Cox v. Cox

Full title: MARSHA DAWN COX APPELLANT v. DAVID RICKY COX APPELLEE

Court: Commonwealth of Kentucky Court of Appeals

Date published: Aug 3, 2012

NO. 2011-CA-000756-MR (Ky. Ct. App. Aug. 3, 2012)

Opinion

NO. 2011-CA-000756-MR

08-03-2012

MARSHA DAWN COX APPELLANT v. DAVID RICKY COX APPELLEE

BRIEF FOR APPELLANT: MaLenda S. Haynes Grayson, Kentucky BRIEF FOR APPELLEE: Sharon E. Rowsey Ashland, Kentucky

CLAYTON

NOT TO BE PUBLISHED

APPEAL FROM CARTER CIRCUIT COURT

HONORABLE DAVID D. FLATT, JUDGE

ACTION NO. 10-CI-00444

OPINION

AFFIRMING

BEFORE: CLAYTON, MOORE, AND NICKELL, JUDGES. CLAYTON, JUDGE: Marsha Cox appeals from the findings of fact, conclusions of law, and decree of dissolution of marriage entered by the Carter Circuit Court on March 3, 2011. She argues that the trial court's award of maintenance was insufficient, and that it erred in ordering the sale of non-marital real property. Having reviewed the record, we affirm.

Marsha and David Cox were married in 1982 and separated in 2008. At the time of dissolution, she was forty-seven years of age and he was fifty-eight. They have three children, one of whom is still a minor. David has been employed in the maintenance department of Smithfield Foods for nineteen years, and earns an annual income of between $55,000 and $60,000. Marsha, who has a high school education, worked outside the home for approximately two years during the course of the marriage. Her primary role was as a homemaker, doing the housework, shopping and tending the garden. In 2002, Marsha received over $40,000 in inheritance monies upon the death of her parents.

Marsha and David bought the real estate on which their home is located from David's parents, who live next door. They also purchased an adjoining six-acre tract which they agree is non-marital property, seventy-five percent of which is Marsha's share and the remaining twenty-five percent David's. The trial court ordered this six-acre tract to be sold and divided in accordance with these percentages. The property is valued at $4,000 per acre; hence, Marsha's share of the proceeds should amount to approximately $18,000. The parties' marital residence was built during the course of their marriage and is not encumbered with a mortgage. The trial court found the value of the home to be $105,000. The trial court awarded David possession of the home, and ordered him to pay Marsha one-half of the value of the residence, $52,500.

David and Marsha agreed to divide equally the cash value of his life insurance policy, valued at $6,000 and his retirement benefits, which consist of approximately $60,000 in a 401(k) account. Marsha received her automobile and David was ordered to pay her $2,112 for her non-marital interest in his vehicle. She also received a Harley-Davidson motorcycle that was purchased with non-marital funds. David was ordered to pay $1,500 in attorney's fees.

Marsha is the primary residential custodian of the minor child. The parties agreed that David would pay child support in the amount of $592 per month. The trial court awarded Marsha $300 in monthly maintenance for her lifetime, or until her remarriage or cohabitation. Marsha filed a petition to alter, amend or vacate which was denied. This appeal followed.

Marsha argues that the trial court's maintenance award of $300 was insufficient. The pertinent statute provides that a court may grant a maintenance order only if it finds that the spouse seeking maintenance:

(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Kentucky Revised Statutes (KRS) 403.200(1). The second part of the statute requires the court to consider "all relevant factors" in determining the amount and duration of the maintenance award, including the following:

(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

KRS 403.200(2).

"In order to reverse the trial court's decision, a reviewing court must find either that the findings of fact are clearly erroneous or that the trial court has abused its discretion." Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001) (footnote omitted).

In deciding whether to award maintenance, the trial court found that Marsha lacks education and suffers from a chronic medical condition that makes it difficult for her to sustain full-time employment. The court further found, however, that Marsha would be able to work part-time to help defray her expenses and also noted that she would be receiving monthly child support in the amount of $592 for the next six years.

The trial court found that David's monthly income is approximately $2,400, and that his monthly expenses after the divorce are about equal to that amount. The court acknowledged that any award of maintenance would result in a shortfall for David, but concluded that David could reduce his monthly expenses or sell the marital residence if necessary.

Marsha contends that the trial court's findings - that she was unable to support herself yet would be able to seek part-time employment - are contradictory. Although Marsha's adult son testified that she is often in pain as a result of her medical condition and sometimes has to spend the day in bed, Marsha did not present any expert testimony or medical evidence showing that her condition precluded her from part-time employment. Furthermore, Marsha testified that she was able to perform household chores, work in the garden, shop for the family and regularly spend nights away from home. In light of this evidence, the trial court's finding that part-time employment was possible is not clearly erroneous.

Marsha challenges the trial court's finding that the maintenance would enable her to obtain health insurance because the evidence she submitted showed that the lowest-priced insurance available to her costs $377 per month. But the trial court clearly stated that the maintenance was intended to assist her in obtaining medical insurance, not necessarily to cover the full cost.

Marsha also disputes the trial court's specific findings under KRS 403.200(2). Under subsection (a), she argues that the financial resources she is left with following the dissolution are inadequate and should be supplemented by a higher amount of maintenance. Marsha will receive $52,500 for her interest in the marital property, $592 per month in child support, a one-half interest in David's retirement benefits and about one-half of the marital personalty. The non-marital property restored to her consists of the seventy-five percent interest in the proceeds of the six-acre tract, the Harley-Davidson motorcycle, $300 for her interest in the pool and $2,112 for her interest in David's car. Although these resources are by no means lavish, the amount of maintenance awarded by the trial court is not insufficient when viewed in the context of the total award.

Under subsection (b), she argues that the trial court failed to make a finding regarding the amount of time necessary for Marsha to train for employment. There is no indication in the record that Marsha made a motion for additional findings under Kentucky Rules of Civil Procedure (CR) 52.04, which prohibits reversal or remand for failure to make a finding of fact if the appellant did not request or move for such a finding. Jones v. Jones, 577 S.W.2d 43, 46 (Ky. App. 1979).

Under subsections (e) and (f), Marsha argues that the trial court gave insufficient consideration to the lengthy duration of the marriage and the effects of her physical ailment. In our view, the trial court adequately recognized that David has an ongoing obligation to Marsha by awarding her maintenance for her lifetime (or until she remarries or cohabitates).

Marsha also disputes the trial court's finding that David earns only $2,400 per month, contending that the paycheck exhibits he produced show his pay to be over $3,235 per month. Although some of the paycheck exhibits referred to by Marsha do show a higher amount, sufficient evidence was presented that these were the result of seasonal overtime during the holidays and are not typical of David's regular income.

Marsha also urges us to consider the method for calculating maintenance suggested in Atwood v. Atwood, 643 S.W.2d 263, 266 (Ky. App. 1982): "Add the two net salaries, divide by two, and subtract from this result appellant's net income and the child support appellee has been ordered to pay. Then order appellee to pay as maintenance this sum[.]" Marsha's calculation under this formula imputes a monthly income to David of $3,235 and results in a maintenance amount of $775. We have already determined, however, that the trial court's finding that his monthly income is $2,400 is supported by substantial evidence. Using that amount, the Atwood formula would yield maintenance in the amount of $358, which is very close to the amount awarded by the trial court.

Finally, Marsha argues that the trial court failed to comply with KRS 403.190 when it ordered the sale of the non-marital six-acre tract of real estate and ordered David to pay her $300 for her non-marital share of the swimming pool. She contends that KRS 403.190(1), which states that "the court shall assign each spouse's property to him[,]" does not authorize the court to sell property, or to order payment. Although the statute requires the court to restore each party's non-marital property, it does not specify the form of property. Furthermore, since the six-acre tract and the pool were purchased in part with the proceeds from Marsha's inheritance, the trial court in effect restored her non-marital property in its original form.

Although the swimming pool is above ground and hence moveable, the trial court concluded that the pool should stay on the marital property. Presumably, moving the pool would incur further expenses; the trial court did not abuse its discretion in deciding to award Marsha cash instead.

As to the six-acre property, David states that the parties were unable to divide the tract by agreement. Neither party wanted the property sold, but both wanted the 1.75 acres closest to the marital residence. In light of this situation, the trial court's decision to have the property sold and proceeds divided was not an abuse of discretion.

For the foregoing reasons, we affirm the findings of fact, conclusions of law, and decree of dissolution of marriage of the Carter Circuit Court.

ALL CONCUR. BRIEF FOR APPELLANT: MaLenda S. Haynes
Grayson, Kentucky
BRIEF FOR APPELLEE: Sharon E. Rowsey
Ashland, Kentucky