Opinion
NO. 2011-CA-001282-MR
03-08-2013
BRENDA ANN DOUGLAS APPELLANT v. KEVIN DOUGLAS APPELLEE
BRIEF FOR APPELLANT: Robin L. Webb Grayson, Kentucky BRIEF FOR APPELLEE: W. Jeffrey Scott Grayson, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE DAVID D. FLATT, JUDGE
ACTION NO. 09-CI-00350
OPINION
AFFIRMING
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. LAMBERT, JUDGE: Brenda Douglas appeals from the Carter Circuit Court's May 23, 2011, order dissolving her marriage to Kevin Douglas. The decree and order established that the parties' home was Kevin's nonmarital property, and as such, Brenda had no marital interest in it. After careful consideration of the record and the parties' briefs on appeal, we affirm the judgment of the Carter Circuit Court.
Brenda and Kevin were married for nearly twenty years and initiated action for dissolution of their marriage on August 7, 2009. The trial court entered a decree dissolving the marriage on May 23, 2011. The order failed to award any marital property to Brenda.
Prior to their marriage, Brenda owned a home which she sold during the marriage for the sum of $15,000.00. While the record is somewhat confusing, it appears that Brenda utilized the proceeds of that sale to prepare a site for the subsequent marital home she and Kevin purchased, a double-wide trailer home that was ultimately placed on Kevin's family property. Brenda's mother, Larna Binion, also gave Brenda approximately $9,200.00 for the down payment on the trailer. There is some discrepancy in the record as to whether this was Brenda's money or Ms. Binion's, as Brenda and her mother had a joint-checking account. The check stubs in the record reflect that Ms. Binion wrote a check for $1,000.00 as a down payment to Dream Homes, but the check was in both Ms. Binion and "Brenda Binion's" names. Subsequently, Ms. Binion wrote a check in the amount of $8,209.92 for the down payment, which was designated as a "gift to Brenda Douglas."
Ultimately, Brenda and Kevin lived in the double-wide trailer as their marital home until Kevin's parents, Ronnie and Deloris Douglas, gave Kevin their brick home located on nearby property. The deed for this conveyance states that the brick home located at 847 Douglas Hollow Road, Olive Hill, Kentucky, was given to Kevin as a gift on March 4, 2000. Subsequent to this transfer, Brenda and Kevin moved into the home and gave Kevin's brother their trailer. According to Brenda, Kevin's brother assumed the payments on the trailer, but a formal sale or transfer never occurred. No record of this assumption appears in the record, and a copy of the retail installment contract bearing Kevin and Brenda's names is marked paid in full as of May 16, 2005.
Brenda testified that upon moving into the brick home, the parties transferred a deck from the trailer to the home and made several other improvements to the property. Subsequently, one or both parties were incarcerated for drug use. On August 28, 2009, while incarcerated, Kevin sold the brick home to his nephew and his wife, Michael and Clarissa Douglas, for $78,000.00. The deed for this transaction was recorded in the Carter County Clerk's office on September 8, 2009, and it incorrectly identifies Kevin as single even though the parties' marriage had not yet been dissolved.
Michael and Clarissa Douglas took possession of the home at 847 Douglas Hollow Road and received a mortgage on the property. Brenda received no compensation for what she describes as her pre-marital and marital contributions to the home.
In its order and judgment of dissolution, the trial court found that while there was a clerical error in the deed transferring the property to Michael and Clarissa Douglas, it was clear that Kevin received the property as a gift from his parents. The court found there was no evidence that the parties had made improvements to the property which increased its value through their joint efforts, and therefore concluded that the real estate ultimately transferred to Michael and Clarissa was nonmarital property. This appeal now follows.
On appeal, Brenda argues that the trial court erred in the designation of marital and nonmarital property with regard to the parties' home. In essence, she argues that her pre-marital interest in the trailer was absorbed into the brick home when the parties received the home from Kevin's parents and let his brother assume payments on the trailer. She contends that the trial court should have traced her contributions to the trailer and site preparation to the brick home and ultimately to the sale of the home to Michael and Clarissa Douglas.
The disposition of parties' property in a dissolution action is governed by Kentucky Revised Statutes (KRS) 403.190. Travis v. Travis, 59 S.W.3d 904, 908 (Ky. 2001). Under KRS 403.190, a trial court utilizes a three-step process to divide the parties' property: "(1) the trial court first characterizes each item of property as marital or nonmarital; (2) the trial court then assigns each party's nonmarital property to that party; and (3) finally, the trial court equitably divides the marital property between the parties." Id. at 909.
Further, "[t]he determination of whether a gift was jointly or individually made is a factual issue, and therefore, subject to Kentucky Rules of Civil Procedure (CR) 52.01's clearly erroneous standard of review." Sexton v. Sexton, 125 S.W.3d 258, 269 (Ky. 2004) (footnote omitted). CR 52.01 states, "[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." However, the ultimate legal conclusion denominating an item as marital or nonmarital is reviewed de novo. Smith v. Smith, 235 S.W.3d 1, 6 (Ky. App. 2006).
In the instant case, Brenda argues that the exceptions to KRS 403.190 found in KRS 403.190(2)(a) through (e) apply. She argues that her contributions to the trailer, which was exchanged for the brick home, and her subsequent contributions to the brick home render the brick home her marital property, or at least give her a marital interest in the property. While we are sympathetic to the fact that Brenda contributed money to the purchase and improvement of the trailer, there was simply no evidence that the brick home was not intended as a gift to Kevin. The deed from his parents clearly designates it as such, stating that it was a gift to their son based on their love and affection. While it is possible that Brenda made improvements to the property, there was no detailed evidence in the record indicating the costs of such improvements, and the trial court could not simply base a decision on Brenda's word alone. Furthermore, there is no evidence in the record of the value of the home at the time it was transferred to Kevin, such that the trial court could determine the value of any improvements Brenda alleges were made to the home prior to the sale to Michael and Clarissa. Accordingly, there is no way to determine any value of Brenda's marital contributions to the improvement of the brick home. Thus, the trial court's finding that the home was a gift to Kevin was not clearly erroneous, based on the evidence of record. Subsequently, absent any evidence of an increase in value of the home and the value of any improvements attributable to the joint efforts of the parties, the trial court's designation of the property as nonmarital is sound, and we cannot disturb it on appeal.
Finding no reversible error, we affirm the May 23, 2011, judgment and decree of the Carter Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Robin L. Webb
Grayson, Kentucky
BRIEF FOR APPELLEE: W. Jeffrey Scott
Grayson, Kentucky