Opinion
NO. 2015-CA-001397-ME
02-16-2018
TIMOTHY DALE PLATNER APPELLANT v. DENISE PLATNER and the NELSON COUNTY FRIEND OF THE COURT APPELLEES
BRIEF FOR APPELLANT: Robert Frederick Smith Louisville, Kentucky BRIEF FOR APPELLEE: Bobby L. Amburgey Mt. Vernon, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HONORABLE JOHN DAVID SEAY, JUDGE
ACTION NO. 13-CI-00124 OPINION
AFFIRMING AND REMANDING
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BEFORE: COMBS, JONES AND NICKELL, JUDGES. COMBS, JUDGE: Timothy Dale Platner appeals from a supplemental judgment entered by the Nelson Circuit Court after it issued a decree of dissolution of the marriage of Timothy to Pamela Denise Platner. We affirm as to that portion of the court's decision to designate Denise as the primary residential custodian of the parties' children and its decision to award her the parties' Toyota FJ Cruiser. However, the court's decision with respect to an award of maintenance to Denise necessarily remains interlocutory pending its rulings concerning: a division of the remaining personal property; a division of retirement benefits; and a division of the debt or equity that may result from the foreclosure of the marital residence. Therefore, we remand for a determination concerning these interlocutory matters.
Timothy and Denise were married on April 28, 2001. Two children were born to them: T.S.P. in 2001 and T.H.P in 2003. The parties separated in February 2013, and Denise filed a petition for dissolution of the marriage in the Nelson Circuit Court a few weeks later. On January 24, 2014, the Nelson Circuit Court granted a decree dissolving the parties' marriage.
On September 23, 2014, the circuit court conducted a hearing in an attempt to resolve some of the issues that remained unsettled. The hearing was continued until December 8, 2014, when it resumed for further testimony. On January 5, 2015, the court interviewed the children upon the parties' stipulation.
In its judgment, the circuit court awarded Timothy and Denise joint custody of their children. Denise was designated the primary residential custodian and was permitted to relocate with the children to Laurel County, Kentucky. Timothy was awarded time-sharing. The court also awarded Denise child support, maintenance, and a vehicle, the FJ Cruiser.
Much of the parties' personal property was assigned and divided. However, in its judgment, the court found that the marital home was subject to a lienholder's foreclosure proceedings. Consequently, the court reserved ruling on the division of cash held by Denise's attorney as well as the division of any proceeds or indebtedness associated with the foreclosure action. The court also reserved ruling on the division of "any other alleged indebtedness," the division of some retirement accounts, and a decision with respect to Denise's request for an award of attorney fees. This appeal followed.
Timothy contends that the circuit court erred by designating Denise as the primary residential custodian. He argues specifically that the court erred "in giving more than appropriate weight to the children's wishes." Contending that Denise willfully alienated the children from him, he enumerates a number of ways in which Denise allegedly has failed to mold or to expose the boys to appropriate social behavior. Timothy emphasizes the testimony of the boys' counselor, who opined that it would be in their best interests to remain in Nelson County. Timothy contends that the trial court clearly "failed to recognize Denise's mental health issues" and states that the domestic violence petitions she filed against him "wrecked the parties' and boys' lives." He concludes that he should be designated the children's primary residential custodian.
Our review of the court's award of time-sharing cannot be disturbed on appeal unless the findings of fact are clearly erroneous or the decision constitutes an abuse of discretion. Hudson v. Cole, 463 S.W.3d 346 (Ky. App. 2015).
Denise testified that she was mostly a stay-at-home mother whose chief responsibility was the care of the parties' children. She indicated that she was involved in the children's school and extra-curricular activities and that she had been the children's primary caregiver for the entirety of their lives. Denise works as a certified respiratory therapist near London, Kentucky, on a three-day, twelve-hour, weekend shift. She explained to the court that neither she nor Timothy had family in Nelson County and that she and the children wished to move to Laurel County where she and the children enjoyed close ties with a large extended family.
Timothy works regular office hours each week in Louisville. During his testimony, Timothy admitted that the children were close to their mother and to their half-brother, their mother's first child. However, he testified that Denise was "unfit" because he could better provide for the financial needs of the children.
Each of the boys clearly expressed to the court his desire to move with his mother permanently to Laurel County. One of the children explained that they are already spending alternating weekends in Laurel County at a rental house near their mother's workplace and that he likes the house and the neighborhood.
From the testimony, the trial court found that there were no significant concerns with the parenting style of either of the parties; that the children had enjoyed the increased interaction with their mother's extended family; that the children were not particularly close to their father's extended family; and that the children would be forced by the foreclosure action to move from the family home in any event. The court concluded that it was in the children's best interests to relocate to Laurel County with their mother and to live primarily with her.
Having reviewed the record as a whole, we are persuaded that the court's decision to designate Denise as primary residential custodian and to grant Timothy time-sharing was adequately supported by the evidence. It did not abuse its discretion, and there is no reversible error.
Next, Timothy contends that the trial court erred by assigning the parties' Toyota vehicle, the FJ Cruiser, to Denise without recognizing his interest in the vehicle. We disagree.
Timothy did not prove a nonmarital interest in the vehicle. The evidence at trial indicated that the disputed vehicle was marital property; that it had been wrecked; and that since it was uninsured, it remained in a state of disrepair. The court was not persuaded that its value had been adequately established by the parties and awarded it to Denise for her use. We discern no reversible error.
Finally, Timothy contends that the trial court erred by making an award of maintenance to Denise. He argues that given her "slothful behavior" and her failure to meet the pertinent statutory criteria, the award of maintenance to Denise must be set aside. He notes that some of the parties' property is yet to be finally assigned and divided.
Pursuant to the provisions of KRS 403.200(1), an award of maintenance is proper where the court finds that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. The maintenance order must be in such amounts and for such periods of time as the court deems just. KRS 403.200(2). Among other factors, the court considers the standard of living established during the marriage; the length of the marriage; the financial resources of the party seeking maintenance, including marital property apportioned to her; and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Id.
Kentucky Revised Statutes. --------
As Timothy has noted, some of the parties' property is yet to be finally assigned and divided. Without a determination of the parties' share of the remaining assets and debts, we cannot affirm the trial court's award of maintenance. The trial court must assign and divide the remaining contested property to determine whether the statutory criteria for an award of maintenance have been met and to determine the amount and duration of the award -- if any. Consequently, we must remand the issue of any ongoing maintenance award to the trial court for its final judgment.
To recapitulate, we affirm the judgment of the Nelson Circuit Court with respect to its decision concerning custody of the parties' children and its award of the disputed vehicle to Denise. We remand for the court to analyze and to adjudicate Denise's request for continuing maintenance after the parties' assets and debts are finally divided.
ALL CONCUR. BRIEF FOR APPELLANT: Robert Frederick Smith
Louisville, Kentucky BRIEF FOR APPELLEE: Bobby L. Amburgey
Mt. Vernon, Kentucky