TAMMIE HORNE APPELLANT v. MICHAEL HORNE APPELLEE

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Court of Appeals of Kentucky.

TAMMIE E. HORNE APPELLANT v. MICHAEL D. HORNE APPELLEE

NO. 2012–CA–000700–MR

Decided: May 31, 2013

BEFORE:  DIXON, MOORE AND THOMPSON, JUDGES. BRIEF FOR APPELLANT:  Steven A. Wides William A. Bausch Lexington, Kentucky BRIEF FOR APPELLEE:  Brian K. Privett Cynthiana, Kentucky

NOT TO BE PUBLISHED

OPINIONREVERSING AND REMANDING

Tammie E. Horne appeals from the February 9, 2012, findings of fact, conclusions of law, and final order and decree of dissolution of the Bourbon Circuit Court.   That judgment divided the marital property between Tammie and Michael D. Horne in the parties' dissolution action.   Because we hold that the trial court abused its discretion when it failed to make factual findings and when it upheld its judgment despite pertinent mathematical and typographical errors, we reverse and remand.

The parties were married in 2002 and separated in 2009.   On June 15, 2009, Michael filed a petition for dissolution of marriage with the Bourbon Circuit Court.   Following a final hearing, the trial court's findings of facts, conclusions of law, and final order and decree of dissolution was entered on February 9, 2012.   That judgment divided the parties' assets and debts.   Thereafter, Tammie filed a motion to alter, amend, or vacate the final order, in which she alleged that there had been several mathematical errors.   Tammie's motion was denied on March 13, 2012, and this appeal followed.   Additional facts will be provided as necessary.

Tammie's sole argument on appeal is that the trial court abused its discretion when it made several mathematical and typographical errors in its distribution of marital property.   The division of marital property is governed by Kentucky Revised Statutes (KRS) 403.190, which compels the trial court to divide marital property in “just proportions” and without regard to marital misconduct.   KRS 403.190(1).   In addition, the trial court is to “consider all relevant factors,” including the contribution of each spouse to the acquisition of the property;  the value of the property assigned to each spouse;  duration of the marriage;  and the economic circumstances of each spouse at the time the property is divided.  Id. Moreover, “a trial court has wide discretion in dividing marital property;  and we may not disturb the trial court's rulings on property-division issues unless the trial court has abused its discretion.”   Smith v. Smith, 235 S.W.3d 1, 6 (Ky.App.2006).

The parties herein possessed a large amount of personal and real property, a portion of which was Michael's non-marital property.   Michael was restored all of his non-marital property, as well as held responsible for the debts thereupon.   The parties stipulated as to the classification and valuation of all property.   Therefore, the only dispute relates to the division of the marital estate.   In its final order, the trial court stated:

[t]he marital estate assets are valued at $314,512.92 and the marital debts are $113,871.34.   The parties shall be equally responsible for the debts of the marriage and shall divide equally the value of the assets.   The award of assets and assignment of debts are set forth below.   Because he is more financially able to repay the debts and the parties have not expressed an interest in selling off tangible assets, Wife's share of the debt shall be subtracted from her share of the assets.   As such, Husband is awarded $221,741.36 of the estate, an amount which includes Wife's payment of her share of the debts and $7,549.22 as offset for the Murano car and half (1/2) of the value of the remainder of the marital assets, or $46,385.78.   Husband is awarded all remaining personal and real property of the marital estate.

(Emphasis added).   Thereafter, Michael was awarded the bulk of the physical portion of the marital estate and the trial court ordered “to equalize the marital estate, Wife is awarded the Nissan Murano and a lump sum of $46,385.78.”  (Emphasis added).   In an effort to better understand the trial court's valuation and division of assets, we have composed the following chart:

Property

Total Value

Michael's Nonmarital Portion

Marital Portion

Michael's Marital Portion

Tammie's Marital Portion

Northland Home

$235,000

$235,000

0

0

0

Condo # 1

$189,000

$189,000

0

0

0

Condo # 2

$189,000

$189,000

0

0

0

Tools

$20,000

$20,000

0

0

0

'08 Ford F350 Gas

$5,755

0

$5,755

$5,755

0

'08 Ford F350 Diesel

$21,600

0

$21, 600

$21,600

0

'06 Nissan Murano

$15,098.44

0

$15,098.44

0

$15,098.44

Dump Truck

$6,026

0

$6,026

$6,026

0

4400 Truck

$15,000

0

$15,000

$15,000

0

'06 Ford F350

$24, 875

$11,691.25

$13,183.75

$13,183.75

0

(2) HMDE Trailers

$6,000

0

$6,000

$6,000

0

Gator Trailer

$3,281

$3,281

0

0

0

'03 Bobcat

$10,300

$5,562

$4,738

$4,738

0

'07 Bobcat

$24,500

$9,555

$14,945

$14,955

0

'04 Sea Ray

$236,250

$118,125

$118,125

$118,125

0

'02 Sea Doo

$3,811

$1,219.52

$2,591.48

$2,591.48

0

LR Furniture

$1,500

0

$1,500

0

$1,500

BR Furniture

$1,500

0

$1,500

$1,500

0

Misc.

$8,850

0

$8,850

$8,850

0

Bank Accounts

$25,000

0

$25,000

$12,500

$12,500

TOTALS:

$782,433.77

$259,912.67

$230.814.23

$29,098.44

Additionally, the trial court listed the marital debts as:  two Chase credit cards totaling $33,805.75;  a Discover credit card totaling $3,565.56;  and a Traditional Bank Mortgage of $76,500.

As indicated in the above chart, our review of the marital estate indicates that the trial court incorrectly calculated the value of the marital assets at $314,512.92, instead of the correct total value of $259,912.67.   Additionally, as Tammie has pointed out, the trial court incorrectly identified the Traditional Bank Mortgage as being $76,500, for purposes of assigning the debt to Michael, but then refers to the debt as being $57,600 in other portions of the judgment.   The record supports Tammie's contention that the debt is actually $57,600 and not $76,500, making the actual total marital debts $94,971.31, as opposed to the $113,871.34 indicated by the trial court.   Michael argues that the amount assigned to the Traditional Bank Mortgage is irrelevant, because the property to which the mortgage is attached is currently under a land contract with a third party who owns all equity in the property.   We disagree.   The debt was used as an offset to balance each party's share of the marital estate, and it is therefore relevant.

Michael argues that the trial court successfully made an equitable division as opposed to the equal division for which Tammie argues.   However, the trial court's judgment is replete with terms such as “equally,” “half,” and “equalize,” indicating that the trial court intended an equal division.   Therefore, if we were to correct the typographical and mathematical errors, an equal division would yield Tammie a lump sum of $67,921.46 ($259,912.67 total assets—$94,971.31 total debts = $164,941.36 – Tammie's share of $29,098.44 in property = $135,842.92 ÷ 2 = $67,921.46) as opposed to the ordered lump sum of $46,385.78.   We agree that “a trial court is not obligated to divide the marital property equally.”  Smith, 235 S.W.3d 1 at 6. However, we are also cognizant of the fact that in some situations, an equal division is an equitable division and can therefore be justified as a division of “just proportions.”   See KRS 403.190(1).   Nonetheless, the trial court's math fails to support its purported goal of an equal division.   Further complicating matters is the fact that the trial court failed to enter any findings of fact supporting its division of the marital estate.   There is no indication that the trial court considered the relevant factors set forth in KRS 403.190(1) or any other factors.   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․”  It is entirely possible that an equal division of the parties' property is appropriate.   However, because the trial court has not entered findings pursuant to CR 52.01, we are unable to determine whether the requirements of KRS 403.190(1) are met.

For the foregoing reasons, the February 9, 2012, findings of fact, conclusions of law, and final order and decree of dissolution of the Bourbon Circuit Court is reversed and remanded with instructions to clarify whether the marital estate was to be divided equally, correct any mathematical or typographical errors, and enter additional findings of fact in support of its property division.

all concur.

DIXON, JUDGE: