Opinion
NO. 2011-CA-001134-MR
11-09-2012
DAVID JOHN CARROLL APPELLANT v. AMY MARIE CAROILLANO, F/K/A CARROLL APPELLEE
BRIEFS FOR APPELLANT: Randall S. Strause Louisville, Kentucky BRIEF FOR APPELLEE: William D. Tingley Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE HUGH SMITH HAYNIE, JUDGE
ACTION NO. 10-CI-502054
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CLAYTON AND KELLER, JUDGES. ACREE, CHIEF JUDGE: David John Carroll appeals from that portion of an April 21, 2011 order of the Jefferson Family Court which overruled his motion to declare a debt marital; the order assigned the loan to him and no portion thereof to his ex-wife, Amy Marie Caroillano (formerly Carroll). Finding no substantial error or abuse of discretion, we affirm.
There has been some disagreement regarding the order David has actually appealed and whether he attached that order to his Appendix, as required by Kentucky Rule of Civil Procedure (CR) 76.12(4)(c). Although Amy asserts David has appealed the May 26, 2011 order denying his motion to alter, amend, or vacate the family court's initial order declaring the debt non-marital, and although David seems to agree, his prehearing statement and brief have challenged only the order assigning him the debt. It is clear to us that he wishes to challenge the assignment of debt in the April 21, 2011 order. The only reason the motion to alter, amend, or vacate is of any importance is because it extends the deadline for filing a notice of appeal. Moore v. Mack Trucks, Inc., 40 S.W.3d 888, 890 (Ky. App. 2001) (citation omitted). This opinion will therefore not address the order denying the motion to alter, amend, or vacate - an interlocutory order. Tax Ease Lien Investments 1, LLC v. Brown, 340 S.W.3d 99, 103 & n. 5 (Ky. App. 2011)("[O]rders denying CR 59.05 relief . . . are interlocutory, i.e., non-final and non-appealable and cannot be made so by including the finality recitations . . . although grants of [CR 59.05] motions may be reviewed for abuse of discretion once a new final judgment is entered.").
I. Background
David and Amy were married on May 28, 1994. They separated in May of 2010, and Amy filed a petition for dissolution of marriage the following month. The parties entered a settlement agreement which disposed of all issues except the duration of maintenance payments David would make to Amy and the classification and division of a loan. Classification of the loan as marital or non-marital is the only remaining issue pertinent to this appeal.
In 1992, before the parties were married, David established a line of credit with Fifth Third Bank for the purpose of buying stock in his employer's company. He initially withdrew $10,000 for this purpose. Prior to the marriage, the debt rose to more than $22,000. David attributes this increase to costs associated with the parties' wedding. The loan reached $79,000 as of the date David filed his mandatory case disclosure report, reached approximately $90,000 during the pendency of further proceedings in the dissolution action, and finally grew to $100,048 by the time David filed his April 2011 "brief" at the circuit court presenting his argument that the debt should be deemed marital. According to David, much of this increased debt was incurred for the benefit of the parties and their children. He claims to have transferred the loan from Fifth Third Bank to Morgan Stanley in 2008. Amy asserts that throughout the marriage she thought the purpose of the loan's increase was for David to buy stock in his employer's company and that she had no access to the account or any information regarding it.
The parties submitted the matter to the family court, both declining to conduct a full trial and instead submitting the matter on the record. Following very careful review of the parties' arguments and the evidence presented, the family court judge concluded David, the party seeking to designate the debt as marital, had failed to meet his burden of proof. The judge found, more specifically, that although David had produced documentary evidence of various account balances and their fluctuations, he did not provide adequate proof that the expenditures documented therein were for a marital asset or benefit. In short, the family court was not persuaded by David's unsupported representations. The court also found that David alone was responsible for certain expenditures which benefitted only David or which were made subsequent to an order prohibiting the parties from incurring additional debt without permission of the court.
Furthermore, Amy's lack of access to the account convinced the family court that David controlled the debt. None of the debt was deemed marital.
On appeal, David argues the circuit court's order was erroneous. He contends the findings of fact were not supported by substantial evidence because Amy did not deny that David incurred some of the debt for the benefit of both parties and their family. He also maintains it was an abuse of discretion not to designate at least some portion of the debt marital in accordance with Kentucky law.
II. Standard of review
A trial court's findings of fact will not be disturbed absent clear error. Brenzel v. Brenzel, 244 S.W.3d 121, 124 (Ky. App. 2008). "Findings of fact are only clearly erroneous when they are manifestly against the weight of the evidence." Burton v. Burton, 355 S.W.3d 489, 493 (Ky. App. 2011). It is the role of the fact finder to determine the proper weight to give the evidence. Drummond v. Todd County Bd. of Educ., 349 S.W.3d 316, 322 (Ky. App. 2011) (citation omitted). In performing this function, the trial court "may choose to believe or disbelieve any part of the evidence presented to it." K.R.L. v. P.A.C., 210 S.W.3d 183, 187 (Ky. App. 2006) (citing Caudill v. Maloney's Discount Stores, 560 S.W.2d 15, 16 (Ky.1977)).
"[I]ssues pertaining to the assignment of debts incurred during the marriage are reviewed under an abuse of discretion standard." Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001). We will conclude a circuit court abused its discretion only when the record reveals "an adjudicator's failure to exercise sound, reasonable, and legal decision-making." Richardson v. Rees, 283 S.W.3d 257, 264 (Ky. App. 2009) (quoting Black's Law Dictionary 10 (7th ed.1999)).
III. Discussion
Our Supreme Court has issued the definitive statement of the standards which governed the family court's inquiry:
Debts incurred during the marriage are traditionally assigned on the basis of such factors as receipt of benefits and extent of participation … ; whether the debt was incurred to purchase assets designated as marital property … ; whether the debt was necessary to provide for the maintenance and support of the family[; and] the economic circumstances of the parties bearing on their respective abilities to assume the indebtedness.Neidlinger, 52 S.W.3d at 523 (citations omitted).
In this case, David contends the family court's findings of fact were clearly erroneous because Amy did not directly dispute the evidence he presented. This argument overlooks the fact that the circuit judge simply did not find David's evidence credible. David's evidence consisted solely of his own self-serving representations about how he incurred the debt. Although he provided some documentary support for his position, the family court correctly noted that none of it bore any indication of how the loan money was spent, who received it, or who benefitted from the purchases. Given David's inability to adequately corroborate his assertions regarding the expenditures from the loan account, the family court was well within its authority to disregard David's evidence as failing to satisfy the burden of proof which was David's to bear.
Furthermore, Amy's representations did support the court's findings. David did not contradict Amy's representation that she had no access to the account or knowledge of how its funds were spent, except for the purchase of stock. The family court also noted David's income is several times that of Amy's; he is therefore better able to assume the debt.
Based upon those findings of fact, the court applied the correct standard of law. The party asserting a debt is marital bears the burden of proof. McGregor v. McGregor, 334 S.W.3d 113, 119 (Ky. App. 2011). Because the court was not convinced David's evidence satisfied the factors articulated in Neidlinger, supra, it was proper to characterize the loan as David's non-marital debt. There was no abuse of discretion.
We affirm.
ALL CONCUR. BRIEFS FOR APPELLANT: Randall S. Strause
Louisville, Kentucky
BRIEF FOR APPELLEE: William D. Tingley
Louisville, Kentucky