Opinion
NO. 2014-CA-000255-MR
01-08-2016
DANNY R. MILBURN APPELLANT v. COLLEEN M. MILBURN APPELLEE
BRIEF FOR APPELLANT: Gregory Ralph Kujawski Lexington, Kentucky BRIEF FOR APPELLEE: Adele Burt Brown Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE KATHY STEIN, JUDGE
ACTION NO. 10-CI-04786 OPINION
AFFIRMING IN PART AND REMANDING IN PART BEFORE: COMBS; DIXON; AND D. LAMBERT, JUDGES. COMBS, JUDGE: Danny Milburn appeals an order of the Fayette Circuit Court relating to custody, maintenance, and division of assets in his dissolution of marriage case. After our review, we affirm in part and remand in part.
On August 12, 2007, Danny and his wife, Colleen, were involved in a domestic dispute. Danny vacated the residence that evening. When he returned unannounced a few days later, Colleen obtained an Emergency Protective Order. The Fayette Circuit Court issued a Domestic Violence Order (DVO) against Danny on August 30, 2007. Along with the DVO, the court granted Colleen temporary sole custody of the parties' five minor children and sole occupancy of the marital residence. Danny did not pay child support until the court entered an order on December 4, 2008.
The parties have six children; the oldest child had reached majority at that time. Over the course of the litigation, two more of the children attained majority.
In anticipation of expiration of the DVO, Colleen filed a petition for legal separation on August 17, 2010. By that time, another child had reached majority and four minor children lived in the home. On September 22, 2010, Danny and Colleen filed an agreed order setting temporary joint custody and a timesharing schedule.
On February 27, 2012, Colleen filed a petition for dissolution of marriage. The court held a trial on July 22-23, 2013, at which time only three of the children were minors. Much of the testimony focused on the education of the two youngest boys. Colleen has homeschooled them from the time that they reached school age. Danny claimed that they are academically behind, and he presented test results from the Stanford Achievement Tests to support his contention. The youngest son had scored three percent on reading comprehension. Danny alleges that the child is unable to read.
Colleen, on the other hand, testified that she teaches from a curriculum which she purchases from a homeschooling company. She submits their work to the company. Additionally, Colleen presented results from the California Achievement Test, which is the test administered in Kentucky's public schools. Both boys had excellent scores. She explained that she and her sons were unprepared for the Stanford tests, which were ordered by the court at the last moment. They did not anticipate that the tests would take three days; nor did they expect to be in an environment with other students.
Colleen and other witnesses testified that they had read with both boys and that both of them are able to read. Colleen detailed remedial measures that she is taking upon advice of reading therapists and her pediatrician. Danny testified that he does not work with the children on their schoolwork because he prefers "spending quality time with them" instead of reading with them.
Colleen testified at length about the difficulty of communicating with Danny. She asserted that he frequently does not return the children from visitation at the time that he should. She described several instances in which she actually searched for the children because Danny would not respond to phone calls or text messages. The mother of a playmate of the children testified that her son never expects the Milburn children to return home on time from visitation with Danny. Colleen also testified that Danny is not interested in spending time with their minor daughter; his attention is focused primarily on the sons.
The testimony was consistent regarding child support. Danny did not dispute that he did not pay child support until he was ordered to do so by the court. He pays by way of a wage assignment. Additionally, Danny did not present testimony which contradicted Colleen's claims that she alone has maintained the marital home and the rental home which both parties own. During the six years of separation, Colleen received an inheritance from her father. She used the entire inheritance on major repairs to the marital home.
The court entered its findings on August 12, 2013. It granted Colleen sole custody of the three minor children. It further awarded Colleen a sixty-percent interest in the equity of the marital real estate, equally divided their remaining assets, and ordered Danny to pay maintenance for three years.
Danny filed a motion to alter, amend, or vacate the court's findings. After conducting a hearing on the motion, the court denied his motion on January 15, 2014. This appeal followed.
Our standard of review is governed by CR 52.01. Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky. 1980). CR 52.01 applies to domestic cases and provides that when reviewing actions which were tried without juries, we may not reverse the trial court's findings of fact unless they were clearly erroneous. Clear error only occurs when there is not substantial evidence in the record to support the trial court's findings. M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky. App. 1998). Substantial evidence is "that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person." Bowling v. Natural Resources and Environmental Protection Cabinet, 891 S.W.2d 406, 409 (Ky. App. 1994).
Kentucky Rules of Civil Procedure.
Danny first argues that the trial court erred when it awarded sole custody of the minor children to Colleen. Custody determinations are guided by KRS 403.270(2):
Kentucky Revised Statutes. --------
The court shall determine custody in accordance with the best interests of the child and equal consideration shall be given to each parent and to any de facto custodian. The court shall consider all relevant factors including:
(a) The wishes of the child's parent or parents, and any defacto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence . . .
In his brief, Danny recites the evidence and the court's findings regarding custody. He argues as follows:
In sum, since the agreed order for joint custody was entered on September 17, 2010, neither party made any attempts to modify that order. The sole basis for Colleen asking for sole custody was that Danny had returned the children late several times over the last 6 years. There has been no other change of circumstance that would justify a change from joint to sole custody. There is no basis for Colleen to have sole custody.However, the court actually made twenty findings upon which it based the award of sole custody. Each one is supported by substantial evidence.
Re: Finding # 1.
Notably, Danny's brief does not address the first finding that he had committed an act of domestic violence in the presence of at least one of the children. The court took judicial notice that domestic violence had occurred. Danny does not dispute that the DVO was in effect for three years. KRS 403.270(2)(f) directly designates domestic violence as a factor in determining custody. A DVO on record is more than substantial evidence of domestic violence.
Following the finding of domestic violence, the court entered several findings addressing facts pertinent to the best interest of the children:
Re: Finding # 2
Danny has poor communication with Colleen. Colleen testified that they communicated nearly exclusively through email and texting. Danny also testified about texts between them.
Re: Finding # 3.
Throughout the six years of separation, Colleen has managed the children without assistance from Danny. Colleen testified that she alone manages the children's education, obtains and pays for medical care, assisted the older children with college applications and expenses, prepares tax returns for the older children, pays their cell phone bills, and other expenses. Danny did not offer any evidence to the contrary. In fact, he declined to specify his own expenses or to give any explanation for not providing more financial assistance. He testified that he is "just living [his] life."
Re: Finding # 4.
Danny is interested in his sons more than his daughters. There was ample testimony that Danny only takes his sons for visitation. His testimony revealed that his parenting focus is on the boys' participation in sports. When his daughter came home for Family Day during the Governor's Scholars Program, he was with the boys and failed to return them in time for dinner with his daughter. When cross-examined, Danny admitted that he had not been aware that one daughter had been placed on academic probation during her first year of college. He stated that it was difficult to keep track of six children.
Re: Finding # 5.
Danny did not pay child support during the first year of separation. He did not dispute that he began paying child support only when the court entered its order some fifteen months after the separation occurred.
Re: Finding # 6.
Danny did not give Colleen a telephone number to contact him for a period of time after the separation. This fact was supported by Colleen's testimony.
Re: Finding # 7.
Danny has not paid any of the children's extraordinary medical expenses during the six-year separation. In fact, he changed his insurance plan to result in a lower premium for him that resulted in increased expenses for Colleen. This fact was supported by Colleen's testimony, itemized medical bills, and Danny's own testimony.
Re: Finding # 8.
Danny focuses on the boys' participation in sports rather than their education. This fact was supported by testimony of Colleen and by Danny's testimony as well. Again, he testified that he does not participate in reading or school work with his children because he prefers "spending quality time" with them.
Re: Finding # 9.
Danny has spoken disparagingly about Colleen to the children throughout the separation. His own testimony supports that he had called Colleen "a bitch" in front of their children. He also claimed that it was important for him to tell his children "the truth about their mother." Colleen testified that the youngest son was upset because Danny's mother and brother hate her.
Re: Finding # 10.
Danny has poor parental judgment. Danny testified that he had talked to his older children about the first day of trial in great detail. He defended himself vigorously. He was unable to discern any possible negative emotional effects of involving his children in his divorce. He testified that the younger children would not suffer any negative impact by moving out of the only home they had ever known or by being thrust into public school after years of homeschooling. He has not acknowledged any emotional ramifications to the children resulting from the domestic violence which occurred in their home.
Re: Fact # 11.
Every witness testified about Danny's volatile temper. Neither Danny nor his mother offered contradictory testimony.
Re: Fact # 12.
Danny's testimony at trial contradicted his testimony at the domestic violence hearing. The court stated that it remembered the domestic violence hearing well and that Danny's contradictory testimony affected his credibility; ergo, the "one judge [for] one family" purpose of family courts was ably illustrated in this case. Wallace v. Wallace, 224 S.W.3d 587, 591 (Ky. App. 2007). Danny has not addressed this finding.
Re: Finding # 13.
Danny yelled at other people's children. This claim is supported by his former neighbor's testimony.
Re: Finding # 14.
Danny has refused to follow court orders regarding timesharing. This claim is supported by Colleen's testimony. Danny himself testified that he deviated from the set schedule whenever he felt that he should be "entitled" to extra time.
Re: Finding # 15.
Although he is employed full-time and has sufficient funds, Danny lives with his mother. Danny has not disputed his living situation. He testified that he does not pay rent. He did not account for the disposition of his income other than fuel for his car. He declined to explain any other expenditures, stating that he is "just living my life."
Re: Finding # 16.
Danny's living situation is not conducive to visitation with the children. The house has three bedrooms, and all of them are occupied by adults. He has not expressed any plans to change the situation. The testimony of Danny and his mother was consistent with this finding. His mother informed the court that she thought it was acceptable for the children to be provided couches for sleeping.
Re: Finding # 17.
Danny did not provide credible evidence to support his contention that the youngest child is illiterate. This finding is supported by finding Colleen's testimony that she and the children were ambushed with the order of the Stanford testing. She provided evidence of their good grades and high test scores. Additionally, the court noted that Danny had provided a handwritten letter from the youngest child which demonstrated his writing skills.
Re: Finding # 18.
Colleen has the ability to teach the children well. This thesis is supported by ample testimony regarding her participation with the children and by their California Achievement Test scores. Additionally, Colleen had homeschooled their daughter for four years, and she has excelled in public school. At the time of trial, she was attending the prestigious Governor's Scholars Program.
Re: Finding # 19.
Danny has not demonstrated the ability to address the needs of any of his children. The youngest child has told people that he believes he is stupid. The court found that Danny has created anxiety in the child by emotional abuse; the court suspected that Danny has told the child that he is stupid. The finding is supported by testimony of Colleen and other witnesses. Danny has not addressed this finding.
Re: Finding # 20.
The testimony of Danny's key witness was not credible. The trial court has the duty both to judge the credibility of witnesses and to assess the weight of the evidence. R.C.R. v. Commonwealth, Cabinet for Human Resources, 988 S.W.2d 36, 39 (Ky. App. 1998). Nonetheless, we have examined the record, and we also observed that the testimony of the primary witness testimony was contradictory.
Contrary to Danny's argument, the court did not solely rely on Colleen's contention that Danny fails to strictly comply with the visitation schedule. Furthermore, Danny has overlooked the findings that he committed domestic violence, and he then lied about it at trial. His arguments on appeal are factual in nature, and he recites testimony from the trial which supports his allegations. However, as we already noted, the credibility and weight of evidence are matters for the trial court. The scope of our review is not to determine whether contradictory evidence was presented; rather it is to determine whether sufficient evidence supported the court's ultimate findings. Because all the court's findings are supported by evidence, we cannot conclude that the trial court committed clear error in its granting of sole custody to Colleen.
Danny next argues that the court erred when it awarded maintenance to Colleen for three years. KRS 403.200(1) provides that a court may order maintenance after making threshold findings of whether the spouse who seeks the maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; andIn this case, the court found that "[Colleen] is not voluntarily unemployed. [She] lacks sufficient property and income to pay for her reasonable needs. [Danny] has the means to pay maintenance, and he shall pay her maintenance of $400.00 per month for three years." The findings do not include any analysis of Colleen's ability to support herself.
(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.
Therefore, we are compelled to remand solely for the trial court to determine in more detail "whether the property of [Colleen] and her ability to support herself, taken together, properly call for an award of maintenance." Cochran v. Cochran, 746 S.W.2d 568, 570 (Ky. App. 1988). We also note that after making the threshold findings, the court is required to consider at least some of the factors set forth in KRS 403.200(2):
(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;The court did not make any of the specific findings set forth in the statute except that Danny had the means to pay maintenance. However, at the time of the finding, the court did not have documentation of Danny's income; thus the finding was conclusory and unsupported by evidence. Additionally, child support had not yet been calculated when the order was entered. Accordingly, we must remand for the statutorily mandated findings regarding maintenance.
(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.
Danny's final argument is that the court erred in dividing the marital assets. He specifically objects to the trial court's assignment of value relating both to the marital residence and to the parties' rental property. The trial court awarded sixty percent of the proceeds from the rental home and sixty percent of the equity in the marital home to Colleen. The division as to the rental house applies to its rental income and to the proceeds of the court-ordered sale of the house. Additionally, the trial court credited Colleen with a non-marital contribution of $31,164 toward the equity in the marital home (as noted earlier, Colleen utilized her entire inheritance from her father to repair this house). Danny nonetheless claims that the property should have been divided equally and that the finding of the non-marital contribution was erroneous.
The trial court has broad discretion in the division of property. Stipp v. St. Charles, 291 S.W.3d 720, 723 (Ky. App. 2009). Marital property is to be divided in just proportions , considering all relevant factors. KRS 403.190(1). Courts do not have a duty to divide the property equally. Wood v. Wood, 720 S.W.2d 934, 935 (Ky. App. 1986).
In this case, the trial court determined that:
[Colleen] managed all the finances during the marriage and did far more to acquire, maintain, and preserve the assets, and was the primary caregiver for six children in
addition. From the date of separation, [Danny] has contributed virtually nothing to the maintenance and preservation of marital assets. . . . Consequently, it is equitable to divide the marital real estate sixty per cent to [Colleen] and 40% to [Danny].The trial court's finding was supported by Colleen's testimony that she had covered all the bills for the two properties since the separation. Additionally, she assumed all responsibilities of the rental home, including the tasks that arise during vacancies. Danny has not presented any evidence to the contrary.
Danny did testify that he had contributed to improvements and maintenance on the two houses prior to separation. However, we note that at the time of trial, the couple had been married for thirty years. Danny had ceased participation in the maintenance of the properties for six years, which was twenty percent of the marriage. We are persuaded that the trial court's division of property - a twenty percent difference - is equitable.
The second part of Danny's contention is that the trial erred in crediting Colleen with a non-marital contribution of $31,164.00 toward the equity of the marital residence. Colleen testified that she had inherited the money when her father passed away. An inheritance is non-marital property. KRS 403.190(2).
The house needed major repairs, which Danny acknowledged were needed prior to the separation. Colleen spent her entire inheritance on the repairs except for a small amount that was used to purchase a used minivan. Danny argues that Colleen did not sufficiently trace the source of funds for the repairs to support the finding of her non-marital portion of the equity.
Our courts require parties to provide proof of the non-marital nature of funds; i.e., tracing the source of the funds and their disposition. See Turley v. Turley, 562 S.W.2d 665 (Ky. App. 1978). Our Supreme Court has set forth that:
we shall adhere to the general requirement that nonmarital assets be traced into assets owned at the time of dissolution, but relax some of the draconian requirements heretofore laid down. We take this position, in part, in reliance upon the trial courts of Kentucky to detect deception and exaggeration or to require additional proof when such is suspected.Chenault v. Chenault, 799 S.W.2d 575, 579 (Ky. 1990).
In this case, the court stated that its decision was based on "the relaxed tracing rules." It did not express that it had any reason to suspect deception or exaggeration. Colleen presented detailed receipts for all the work done on the house. Danny did not offer conflicting testimony. He had the opportunity to thoroughly cross-examine Colleen. In his own testimony, Danny agreed that Colleen had received an inheritance, but he said that he did not know what the amount was. We are not persuaded that the trial court erred in crediting Colleen with a non-marital contribution toward the equity in the marital residence.
In summary, we affirm the award of sole custody and the division of property. However, we must remand solely for the trial court to make the mandatory statutory findings regarding maintenance.
ALL CONCUR. BRIEF FOR APPELLANT: Gregory Ralph Kujawski
Lexington, Kentucky BRIEF FOR APPELLEE: Adele Burt Brown
Lexington, Kentucky