RENDERED: AUGUST 14, 2020; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-000540-MR
DAVID FERRELL BYRD APPELLANT
APPEAL FROM METCALFE CIRCUIT COURT v. HONORABLE MIKE MCKOWN, SPECIAL JUDGE ACTION NO. 16-CI-00140
JOANNA BYRD AND KENNETH A. MEREDITH, II APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND MCNEILL, JUDGES.
CLAYTON, CHIEF JUDGE: David Ferrell Byrd (“David”) appeals from the
Metcalfe Circuit Court’s findings of fact, conclusions of law, and judgment,
arguing that the trial court made certain mistakes as to its award of maintenance, its
property division, and its award of attorney’s fees. Upon review of the record and applicable law, we affirm.
BACKGROUND
David and Joanna Byrd (“Joanna”) were married in August of 1996,
and Joanna filed a petition for dissolution on October 4, 2016. At the time of the
filing of the petition for dissolution, Joanna was fifty years of age and listed her
occupation as homemaker, while David was fifty-nine years of age and employed
as a truck driver for Walmart. The trial court entered an interlocutory decree of
dissolution on February 18, 2019, which reserved all other issues including
determinations regarding maintenance and the division of marital property. After a
two-day hearing, the trial court entered findings of fact, conclusions of law, and
judgment on March 4, 2019 (the “Judgment”) addressing multiple issues, some of
which are described below. David filed a motion to alter, amend, or vacate certain
portions of the Judgment, which portions that are relevant to this appeal were
denied by the trial court. This appeal followed.
a. Maintenance
Pursuant to Joanna’s request for a maintenance award, the trial court
stated in the Judgment that it had considered all of the relevant factors contained in
Kentucky Revised Statute (KRS) 403.200 pertaining to such request. Further, the
trial court made numerous findings, including that Joanna lacked sufficient
property, together with marital property apportioned to her in the Judgment, to
-2- provide for her reasonable needs; that Joanna was unable to support herself
through reasonable employment based upon the standard of living maintained by
the parties during the marriage; and that the trial court had considered the financial
resources of Joanna as well as the marital property apportioned to her and her
ability to meet her needs independently.
Specifically, the trial court found that Joanna was at that time not
gainfully employed, was fifty-two years of age, and had various health problems,
including heart problems, high blood pressure, vertigo, tremors, a racing heart, and
anxiety. Although the trial court imputed a monthly minimum wage income to
Joanna of $1,257.00, the trial court found Joanna’s reasonable living expenses to
be approximately $2,406.00 per month after subtracting the expenses the trial court
found to be excessive. Alternatively, the trial court noted that David had earned
approximately $83,000.00 in 2018, along with having $400.00 per month in rental
income. Additionally, the trial court stated that it had considered the twenty-three-
year duration of the marriage, the standard of living during the marriage, as well as
the “Craig-Ross” model for calculating maintenance. Based on all its findings, the
trial court awarded Joanna maintenance in the amount of $1,200.00 per month for a
period of eleven and a half years - at which time Joanna would be approximately
64 years of age - or until Joanna died, remarried, or entered into a cohabitation
relationship.
-3- b. Marital Property Division
Regarding the marital home, the trial court found that the parties had
acquired two tracts of real estate during the marriage located at 1535 Center Three
Springs Road (the “1535 Property”) totaling approximately seventy acres, and that
the equity in such property was marital and should be divided equally between the
parties. Under the Judgment, Joanna retained possession of the marital home -
with David paying seventy percent of the mortgage and Joanna paying thirty
percent - until David either purchased Joanna’s interest in the property or the
parties chose to list the property for sale. The court further found that the fair
market value of such property was $200,000.00 based on the value assigned by the
Property Valuation Administration (“PVA”).
The trial court further found that David was vested in a 401k plan
through Walmart (the “401k”) that was entirely marital in nature. The court
instructed that Joanna’s counsel obtain a qualified domestic relations order
acceptable to the trustee of the 401k to present to the court for an equal division of
the value of the 401k as of October 4, 2018, a date that was two years after the
filing of the petition for dissolution and not the date of the divorce decree.
Finally, the trial court found that David had sold thirteen hogs that had
been acquired during the marriage and which the court found to be marital
property. The trial court assigned a value of $500.00 per hog, for a total value of
-4- $6,500.00, and ordered David to pay Joanna half of that amount, or $3,250.00.
Overall, including her percentage of the marital interest in the marital home,
Joanna received approximately $55,318.12 in cash under the Judgment for her half
of the value of the parties’ marital assets.
c. Attorney’s Fees
The trial court found that Joanna owed her attorney $20,075.75 in
unpaid attorney’s fees and that David owed his attorney $10,122.50 in unpaid
attorney’s fees. The trial court further found that, given the financial resources of
the parties and considering the relevant factors of KRS 403.220, David should pay
$6,138.14 of Joanna’s attorney’s fees.
Other facts will be discussed as they relate to particular arguments
raised in this appeal.
ISSUES
On appeal, David argues that the trial court erred: 1) in awarding
maintenance to Joanna; 2) in its division of certain marital property, including its
determination of the valuation date of the 401k, its valuation of the 1535 Property,
and its decision requiring David to pay half of the value of the hogs; and 3) in
requiring David to pay a portion of Joanna’s attorney’s fees.
-5- ANALYSIS
As a preliminary matter, David’s appellate brief deviates significantly
from the format mandated by Kentucky Rule of Civil Procedure (CR) 76.12. First,
David’s brief does not comply with CR 76.12(4)(c)(iv), which requires:
[a] “STATEMENT OF THE CASE” consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record . . . supporting each of the statements narrated in the summary.
(Emphasis added.) David’s “Statement of the Case” does not contain a single
“reference[] to the specific pages of the record . . . supporting each of the
statements narrated in the summary.” Moreover, parts of David’s arguments
appear to be contained in his Statement of the Case.
Second, David has also failed to comply with CR 76.12(4)(c)(v), a
failure that is particularly problematic. CR 76.12(4)(c)(v) requires that a brief
contain:
An “ARGUMENT” . . . which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.
(Emphasis added.) David’s brief has no statement of preservation of the issues he
raises on appeal. CR 76.12(4)(c)(v). “It goes without saying that errors to be
considered for appellate review must be precisely preserved and identified in the
-6- lower court.” Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947, 950 (Ky.
1986) (citations omitted). Further, “[i]t is not the function or responsibility of this
court to scour the record on appeal to ensure that an issue has been preserved.”
Koester v. Koester, 569 S.W.3d 412, 415 (Ky. App. 2019) (citation omitted).
An appellant’s compliance with CR 76.12:
permits a meaningful and efficient review by directing the reviewing court to the most important aspects of the appeal: what facts are important and where they can be found in the record; what legal reasoning supports the argument and where it can be found in jurisprudence; and where in the record the preceding court had an opportunity to correct its own error before the reviewing court considers the error itself.
Hallis v. Hallis, 328 S.W.3d 694, 696-97 (Ky. App. 2010).
Our options when an appellate advocate fails to abide by the rules are:
“(1) to ignore the deficiency and proceed with the review; (2) to strike the brief or
its offending portions . . . ; or (3) to review the issues raised in the brief for
manifest injustice only[.] Id. at 696 (citations omitted). In this case, the
shortcomings in David’s brief do not warrant striking his brief or reviewing the
appeal solely for manifest injustice. Although we have elected not to impose the
more severe options permitted under Hallis and CR 76.12, we advise counsel our
decision may not be so lenient upon the occurrence of subsequent violations of this
Court’s procedural rules.
-7- a. Maintenance
David first argues that the trial court erred in its award of maintenance
to Joanna. The Kentucky Supreme Court has stated that “the award of
maintenance comes within the sound discretion of the trial court[.]” Powell v.
Powell, 107 S.W.3d 222, 224 (Ky. 2003) (citations omitted). Such discretion
extends to the amount and duration of maintenance as well. Weldon v. Weldon,
957 S.W.2d 283, 285 (Ky. App. 1997).
To reverse the trial court, “a reviewing court must find either that the
findings of fact are clearly erroneous or that the trial court has abused its
discretion.” Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992). A trial court’s
finding of fact “is not clearly erroneous if it is supported by substantial evidence.”
Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003) (citations omitted).
Substantial evidence “is evidence, when taken alone or in light of all the evidence,
which has sufficient probative value to induce conviction in the mind of a
reasonable person.” Id. (citations omitted). An abuse of discretion concerns
“whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999) (citations omitted).
A court’s award of maintenance is governed by KRS 403.200, which
states, in part, that:
-8- (1) . . . the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment[.]
After the foregoing initial determinations have been made, various factors are to be
considered by the trial court in setting the amount and duration of such
maintenance, including: the financial resources of the party seeking maintenance
and his or her ability to meet his or her needs independently; the time necessary to
become sufficiently educated or trained to find appropriate employment; the
standard of living established during the marriage; the duration of the marriage; the
age and the physical and emotional condition of the spouse seeking maintenance;
and the ability of the spouse from whom maintenance is sought to meet his or her
needs while meeting those of the spouse seeking maintenance. KRS
403.200(2)(a)-(f).
As to the first requirement under KRS 403.200(1)(a) regarding
whether Joanna had sufficient property to provide for her reasonable needs, David
argues on appeal that Joanna received half of the marital property and could
therefore provide for her reasonable needs without maintenance payments from
David. As previously discussed, Joanna received half of the equity in the 1535
-9- Property, totaling $37,841.29. Moreover, Joanna received half of the equity in the
parties’ rental property, totaling $12,003.55. Joanna was further awarded, among
other amounts, half of a tax refund, an unclaimed property amount, and half the
value of the hogs, which totaled approximately $5,400.00. Joanna also received
approximately $55,718.82 from her half of the 401k.
While David argues that the foregoing amount is sufficient to provide
for Joanna’s reasonable needs, David overlooks the fact that Joanna would have to
rent or purchase a residence, as the Judgment awarded to David the 1535 Property.
Moreover, although Joanna was awarded half of the 401k, she was only fifty-two
years of age at the time of the trial court’s order, and therefore would presumably
incur early withdrawal penalties. Finally, after subtracting out the expenses found
by the trial court to be unreasonable, the trial court found Joanna’s reasonable
monthly expenses to be approximately $2,406.00 per month. Together with
Joanna’s imputed income of $1,257.00 per month, David’s maintenance payments
of $1,200.00 per month would put Joanna’s monthly income at $2,457.00, or just
enough to meet her monthly expenses. Therefore, we do not believe that the trial
court abused its discretion in determining that Joanna did not possess sufficient
property overall to provide for her reasonable needs without the aid of David’s
maintenance payments.
-10- As to the second requirement under KRS 403.200(1)(b), David argues
that there was no proof in the record that Joanna was not able to return to gainful
employment or that her medical condition precluded her from returning to gainful
employment. However, the evidence of record indicated that Joanna was not
employed and had not been employed for the five years prior to the filing of the
petition for dissolution. Further, Joanna listed her medical conditions as heart
failure, high blood pressure, Meniere’s disease, body tremors, and anxiety, and she
introduced at trial a list of six daily prescription medications that she took for such
medical conditions. Additionally, Joanna testified that her medical conditions
precluded her from returning to gainful employment. The Kentucky Supreme
Court has stated that “‘in situations where the marriage was long term, the
dependent spouse is near retirement age, the discrepancy in incomes is great, or the
prospects for self-sufficiency appears dismal,’ our courts have . . . awarded
maintenance for a longer period or in greater amounts.” Powell, 107 S.W.3d at
224 (quoting Clark v. Clark, 782 S.W.2d 56, 61 (Ky. App. 1990)). Based on the
foregoing, therefore, we cannot say that the trial court clearly erred in its
determination that Joanna was unable to support herself through appropriate
employment or that the trial court abused its discretion in awarding Joanna
maintenance.
-11- With regard to the amount of maintenance ordered by the trial court,
David argues that he is unable to pay such amount while meeting his own needs.
The trial court’s finding that David had sufficient financial means to pay
maintenance to Joanna, however, was based on evidence that he had earned in
excess of $83,000.00 in 2018 and had rental income of $400.00 per month. Such
evidence included W-2 wage statements as well as tax returns. Further, the trial
court clearly considered David’s ability to meet his own reasonable needs, going
through each of David’s claimed monthly expenses and finding a number of them
to be unreasonable. The Judgment reflected that the trial court considered all of
the factors contained in KRS 403.200(2) to determine the appropriate amount of
maintenance, including the fact that the parties had a twenty-three-year marriage,
Joanna’s age and her ability to gain full-time employment through appropriate
training or education, and the standard of living maintained during the parties’
marriage.
As to the duration of the trial court’s award of maintenance, David
argues that he had been planning to retire because of his age, health, and the stress
of his employment. David argues that the court’s award of maintenance to Joanna
would require David to continue working until he was almost seventy-three years
of age, and that he should not have to work eight years past the normal retirement
age of sixty-five.
-12- In support of his argument, David cites Weldon, supra. We do not
believe, however, that the facts of Weldon are applicable to the case before us. The
facts in Weldon concerned a party receiving maintenance past the age of sixty-five,
not a party paying maintenance past the age of sixty-five. 957 S.W.2d at 284-85.
Additionally, in Weldon, the maintenance award ordered by the trial court was
open-ended and ceased only upon the death or remarriage of the party receiving the
maintenance payments. Id. at 284. In this case, given the large and continuing
discrepancy between the parties’ income and the length of their marriage, as well
as the fact that Joanna would be nearing the age of sixty-five when the
maintenance payments would cease, the duration of the trial court’s maintenance
award is neither clearly erroneous nor an abuse of discretion. Should David later
encounter a changed circumstance that would make the award unconscionable,
relief is available to him through KRS 403.250.
David further argues that the trial court did not account for David’s
financial support of Joanna since the beginning of the divorce proceedings in 2016,
as well as throughout their separation. David cites us to no authority stating that
one spouse’s support of the other spouse through temporary maintenance and
mortgage payments throughout divorce proceedings requires a reduction in the
duration or amount of the payment of permanent maintenance to such spouse.
-13- Finally, David argues that the trial court erred when it considered the
Craig-Ross formula in calculating the amount of maintenance. We find no merit to
this argument, as David cites us to no relevant or applicable case law that prohibits
a trial court from considering various formulas when attempting to calculate a
maintenance award. Rather, the cases cited by David either deal with the
calculation of child support – not maintenance – or further bolster the
“undisputable” idea that “trial courts have wide discretion in determining the
amount of maintenance and that no particular formula has ever been held as the
method for establishing maintenance.” Age v. Age, 340 S.W.3d 88, 95 (Ky. App.
2011). The fact that the trial court, in exercising its wide discretion, looked to
certain appropriate mechanisms for the determination of a maintenance amount
was not an abuse of its discretion.
b. Marital Property Valuation and Division
David next argues that the trial court erred when it equally divided the
401k and used a valuation date that was two years after the filing of the petition for
dissolution, that the trial court incorrectly valued the 1535 Property, and that the
trial court erred in its decision regarding the division of the hogs. Under KRS
403.190(2), “marital property” is defined as “all property acquired by either spouse
subsequent to the marriage[,]” subject to certain exceptions. After the
determination of which property is marital, KRS 403.190(1) directs a trial court to
-14- divide such marital property in “just proportions[.]” The statute does not require
an equal division of property. Lawson v. Lawson, 228 S.W.3d 18, 21 (Ky. App.
2007). However, the statute does set out several relevant factors to consider in
dividing marital property, 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[.]
Again, a trial court has wide discretion in dividing marital property pursuant to
KRS 403.190, and in the absence of an abuse of discretion, such determination
should not be set aside. Wilder v. Wilder, 294 S.W.3d 449, 452 (Ky. App. 2009).
David argues that there should not be an equal division of the 401k, as
he argues that Joanna chose not to work during the parties’ marriage. In the
alternative, David argues that the trial court used the wrong valuation date for the
401k. However, we agree with Joanna that, because these arguments were not
presented to the trial court in David’s motion to alter, amend, or vacate, we cannot
address them on appeal. Indeed, “a party may not raise an issue for the first time
on appeal.” Sunrise Children’s Services, Inc. v. Kentucky Unemployment
Insurance Commission, 515 S.W.3d 186, 192 (Ky. App. 2016) (citation omitted).
-15- David next argues that the trial court erred in relying on the PVA
value for the 1535 Property. However, David presented no expert testimony at the
hearing regarding the value of the 1535 Property, no appraisal of the 1535
Property, or any other evidence regarding the property’s value. As stated in Turley
v. Turley, 562 S.W.2d 665, 667 (Ky. App. 1978), “[c]ertainly, we cannot say that
the value assigned was excessive when the complaining party offered no evidence
respecting the principal asset owned by the parties.” Therefore, the trial court’s
conclusion that the home was worth $200,000.00 was not clearly erroneous.
Finally, David makes a cursory argument regarding the equalization
payment that the trial court required him to make to Joanna regarding the sale of
the hogs. His argument is essentially that his testimony concerning the matter was
more credible than was Joanna’s testimony. The trial court, however, was in the
best position to assess the credibility of the witnesses “because judging the
credibility of witnesses . . . is a task[] within the exclusive province of the trial
court.” Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted). We
cannot say that the trial court’s conclusion was clearly erroneous or that the trial
court abused its discretion.
David argues that the trial court erred in requiring David to pay
$6,138.14 of Joanna’s $20,075.75 in outstanding attorney’s fees. Under Kentucky
-16- law, an award of attorney’s fees is reviewed by this Court using an abuse of
discretion standard. Allison v. Allison, 246 S.W.3d 898, 909 (Ky. App. 2008). The
relevant statute, KRS 403.220, states that “[t]he court from time to time after
considering the financial resources of both parties may order a party to pay a
reasonable amount for the cost to the other party of maintaining or defending any
proceeding under this chapter and for attorney’s fees[.]” The Kentucky Supreme
Court has explained that:
[t]he purpose of the fee-shifting statute . . . is simply to ensure the fairness of domestic relations proceedings: to prevent one party to a divorce action from controlling the outcome solely because he or she is in a position of financial superiority, and to equalize the status of the parties to a dissolution proceeding . . . in an effort to eliminate the inequities resulting from the termination of the relationship.
Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014) (citations and quotations
omitted).
In this case, the court stated in the Judgment that it had considered the
disparity in the financial resources between the parties in its decision as well as the
other relevant factors in KRS 403.220. As previously discussed, David had earned
$83,000.00 in 2018, along with rental income, while Joanna was unemployed. We
do not believe that the trial court abused its discretion in its award of attorney’s
fees to Joanna.
-17- CONCLUSION
For the foregoing reasons, the Judgment of the Metcalfe Circuit Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Ronald D. Mather Kenneth A. Meredith, II Hodgenville, Kentucky Bowling Green, Kentucky
-18-