DARRELL WAYNE SALLEE APPELLANT v. JEAN CAROL SALLEE APPELLEE

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Court of Appeals of Kentucky.

DARRELL WAYNE SALLEE APPELLANT v. JEAN CAROL SALLEE APPELLEE

NO. 2010–CA–000734–MR

Decided: June 24, 2011

BEFORE:  TAYLOR, CHIEF JUDGE;  CAPERTON AND WINE, JUDGES. BRIEFS AND ORAL ARGUMENT FOR APPELLANT:  Elmer J. George Lebanon, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEE:  Susan Hanrahan McCain Springfield, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Darrell Wayne Sallee brings this appeal from Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage entered February 19, 2010, Separate Findings and Conclusions Pertaining to the Accumulated Savings, entered February 19, 2010, and an Amendment to Findings of Fact, Conclusions of Law and Order entered April 15, 2010, in the Marion Circuit Court.   For the reasons stated, we affirm.

Darrell and Jean Carol Sallee were married July 6, 1985.   Four children were born of the parties' marriage. Double During the parties' marriage, Darrell worked for various employers but did not contribute financially toward support of the family. Double Darrell also has a history of alcohol and substance abuse – including an addiction to cocaine.   In January 2007, Darrell became unemployed and applied for social security disability benefits.   Thereafter, Darrell was ultimately determined disabled and began receiving monthly disability benefits of $1,033.

During the parties' marriage, Jean was gainfully employed and solely supported herself and the children.   At the time of the dissolution, Jean was employed as a branch office administrator for Edward Jones.   After deductions for health insurance premiums and a health savings account, Jean's take-home pay was approximately $1,776 per month. Double Because of Darrell's disability, Jean, as payee for the three minor children, received $172 per month for each child in social security dependent benefits.

Jean and Darrell never owned a dwelling together during the marriage.   Rather, the parties and their four children lived in a house provided by Jean's parents.   Jean and Darrell also accumulated very little personal property during their twenty-three-year marriage.   Despite Darrell's failure to contribute to the family's expenses, Jean was able to save for her retirement by making contributions through her employer.   Jean had two individual retirement accounts, an Edward Jones Money Market Account, and a deferred compensation account.   The total value of these accounts was approximately $104,000.

The parties agreed to share joint custody of the children.   Jean was designated the primary residential parent and Darrell was granted standard visitation with certain restrictions;  for example, no drug or alcohol use during visitation.   The parties further agreed that Darrell would not pay child support.   Neither party was awarded maintenance.

As to the division of marital property, Darrell was awarded the lump sum payment of $13,923.75 he received in retroactive disability benefits.   Darrell utilized these funds to make a down payment on a house and purchase new furniture while the dissolution action was pending.   Jean, as payee for the children, received $8,445 in retroactive disability benefits.   The court also awarded Darrell the house and the furniture he purchased during the dissolution proceeding.   Each party was awarded a motor vehicle.   In order to equalize division of the parties' vehicles the court awarded Darrell an additional $700.   This appeal follows.

Darrell initially contends the circuit court erred in its division of marital property.   Specifically, Darrell asserts he is entitled to a portion of the retirement funds Jean accumulated through her employment.

Kentucky Revised Statutes (KRS) 403.190 governs disposition of marital property.   Subsection (1) requires the court to divide marital property in just proportions in consideration of “all relevant factors including:”

(a) Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;

(b) Value of the property set apart to each spouse;

(c) Duration of the marriage;  and

(d) Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.

KRS 403.190(1).

It should be noted that a “just” division of marital property is not necessarily an equal division.  Russell v. Russell, 878 S.W.2d 24 (Ky.1994).   To determine if the retirement funds were justly divided between the parties, we initially consider the specific factors set forth in KRS 403.190(1).

First, we will address the contribution of each spouse to acquisition of the retirement accounts.   Jean managed to support herself and the parties' four children and still save for her retirement.   Darrell did not contribute directly or indirectly to the accumulation of these funds, which are the marriage's only substantial asset.   Jean was not only physically caring for four children with very little or no assistance from Darrell but was also forced to provide the primary financial support for the family.   The retirement account that Darrell contributed to during the marriage was cashed in several years ago and dissipated.   Rather than contribute to a retirement account, Darrell utilized his earnings for his own expenses.

The second factor to be considered is the value of property set aside to each spouse.   The parties accumulated few assets during the twenty-three-year marriage.   They never purchased a home together during the marriage and had very little personal property.   The court awarded Darrell the lump sum disability payment as well as the home and furniture he purchased with those funds during the dissolution proceeding.

The third factor to be considered is duration of the marriage.   The parties were married twenty-three years.   Although twenty-three years is a lengthy marriage, the facts of this marriage are unique in that Darrell did not make any monetary contributions during those years toward the family's expenses.   Jean's parents supplied a home for the parties and their children to live, and Jean provided for the family's support.   Under these circumstances, the length of the marriage is not a substantial factor.

The fourth and final factor to be considered is the economic circumstances of each spouse at the time of property division.   Darrell was awarded the only marital residence purchased during the marriage, which as noted was purchased in part with back disability benefits received by Darrell.   Darrell also receives disability payments of $1,033 per month, and Jean earns $1,776 per month from her employment.   Darrell was not ordered to pay child support while Jean will continue to support the children.

Considering the relevant factors identified in KRS 403.190, we do not believe the circuit court erred in its division of marital property by refusing to award Darrell a portion of Jean's retirement account.

Darrell next asserts that the circuit court erred by not awarding him maintenance.   Specifically, Darrell contends the circuit court erred by failing to make specific findings of fact regarding an award of maintenance and abused its discretion by denying Darrell maintenance.

The circuit court concluded that neither party was entitled to maintenance.   To support an award of maintenance, we observe that KRS 403.200(1) governs and provides that maintenance is appropriate where the party seeking maintenance:

(a) Lacks sufficient property, ․ to provide for his reasonable needs;  and

(b) Is unable to support himself through appropriate employment․

When considering an award of maintenance, the court must also consider the ability of the spouse from whom maintenance is sought to meet his or her needs while also meeting the needs of the former spouse.  Dotson v. Dotson, 864 S.W.2d 900 (Ky.1993).   A circuit court's decision as to an award of maintenance is reviewed for abuse of discretion.  Gentry v. Gentry, 798 S.W.2d 928 (Ky.1990);  Platt v. Platt, 728 S.W.2d 542 (Ky.App.1987).   An abuse of discretion occurs when the “trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principle.”  Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).

The circuit court made extensive findings regarding the parties' employment history, income and property.   The circuit court awarded Darrell his house, a car, new furniture and the personal property in his possession.   The circuit court's findings indicate that it believed Darrell possessed sufficient property to provide for his reasonable needs.   Darrell also has available $1,033 per month in social security disability benefits for his support.   After meeting the expenses of herself and the parties' children, Jeans' monthly take home pay of $1,776 does not give her the ability to contribute toward Darrell's support.   As such, we believe the circuit court did not abuse its discretion by denying Darrell maintenance.

Darrell's final contention is that the circuit court erred by finding that the parties “have divided their personal property and announced that they are satisfied with said division.”   Darrell asserts that items of personal property, totaling some $16,000, were not divided.   Darrell relies upon his personal verified disclosure statement for identification and valuation of these items;  neither of which was proven at trial.   Jean acknowledges there was not a written agreement between the parties but denies that the total value of these items was $16,000.   Jean believes the only personal property to be divided was a washing machine, a television, a dishwasher, and a child's bed.   And, Darrell did not raise the issue during the hearing or otherwise bring the issue to the circuit court's attention.

It is well established that issues not presented to or ruled upon by the circuit court are not preserved for appellate review.  Regional Jail Authority v. Tackett, 770 S.W.2d 225 (Ky.1989).   The record plainly reveals that Darrell never brought this allegation of error before the circuit court and that the circuit court never considered same.   In the absence thereof, we believe the above contention of error is not preserved for our review.   See Tackett, 770 S.W.2d 225.

For the foregoing reasons, the orders of the Marion Circuit Court are affirmed.

WINE, JUDGE, CONCURS.

cAPERTON, jUDGE, DISSENTS.

TAYLOR, CHIEF JUDGE: