Opinion
NO. 2011-CA-000027-MR
07-27-2012
JUDY WHITE, FORMERLY BREWER APPELLANT v. DARRYL G. BREWER APPELLEE
BRIEF FOR APPELLANT: Ethyle Noel Georgetown, Kentucky BRIEF FOR APPELLEE: Jimmy Dale Williams Richmond, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE IRA D. NEWMAN, JUDGE
ACTION NO. 09-CI-01900
OPINION AND ORDER
AFFIRMING AND DENYING
MOTIONS TO STRIKE BRIEF
AND TO DISMISS
BEFORE: KELLER, TAYLOR, AND THOMPSON, JUDGES. KELLER, JUDGE: Judy White (White) appeals from the family court's findings of fact, conclusions of law, and decree of dissolution (the initial findings) and its order amending those initial findings. On appeal, White argues that the family court's valuation of certain farm property was not supported by any evidence of substance; that the court abused its discretion by attempting to force a settlement; and that the court "made a mockery of justice." White's former husband, Darryl G. Brewer (Brewer), argues that this Court should not address White's arguments because she did not properly preserve the issues raised in her brief in her prehearing statement. Furthermore, Brewer has moved for dismissal of this appeal because White did not timely file her prehearing statement and/or because White has not argued the issues she raised in her prehearing statement. As to Brewer's motion to strike and/or to dismiss, White notes that she filed her prehearing statement pro se; that she timely filed her prehearing statement; and that the issues listed in her prehearing statement, although not artfully drafted, do address the issues argued in her brief. Having reviewed the record, we affirm the family court, and we deny Brewer's motion to strike and/or to dismiss as moot.
FACTS
White and Brewer were married on February 16, 2006, and separated on or about November 26, 2009. On September 2, 2010, the court conducted a hearing regarding disposition of the parties' property. The parties agree that White purchased the farm that is the subject of this appeal for $230,000 in late December 2005, using non-marital funds. Approximately one month after they married, White put the farm in both of the parties' names. Approximately two months after that, the parties took out a $100,000 home equity loan, using the farm as security. The loan documents list the appraised value of the farm as $259,000. The parties used the money from the home equity loan to purchase a pick-up truck; to make improvements to the house on the farm; for farm maintenance and improvements; and to pay day-to-day living expenses. Thereafter, the parties' relationship began to deteriorate and, in August 2009, Brewer transferred his share of the farm back to White. We note that, in the August 2009 deed, the parties certified that the fair market value of the farm was $230,000.
Brewer testified that, "a couple of years" before the hearing, the farm had been appraised at $425,000 to $429,000 "for bank purposes." However, he noted that, at the time of the hearing, the farm was listed for sale at $329,500, and he introduced into evidence a copy of the internet listing information. White did not object to this testimony or to the introduction of the internet listing information. Brewer also testified that the farm had initially been listed at $459,000, had been for sale for several years, and there had been no offers.
White testified that the farm initially had been listed at $449,000 but had never been appraised at that amount. However, she testified that the farm had been appraised two times by a realtor, John Gilliam. His initial appraisal, two and a half years earlier, was $395,000. It is unclear from the record what the second appraisal was; however, White testified that her current realtor, not Gilliam, recommended the listing price of $329,500. According to White, she had been advised that the property had depreciated "27%;" however, White did not state what the starting number for that depreciation was. Finally, White agreed with Brewer that there had been no offers on the property; therefore, she was considering lowering the listing price.
Based on this evidence, the court found that
7. [White] has a twenty (20) acre farm at 5960 Paint Lick Road, Paint Lick, Kentucky, which she purchased with non-marital funds in the amount of $230,000. [White] conveyed said property to [Brewer] twenty-six (26) days after the parties married on February 16, 2006. Thereafter, [Brewer] conveyed his interest back to [White] on August 3, 2009, stating the fair market value of the property was $230,000. Realtor, John Gilliam, appraised the property for $395,000. The property is currently on the market listed at $329,500.Thereafter, both parties filed timely motions to alter, amend, or vacate. Brewer argued the court should have valued the property at $395,000. White argued the court should have valued the property at "the sum that the property is ultimately sold for, less [her] non-marital interest."
8. [White's] non-marital share of the value is $230,000. The marital share of the property is $99,550.
During the September 2, 2010, hearing and the hearing on the parties' motions to alter, amend, or vacate, the judge and the parties discussed the name of one of the parties' horses - Chunky Butt. Before the parties arrived in court for the hearing on their motions to alter, amend, or vacate, the judge and counsel again discussed Chunky Butt, and counsel for Brewer sang a portion of a song referring to Chunky Butt.
We note that the court did discuss the horse during the September hearing, noting that the name was memorable. The court also brought up the horse at the end of the hearing on the parties' motions to alter, amend, or vacate. Counsel for Brewer did "sing" a portion of a commercial jingle for the Chunky candy bar during that hearing; however, the "song" appears to have been spontaneous, not something the court "unbelievably permitted" counsel to "sing."
During that hearing, the judge indicated that he had chosen to value the farm at $329,500 in his initial findings in order to get the parties to settle. After that hearing, the judge amended the initial findings as follows:
The farm located at 5960 Paint Lick Road, Paint Lick, Kentucky, shall be sold by August of 2011. When the farm is sold, [White] shall receive her non-marital share as previously set out in the Findings of Fact, Conclusions of Law and Decree of Dissolution entered October 18, 2010, and the home equity loan shall be paid. The remaining proceeds shall be divided equally between the parties.
White timely filed a pro se appeal. As previously noted, Brewer has moved this Court for an order dismissing the appeal and/or striking White's brief based on White's prehearing statement. Because we are affirming the family court on the merits, we do not further address the facts surrounding White's prehearing statement.
STANDARD OF REVIEW
Valuing and dividing property are within the sound discretion of the trial court. Stipp v. St. Charles, 291 S.W.3d 720, 723 (Ky. App. 2009). This Court will not disturb the findings of the trial court unless they are clearly erroneous. Johnson v. Johnson, 564 S.W.2d 221, 222 (Ky. App. 1978).
ANALYSIS
As noted above, White makes three arguments on appeal: (1) the trial court abused its discretion when it attempted "to force a settlement between the parties;" (2) the trial court improperly valued the farm; and (3) the trial court "made a mockery of justice." Because we believe that disposing of the second of these issues effectively disposes of the remaining two, we address that issue first.
As we understand it, White contends the family court's finding that the farm had a value of $329,500 is not supported by the evidence. Specifically, White argues that the court's finding that "Realtor, John Gilliam, appraised the property for $395,000.00" is not supported by any evidence, because Gilliam did not testify and no documents were submitted by him. However, we note that White testified on direct examination about Gilliam's appraisal; therefore, this argument is somewhat disingenuous and without merit.
White also argues that the court's finding that "[t]he property is currently on the market listed at $329,500.00" is supported only by "an internet printoff of the real estate listing." However, we note that White agreed that the farm was listed at that price, and she did not object to entry of the listing document into evidence. Therefore, this argument is also without merit.
Finally, on this issue, we note that, although the court arguably did initially find that the farm had a value of $329,500, the court amended that initial finding. In its amended finding, the court did exactly what White asked it to do in her motion to alter, amend, or vacate; it valued the farm based on the sale price. That amended finding abrogated the court's initial finding that the farm had a value of $329,500. Therefore, White's argument that the court erred when it valued the farm at $329,500 is without factual basis and without merit.
As to the other issues raised by White, they are appropriate, if at all, for the Judicial Conduct Commission, not for this Court. Having noted that, and having reviewed the record, we discern no misconduct by the court.
Because we have disposed of White's appeal on the merits, we need not address Brewer's motion to strike White's brief and/or to dismiss her appeal, other than to deny it as moot.
CONCLUSION
For the foregoing reasons, we affirm the family court. Additionally, we deny Brewer's motion to strike White's brief and/or dismiss her appeal.
ALL CONCUR.
Michelle M. Keller
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT: Ethyle Noel
Georgetown, Kentucky
BRIEF FOR APPELLEE: Jimmy Dale Williams
Richmond, Kentucky