Shepherd v. Shepherd

Full title: WINFRED SHEPHERD and KATHERINE SHEPHERD, his wife; ALLEN SHEPHERD and…

Court: Commonwealth of Kentucky Court of Appeals

Date published: Mar 18, 2016

NO. 2015-CA-000551-MR (Ky. Ct. App. Mar. 18, 2016)

Opinion

NO. 2015-CA-000551-MR

03-18-2016

WINFRED SHEPHERD and KATHERINE SHEPHERD, his wife; ALLEN SHEPHERD and KATHY SHEPHERD, his wife; and DELBERT SHEPHERD APPELLANT v. JO ANN SHEPHERD, widow of Arnold Shepherd APPELLEE

BRIEF FOR APPELLANTS: James W. Craft, II Whitesburg, Kentucky BRIEF FOR APPELLEE: James A. Hubbard Isom, Kentucky

DIXON, JUDGE

NOT TO BE PUBLISHED APPEAL FROM LETCHER CIRCUIT COURT
HONORABLE SAMUEL T. WRIGHT III, JUDGE
ACTION NO. 13-CI-00157 OPINION
AFFIRMING BEFORE: DIXON, NICKELL, AND VANMETER, JUDGES. DIXON, JUDGE: Appellants appeal a judgment of the Letcher Circuit Court ordering the sale of a jointly owned tract of land. Finding no error, we affirm.

Appellee Jo Ann Shepherd is the widow of Arnold Shepherd and stepmother to Arnold's sons and Appellants herein, Winfred, Allen, and Delbert. Following Arnold's death, Jo Ann filed an action requesting the judicial sale of an indivisible tract of property jointly owned by Jo Ann and her stepsons, with the proceeds to be divided in proportion to each party's ownership interest. Appellants opposed selling the property as a whole and asserted that the property could be divided.

The property consisted of approximately ten to fifteen acres of mostly hillside terrain. A house was located on a flat area on the front side of the property facing a county road. To support her petition, Jo Ann offered the deposition of her expert witness, Fred Webb, a civil engineer. Webb described the acreage behind the house as steep and inaccessible, and he believed it would be impossible to divide the property in proportion to the parties' ownership interests. Webb asserted the usable part of the property was where the house was located, and he believed the remainder of the acreage was too steep to allow for development. In Webb's opinion, dividing the tract into parcels would decrease the value of the property. Winfred, Allen, and Delbert each testified at trial and asserted the property could be divided. Delbert acknowledged that there was a cliff behind the house with hilly terrain, while Allen acknowledged the area where the house was located was the most valuable portion of the property because of the road frontage. At the conclusion of the trial, the court was not persuaded that division was possible and rendered a judgment ordering the sale of the property. This appeal followed.

Appellants argue the trial court improperly shifted the burden of proof by requiring them to establish the tract could be divided.

In a dispute over the divisibility of property, KRS 389A.030(3) provides as follows:

In all such actions indivisibility of the real estate shall be presumed unless an issue in respect thereto is raised by the pleading of any party, and if the court is satisfied from the evidence that the property is divisible, without materially impairing the value of any interest therein, division thereof pursuant to KRS 381.135 shall be ordered.

In Collins, v. Lewis, 314 S.W.3d 316 (Ky. App. 2010), this Court explained that, with the statutory presumption of indivisibility,

[t]he person claiming divisibility bears the burden of going forward. Once some evidence that the property can be partitioned without materially impairing its value is presented, then the party seeking sale bears the burden of proving that division would materially impair the property's value.

Id. at 318 (internal citations omitted).

In the case at bar, the court concluded that Appellants failed to rebut the statutory presumption that the property could not be divided without impairing its value. The evidence indicated the bulk of the property was undeveloped steep hillside terrain, and the only improvements on the property were located on a strip of flat land fronting a county road. Although Appellants testified they believed that division was possible, Allen and Delbert both acknowledged the area with the house and road frontage was the most valuable part of the property. After reviewing the record, we find no error in the trial court's determination that the property could not be divided without materially impairing the value. The court properly ordered the property to be sold as a whole.

For the reasons stated herein, the judgment of the Letcher Circuit Court is affirmed.

ALL CONCUR BRIEF FOR APPELLANTS: James W. Craft, II
Whitesburg, Kentucky BRIEF FOR APPELLEE: James A. Hubbard
Isom, Kentucky