Opinion
NO. 2011-CA-001932-MR
02-01-2013
VIOLET JENELL DOBBS APPELLANT v. DWIGHT DOUGLAS DOBBS APPELLEE
BRIEF FOR APPELLANT: Gordon T. Germain Monticello, Kentucky BRIEF FOR APPELLEE: John Paul Jones II Monticello, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE JENNIFER UPCHURCH EDWARDS, JUDGE
ACTION NO. 10-CI-00163
OPINION
AFFIRMING
BEFORE: CAPERTON, DIXON, AND TAYLOR, JUDGES. DIXON, JUDGE: In this dissolution of marriage action, Violet Jenell Dobbs appeals the final judgment of the Wayne Circuit Court, contending the court erred in its division of marital assets. After careful review, we affirm.
Violet and Dwight Douglas Dobbs were married on March 31, 1972, and they were divorced on July 14, 2010. The decree reserved issues of property division, and the parties agreed all real and personal marital property would be sold at auction. Dwight vacated the parties' residence several months prior to the hearing, and Violet remained in the marital home. Prior to the auction, the court held a hearing to address the parties' arguments regarding the classification of marital and non-marital property. Among other things, Dwight testified that he had a large collection of silver dollars in the basement of the house, which amounted to thirty-two pounds of silver. After hearing the testimony and receiving evidence, the court ordered that certain items, including Dwight's silver coin collection, were marital property to be sold in the auction.
At the real estate auction, Violet purchased the marital home and acreage for $440,000.00. The personal property auction resulted in net proceeds of approximately $32,500.00 to each party. In January 2011, both parties filed motions with the family court regarding disputed items of property that were not sold at the auction. Dwight contended that Violet failed to produce the entirety of his silver collection for sale, noting that only a few coins were sold at the auction for $2200.00. In her motion, Violet asserted that Dwight failed to account for marital assets from the sale of cattle. Over the course of two hearings, Dwight testified regarding his collection of silver dollars and antique currency. Dwight offered the testimony of his brother and daughter regarding their knowledge of his coin collection. The testimony indicated the value of thirty-two pounds of silver dollars was approximately $15,000.00. Violet testified that she had no knowledge of the silver dollar collection, and she contended that she brought everything she found in the basement to the auction. The court also heard extensive testimony regarding the sale of marital cattle in March 2010. Dwight presented receipts to support his position that he used the $12,000.00 he received from the cattle sale to pay off marital debts from the parties' farming operation. Finally, Violet argued that the $40,000.00 Buyer's Premium assessed to her as the winning bidder at the real estate auction was a marital debt.
On August 23, 2011, the court rendered a final judgment resolving the disputed property issues. The court awarded Violet the silver dollar collection, concluding that Violet had exclusive control of the marital home and that she failed to produce the silver collection at the auction. The court awarded Dwight the proceeds from the cattle sale. In a subsequent order, the court held that Violet was solely responsible for paying the Buyer's Premium on the real estate pursuant to the auction contract. This appeal followed.
On appellate review, the lower court's "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Kleet v. Kleet, 264 S.W.3d 610, 613 (Ky. App. 2007). Furthermore, "[d]ecisions of the family court concerning the division of marital property are within the discretion of that court, and we will not disturb those decisions except for an abuse of that discretion." Id.
Violet attacks the sufficiency of the evidence supporting the court's decision to award her the silver collection and to award the cattle money to Dwight. Violet contends the award of the silver collection was merely illusory because Dwight did not testify truthfully about the existence of the silver collection.
Our review of the record indicates the court heard lengthy testimony over the course of three hearings in this contentious divorce proceeding. Dwight testified consistently regarding the silver collection at each of the hearings, while Violent simply denied that the collection existed. Dwight also presented evidence indicating the cattle money had been spent to discharge marital debts, which Violet again denied. The trial court was clearly in the best position to assess the credibility of the witnesses concerning these items of marital property, and it had wide latitude in dividing and valuing these assets. Armstrong v. Armstrong, 34 S.W.3d 83, 87 (Ky. App. 2000). Furthermore, "[t]he property may very well have been divided or valued differently; however, how it actually was divided and valued was within the sound discretion of the trial court." Cochran v. Cochran, 746 S.W.2d 568, 570 (Ky. App. 1988). Here, the court found the testimony of Dwight to be more credible, and we are not persuaded the court abused its discretion.
Finally, we agree with the court's conclusion that Violet was obligated to pay the entirety of the Buyer's Premium for the marital real estate she purchased at auction. The Auction Listing Agreement was signed by Violet and explained that the Buyer's Premium was "a fee that is added to the final bid price of the auction property to determine contract sales price and is paid to the Auctioneer by the Buyer." Further, Violet signed the Auction Purchase Contract, which clearly stated that a 10% Buyer's Premium would be added to the final bid to determine the final contract sales price. We conclude that there was no error in the trial court's decision on this issue.
For the reasons stated herein, we affirm the judgment of the Wayne Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Gordon T. Germain
Monticello, Kentucky
BRIEF FOR APPELLEE: John Paul Jones II
Monticello, Kentucky