Opinion
NO. 2014-CA-000060-MR
05-15-2015
ARVETTA KIDD APPELLANT v. PAUL DAVIS KIDD APPELLEE
BRIEF FOR APPELLANT: Ashton M. McKenzie Morehead, Kentucky BRIEF FOR APPELLEE: Ira S. Kilburn Salt Lick, Kentucky
NOT TO BE PUBLISHED APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM E. LANE, JUDGE
ACTION NO. 12-CI-00294
OPINION
REVERSING IN PART AND REMANDING
BEFORE: COMBS, NICKELL, AND TAYLOR, JUDGES. NICKELL, JUDGE: Arvetta Kidd challenges an order entered on December 5, 2013, modifying findings of fact in a dissolution proceeding after she and her former husband, Paul Davis Kidd, filed cross motions to alter, amend or vacate the findings and decree of dissolution entered on August 27, 2013. Paul sought only three mathematical corrections; Arvetta alleged the trial court had assigned incorrect values to all the property, had relied on "guesses" to determine values rather than actual receipts, and had deemed a tractor to be marital property when both parties had agreed it was non-marital. On appeal, Arvetta alleges the Rowan Circuit Court abused its discretion and rendered a decision unsupported by substantial evidence. Upon careful review of the record, we reverse in part and remand for proceedings consistent with this Opinion.
FACTS
Arvetta and Paul married in 1992. This was not Arvetta's first marriage. During the course of their lives together, Arvetta and Paul lived in a home on a 300 acre farm Arvetta had received in a prior divorce settlement. The home needed many improvements, many of which Paul had made personally in tandem with his family and Arvetta's son. In June of 2008, Arvetta and Paul deeded the property to Arvetta's children, but retained a life estate interest in the home, two barns, a garage and approximately fifteen acres of land.
While not mentioned, this may not have been Paul's first marriage either. Both had children before they wed one another.
Improvements discussed included fencing all property, building two barns and a garage, replacing all windows, replacing appliances, adding a refrigerator and stove to the basement, installing new carpet, installing ceramic floor tile in the kitchen, adding a front porch, redoing the back porch, adding new French doors, and, buying new furniture and televisions.
At the final hearing, Paul introduced the deed. It was admitted into evidence without objection and reflects a fair market value of $115,000.00. Later in the hearing, Arvetta argued Paul had failed to properly establish the value of the life estate because he did not offer testimony from an appraiser or land expert and did not qualify himself as being knowledgeable about land values. When Arvetta testified she did not estimate the value of the life estate.
From our reading of the deed, the figure could pertain to the entire 300 acres or just the life estate interest.
During the marriage, Paul mistakenly logged a parcel of land believed to be owned by Arvetta. The mistake resulted in litigation and a $32,000.00 judgment against the couple; they procured a bank loan to pay the judgment. To pay off the bank loan—and avoid paying high interest—Arvetta borrowed $26,500.00 from her sister, Marcella Haws. According to Haws, the money was a loan; it was not a gift, and she expected repayment. Arvetta repaid the bank and began repaying her sister the balance at a rate of about $500.00 a month. At the time of the final hearing, $20,000.00 was still owed to Haws.
After twenty years of marriage, on September 6, 2012, Paul, 54 and disabled, petitioned for dissolution of his union with Arvetta, then 72 and retired. At the end of an evidentiary hearing on June 25, 2013, the trial court gave the parties twenty days to simultaneously file proposed findings of fact and conclusions of law. The record is devoid of any proposed findings.
On August 27, 2013, the trial court entered findings of fact and a decree of dissolution. Using a fair market value of $115,000.00 for the home and fifteen acres of land—based on the deed—the trial court estimated improvements had increased the value of the property by about $50,000.00, but we see no evidence of the trial court using that figure in dividing the property. The trial court further found the so-called "debt" to Haws was not a debt at all because Haws had never attempted to collect the $20,000.00 balance and had Arvetta made regular monthly payments—as she had led Paul to believe she was doing—the debt would have been erased long ago. The trial court stated any interest Paul had in the life estate was offset "by his share of whatever debt may have been owed to [Arvetta's] sister" and concluded Paul had no interest in the life estate in the house and land.
As one might assume, partners in a lengthy marriage accumulate marital assets. However, there was little proof establishing the fair market value of those items—both Paul and Arvetta testified and both estimated purchase prices, but few actual receipts were offered into evidence in comparison to the number of items owned. The court noted,
[Paul] put on proof of the fair market value of the parties (sic) marital assets and [Arvetta] put more proof on as to the purchase price of some property and no values as to most. The items (sic) values were averaged when both parties gave or put on proof (sic) a fair market value for that item.Paul purchased vehicles as well as farm and logging equipment during the marriage. He sold several of these items and after paying marital debts, retained $5,800.00 from the sale. At the same time, Arvetta sold cattle purchased during the marriage with marital funds and retained $4,619.95 from the sale. To equalize these two amounts, the trial court credited Arvetta with $590.00.
In Paragraph 19 of its order, the trial court recited a laundry list of marital equipment and vehicles including a "4630 tractor $12,500.00." The trial court awarded one-half of each of item listed in the paragraph, including the "4630 tractor," to each.
In Paragraph 20, the trial court found the couple owned a one-half interest with Arvetta's son in other farm equipment and livestock—most notably, twenty breeding age cows valued by the trial court at $23,818.00; sixteen calves valued by the trial court at $12,320.00; and one bull valued by the trial court at $1,000.00. For all of this property, one-quarter was assigned to Arvetta and a like amount was assigned to Paul.
The couple was found to own marital property related to the home (appliances, lawn mower, furniture, etc.) valued at $16,900.00. This figure was divided equally. Ultimately, the trial court found Paul and Arvetta should each receive money or property totaling $31,415.17, and ordered Arvetta to pay Paul an equalization payment of $21,325.17.
Paul moved to alter, amend or vacate the findings of fact based solely on three mathematical errors and asked that Arvetta pay him $22,077.83 to equalize the payments—$752.66 more than the trial court had calculated. A few days later, Arvetta filed her own motion to alter, amend or vacate the findings, alleging four flaws: the trial court had erroneously "guessed" at values rather than relying on receipts; had deemed the tractor valued at $12,500.00 to be marital property, even though both parties had agreed it was Arvetta's non-marital property; and, had failed to give Arvetta credit for a gun collection she claimed was valued at more than $20,000.00. Arvetta did not complain about no value being assigned to the life estate retained in the home, outbuildings and fifteen acres. Nor did she complain about the value of the cows, calves and a bull.
After more argument, the trial court took the matter under advisement and entered an order on December 5, 2013, correcting the three mathematical errors requested by Paul; changing the value of "guns and cash" from $2,500.00 to $12,500.00 for "guns and knives;" and, increasing the equalization payment Arvetta was to pay Paul from $21,325.17 to $22,077.83—a difference of $752.66. The "4630" tractor, referenced in Paragraph 19 of the original order, was not mentioned in the new order, which made corrections beginning with Paragraph 20. It is from this order that Arvetta now appeals. Due to her claim that the "4630" tractor is her non-marital property alone—because it was received in trade for a piece of property she received through a prior divorce—and the fact that both parties testified consistent with Arvetta's current claim, it is necessary to reverse in part and remand the property division to the trial court for recalculation and proceedings consistent with this Opinion.
ANALYSIS
Arvetta challenges the trial court's order on cross motions to alter, amend or vacate its factual findings. We review the trial court's ruling for an abuse of discretion. CR 59.05; Hall v. Rowe, 439 S.W.3d 183, 196 (Ky. App. 2014). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (quoting 5 Am.Jur.2d Appellate Review § 695 (1995)).
Kentucky Rules of Civil Procedure.
Arvetta alleges the trial court erred in characterizing and valuing all the property in the case. We will disturb the trial court's findings only if we see clear error. Cochran v. Cochran, 746 S.W.2d 568, 569-70 (Ky. App. 1988) (internal citations omitted). The "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." Id. at 570.
In conducting our review, we are guided by CR 52.01 which directs, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." As explained in D.G.R. v. Commonwealth, Cabinet for Health and Family Services, 364 S.W.3d 106, 114 (Ky. 2012):
[a]s the court sitting in the presence of witnesses, a trial court is in the best position to evaluate the testimony and other evidence. Indeed, "judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (emphasis added). "[M]ere doubt as to the correctness of a finding will not justify its reversal, and appellate courts should not disturb trial court findings that are supported by substantial evidence." Id. (footnotes, quotation marks, and brackets omitted).Just because a litigant views evidence differently than the trial court does not mean the trial court got it wrong.
Having stated the applicable standard of review, we reverse and remand one of two preserved claims. We direct the trial court to recalculate the division of property characterizing the "4630" tractor as Arvetta's non-marital property. According to testimony from both Arvetta and Paul, the tractor was received in trade for a piece of property Arvetta had received from a prior divorce. From our reading of KRS 403.190(2)(b), the tractor was Arvetta's non-marital property and it was error to give Paul one-half of its value in Paragraph 19 of the original order.
Kentucky Revised Statutes.
Arvetta's second preserved claim is that values assigned by the trial court were based on "guesses" rather than substantial evidence. In Arvetta's view, the only viable evidence of value was receipts showing the amounts Paul actually received for the items he sold. According to the motion to alter, amend or vacate, this claim pertains specifically to Paragraph 19 of the original order which reads:
The parties are the owners of the following marital farm equipment and vehicles: 2004 Chevy Pickup valued at $7,000.00; the 1987 Pro Craft Boat valued at $4,000.00; 1990 Mitsubishi $2,000.00; 4630 tractor $12,500.00; plow $400.00; disc $900.00; boom spray $1,000.00; wood splitter $400.00; fertilizer spreader $800.00; bush hog $2,000.00; front end loader for tractor $7,500.00; 16 foot trailer $1,800.00; hay spike $150.00; duel (sic) wheels for tractor $1,500.00; spare tractor tires $800.00; cattle equipment $600.00; gates $2,000.00; 16 foot john boat $800.00. These items are assigned the value of $45,750.00 or $22,875.00 to each.In her brief, Arvetta references other alleged valuation errors in Paragraphs 16, 18, 22 and 23, as well as incorrectly valuing cows and a bull mentioned in Paragraph 20. Since those errors were not argued to the trial court, we will not consider them now. Akers v. Floyd County Fiscal Court, 556 S.W.2d 146, 152 (Ky. 1977); Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). Furthermore, since we have already dealt with the "4630" tractor, we will not reconsider it in this discussion.
Arvetta references a knuckle boom Paul valued at $10,000.00 but ultimately sold for $14,000.00, and a loader he valued at $6,800.00 but sold for $6,832.53. These two items do not appear in Paragraph 19 of the motion to alter, amend or vacate, and therefore, are not properly before us.
As stated previously, we will upend a trial court's findings of fact only upon clear error. Cochran, 746 S.W.2d at 569-70. In reviewing the hearing, we heard little testimony of value for the items listed in Paragraph 19, but we did notice the trial court did not always value items as Paul did. For example, Paul valued the 2004 Chevy Pickup Truck he drove with an odometer reading of 231,000 miles at $6,400.00 or $6,500.00, but the trial court valued it at $7,000.00. In contrast, Arvetta's counsel noted during her cross-examination of Paul that the vehicle's Blue Book value was $12,150.00 according to the county clerk's office.
On appeal, Arvetta argues the truck should have been valued in accordance with the Blue Book. In our experience, the Blue Book value used by a county clerk's office for tax purposes has little relation to the condition of the actual vehicle and would have little bearing on a vehicle's value for dissolution purposes, although a trial court could certainly consider that evidence. Arvetta's citation to Clark v. Clark, 236 S.W.3d 616, 618 (Ky. App. 2007), does not carry the day since in Clark neither party testified about the value of a Taurus during trial, but a Blue Book value had been listed on a mandatory case disclosure. The lesson of Clark is a party with notice of a disputed issue must seize the opportunity to present her side in a timely fashion rather than sit back and wait to respond to an offer of proof by the opposing party—to wait is to risk the anticipated offer of proof never coming to pass. Contrary to Arvetta's position, we do not read Clark for the proposition that Blue Book value automatically establishes the value of a vehicle in a dissolution case.
In another example, Paul valued the 1990 Mitsubishi driven by Arvetta at $1,500.00 to $1,800.00, but the trial court listed it at $2,000.00. No Blue Book value was introduced for this vehicle. As noted previously, the trial court heard the proof and was in the best position to separate the wheat from the chaff. We can say neither that the trial court abused its discretion nor committed clear error in assigning values. Thus, we have no reason to disturb that portion of the order. Cochran, 746 S.W.2d at 569-70.
We now address the rules of appellate practice which dictate our approach to Arvetta's two remaining claims. CR 76.12 governs the filing of appellate briefs, specifying their required content. CR 76.12(4)(c)(v) requires an argument containing "a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." This information is crucial because we are only authorized to review issues properly presented to and ruled upon by the trial court. Akers, 556 S.W.2d at 152; Kennedy, 544 S.W.2d at 222.
Four times in the Brief for Appellant, Arvetta states her issues were preserved "for appeal by filing a Motion to Alter, Amend or Vacate followed by a Notice of Appeal." Her two-page motion mentions four items but gives few details and no specificity. The reason for filing a CR 59.05 motion is to allow the trial court to review its decision and make warranted changes. To achieve this goal, the litigant must identify the alleged error(s) with some specificity. Matthews v. Viking Energy Holdings, LLC, 341 S.W.3d 594 (Ky. App. 2011). Arvetta was not specific in her demands to the trial court either in her written motion or during the status hearing that subsequently occurred on the motion. Additionally, her brief does not echo the alleged errors highlighted in the CR 59.05 motion as we would expect. She cannot feed one can of worms to the trial court and another to us. Kennedy, 544 S.W.2d at 222.
The verbiage used in the other three arguments varies only slightly. In compliance with CR 73.03, Arvetta's notice of appeal stated she was appealing an order entered on December 5, 2013, but gave no hint of the basis for her appeal. Therefore, the filing of her notice of appeal did not preserve specific issues for our review. Furthermore, the purpose of filing a notice of appeal is to transfer jurisdiction to the next highest court, not to preserve an issue for appellate review. 7 Ky. Prac. R. Civ. Proc. Ann. Rule 73.02.
--------
Finally, under CR 73.02(2), when a party fails to comply with the appellate rules we have the option to dismiss the appeal, strike the brief, and/or impose a fine. A fourth option is to conduct a limited review for manifest injustice. Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990). We now apply these rules and established case law to the two other issues raised in Arvetta's brief to determine the extent of our review.
The thrust of Arvetta's brief is the trial court failed to divide the marital property in just proportions—a claim she divides into four subparts—two of which we have addressed, and two of which remain. Her first remaining claim is the record does not reflect a value for the life estate the couple reserved in the marital home and fifteen acres of land. That is true, but the trial court did precisely as she says it should have done on page 5 of her brief wherein she writes, "[t]he only question that should have been in front of the trial court was whether there was a life estate interest in the property for Mr. Kidd." In its findings of fact, the trial court wrote:
any interest [Paul] may have in the life estate is set off by his share of whatever debt may have been owed to [Arvetta's] sister. [Paul] is found to have no interest in the life estate and [Arvetta] shall be responsible for whatever debt, if any, is owed to [Arvetta's] sister. [Paul] shall execute a deed prepared by [Arvetta] to convey whatever interest he may have in the land to [Arvetta].Arvetta claims the only question was whether Paul had any interest in the life estate and the trial court answered that question in the negative. If Arvetta believed the trial court should have assigned a dollar figure to the life estate, it was her responsibility to ask for such. We are not directed to any complaint about the life estate in her written CR 59.05 motion or the hearing at which that motion was discussed. Having failed to ask the trial court to make any correction regarding the life estate—either in the motion to alter, amend or vacate, or during the hearing on that motion—and having failed to submit proposed findings when given the opportunity by the trial court—there is nothing for us to review regarding the life estate.
Arvetta's next remaining claim is whether the $20,000.00 owed to her sister is a marital debt to be shared with Paul, or a non-marital debt that is hers to shoulder alone as found by the trial court. During the hearing, Arvetta argued she and Paul should share the debt because both were parties to the litigation, both knew Haws had loaned the money, and both benefitted from not paying the bank's high interest rate.
Again, this claim was not mentioned in the motion to alter, amend or vacate or during the hearing on the motion that followed. The trial court was in the best position to judge the witnesses and their testimony. CR 52.01. After reviewing the evidence, the trial court reasoned the debt would have been retired had repayment been a priority. We cannot say the trial court's rationale was clear error or an abuse of discretion. While Haws testified she expected repayment, and Arvetta testified she was obligated to repay Haws, the trier of fact—in this case the trial court—picks and chooses whom and what to believe. The trial court discounted the testimony from Haws and Arvetta as was its prerogative. Commonwealth v. Anderson, 934 S.W.2d 276, 278 (Ky. 1996) (citing King v. McMillan, 293 Ky. 399, 169 S.W.2d 10 (1943)); see also 29A Am. Jur. 2d Evidence § 1364 (internal citations omitted). We discern no error.
For the reasons expressed, we reverse that portion of Paragraph 19 characterizing the "4630" tractor as marital property. We direct the trial court to recalculate the property division with this tractor as Arvetta's non-marital property and to hold any proceedings necessary to accomplish this directive. Otherwise, we affirm the trial court's original order, as amended, on December 5, 2013.
ALL CONCUR. BRIEF FOR APPELLANT: Ashton M. McKenzie
Morehead, Kentucky
BRIEF FOR APPELLEE: Ira S. Kilburn
Salt Lick, Kentucky