree with the trial court that "little or no evidence as to the value of this marital property" existed in the record. Neither party's disclosures provided the requisite information. Similarly, we are unable to resolve the trial court's alleged failure to value and distribute the hay rake. Its value is stated inconsistently, if at all, in the documentary record. Though Tonia alleges on appeal that Jason testified at trial to the number, value, and marital nature of both of these items, we are unable to review or confirm that testimony. Therefore, though the total value of these items may be relatively substantial, we presume that the trial court was correct in stating its inability to value and distribute them.
The court expressly mentioned Jason's 401(k), as well as his valid reasons for withdrawing from it after the parties' separation, before awarding its entire contents to him. Tonia argues that the court should have distributed the 401(k) funds. In response to this very general allegation of error, we offer only that the trial court's given reasoning for awarding Jason his 401(k) was part of broader balancing of assets and debts within the marital estate.
Taking the entire marital estate into account, including the amount of debt the parties owed, the relatively miniscule value of assets within the estate, and the documented evidence regarding the parties' contributions to both, we cannot find fault in the trial court's awarding Jason his entire $895 retirement account. It must be remembered that this award was accompanied by Jason's assumption of the considerable marital debt, as well as his payment of an additional $6,000 to Tonia. In the final analysis, we are unable to agree with Tonia that the trial court erred in not splitting the 401(k) or that its overall distribution of the marital estate was unjust under KRS 403.190.
Conclusion
Overall, Tonia's failure to provide us with video record of the trial limits our perspective on this case. Though the trial court's clerical error in its order of August 30 was regrettable, and while its order of October 10 could have been clearer regarding certain items of marital and non-marital property, in the absence of complete testimony, we presume, as we must, that the trial court acted properly in deciding upon items such as the hay rake and the cattle. To the extent possible, we have addressed the trial court's decisions regarding the value and distribution of property the support for which is more fully documented in the record before us. This review reveals no reversible error.
The order of the Carter Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Malenda S. Haynes
Grayson, Kentucky
BRIEF FOR APPELLEE: W. Jeffrey Scott
Grayson, Kentucky