Opinion
NO. 2012-CA-000041-MR
05-24-2013
DEREK DUANE RICKARD APPELLANT v. TAMMY RENEE RICKARD APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE D. MICHAEL FOELLGER, JUDGE
ACTION NO. 11-CI-00507
OPINION
AFFIRMING
BEFORE: CAPERTON, MAZE, AND VANMETER, JUDGES. VANMETER, JUDGE: Derek Rickard appeals from the November 29 and 30, 2011, orders of the Campbell Family Court which divided the property of Derek and Tammy Rickard in the underlying dissolution of marriage action. For the following reasons, we affirm.
Derek and Tammy were married on October 31, 2008, and separated on April 1, 2011. They do not have children together, but Tammy has two minor children from a previous marriage who live with her. On April 5, 2011, Tammy filed a petition for dissolution of marriage, indicating that she and Derek did not agree on the division of marital property and debts.
In her summary of the case, Tammy indicated to the trial court that she and Derek had a "big fight" in April 2011, after which she was forced to leave the marital residence, leaving behind items of non-marital property, as well as personal property belonging to her two children. Tammy claimed that she had been unable to retrieve the majority of this property, as well as the marital property remaining in Derek's possession. Tammy provided an itemized description of the marital personal property, including purchase price, and the non-marital items belonging to her and her children that were left in Derek's possession and which were now missing. Tammy estimated the cumulative value of her and her children's property was $5,000.
In addition, Tammy summarized the debts of the parties. She stated that the parties had borrowed $2,000 from her father to purchase windows for the marital residence and that the parties owed $5,436 on a credit card which was accruing interest and late fees. Tammy paid off the credit card with the $7,200 refund received from the parties' 2010 joint income tax return. Tammy placed the balance of the income tax refund, $1,854, in escrow. She also indicated that Derek has been living alone in the marital residence since April 2011 and was supposed to have been paying the monthly mortgage payment of $1,400, but is three months behind.
Tammy stated that the parties shared a joint checking account, with a balance of $800 at the time they separated in April 2011, and that Derek has removed all of the money from that account. She also stated that during the parties' marriage, Derek maintained medical insurance for her and her two children and that since the parties separated, she has incurred $1,000 in co-pays, all of which has been reimbursed to Derek by his insurance company. Tammy further stated that her annual income is approximately $38,000 and Derek's annual income exceeds $60,000.
On November 21, 2011, the trial court conducted a bench trial regarding the division of property and debts between the parties and thereafter issued a decree of dissolution, ordering the immediate listing of the parties' marital residence for sale (with Derek to pay the mortgage and any related expenses in the interim since he resided there), and ordering Derek to pay Tammy one-half of the value of any marital property he retained. The court reserved ruling on the division of personal property and stated that a supplemental order would follow.
The audiotape of the November 21, 2011, hearing apparently failed after the first few minutes and was not available to the parties or to this court for review.
On November 29, 2011, the trial court entered an order awarding Derek the following marital personal property: the stereo equipment, described as record player, needle, cabinet and wires (valued by the court at $3,700); the vinyl record collection (valued at $2,000); the big screen TV ($600); blu-ray ($200); fender amplifier ($400) and washer/dryer ($900). The court ordered Derek to pay Tammy the full value for the aforementioned property, $7,800, and an additional $500 for the property of Tammy's two children, for a sum of $8,300. The court also awarded Derek the bedroom set, which Tammy estimated had a value of $4,000, and ordered that he be responsible for any outstanding debt on the furniture. Derek was directed to pay Tammy's father $1,000, representing one-half of the loan made to the parties.
The court found that Tammy had reasonably utilized the majority of the parties' 2010 tax refund to pay off marital debt; thus, the court awarded Tammy the $1,854 balance held in escrow, and gave Derek a credit of $927 against the amount he owes Tammy. The court concluded that Derek owes Tammy $7,373. The court also awarded Derek the parties' checking account and ordered that proceeds from the sale of the marital residence be distributed in the following order: pay off the mortgage, pay off the balance owed to Internal Revenue Service, pay the realtor, reimburse Tammy $6,000 for her down payment and finally divide the remaining balance equally between the parties. Separately, the court amended its November 21, order requiring Derek pay Tammy one-half of the value of the marital property. The amendment consisted of crossing out the words "one-half." The amended November 21, order was entered on November 30, 2011.
Derek now appeals from the trial court's November 29 and 30, 2011, orders, arguing that the court abused its discretion by sua sponte amending the November 21, order and by failing to divide the marital property in accordance with KRS 403.190. We disagree with both arguments.
Kentucky Revised Statutes.
On appeal, we review a trial court's findings of fact to determine if they are clearly erroneous. CR 52.01. Kentucky courts have long held "that for purposes of appellate review, a finding of fact of a trial judge ranks in equal dignity with the verdict of a properly instructed jury, i.e., if supported by substantial evidence, it will be upheld, otherwise, it will be set aside as 'clearly erroneous.'" Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). "'[S]ubstantial evidence' means evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id. (citations omitted). A trial court's division of marital property "will be reviewed for abuse of discretion, namely, 'whether the decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles.'" Rice v. Rice, 336 S.W.3d 66, 68 (Ky. 2011) (citations omitted).
Kentucky Rules of Civil Procedure.
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With respect to the trial court's amendment of the November 21, order, CR 52.02 provides that "[n]ot later than 10 days after entry of judgment the court of its own initiative, or on the motion of a party made not later than 10 days after entry of judgment, may amend its findings or make additional findings and may amend the judgment accordingly." Here, the trial court on its own initiative amended the November 21, order, to reflect the court's final distribution of property. To be sure, the November 21, order expressly reserved ruling on the division of the parties' personal property and indicated that a supplemental order would follow. That order was not a final judgment and the court's amendment thereof, within 10 days of its entry, was permissible under the civil rules.
Moving on to Derek's second argument, the record shows that the trial court considered the provisions of KRS 403.190 in dividing the marital property, although reference to that statute was not explicit. When disposing of property in a dissolution of marriage action, a trial court is required by KRS 403.190 to follow a three-step process: (1) characterize each item of property as marital or non-marital; (2) assign each party's non-marital property to that party; and (3) equitably divide the marital property between the parties. Travis v. Travis, 59 S.W.3d 904, 908-09 (Ky. 2001) (footnotes omitted). KRS 403.190(1) requires the court to divide property in "just proportions."
The trial court awarded Derek possession of the parties' marital residence, with instructions to immediately list it for sale, and delineated how the proceeds from that sale should be distributed. The court also awarded Derek the aforementioned marital personal property, and ordered that he pay Tammy the full value of that property, minus the credit given to him relating to the parties' tax refund. The court further awarded Derek the parties' checking account and the bedroom set, which had an estimated value of $4,000. The court ordered Derek to reimburse Tammy $500 for her and her children's missing personal property, which Tammy estimated had a cumulative value of $5,000. The court did not order Derek to repay Tammy for any medial co-pay fees.
Our review of the record shows that the trial court properly characterized the parties' property as marital or non-marital, assigned the non-marital property accordingly, and distributed the marital property "in just proportions" in accordance with KRS 403.190. Under that statute, the trial court is not required to divide property in equal proportions. Thus, we are unable to say that the trial court failed to consider the provisions of KRS 403.190 in assigning the parties' property.
The November 29 and 30, 2011, orders of the Campbell Family Court are affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Hugh W. Barrow
Louisville, Kentucky
BRIEF FOR APPELLEE: Robert E. Bathalter
Alexandria, Kentucky