Opinion
NO. 2013-CA-000007-MR
05-02-2014
DONNA SUE CRAWFORD N/K/A DONNA SUE COLLINS APPELLANT v. ROY LEE CRAWFORD APPELLEE
BRIEF FOR APPELLANT: Christopher L. Stansbury Nicholasville, Kentucky BRIEF FOR APPELLEE: Stephanie A. Litteral Georgetown, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. MICHAEL DIXON, JUDGE
ACTION NO. 09-CI-00165
OPINION
AFFIRMING
BEFORE: LAMBERT, MAZE AND MOORE, JUDGES. LAMBERT, JUDGE: Donna Crawford appeals from the Jessamine Family Court's order dissolving her marriage to Roy Crawford and the court's division of the parties' marital property. After careful review of the record and the hearings, we affirm.
Donna and Roy were married on April 29, 1999, and separated on February 9, 2009. On February 16, 2009, Donna filed a petition for dissolution of marriage in the Jessamine Family Court. Donna requested the equitable division of marital property and debts and the restoration of non-marital property.
Pursuant to Roy's motion to bifurcate the divorce, the family court entered a decree of dissolution on October 5, 2009. The judge's signature was dated September 30, 2009; however it was revised and dated October 5, 2009, on that order.
Approximately two years after the filing of the petition for the dissolution of marriage, the family court conducted a final hearing on January 10 and 11, 2011. At the hearing, Roy's position was that Donna's marital interest in his military retirement should be approximately $88,200.00. Roy offered for this to be paid in monthly installment payments to Donna in the amount of $262.50 for Donna's average life expectancy of 75 years of age. Roy made an offer of judgment in the amount of $300.00 per month to settle the case, but Donna did not accept his offer.
After Donna rejected his settlement offer, Roy requested that Donna's deposits of approximately $220,317.55 into her individual accounts that she earned in income as a stripper/companion, which Roy did not discover until the parties separated, be offset with any marital interest Donna may have in Roy's military retirement. Roy also requested reimbursement of the expenses he incurred for attorney fees and costs for what he called Donna's deliberate failure to comply with discovery requests. The family court entered its amended findings of fact, conclusions of law, and order on October 29, 2012. Donna filed motions to alter, amend, or vacate the order. A hearing was held on February 22, 2012, and both parties agree that the motion was granted, but there is no order in the record stating what relief was actually granted. Neither party's citation to the record directs this Court to an actual order. Donna filed another motion to alter, amend, or vacate the amended order which was heard by the family court on November 21, 2012. The family court's hand-written notation states that the motion was "overruled," but again, there is not a copy of Donna's actual motion in the record. The family court denied the motion, and Donna filed the instant appeal.
On appeal, Donna first argues that the family court abused its discretion and did not apply the factors under Kentucky Revised Statutes (KRS) 403.190 or otherwise erred in applying the factors.
A trial court's division of marital property is well within the sound discretion of the trial court. Johnson v. Johnson, 564 S.W.2d 221 (Ky. App. 1978). Without an abuse of discretion, the reviewing court should uphold the trial court's division of property. Shively v. Shively, 233 S.W.3d 738, 741 (Ky. App. 2007). A family court has broad discretion with respect to testimony presented and may choose to believe or disbelieve any part of it. It is also entitled to make its own decisions regarding the demeanor of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court unless its findings are clearly erroneous. Muir v. Muir, 406 S.W.3d 31, 34 (Ky. App. 2013), Bailey v. Bailey, 231 S.W.3d 634, 636 (Ky. App. 1989).
KRS 403.190 governs the distribution of marital property and mandates that the trial court divide marital property in "just proportions." Garrett v. Garrett, 766 S.W.2d 634,636 (Ky. App. 1989). The statute lists the factors the trial court is required to consider in dividing marital property: each spouse's contribution to the acquisition of marital property; the value of the property set apart to each spouse; the duration of the marriage; and the economic circumstances of each spouse at the time of the division.
The family court made very specific findings of fact in this particular case, which included direct testimony of the parties. The court made conclusions of law based on the truthfulness and credibility of each witness.
The record reflects that the court properly considered the contribution of each spouse to the acquisition of the marital property as required by KRS 403.190(a). The court made findings that Roy receives retirement and disability pay from the military and earns income as a police officer. The court also made findings that Roy was married to Donna 30% of the time that he was in the active military based on Roy's testimony. The court also made findings that Donna was an adult entertainer/topless dancer during the marriage based on testimony of Donna's clients and testimony of Donna's daughter that Donna earned income from employment at Camelot East and at hotels. The court did not abuse its discretion when it concluded that Donna was an adult entertainer based on the totality of the evidence that included Donna's stipulation that she worked as a topless dancer. The trial court was not clearly erroneous in making these findings based on the credibility of the witnesses at trial.
The family court further concluded that Roy used all his marital income to pay the ordinary expenses of the household, which Donna received a benefit from throughout the marriage. The court concluded that the undisputed testimony reflected that Donna deposited $220,317.55 into her personal bank account during the marriage. This conclusion was supported by the testimony of Roy with supporting documentation, and it was not refuted by Donna. Ultimately, the court concluded that Donna used her marital income for her own personal use. The court concluded that the majority of the money was from income and was spent without account by Donna. Based on our review of the hearings and the testimony presented therein, we find no error with the trial court's findings of fact and conclusions of law regarding the contribution of each spouse to the acquisition of marital property.
The trial court also considered the value of the property awarded to each spouse. The trial court made findings that Donna had in her possession household furnishings, vehicles, and personal effects. The court requested tracing of the non-marital claims from Donna. Donna objected and did not provide any documentation or tracing of non-marital claims. The court considered the testimony of the parties when it divided the marital property and made findings that Donna did not know the value of the marital items in her possession, that she guessed or otherwise did not present the value of the marital items, and that she picked up items from the marital residence on four different occasions. The court made findings that Roy had in his possession household furnishings, vehicles, and personal effects. The court advised the parties that it did not know the value of the items and concluded that an equitable division was not always an equal division. The court awarded Donna the items in her possession and Roy the items in his possession based on the testimony of the parties. The court concluded that this was a just and equitable division of the property. We agree with the family court that a just division is not always an equal division, and thus we find no error with the family court's findings of fact regarding the value of property awarded to each spouse.
The family court also made findings that the parties were married on April 29, 1999, and that a decree of dissolution was entered in October 2009. In the family court's conclusions of law, the court again identified when the parties were married and when the decree of dissolution was entered. Therefore, the record reflects the court properly considered the length of the marriage when dividing up and awarding marital property.
The record also reflects that the family court considered the parties' economic circumstances when dividing the property. The court made findings that Roy was retired from the military and is currently working for the Georgetown Police Department based on Roy's testimony and supporting documentation. The court made findings that Donna was in a relationship with Allen Collins and that he was providing all of her financial support. The court also made a finding that Donna was a topless dancer/adult entertainer based on Donna's stipulation that she was a topless dancer. Therefore, the record supports the fact that the trial court properly considered the parties' economic circumstances when it made findings of fact and conclusions of law regarding property division.
Donna next argues that the family court erred when it abdicated its fact finding and decision making responsibilities to Roy's counsel. Kentucky Rules of Civil Procedure (CR) 52.01 states, "In all actions tried upon the facts without a jury...the court shall find the facts specifically and state separately its conclusions of law thereon...." A trial court is free to request counsel for one party to draft and submit proposed findings of fact; however, the trial court shall "not abdicate its fact-finding and decision-making responsibility under CR 52.01." Bingham v. Bingham, 628 S.W.2d 628, 629 (Ky. 1982).
Donna argues that at the conclusion of the hearing in this matter, the family court instructed Roy's counsel to prepare the findings of fact and conclusions of law sufficiently so that she would be able to defend them on appeal. Donna contends that the family court failed to make its own independent findings of fact and conclusions of law and instead abdicated its decision making responsibility to Roy's counsel. We agree with Roy that the family court did not abdicate its decision making responsibilities.
A review of the record and the hearings in this instant case reflects that the family court conducted a two-day hearing on the property issues. The court had control over the hearings, actively listened to the witnesses, and analyzed the testimony and evidence presented to it. The court made rulings on objections throughout the hearing. Furthermore, the parties did not have mediation or arbitration in this case. The family court had the ultimate decision making power and utilized that power, only delegating the clerical task of drafting proposed findings of fact and conclusions of law, then modifying those proposed findings of fact and conclusions of law to reflect its decision in the case.
Donna argues that the family court's order recited Roy's proposed findings of fact and conclusions of law verbatim and that the court failed to make any independent findings. However, the record reflects that the findings of fact and conclusions of law were almost verbatim of the witnesses' testimony during the hearing and were supported by that testimony and the record. Thus, we see no error in the family court's adoption of the testimony presented at the hearing on this matter—in fact that is the ultimate purpose of conducting a hearing.
Furthermore, the family court denied most of the attorney fees Roy requested and did not sanction Donna's counsel as requested by Roy. In fact, the only attorney fees that were awarded to Roy were specifically the product of deliberations made by the family court. Roy requested $16,817.15 in attorney fees; however he was awarded $1,500.00. Further, Roy requested $8,754.95 for costs and was only awarded $3,925.00 in costs.
Pursuant to KRS 403.220, costs of action and attorney fees may be ordered for maintaining or defending any proceeding under Chapter 403. The Supreme Court of Kentucky held that the amount of an award of attorney's fees is committed to the sound discretion of the trial court. The trial court is in the best position to observe conduct and tactics which waste the court's and the attorneys' time and must be given wide latitude to sanction or discourage such conduct. Gentry v. Gentry, 798 S.W.2d 937 (Ky. 1990). It is clear from the record that the family court examined the conduct of the parties and reserved the issue of awarding fees until after the conclusion of the two-day hearing. The court agreed with Roy that Donna had offered a succession of unpersuasive and irrelevant excuses for her persistent conduct for failing to comply with discovery requests. The court was in the best position to observe the evidence presented and evaluate the time spent preparing for the hearing by each attorney, etc. We cannot say that it was clearly erroneous for the family court to award attorney fees and costs to Roy, and the court did not abuse its discretion in this regard.
Donna next argues that the family court failed to make sufficient findings regarding several key issues. First, Donna contends that the court failed to make sufficient findings regarding Roy's retirement account, which she argues was the primary marital asset to be divided. The trial court made a finding based on Roy's testimony that he joined the active military on September 23, 1983, and that the percentage of time he was married during active duty was 30%. Roy calculated Donna's interest in his military retirement to have a value of $88,200.00, which amounted to $262.50 per month that he agreed to pay Donna. However, the family court held that this amount should be offset by income that Donna received during the marriage for which he did not receive any benefit at all. Roy testified regarding his offer of judgment to settle the case by giving Donna $300.00 per month, which she rejected. Donna did not present any evidence or testimony regarding her marital interest in Roy's retirement. Thus, the trial court properly evaluated the witnesses' testimony and made findings of fact based on the evidence presented. We find no error in this regard.
Donna next argues that the trial court did not make sufficient findings about deposits into her account throughout the marriage. Roy presented evidence during the hearing that deposits made into Donna's personal banking account during the marriage totaled $220,317.55. Donna did not dispute that the deposits had been made and presented evidence that the primary source of those deposits were "gifts" from various male friends. Two of these friends testified and each stated that the money they gave to Donna was intended as gifts. Roy testified that he believed that the source of funds for the deposits, which exceeded Donna's income as reflected on her social security statement, was from Donna's work as a prostitute or stripper. During his testimony, Roy asserted that he should receive the fruits of Donna's labor and claimed that he did not benefit from the income Donna received as her work as a prostitute. He further claimed Donna had dissipated assets acquired during the marriage. Donna disputed that she had ever been a prostitute.
Ultimately the family court found that the some of the money Donna deposited during the marriage represented gifts and some of the money represented income; however, the majority of the money was spent without account by Donna. The court then offset Roy's military retirement with the income and gifts Donna deposited into her own personal account, from which Roy derived no benefit during the marriage.
In Heskett v. Heskett, 245 S.W.3d 222 (Ky. App. 2008), this Court recognized that when determining a fair and just division of the marital property, the trial court must consider the dissipation of a party's share of the marital property. In Heskett, the wife put a considerable amount of her marital assets into paying for the couples living expenses, including paying bills, purchasing furniture, and providing for the majority of the down payment on their residence. The husband provided no documentation regarding cash and could not account for the disappearance of or justify the disappearance of same during the marriage. The court concluded that based on Brosick v. Brosick, 974 S.W.2d 498, 500 (Ky. App. 1998), dissipation occurs when "marital property is expended (1) during a period when there is a separation or dissolution impending; and (2) where there is a clear showing of intent to deprive one's spouse of their proportionate share of the marital property."
As in Heskett, Roy provided evidence that supported his testimony that he provided for the living expenses of the parties while Donna cannot account for the disappearance of $220,317.00 of the marital assets. While Donna did not present evidence or testimony as to what her marital interest in Roy's military retirement should be, it is clear from Roy's testimony that Donna's interest in Roy's military retirement is far less than Roy's marital interest in the cash that Donna dissipated during the marriage. We find no abuse of discretion in the family court's offset of Roy's military retirement benefits with the money Donna deposited into her personal checking account, as the family court's findings of fact and conclusions of law are supported by ample evidence and testimony in the record.
Donna next argues that the family court improperly considered evidence of her alleged bad acts. Donna contends that Roy attempted to establish at the final hearing that Donna was working as a prostitute during their marriage and that the source of funds for her deposits was income from prostitution. A review of the record indicates that the family court made findings of fact that Donna was an adult entertainer. The court made no finding of "bad acts" and did not conclude that Donna was a prostitute. The court did, however, conclude that Donna had male companions that gave her money for stripping and companionship at Camelot East and hotels and that those monies amounted to marital income. The court properly considered evidence that Donna was an adult entertainer and concluded that Donna earned income from her employment. The court's finding was not clearly erroneous, given the testimony and evidence presented, and the court did not abuse its discretion when considering Donna's occupation for purposes of division of marital assets and for Roy's request for attorney's fees.
Donna next argues that the family court's decree of dissolution entered on October 5, 2009, is void because the decree was not signed by the family court prior to its entry. The family court corrected an error wherein the clerk entered a decree of dissolution of marriage without the judge's signature. The matter was brought to the attention of the court, and the court entered an order correcting the mistake on April 28, 2010. We agree that under CR 61.01, this was a harmless error. That rule states, "The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." This error was corrected by the family court, and the decree is not void.
Finally, Donna argues that the family court refused to conduct a hearing on Donna's motion to alter, amend, or vacate. On November 21, 2013, Donna's motion to alter, amend, or vacate was heard by the trial court. The trial court did not refuse to conduct a hearing, and instead denied the motion. We find this argument to be without merit.
Discerning no reversible error, we affirm the findings of fact and conclusions of law entered by the Jessamine Family Court on November 30, 2011.
ALL CONCUR. BRIEF FOR APPELLANT: Christopher L. Stansbury
Nicholasville, Kentucky
BRIEF FOR APPELLEE: Stephanie A. Litteral
Georgetown, Kentucky