Brosnan v. Brosnan

359 S.W.3d 480, 2012 Ky. App. LEXIS 23, 2012 WL 327857
CourtCourt of Appeals of Kentucky
DecidedFebruary 3, 2012
DocketNos. 2010-CA-000229-MR, No.2010-CA-000272-MR, No.2010-CA-000849-MR
StatusPublished
Cited by3 cases

This text of 359 S.W.3d 480 (Brosnan v. Brosnan) 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
Brosnan v. Brosnan, 359 S.W.3d 480, 2012 Ky. App. LEXIS 23, 2012 WL 327857 (Ky. Ct. App. 2012).

Opinion

OPINION

THOMPSON, Judge:

Timothy M. Brosnan appeals and Margaret Brosnan (now Sargent) cross-appeals from a judgment of the Jefferson Family Court entered in their dissolution of marriage action dividing their marital property and debts and awarding maintenance to Margaret. Margaret also appeals from an order of the Jefferson Family Court denying her motion for attorney’s fees incurred on appeal.

Timothy alleges that a social worker was erroneously permitted to offer expert opinion regarding whether Margaret suffered from post traumatic stress disorder (PTSD), and that the amount and duration of maintenance awarded to Margaret was an abuse of the family court’s discretion. In her cross-appeal, Margaret argues that the family court erred because: (1) it awarded insufficient maintenance; (2) it denied her request to withhold dissolving the marriage until January 1, 2010, to permit joint 2009 tax returns to be filed and require Timothy to pay her one-half of the 2008 tax refund prior to the sale of the marital residence; (3) it improperly divided the parties’ bank accounts; (4) it improperly divided the parties’ credit card debt; and (5) it did not order Timothy to maintain Margaret on his life insurance policy. Finally, she argues that the family court erred when it failed to advance her attorney’s fees incurred for defending the appeal and pursuing her cross-appeal. Af[482]*482ter review of the record, we conclude that there was no reversible error and affirm.

Prior to the hearing, the parties reached an agreement that the marital residence be sold and the equity equally divided. Pending the sale, Timothy was permitted to reside in the residence and was responsible for the mortgage and expenses. Although Margaret’s disclosure statement did not provide a mortgage balance or the equity in the residence, Timothy’s stated that the parties’ equity was $46,000. It was further agreed that Timothy’s pension and retirement accounts would be equally divided by qualified domestic relations orders. The issues regarding the division of the remaining marital property and debt, maintenance, and attorney’s fees remained for the family court’s decision.

Timothy and Margaret married in 1976 and have two adult children. At the time of the hearing, Margaret was fifty-five years old. Her only employment history was as a part-time receptionist earning $11.50 per hour. She is currently unemployed and lives in Iowa with her daughter.

Timothy was fifty-six years old and employed by Ford Motor Company as an electrician. The family court found that he earned a net monthly income of $5,000.

On March 12, 2009, the parties separated following two incidents in the marital home. Margaret testified that in February 2009, she recalled standing in the kitchen with her back to Timothy and awoke vomiting in the bathroom with her head and neck swollen. The second incident occurred on March 9, 2009, when she awoke in a pool of blood with a gash on her head. She testified that she attempted to contact her daughter but Timothy slapped the telephone from her hand. At the time of the incident, Timothy and Margaret were the only occupants in the home. Fifteen staples closed the gash and Margaret was hospitalized for four days.

The family court divided the marital assets other than the marital residence, including the parties’ life insurance policies, the Putnam Investments IRA, the parties’ personal property, the parties’ 2008 income tax refund, and the parties’ bank accounts.1 We discuss the family court’s findings.

During the marriage, the parties acquired two life insurance policies. A policy insuring Timothy’s life had a cash value of $8,818 and that insuring Margaret’s life had a cash value of $2,690. The parties agreed that each party would retain the policy that insures his or her life. To equalize the division, the family court ordered that Timothy pay Margaret $3,060 from his share of the proceeds from the sale of the residence.

The parties acquired a Putnam Investments IRA solely in Timothy’s name. The court found that the account was marital property and ordered Timothy to pay Margaret one-half its value, $2,151.45, from his share of the proceeds from the sale of the marital residence.

The court was also requested to divide the parties’ 2008 state and federal tax refunds, totaling $8,722, that were deposited into Timothy’s checking account. The court found that the refunds were marital property and ordered that the refunds be equally divided between the parties. It ordered that the $4,361 owed to Margaret be paid from the proceeds of the marital residence.

The parties had significant funds in various bank accounts. Timothy was ordered to pay Margaret $8,081.74 within fourteen [483]*483days of the entry of the judgment representing one-half of the amount in a Fifth Third .Bank savings account in his name. Two additional accounts in Timothy’s name were identified. Because the family court did not have a recent statement of the account balances, it ordered that Timothy pay Margaret one-half of the proceeds in the two accounts as of the date of trial.

The family court also found that at the time of separation, the parties had $56,002.79 in a joint savings account and that Timothy dissipated $29,889.30 from that account. The family court divided the dissipated funds equally between the parties requiring that Timothy pay Margaret $14,919.65.

To pay the dissipated funds owed by Timothy to Margaret, the family court ordered that he pay the parties’ $17,216 credit card debt. It further ordered him to pay $6,311.65 from his share of the proceeds from the sale of the martial residence.

After dividing the marital property and debt, the family court addressed maintenance and attorney’s fees. Because Timothy acknowledged that he should pay maintenance to Margaret, the only issues were the amount and duration.

Over Timothy’s objection, licensed independent social worker Debra Lacock was permitted to testify regarding her diagnosis and treatment of Margaret. Lacock testified that she obtained her undergraduate degree in social work in 2000 and, later, a master’s in clinical social work. After obtaining her masters and two years of supervised training, she became a licensed independent social worker.

When she first saw Margaret in July 2009, Margaret informed her about the incidents in the marital home. Using the DSM-IV-TR, Lacock diagnosed Margaret with PTSD. She opined that Margaret should continue counseling and is not currently capable of employment. She confirmed that Margaret has a variety of symptoms, including lack of concentration, rapid heartbeat, intense flashbacks, and a high startle response.

Based on the factors set forth in KRS 403.200, the court awarded maintenance in the amount of $2,000 per month until the marital residence is sold and, thereafter, $2,500 per month for a period of fifteen years subject to modification upon a showing of changed circumstances as provided in KRS 403.250. The Court further ordered Timothy to pay $3,000 of the $11,000 attorney’s fees owed by Margaret.

Both parties filed motions to alter or amend. Timothy alleged that the maintenance award was excessive in amount and duration.

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Cite This Page — Counsel Stack

Bluebook (online)
359 S.W.3d 480, 2012 Ky. App. LEXIS 23, 2012 WL 327857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brosnan-v-brosnan-kyctapp-2012.