Opinion
NO. 2016-CA-000219-MR
06-16-2017
TERRI SCAFF APPELLANT v. FLOYD SCAFF APPELLEE
BRIEF FOR APPELLANT: Tracy D. Frye Russell, Kentucky BRIEF FOR APPELLEE: Jeffrey D. Hensley Flatwoods, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE JEFFREY L. PRESTON, JUDGE
ACTION NO. 15-CI-00267 OPINION
AFFIRMING
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BEFORE: COMBS, D. LAMBERT AND THOMPSON, JUDGES. COMBS, JUDGE: Terri Scaff appeals the property division made by the Greenup Family Court in conjunction with the dissolution of her marriage to Floyd Scaff. She also appeals the family court's decision not to award her maintenance. After our review, we affirm.
Terri and Floyd had been married for nearly 16 years when they separated in June 2015. They were divorced by the family court's decree entered in January 2016. There were no children born of the marriage.
Both parties were retired at the time of the proceedings; each of them was receiving federal Social Security benefits and retirement benefits earned during employment. Terri testified that she had worked as a vice-president at Home Federal Savings and Loan until her retirement some four or five years into the marriage. She indicated that her income is $1,456.22 per month, the majority of which is payable as federal Social Security disability benefits. She also testified that she is entitled to receive $500 per month pursuant to a land contract for the sale of her real property in Ashland. Floyd had worked with Pipefitters Local 248 from 1976 until his retirement nearly six years into the marriage. He indicated that he earns $2,673.00 per month in pension income and $2,400.00 per month in federal Social Security benefits. Finally, Terri testified that she had inherited approximately $187,000.00 in June 2015.
There was a dispute between the parties regarding whether the Ashland house was marital property. After the hearing, the family court characterized the house as non-marital property and assigned it to Terri. The family court ordered the marital home at Raceland sold with the net proceeds to be distributed equally between Terri and Floyd. It divided the couple's personal property and ordered Floyd to pay the parties' credit card debt totaling $24,000.00. The family court denied Terri's subsequent motion to alter, amend, or vacate. This appeal followed.
On appeal, Terri contends that the family court abused its discretion by failing to award to her any part of the marital portion of Floyd's pension. We disagree.
Pursuant to the provisions of KRS 403.190, the family court has wide discretion to divide the parties' marital property in "just proportions." In reaching an equitable division of the marital property, the court is authorized to consider all relevant factors, including: the contribution of each spouse to acquisition of the property; the value of property set apart to each spouse; the duration of the marriage; and the economic circumstance of each spouse at the time the division of property is to be effective. KRS 403.190. We may not disturb the family court's rulings on issues pertaining to division of property unless the court has abused its discretion. Smith v. Smith, 235 S.W.3d 1 (Ky. App. 2006).
Kentucky Revised Statutes. --------
The test for abuse of discretion is whether the decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Cabinet for Health & Family Servs. v. Byer, 173 S.W.3d 247, 249 (Ky. App. 2005) (quoting Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000)). Considering that Floyd was ordered to bear the burden of the parties' significant debt and that a substantial amount of nonmarital property was assigned to Terri, we cannot say that the family court abused its discretion by awarding each party the entirety of their respective retirement accounts rather than dividing the value of the accounts between the parties.
Maintenance is governed by the provisions of KRS 403.200. The statute provides that maintenance may be awarded only if the family court finds that the party seeking maintenance: "(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs and (b) is unable to support himself through appropriate employment." KRS 403.200. The decision to award or to decline to award maintenance is within the family court's discretion. Powell v. Powell, 107 S.W.3d 222 (Ky. 2003). We may disturb that ruling only where the court has abused its discretion or made its ruling based upon clearly erroneous findings of fact. Id.
Terri contends that the family court abused its discretion by failing to award her maintenance since her monthly income is insufficient to meet her monthly expenses; she suffers from bi-polar disorder and is unemployable.
At trial, Terri indicated that her income was insufficient to meet her expenses. However, she admitted that the expenses that she enumerated for the family court included the living expenses of her daughter and grandchildren for whom she provided because her daughter was unemployed. Upon cross-examination, Terri admitted that she paid everyone's living expenses and that she could not provide a fair estimate of her expenses separate from those of the others in her household. Under these circumstances, we cannot say that the family court abused its discretion by declining to make an award of maintenance.
We affirm the judgment of the Greenup Family Court.
THOMPSON, JUDGE, CONCURS.
LAMBERT, D., JUDGE, DISSENTS. BRIEF FOR APPELLANT: Tracy D. Frye
Russell, Kentucky BRIEF FOR APPELLEE: Jeffrey D. Hensley
Flatwoods, Kentucky