Brooks v. Brooks

350 S.W.3d 823, 2011 Ky. App. LEXIS 111, 2011 WL 2496282
CourtCourt of Appeals of Kentucky
DecidedJune 24, 2011
Docket2010-CA-001720-MR
StatusPublished
Cited by3 cases

This text of 350 S.W.3d 823 (Brooks v. Brooks) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brooks v. Brooks, 350 S.W.3d 823, 2011 Ky. App. LEXIS 111, 2011 WL 2496282 (Ky. Ct. App. 2011).

Opinions

OPINION

VANMETER, Judge:

Yolanda Brooks appeals from the Wolfe Circuit Court’s findings of fact, conclusions of law, and decree of dissolution. For the following reasons, we affirm.

Yolanda and Charles Brooks were married for over twenty-one years when Charles petitioned the trial court for dissolution of the marriage. At the time of the hearing, Charles was forty-four years of age and Yolanda was thirty-eight years of age. Both parties were in good health. Charles was employed as a Rank I teacher by the Morgan County Board of Education and by Morehead State University and earned $43,694 annual gross income, with a monthly net income of $2,879.06. He obtained his degree during the course of the marriage. Yolanda had no income. She has a seventh grade education and her work life has consisted of six years of unskilled labor as a nursing assistant in various nursing homes. She has not worked in the last fifteen years; instead, she was a homemaker and raised the parties’ children.

The trial court awarded the parties joint custody of their two minor children, naming Charles as the primary residential custodian and granting visitation rights to Yolanda. The court ordered Yolanda to pay child support to Charles in the amount of $60 per month for nine months, at which time the children will turn eighteen years of age and graduate from high school. The court ordered Charles to pay maintenance to Yolanda in the amount of $360 per month for two and a half years to enable Yolanda to obtain a GED and job training since she is presently unable to support herself. The child support payments were ordered to off-set the maintenance payments during the first nine months.

[825]*825The parties did not dispute which items of property were nonmarital and the court restored all nonmarital property to its owner. The court then divided the marital property between the parties and entered a final decree of dissolution of marriage. This appeal followed.

On appeal, Yolanda claims (1) she is entitled to a greater share of the marital property since the trial court excepted from classification as marital property Charles’ Kentucky Teachers’ Retirement System (“KTRS”) account, (2) the maintenance award of $360 per month for a period of two and a half years is insufficient, and (3) the needs and wants of the parties’ two minor children should not have been considered when the marital property was divided. We disagree.

Our review of the trial court’s findings of fact “is governed by the rule that such findings shall not be set aside unless clearly erroneous.” Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App.2005). A factual finding is not clearly erroneous if supported by substantial evidence. Id. (citations omitted). Substantial evidence is evidence, when taken alone or in light of all the evidence “that a reasonable mind would accept as adequate to support a conclusion.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky.2003) (citations omitted). The trial court’s conclusions of law, however, are subject to independent de novo appellate determination. Gosney, 163 S.W.3d at 898-99 (citations omitted).

First, Yolanda argues that she is entitled to a greater portion of the marital property, specifically, a portion equal to one-half the value of Charles’ KTRS account per KRS1 403.190.

Pursuant to KRS 403.190, “[u]nless specifically exempt by statute, Kentucky treats all retirement benefits accumulated during the marriage as marital property subject to classification and division upon divorce.” Shown v. Shown, 233 S.W.3d 718, 720 (Ky.2007) (citing Holman v. Holman, 84 S.W.3d 903, 907 (Ky.2002)). In this case, KRS 161.700 specifically exempts KTRS retirement benefits accumulated during the marriage from being classified as marital property subject to division. KRS 161.700 provides, in pertinent part:

(3) Retirement allowance, disability allowance, accumulated contributions, or any other benefit under the retirement system shall not be classified as marital property pursuant to KRS 403.190(1), except to the extent permitted under KRS 403.190(4). Retirement allowance, disability allowance, accumulated contributions, or any other benefit under the retirement system shall not be considered as an economic circumstance during the division of marital property in an action for dissolution of marriage pursuant to KRS 403.190(l)(d), except to the extent permitted under KRS 403.190(4).

(emphasis added).

KRS 403.190(4) provides, in part:

(4) If the retirement benefits of one spouse are excepted from classification as marital property, or not considered as an economic circumstance during the division of marital property, then the retirement benefits of the other spouse shall also be excepted, or not considered, as the case may be. However, the level of exception provided to the spouse with the greater retirement benefit shall not exceed the level of exception provided to the other spouse.

KRS 403.190(4).

Yolanda directs us to the case of Shown v. Shown, 233 S.W.3d 718 (Ky.2007), in [826]*826which the husband had a KTRS account valued at approximately $80,000, and the wife had a Fidelity Simplified Employee Pension (SEP-IRA) valued at approximately $1,800. Id. at 719. In an action for dissolution of the marriage, the husband argued that his KTRS account was entirely exempt from classification and division as marital property per KRS 161.700(2), while the wife argued that per KRS 403.190(4), the husband’s KTRS account was divisible marital property to the extent it exceeded her SEP-IRA. Id. at 719-20.

In reconciling KRS 161.700 and KRS 403.190

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Related

Ashley Layman v. Richard Lee Bohanon Jr
Kentucky Supreme Court, 2020
Penner v. Penner
411 S.W.3d 775 (Court of Appeals of Kentucky, 2013)
Brooks v. Brooks
350 S.W.3d 823 (Court of Appeals of Kentucky, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
350 S.W.3d 823, 2011 Ky. App. LEXIS 111, 2011 WL 2496282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-brooks-kyctapp-2011.