Opinion
NO. 2012-CA-002114-MR
04-25-2014
GARY CRAWFORD WEEMS APPELLANT v. TAMMY JILL WEEMS APPELLEE
BRIEF FOR APPELLANT: Jimmy C. Webb Prestonsburg, Kentucky BRIEF FOR APPELLEE: Julie S. Williamson Owingsville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MORGAN CIRCUIT COURT
FAMILY COURT DIVISION
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 11-CI-00069
OPINION
AFFIRMING
BEFORE: STUMBO, TAYLOR, AND THOMPSON, JUDGES. TAYLOR, JUDGE: Gary Crawford Weems brings this appeal from a decree of dissolution of marriage entered in the Morgan Circuit Court, Family Court Division, on June 7, 2012, dissolving the parties' marriage and dividing certain marital property. We affirm.
Gary and Tammy Jill Weems were married February 9, 1985, in Greene County, Tennessee. Two children were born of the marriage. Both parties resided together in Tennessee until July 17, 2010, when Gary moved to a residence jointly owned by the parties in Morgan County, Kentucky. On February 18, 2011, while still residing in Tennessee, Tammy filed the instant petition for dissolution of marriage in Kentucky. In the petition, Tammy averred that Gary resided in Morgan County, Kentucky. Gary filed an answer; therein, he denied residing in Morgan County for 180 days and claimed that the family court lacked jurisdiction under KRS 403.140(1)(a). By order entered September 22, 2011, the family court determined that it possessed jurisdiction to dissolve the parties' marriage pursuant to Kentucky Revised Statutes 403.140(1)(a).
Both children were emancipated before the petition for dissolution of marriage was filed, and there are no issues related to the children on appeal.
The petition for decree of dissolution was initially filed in Rowan Circuit Court and subsequently transferred to Morgan Circuit Court (Action No. 11-CI-00069).
By decree entered June 7, 2012, the family court dissolved the parties' marriage and divided the marital property. Gary subsequently filed a motion to alter, amend, or vacate the decree of dissolution for lack of jurisdiction by the family court. Therein, Gary specifically alleged:
2. That the Findings of Fact dated June 7, 2012[,] fail to establish jurisdiction as no finding was made by the Court that either party had been a resident of the State of Kentucky for the requisite 180 days prior to the filing of the Petition. In fact, even though the Petition lists a Kentucky address for [Gary], it fails to allege that [Gary] was a resident for the 180 days preceding the filing of the Petition.By order entered November 21, 2012, the family court denied Gary's motion. This appeal follows.
Gary contends that the family court erred in determining that it possessed jurisdiction to dissolve the parties' marriage. Gary specifically asserts that no evidence was presented to demonstrate that either party had resided in Kentucky for the requisite 180-day period as required by KRS 403.140(1)(a). Gary argues that the decree of dissolution should be set aside as he did not reside in Kentucky for the requisite 180-day period as required by KRS 403.140(1)(a), and this action should be dismissed.
Kentucky Revised Statutes 403.140(1)(a) provides:
(1) The Circuit Court shall enter a decree of dissolution of marriage if:
(a) The court finds that one (1) of the parties, at the time the action was commenced, resided in this state, . . . and that the residence . . . has been maintained for 180 days next preceding the filing of the petition[.]
In this Commonwealth, it is well-established that a decree of dissolution of marriage is not subject to appellate review. Clements v. Harris, 89 S.W.3d 403 (Ky. 2002) (citing Whitney v. Whitney, 70 Ky. (7 Bush) 520 (1870); Irwin v. Irwin, 105 Ky. 632, 49 S.W. 432 (1899); DeSimone v. DeSimone, 388 S.W.2d 591 (Ky. 1965); Drake v. Drake, 809 S.W.2d 710 (Ky. App. 1991)). Section 115 of the Kentucky Constitution provides that the Legislature may prescribe that no appeal shall be taken from that "portion of a judgment dissolving a marriage." Consistent therewith, the General Assembly enacted KRS 22A.020(3) which specifically provides that "there shall be no review by appeal . . . from that portion of a final judgment, order or decree . . . dissolving a marriage."
Kentucky's highest court specifically addressed the issue of jurisdiction to enter a decree of dissolution in Clements v. Harris, 89 S.W.3d 403 (Ky. 2002). In Clements, Leroy and Mary met and began dating in Owensboro, Kentucky. Id. The couple moved to Florida in June of 1996 and then married in Florida on July 19, 1996. On October 2, 1996, Leroy left Florida and moved back to Kentucky to live with his daughter. Leroy filed a petition for dissolution of marriage in Kentucky on October 11, 1996, and the circuit court rendered a decree of dissolution of marriage. This Court affirmed entry of the decree, and the Kentucky Supreme Court ultimately granted discretionary review. Regarding jurisdiction, the Court held:
Where the question of jurisdiction in a divorce action has been raised in the lower court, and there is any evidence to show the jurisdictional residence of the parties, the lower court's judgment granting a divorce based upon a determination that it has jurisdiction is not void and cannot be questioned on appeal regardless of the fact that the determination may be against the overwhelming weight of the evidence and be clearly erroneous.Clements, 89 S.W.3d at 405 (citing Elswick v. Elswick, 322 S.W.2d 129, 131 (Ky. 1959)). The Clements Court held that a lower court's jurisdiction to render a decree of dissolution will not be subject to appellate review if "any evidence" existed supporting jurisdiction. Id.
In this case, Tammy submitted an affidavit setting forth the dates that Gary resided in Kentucky. Tammy specifically averred that Gary resided in Morgan County, Kentucky, for 180 days preceding the filing of the petition. Hence, the record contains "some evidence" to support the family court's exercise of jurisdiction. See Clements, 89 S.W.3d 403. Accordingly, we reject Gary's contention that the family court lacked jurisdiction to dissolve the parties' marriage.
Gary alternatively contends that the family court erred in its division of marital property. Specifically, Gary asserts that the family court erroneously determined that the real property owned by the parties in Morgan County was partially nonmarital. Gary argues that the family court erred in concluding that 77 percent of the Morgan County property was gifted to Tammy by her aunt and thus assigning this fractional percentage interest to Tammy as her nonmarital property was in error.
In Kentucky divorce actions, the division of the parties' property is governed by KRS 403.190. Pursuant to KRS 403.190, the family court must engage in a three-step process to divide the parties' assets. First, the family court must characterize each item of property as either marital or nonmarital; second, the Court assigns each party their nonmarital property; and third, the court equitably divides the marital property. Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004).
KRS 403.190 states:
(1) In a proceeding for dissolution of the marriage . . . 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[.]
It is presumed that property acquired by either party during the marriage is marital property. KRS 403.190(3). There are exceptions to this presumption of marital property which are set forth in KRS 403.190(2). Relevant to this appeal is the gift exception. Thereunder, property obtained by one spouse during the marriage by gift is considered nonmarital; however, the party claiming such nonmarital status bears the burden of proof. Hunter v. Hunter, 127 S.W.3d 656 (Ky. App. 2003).
In determining whether property transferred to a party during the marriage was a gift, the family court may consider several factors, including "the source of the money used to purchase the item, the intent of the donor, and the status of the marriage at the time of the transfer. However, the intent of the purported donor is considered the primary factor in determining whether a transfer of property is a gift." Id. at 660. And, whether a particular item is properly classified as marital or nonmarital is reviewed under a two-tiered scrutiny whereby the factual findings are reviewed under the clearly erroneous standard and the ultimate legal conclusion characterizing the item as marital or nonmarital is reviewed de novo. Smith v. Smith, 235 S.W.3d 1 (Ky. App. 2006).
In this case, the family court allocated 77 percent of the Morgan County property to Tammy as nonmarital and held that a 23 percent interest in the property was marital. The 151-acre tract was acquired from a substantially below market value of $25,000, which was financed via a note to the aunt. The aunt later forgave the remaining debt which was the premises for the family court concluding that only 23 percent of the property was marital. In so concluding, the family court reasoned:
[Tammy] is awarded the real estate in Morgan County, Kentucky[,] with equity of $96,000.00. The vendor's lien debt forgiveness was a result of [Tammy's] aunt's love and affection and ultimate forgiveness of same. The parties paid only $5,694.49 of the $25,000.00 debt. There was no testimony of improvements or marital funds being performed. [Tammy] shall receive 77% of her non-marital share of the property resulting in equity to her of $73,920.00. The marital equity is the sum of $22,080.00 of which [Gary] is entitled to $11,040.00.
Based upon the record, there was sufficient evidence that the aunt intended to gift the Morgan County property to Tammy, and Tammy's testimony at the hearing evidenced such intent as did the promissory note itself. While we acknowledge that the family court's methodology for allocating the nonmarital interest was rather unique, nonetheless, Tammy presented more than sufficient evidence to sustain her burden of proof, and the circuit court did not commit an error of law by concluding that Tammy possessed a 77 percent nonmarital interest in the Morgan County property. Therefore, we hold that the family court properly concluded that a 77 percent interest in the Morgan County property was gifted to Tammy by her aunt and constituted Tammy's nonmarital property per KRS 403.190(2).
In the family court proceedings, Gary refused to cooperate and provided no pretrial discovery. During the hearing, Gary dismissed his counsel and insisted upon proceeding pro se.
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For the foregoing reasons, the decree of dissolution of marriage of the Morgan Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Jimmy C. Webb
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Julie S. Williamson
Owingsville, Kentucky