SHERRIE HALL APPELLANT v. ROBERT WALLACE APPELLEE

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Court of Appeals of Kentucky.

SHERRIE HALL APPELLANT v. ROBERT E. WALLACE APPELLEE

NO. 2010–CA–000381–MR

Decided: February 24, 2012

BEFORE:  KELLER AND LAMBERT, JUDGES;  SHAKE, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  Sherrie Hall Pro Se Lexington, Kentucky NO BRIEF FOR APPELLEE.

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Sherrie Hall (Sherrie) appeals, pro se, from a Fayette Family Court denial of her motion to alter, amend, or vacate the trial court's Findings of Fact, Conclusions of Law, and Decree of Dissolution.   On appeal, Sherrie claims that the trial court inequitably divided marital property and erroneously denied her request for maintenance.   After a careful review of Sherrie's brief, applicable caselaw, and the record, the Fayette Family Court's denial of Sherrie's motion is affirmed.

Sherrie married Robert Wallace (Robert) on February 14, 1995.

Sherrie is fifty-nine years old and is currently unemployed.   She was last employed as a receptionist.   Robert is fifty-seven years old and was previously self-employed as an aircraft pilot.   At the time of the hearing, Robert drew unemployment.

During their marriage, Sherrie and Robert jointly owned various entities that provided air services:  Lex–Air Services, Lex–Air Investments, and Global Air Charter of Kentucky.   In addition, Robert owned interests in Bluegrass Gulfstream Investments and Jet Shares, LLC.

Over the course of their marriage, the parties enjoyed many luxuries, including a large home, lavish furnishings, and luxury automobiles.   At the time of the dissolution proceedings, however, Sherrie and Robert were significantly in debt and experiencing great financial difficulty.   Most of the companies in which they owned interests were either no longer in existence or insolvent.

On March 15, 2005, the couple separated after ten years of marriage.   The parties do not have minor children.   Robert resided in the marital residence until June 11, 2008.   Following a hearing, the trial court issued its Findings of Fact, Conclusions of Law, and Decree of Dissolution on October 27, 2009.   On November 9, 2009, Sherrie filed a motion to alter, amend, or vacate the court's previous judgment.   The court denied Sherrie's motion on January 28, 2010.   This appeal follows.

A. Standard of Review

Appellate review of a family court's findings of facts is limited to the determination of whether those findings are clearly erroneous.   Kentucky Rules of Civil Procedure (CR) 52.01;  Sexton v. Sexton, 125 S.W.3d 258, 269 (Ky.2004).   Findings of fact are clearly erroneous only when they are manifestly against the weight of the evidence.  Wells v. Wells, 412 S.W.2d 568, 571 (Ky.1967).

B. Division of Marital Property

Sherrie claims that the trial court erred by refusing to award her one-half of the value of the following marital assets:  a Beechcraft Debonair Aircraft, money from Global Air Charter that was deposited into Robert's personal checking account, a Harley Davidson motorcycle, and $100,000 worth of aircraft tools.

Courts are under no obligation to divide property equally but instead must divide property in “just proportions.”  Brosick v. Brosick, 974 S.W.2d 498, 503 (Ky.App.1998);  KRS 403.190(1).  KRS 403.190(1) specifically instructs courts to divide marital property in “just proportions,” while considering 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.

The decision of what constitutes a just division lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.  Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky.2001).

Ironically, our review of the record indicates that the division of property provided a greater benefit to Sherrie than to Robert.   Robert agreed to give Sherrie $40,000 that she withdrew from a corporate bank account and $12,500 from the sale of a fuel tank.   Testimony also indicated that Sherrie retained the greater portion of the parties' home furnishings.   Sherrie was allocated debt in the amount of $45,000.   Conversely, Robert assumed $145,841.37 in business and credit card debt but only retained $12,500 Double from the marital estate.

First, Sherrie maintains that she was entitled to half of the value of a Beechcraft Debonair Aircraft.   The aircraft was owned by Lex–Air Investments, a corporation owned by the parties.   Although the record supports Sherrie's assertion that the aircraft was unencumbered by liens, the parties owed large business debts from several failed ventures.   The trial court found that the proceeds from the sale of the aircraft were allocated toward debts owed to a business associate, David Fogg. The sale of the aircraft and aircraft tools did not fully satisfy the aforementioned debts.   The trial court concluded that, “[i]t would be inequitable for the Wife to benefit from the sale of business assets while neglecting any responsibility to the payment of business debts.”

Sherrie does not dispute that the proceeds of these sales were used to pay business debts.   However, on appeal, she contests the application of the proceeds of the sale of the aircraft to the debts of a corporation in which she had no interest.  “The disposition of parties' property in a dissolution-of-marriage action is governed by KRS 403.190, and neither record title nor the form in which it is held ․ is controlling or determinative.”  Sexton, 125 S.W.3d at 264.

The designation of debts incurred during marriage is based upon a variety of factors, including the receipt of benefits and participation, as well as whether the debt was necessary to provide for marital support and maintenance.  Neidlinger, 52 S.W.3d at 523.   The trial court failed to make specific findings of fact whether the debt of Jet Shares, LLC constituted marital or nonmarital debt.   The court's failure to conduct this vital analysis was clearly erroneous.   However, Sherrie failed to make a motion for more specific findings as required by CR 52.04.   In addition, any error of the court would likely be harmless in light of the overall property distribution.

Next, Sherrie claims that she was entitled to $5,585.69, which is half the amount of money that Robert withdrew from a corporate account and deposited into his personal account.   She also claims that she was entitled to a portion of the value of Robert's Harley Davidson motorcycle.   However, Sherrie failed to cite to the specific portions of the record in which the alleged error was properly preserved or addressed, as required by CR 76.12(4)(c)(iv).   Further, Sherrie did not address these issues in the proposed findings of fact and conclusions of law, which were filed on August 19, 2009, or in her motion to alter, amend, or vacate, which was filed on November 9, 2009.   Further, in light of Robert's nominal asset award and large debt assumption, Robert's retention of the motorcycle and funds would not be inequitable.

Sherrie also claims that she is entitled to one-half of the value of aircraft tools owned by Global Air Charter of Kentucky.   She claims that the trial court had insufficient evidence to conclude that the tools were sold to satisfy a corporate debt.   However, in Sherrie's proposed findings of fact and conclusions of law, she stated:

This loan has been allegedly satisfied in full by Robert B. Trussell, Jr., according to [Robert's] testimony.   However, [Robert] further testified that he and Mr. Trussell entered into a verbal agreement whereby Mr. Trussel was to receive tools and maintenance equipment as payment to satisfy [Robert's] portion of this debt.

Although Sherrie may disagree with the trial court's findings, only the trial court has the responsibility to weigh the evidence and judge its credibility, including testimony.  CR 52.01.   Robert's testimony regarding the agreement's existence provided sufficient evidence.

Sherrie also requests that our Court enforce a variety of circuit court orders with which she claims that Robert has failed to comply.   This is a court of review, not enforcement.   Any motions for contempt should be made before the trial court.

C. Maintenance

Although Sherrie claimed that her current salary could not meet her needs, the trial court refused her request for maintenance.   There is no presumption favoring maintenance.   A trial court has broad discretion in the award of maintenance and its decision will not be disturbed absent an abuse of discretion.  Powell v. Powell, 107 S.W.3d 222, 224 (Ky.2003).

KRS 403.200(1) provides that a trial court may award maintenance based upon a finding that the spouse seeking maintenance lacks sufficient property to provide for her needs and is unable to support herself through employment.   While Sherrie's receptionist position may not support the standard of living to which Sherrie grew accustomed during the parties' marriage, the parties enjoyed many luxuries while sinking deeper into debt.   Given the parties' financial difficulties during their marriage and the large amount of debt allocated to Robert, the trial court's refusal to award maintenance was not an abuse of discretion.

ALL CONCUR.

SHAKE, SENIOR JUDGE: