Opinion
NO. 2015-CA-000800-MR
01-06-2017
RANDALL WILLIS APPELLANT v. MARGARET ANN WILLIS APPELLEE
BRIEF FOR APPELLANT: Phillip W. Smith Leitchfield, Kentucky BRIEF FOR APPELLEE: Earlene Whitaker Wilson Leitchfield, Kentucky
NOT TO BE PUBLISHED APPEAL FROM GRAYSON CIRCUIT COURT
HONORABLE ROBERT A. MILLER, JUDGE
ACTION NO. 12-CI-00186 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; DIXON AND TAYLOR, JUDGES. DIXON, JUDGE: Appellant, Randall Willis, appeals from an opinion and order of the Grayson Circuit Court awarding Appellee, Margaret Willis, permanent maintenance and denying Randall recovery for damages allegedly done by Margaret to the marital residence. Finding no error, we affirm.
The parties were married on October 21, 1995. There were no children born during the marriage. During the marriage, the parties owned 37 acres of land with a marital residence located thereon. The parties separated on November 28, 2012. At the time the petition for dissolution was filed, Randall was 64 years old and Margaret was 51 years old. A limited decree of dissolution was entered on November 13, 2013, which divided all marital and non-marital assets, and ordered that the real property, as well as several vehicles and other items be sold at auction with the proceeds divided equally between the parties. Further, the decree specified that a temporary maintenance order requiring Randall to pay Margaret $500 per month would remain in effect pending resolution of the permanent maintenance claim following the sale and division of the proceeds.
Randall subsequently purchased the marital residence and 37 acres for $84,000 at a public auction held on January 5, 2014. Margaret received $42,000 of the sale proceeds and was permitted to remain in the residence until the closing of the sale was completed. In addition to the residence and acreage, Randall purchased several vehicles and other items at the auction.
A final hearing before the Special Domestic Relations Commissioner was held on April 11, 2014. As the only reserved issue was whether Margaret was entitled to an award of permanent maintenance, extensive testimony was heard about the parties' financial circumstances during the all-day hearing. In addition, the Commissioner permitted Randall to introduce evidence that, upon taking possession of the marital residence, he discovered that extensive damage had occurred, ostensibly by Margaret and her family.
The Commissioner thereafter entered a report finding that Margaret met the criteria for permanent maintenance. Specifically, the Commissioner found that both parties were totally disabled and unable to work. Randall received monthly social security benefits in the amount of $1,750 and a monthly pension payment of $1,315. Randall testified that his mortgage payment was $1,250, and that he also had expenses for insurance on several vehicles, homeowner's insurance, as well as utilities and other necessities. The Commissioner noted that had Randall not chosen to purchase the 37 acres, he would not be burdened with such a large mortgage payment. Further, the Commissioner found that Randall had the ability to lease said property and earn additional income.
In comparison, the Commissioner found that Margaret's sole income was a monthly social security check in the amount of $927.00, and that she had monthly expenses in the amount of $1,436.13. As a result, the Commissioner concluded that Margaret was entitled to a permanent maintenance award in the amount of $500 per month. Additionally, the Commissioner determined that the alleged damages to the marital residence occurred after the limited divorce decree was entered. As such, because the only reserved issue was maintenance, any claim regarding damages was outside the scope of his authority and needed to be brought in the Grayson District Court.
Randall subsequently filed exceptions to the Commissioner's report. Specifically, he argued that the Commissioner erred in finding that Margaret did not have sufficient property to provide for her needs. Randall maintained that Margaret's claimed expenses improperly included those attributable to her son and granddaughter, who both lived with her. Randall further claimed the Commissioner erred in finding that the property damage issue was beyond the scope of his authority.
Following a brief hearing, the trial court entered an Opinion and Order upholding the Commissioner's findings and recommendations. Therein, the trial court observed that in all of the evidence and testimony presented between May 2012 and the final hearing on April 11, 2014, neither party saw fit to compile and submit copies of their regular and reoccurring expenses. The trial court noted, "[w]henever parties cannot establish accurate documents to verify their expenses, there is no error when the Special Domestic Relations Commissioner decides which evidence to believe." The trial court further stated that while Margaret invested her proceeds from the auction and purchased a home with a $350 mortgage payment, Randall chose to buy the marital residence and 37 acres, as well as vehicles and several other items of personal property which resulted in a mortgage of $125,000. The trial court continued:
The Special Domestic Relations Commissioner correctly determined Margaret lacks sufficient property (which included the personal property awarded to her by the Court) to provide for her reasonable needs. By comparison, Randall receives in excess of $3,000 per month in retirement benefits and social security and Margaret, on the other hand, receives only around $1,000 per month in social security. . . .
Margaret wisely invested her marital residence proceeds into a new residence with a reasonable payment. She
needs additional funds to meet her reasonable needs independently. . .With respect to the property damage claim, the trial court observed that no receipts or even estimates were provided establishing the cost of replacing any fixtures removed or damage to the property, and that the trial court would not speculate as to the cost, if any, of the damages. Randall thereafter appealed to this Court.
It is clear Randall bought way too much property (besides his residence) at the public auction. He is disabled and no longer needs 37 acres to maintain. He doesn't use the pool for therapy. It is also a luxury. His expenses are unreasonable in light of his limited physical abilities and needs.
Margaret does have her son living with her. But he provides some "in kind" services to assist her to keep expenses down. She is caring for her granddaughter with the assistance of her son. While she should seek child support from both of the granddaughter's parents, no one has known for years where the mother is. The father is a convicted felon and has been unemployed. He draws food stamps. This Court cannot make people get up and do what is right by a child. The Court is not rewarding Margaret from not attempting to seek child support from the grandchild's parents.
On appeal, Randall first argues that the trial erred by accepting the Commissioner's recommendation to disallow recovery for the alleged damages to the marital residence. Randall argues that it was within the scope of the Commissioner's authority as it was part of the marital estate to be divided between the parties. Randall characterizes the damage as Margaret's attempt to dissipate the parties' marital assets. Randall further argues that the Commissioner was improperly appointed and had no authority to even conduct the final hearing.
As a procedural matter, Randall did not raise any issue in the trial court concerning the appointment or authority of the Commissioner and we will not address the same herein. Furthermore, Randall misconstrues the purpose of the final hearing by arguing that the property damage affected the equitable distribution of the parties' marital property. It is undisputed that the limited dissolution decree resolved all matters pertaining to the division of marital and non-martial property. The sole issue to be determined at the final hearing was Margaret's entitlement to permanent maintenance. Whether Margaret did or did not cause the alleged damage to the residence was wholly irrelevant to whether she was entitled to maintenance. Finally, even if this Court were inclined to find that the issue was relevant, we agree with the trial court that the absence of any proof as to a monetary amount of damages would have resulted in pure speculation on the part of the trial court.
Randall next argues that the trial court abused its discretion in determining that Margaret was entitled to permanent maintenance because (1) Margaret received sufficient property to provide for her reasonable needs; (2) she is disabled and cannot work; (3) she is not in as physically poor health as he is; and (4) if she is able to take care of her granddaughter then she is able to seek gainful employment. As such, Randall contends that there was insufficient evidence to support an award of maintenance using the factors set forth in Kentucky Revised Statute (KRS) 403.200(1). We disagree.
The amount and duration of a maintenance award are matters within the sound discretion of the trial court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990). "As an appellate court ... this Court is [not] authorized to substitute its own judgment for that of the trial court on the weight of the evidence, where the trial court's decision is supported by substantial evidence." Leveridge v. Leveridge, 997 S.W.2d 1, 2 (Ky. 1999) (citation omitted). This Court may disturb the family court's order only if it abused its discretion or based its decision on findings of fact that are clearly erroneous. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003).
Under KRS 403.200(1), a family court may award maintenance to either party to a dissolution proceeding if the party requesting such "lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs" and said party "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." KRS 403.200(2) sets forth the relevant factors to be considered in determining the amount and duration of a maintenance award:
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(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;
(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.
The Commissioner made the initial determination that Margaret lacked sufficient property, including marital property apportioned to her, to provide for her reasonable needs. Margaret received the majority of the household items as well as $42,000 in proceeds from the sale of the residence. Further, Margaret acknowledged during the hearing that although she had received back pay from social security, as well as a lump sum payment from her 401K plan when she retired in 2008 or 2009, the majority was spent by the parties during the marriage. At the time of the hearing, Margaret claimed to only have $3,500 of the proceeds remaining. Further, the Commissioner found that because Margaret was totally disabled, she was unable to support herself through appropriate employment. When the record is viewed in its entirety, we conclude that there was more than sufficient evidence to support the Commissioner's finding that Margaret satisfied the requirements of KRS 403.200(1) to be entitled to maintenance.
Randall also argues that the amount of maintenance awarded is unfair because he is totally disabled and unable to work, and the maintenance award does not leave him enough to cover his own expenses. Moreover, Randall asserts that Margaret's health has, in fact, improved and that if she can care for her grandchild then she is able to support herself through appropriate employment.
We find Randall's claim about Margaret's health wholly unsupported by the record and clearly contrary to the conclusions of the Commissioner and the trial court. While there is no dispute that Randall's maintenance obligation of $500 per month does leave him with a deficit, we agree with the trial court that Randall has too much property and has the ability to improve his financial situation. On the other hand, Margaret has no potential for additional income other than the $927 she receives in social security each month.
Although "[t]he ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance" is an important factor to be considered in awarding maintenance, it is not the only factor nor foremost to the exclusion of the other factors. As provided in KRS 403.200(2), other pertinent factors considered by the trial court herein were the substantial duration of the marriage, Margaret's age and physical condition, the standard of living during the marriage, and Margaret's ability to meet her needs independently.
Our review is limited to a consideration of whether the trial court considered the statutory factors and whether it abused its discretion in awarding maintenance. The Commissioner and the trial court both had the benefit of hearing the testimony and judging the parties' credibility. Reviewing the record as a whole, we cannot conclude that this case presents a clear abuse of discretion.
The Opinion and Order of the Grayson Circuit Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Phillip W. Smith
Leitchfield, Kentucky BRIEF FOR APPELLEE: Earlene Whitaker Wilson
Leitchfield, Kentucky