Opinion
NO. 2019-CA-000721-MR
05-08-2020
RITA G. BARNES APPELLANT v. HAROLD THOMAS BARNES APPELLEE
BRIEF FOR APPELLANT: Mark Hyatt Gaston Louisville, Kentucky BRIEF FOR APPELLEE: James L. Theiss LaGrange, Kentucky
NOT TO BE PUBLISHED APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE DOREEN S. GOODWIN, JUDGE
ACTION NO. 17-CI-00296 OPINION
AFFIRMING
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BEFORE: COMBS AND LAMBERT, JUDGES; BUCKINGHAM, SPECIAL JUDGE. LAMBERT, JUDGE: Rita G. Barnes (Rita) appeals from the Oldham Circuit Court order ruling on issues relating to the dissolution of her marriage to Harold Thomas (Tommy) Barnes. Rita objects to the circuit court's determination that Tommy's interest in an incorporated business was the result of a gift to him. She also finds fault with the denial of maintenance. We affirm.
Retired Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution. --------
The parties were married in 1998. They have one adult daughter. Rita worked as a house cleaner, and Tommy worked in the concrete industry, first as an employee/manager, then as a part owner in Complete Transfer, LLC. Tommy is in poor health and has been on disability since April 2018. Tommy filed a petition for dissolution of marriage on May 15, 2017, listing a separation date of February 14, 2017 (although the circuit court's findings of fact listed the date of separation as May 3 of that year). Until 2017, Rita's income had not been included in the parties' joint tax returns.
Rita filed a counter-petition and sought temporary maintenance. The circuit court denied Rita's motion for temporary maintenance because she had failed to support her motion with proper documentation in support thereof. Trial on all the issues was held on September 17, 2018. On April 11, 2019, the circuit court entered its findings of fact, conclusions of law, and (by separate order) decree of dissolution. Rita did not file any post-trial motions. She timely filed her notice of appeal on May 10, 2019.
As a preliminary matter, we note that Rita's brief fails to comply with the mandates of Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(iv) (which requires, in the statement of the case, "ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary") and CR 76.12(4)(c)(v) (which requires that an appellant state where in the record an issue was preserved for appeal).
"[A]n appellate court cannot consider items that were not first presented to the trial court." Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012). Thus, CR 76.12(4)(c)(v) serves an important purpose. "It is not so much to ensure that opposing counsel can find the point at which the argument is preserved, it is so that we, the reviewing Court, can be confident the issue was properly presented to the trial court . . . ." Id. Past panels of this Court have held that "[s]ubstantial compliance" with this rule is mandatory. Id. See also Elwell v. Stone, 799 S.W.2d 46, 47 (Ky. App. 1990). "It is not the job of this or any appellate court to scour a record to determine whether these citations support a party's assertions. Walker v. Commonwealth, 503 S.W.3d 165, 171 (Ky. App. 2016)." Prescott v. Commonwealth, 572 S.W.3d 913, 918 (Ky. App. 2019).
Rita's brief lacks any supportive references to the record in the statement of the case and fails to state where and in what manner she preserved the issues raised on appeal. She failed to attempt to remedy these omissions by filing a reply brief. CR 76.12(2)(a).
This being the case, our options are "(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or its offending portions; or (3) to review the issues raised in the brief for manifest injustice only[.]" Briggs v. Kreutztrager, 433 S.W.3d 355, 361 (Ky. App. 2014) (citations omitted). Rather than penalize Rita for errors committed by counsel, we elect to look past these omissions and proceed without sanction against Rita; and we do so with the confidence that her counsel will comply more strictly with the mandates of CR 76.12 in future appeals.
We next enunciate our standard of review. CR 52.01 provides the general framework for the circuit (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.CR 52.01. See also 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. (footnotes omitted). See also McVicker v. McVicker, 461 S.W.3d 404, 415-16 (Ky. App. 2015).
Rita first argues that Tommy's ownership in Complete Transfer was marital and should have been apportioned accordingly. She cites Kentucky Revised Statute (KRS) 403.190(3), which states:
All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.Rita insists that Tommy's partnership in Complete Transfer was in exchange for his "valuable business attributes" in lieu of a cash contribution, thus making it an exchange rather than a gift. Rita continues that "[t]he burden is on [Tommy] to prove by clear and convincing proof that he acquired his interest by gift," and he did not meet that burden. Browning v. Browning, 551 S.W.2d 823, 825 (Ky. App. 1977).
In allocating this asset as a gift to Tommy rather than marital property, the circuit court noted the exceptions in KRS 403.190(2) as well as the definition of a gift in Browning, supra. With those standards in mind, and bolstered by the testimony of Tommy and his witness (Ronnie Lee Bryant, managing partner of Complete Transfer) as well as accompanying documentation provided by Tommy, the circuit court concluded "that sufficient evidence was presented to support [Tommy's] position that the 10% ownership interest was a gift from the original members of Complete Transfer." We cannot agree with Rita that the circuit court's finding was clearly erroneous and thus affirm the holding that Tommy's interest in the business was a gift and not a marital asset. Asente, 110 S.W.3d at 354.
Rita next contends that the circuit court failed to divide marital assets accumulated by the parties after separation and prior to dissolution. However, she fails to identify what those assets are. We therefore decline to discuss this issue further.
Rita lastly argues that she was entitled to maintenance, both temporary and permanent. She contends that she met the prerequisites of KRS 403.200(1) in that she "lacks sufficient property . . . to provide for h[er] reasonable needs[,]" and "[i]s unable to support h[er]self through appropriate employment[.]" Again, we disagree. In denying Rita's request, the circuit court first found that she had failed to comply with Family Court Rules of Procedure and Practice (FCRPP) 5(1), which enunciates the specific accompanying documents required for a spouse seeking maintenance. None, in fact, was filed. "In addition," the circuit court continued, "[Rita] failed to ever submit a complete itemization of her monthly living expenses. [Her] Preliminary Disclosure Statement left question marks instead of providing amounts." The circuit court had no means of determining Rita's reasonable needs or her ability to meet them. The court ultimately held:
Notwithstanding [Rita's] failure to comply with FCRPP 5, the Court believes an award of permanent maintenance in the present case would likely be inappropriate. The parties lived a modest lifestyle during the marriage while maintaining one (1) household. Without question, dividing the parties' resources and maintaining two separate households will present additional financial strain on both parties. Under the division of the marital estate set forth herein, [Rita] will have access to a significant amount of cash, virtually no debt, a vehicle with no car payment and the majority of the personal property contained in the marital residence."An award of maintenance is within the sound discretion of the court and will not be disturbed on appeal absent an abuse of discretion." Maclean v. Middleton, 419 S.W.3d 755, 774 (Ky. App. 2014) (citing Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990); Perrine v. Christine, 833 S.W.2d 825 (Ky. 1992)). Rita has failed to convince us that the circuit court's denial of her request for maintenance was an abuse of discretion.
Based upon the foregoing, [Rita's] claim for permanent maintenance is DENIED.
Accordingly, the decision of the Oldham Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Mark Hyatt Gaston
Louisville, Kentucky BRIEF FOR APPELLEE: James L. Theiss
LaGrange, Kentucky