JONATHAN CHAMBLEE APPELLANT v. ANTOINETTE CHAMBLEE APPELLEE

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Court of Appeals of Kentucky.

JONATHAN CHAMBLEE APPELLANT v. ANTOINETTE CHAMBLEE APPELLEE

NO. 2012–CA–001114–MR

Decided: May 24, 2013

BEFORE:  DIXON, MOORE AND THOMPSON, JUDGES. BRIEFS FOR APPELLANT:  Nathan T. Riggs Shelbyville, Kentucky BRIEF FOR APPELLEE:  Fielding E. Ballard, III Shelbyville, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING IN PART,REVERSING IN PART,AND REMANDING

Jonathan Chamblee appeals from the February 22, 2012, order of the Shelby Circuit Court.   That order addressed child custody and the division of marital assets and debts in the dissolution action between Jonathan and Antoinette Chamblee.   Jonathan also appeals from the trial court's May 24, 2012, order denying his motion to alter, amend, or vacate the February 22, 2012, order.   We affirm with respect to the trial court's award of custody and its allocation of marital debt.   However, because we hold that the trial court's division of Jonathan's retirement is unsupported by its findings, we reverse and remand for additional findings.

The parties were married in 1992 and have three children.   The couple's two minor children are ages seven and fourteen.   The couple's oldest child is an adult and currently attending college.   Antoinette and the children reside in Shelby County, Kentucky, and Jonathan resides in Arkansas, where he has resided since October of 2009.   Antoinette has a criminal history dating back to 2004, when she was charged with first-degree trafficking in a controlled substance and placed on probation.   Thereafter, Antoinette violated her probation multiple times and was eventually incarcerated from April of 2009 through December of 2010.   During Antoinette's incarceration, Jonathan's sister, Naomi Chamblee, moved in with the children in their Shelby County home, while Jonathan remained in Arkansas.   Antoinette returned to the home after being released and currently resides there with the children, Naomi, Antoinette's adult son from a previous marriage, and Antoinette's paramour.

On February 22, 2012, a trial court order was entered wherein the trial court ordered that the parties enjoy joint custody of their two minor children, with Antoinette serving as the primary residential parent.   Jonathan was granted timesharing with the children, during summer, fall, spring, and winter breaks;  and ordered to pay child support to Antoinette.   The order further provided that the parties equally divide the equity in the marital residence;  that Antoinette should receive one-half of Jonathan's retirement;  and that Jonathan should be responsible for the debts of the parties.

In response to the trial court's order, Jonathan filed a motion to alter, amend, or vacate.   In particular, Jonathan took issue with the trial court's award of one half of his retirement to Antoinette, the designation of Antoinette as primary residential parent, and the award of child support to Antoinette during the months that the children reside with Jonathan.   The trial court denied Jonathan's motion and this appeal followed.   Additional facts will be provided as necessary.

Jonathan first argues that the trial court improperly designated Antoinette as the primary residential parent.   Custody awards are reviewed under an abuse of discretion standard.  Gertler v. Gertler, 303 S.W.3d 131, 133 (Ky.App.2010).  “An abuse of discretion occurs when a trial court enters a decision that is arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Miller v. Harris, 320 S.W.3d 138, 141 (Ky.App.2010).   It is well established that courts are to determine child custody “in accordance with the best interests of the child” and by taking into account “all relevant factors” including multiple factors outlined by statute.   Kentucky Revised Statutes (KRS) 403.270(2).   Those statutory factors are:  the wishes of the parents and the child;  the interaction of the child with his or her parents, siblings, or other significant persons;  the child's adjustment to his home, school, and community;  the mental and physical health of all involved;  evidence of domestic violence;  and any relevant information pertaining to the past, current, or potential future presence of a de facto custodian.  Id.

Jonathan argues that the trial court gave too much weight to the testimony of the children's preferences and failed to properly consider Antoinette's history of drug abuse and criminal convictions.   He further argues that the children's best interests were not served by designating Antoinette as primary residential custodian.   We disagree.

In support of his argument challenging the custody award, Jonathan cites to Dowell v. Dowell, 490 S.W.2d 478 (Ky.1973).   The trial court in Dowell awarded custody to the father, despite testimony from the children that they desired to live with their mother.  Id. The trial court based its decision on the mother's history of extramarital indiscretions, allegations of neglect, and the maternal grandmother's testimony opining that the father should have custody.  Id. Although this Court affirmed the custody award of the trial court in Dowell, it was quick to note “[w]e are not free from doubt on this issue, ․ but in view of the evidence we have concluded that the trial judge's decision granting custody of the children cannot be characterized as an abuse of discretion, hence we cannot substitute our judgment for his.”  Id. at 479.   Likewise, given the circumstances of the case presently before us, we cannot say that the trial court's designation of Antoinette as primary residential custodian was an abuse of discretion.   The evidence indicates that the children were bonded with their mother;  that they had not lived with their father for a number of years and did not enjoy a close relationship with him;  and that they were established in their schools and community.  “[W]ith regard to custody matters, the test is not whether we would have decided differently, but whether the findings of the trial judge were clearly erroneous or he abused his discretion.”  Miller v. Harris, 320 S.W.3d 138, 141 (Ky.App.2010) (emphasis added) (internal citation omitted).

The trial court's order contains the following, relevant, conclusions:

KRS 403.270(2) sets forth various factors to be considered

by the court in determining custody in the best interests of the children.   Here, both parents desire to have sole custody of the two minor children.   Brittany strongly desires to continue to live with her mother.   Mercifully, Andrew was not called to testify.   The children are apparently well-adjusted to their current circumstances.   Brittany is doing very well in school and there was no testimony indicating that Andrew was experiencing any problems.   The children have never lived in

Arkansas. There are no issues of mental or physical health.  KRS 403.270(2) also requires the Court to consider all relevant factors.

Antoinette's drug convictions and imprisonment after repeated probation violations are a grave concern to the Court.

While it may prove unworkable in the future, the Court finds that it is in the best interests of the children that the parties share joint custody.   Both parties bring important attributes to the decision-making process concerning their children.   Jonathan is able to provide a stability which the children need and Antoinette apparently is able to meet the emotional needs of the children where Jonathan has not in the past.   It is especially important that Jonathan continue as a joint custodian given that Antoinette remains on probation which she has repeatedly violated.

Antoinette should provide the children's primary residence.   While a child's desires in this matter are not alone controlling, Brittany was an extremely articulate and forceful witness.   While Jonathan may be able to improve his relationship with his children, having him provide their primary residence at this time would likely be traumatic to everyone involved.

The trial court's order is clear that it weighed heavily the best interests of the children and that the custody decision was one which was not entered into lightly.   Based on the forgoing, we find no abuse of discretion and affirm on this issue.

Jonathan's final argument on appeal is that the trial court abused its discretion when it divided the marital debt and assets.   Marital assets are to be divided in “just proportions” without consideration of marital misconduct and “considering all relevant factors,” including the contribution of each party to the acquisition of the marital property;  the value of the property;  the duration of the marriage;  and the economic circumstances of the parties.   KRS 403.190(1).   We review a trial court's division of marital assets for an abuse of discretion.   See, e.g., Young v. Young, 314 S.W.3d 306 (Ky.App.2010).   It appears that the only marital assets to be divided between the parties were the marital residence and Jonathan's retirement.   The parties agreed, and the court found, that the marital residence should be sold.   The debt of the parties, totaling approximately $30,000, included an education loan for Jonathan's adult son from a prior relationship;  several credit card debts;  and a credit union auto loan.   During the hearing, Jonathan agreed that he would be responsible for these debts.   In its final order, the trial court divided the marital property and debts as follows:

The parties should equally divide any equity in the marital residence after deducting secured debt and sales expenses.

Antoinette should receive one half of Jonathan's retirement benefit from the military which accrued during the marriage.   A qualified domestic relations order should be prepared by Antoinette's counsel.

Jonathan should be responsible for the debts of the parties which he agreed to pay.

Jonathan's challenge to the trial court's division is two-fold.   First, he argues that the marital residence, contrary to the findings of the trial court that there is up to $17,500 in equity, is actually worth $20,000 less than the amount of the mortgage against it.   Therefore, he argues, he has been assigned an additional $20,000 worth of debt.   We disagree.   The record supports a finding that there is equity in the marital residence.   The trial court is clear in its assertion that any equity received, by sale of the marital residence, be divided by the parties.   At this point, Jonathan's assertion that there is no equity is mere speculation.   Should the property sell for less than the mortgage on the property, creating a debt where the trial court assumed an asset, then there is nothing to preclude the trial court from revising its order.   Until that time, any action by this Court to cure such an error is premature.

Jonathan further argues that the trial court failed to provide justification for dividing Jonathan's retirement between the parties.   He argues that the equal division was improper given the disproportionate contribution of each spouse to the acquisition of assets during the marriage, as well as the trial court's assignment of all marital debts to Jonathan.   Although “KRS 403.190 creates a presumption that property acquired during a marriage is marital, no such presumption exists for debt acquired during a marriage.”  Guffey v. Guffey, 323 S.W.3d 369, 373 (Ky.App.2010).   The record is clear that Jonathan offered to assume responsibility for the debts of the parties.   Therefore, any post-decree challenge to the allocation of those debts is disingenuous and without substantiation.   However, we agree with Jonathan that the trial court's order contains no discussion of the factors set out in KRS 403.190 or any other justification for its division of Jonathan's retirement.   Although it is possible that the allocation is appropriate, it is currently unsupported by the trial court's findings and conclusions, or rather lack thereof.   Kentucky Rules of Civil Procedure (CR) 52.01 requires a trial court to “find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment․”  Because the trial court has not met the requirements of CR 52.01, we are unable to determine whether the requirements of KRS 403.190(1) are met.   Accordingly, the distribution of Jonathan's retirement is an abuse of discretion and should be reversed.

For the forgoing reasons, we affirm the February 22, 2012, order of the Shelby Circuit Court as it pertains to the custody award.   Additionally, we reverse that portion of the order pertaining to the equal division of Jonathan's retirement and remand for additional findings.

ALL CONCUR.

DIXON, JUDGE: