McVicker v. McVicker

461 S.W.3d 404, 2015 Ky. App. LEXIS 15, 2015 WL 495559
CourtCourt of Appeals of Kentucky
DecidedFebruary 6, 2015
DocketNO. 2013-CA-001271-MR
StatusPublished
Cited by20 cases

This text of 461 S.W.3d 404 (McVicker v. McVicker) 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
McVicker v. McVicker, 461 S.W.3d 404, 2015 Ky. App. LEXIS 15, 2015 WL 495559 (Ky. Ct. App. 2015).

Opinions

[408]*408 OPINION

LAMBERT, J., JUDGE:

In this dissolution action, Cynthia McVicker has appealed from the April 23, 2013, and June 25, 2013, orders of the Hardin Family Court and seeks review of the assignment of non-marital property, the division of marital property, and the failure to award maintenance. We have carefully examined the record and reviewed the parties’ briefs, and finding that the family court erred and abused its discretion, we reverse in part and vacate in part, and remand for further proceedings.

Cynthia and William McVicker were married on October 1, 1977, in Rockcastle County, Kentucky. There is one surviving child born of the marriage, William McVicker Jr. (Willy), who is now an adult, but is totally disabled and dependent. Cynthia and William are his joint guardians. After close to thirty-two years of marriage, the parties separated in June 2009, and Cynthia filed a verified petition for dissolution of marriage on November 16, 2009. At the time of the filing of the petition, Cynthia was fifty-four years old, and she worked as an office manager for the Hardin County Board of Education. William was sixty-two years old, and he had retired from his position as a heating and cooling auditor for Kentucky Utilities. In her prayer for relief, Cynthia requested that the marriage be dissolved, for distribution of the parties’ marital property, and for adjudication of their debts and obligations. In his response, William asked that the court grant the parties shared custody of their adult disabled child, with the child spending 50% of his time with each parent and with the child support obligation based upon the rules for shared custody. The court entered a mutual restraining order on January 12, 2010, which did not prohibit legitimate contact between the parties concerning parenting time with their son.

By' agreed order entered March 23, 2010, the court granted William exclusive use of the marital home and ordered him to pay the costs to maintain the home during the pendency of the action. The parties would continue to have shared custody of their disabled son, with Cynthia continuing to manage his social security disability payments and William continuing to pay medical insurance for all three. In September 2010, William moved the court to name him as the primary possessory parent of the parties’ adult child, as he had assumed such a role when Cynthia left the marital residence in November 2009. He also requested the court to order Cynthia to hand over management of the child’s social security and disability benefits to him. While the order is not contained in the record, this motion appears to have been granted.

Pursuant to the March 2010 agreed order, the court permitted Cynthia to draw $500.00 per month starting in January 2010 from their investment funds. They agreed that “this payment will not prejudice any of the parties concerning the ultimate disposition of the marital estate versus the Pre Marital and Non marital estate or the ultimate disposition concerning temporary or permanent maintenance.” The parties further agreed that the court “could be allowed to offset the funds withdrawn pursuant to this Agreed Order in accordance with the evidence as presented to the Court and in accordance with the law.”

Cynthia continued to request funds during the pendency of the action. In May 2010, Cynthia filed a motion seeking an early disbursement from her marital property to cover the purchase price of a 2011 Honda Pilot and the first year’s insurance premium, for a total amount of $38,000.00. [409]*409She stated that the 1998 Dodge Caravan van she had been driving had come into disrepair and that the cost to repair it was in excess of $2,200.00 at a minimum. This motion was apparently denied, and the following month, Cynthia filed another motion, this time seeking payment of $722.95 per month and a one-time lump sum of $1,500.00 from the parties’ investment account for the purchase of the Honda Pilot. In addition, she requested half of the parties’ 2009 income tax refund. By Agreed Order entered July 19, 2011, the court ordered William- to provide Cynthia with the total sum of $1,842.26 from their Morgan Stanley account to pay her insurance, registration, and taxes on her new vehicle. The amount she received would be considered in the final division of the marital estate. By Agreed Order entered October 17, 2011, the court ordered William to provide Cynthia with $1,300.00 from their investment account to pay her 2010 income tax liability. Again, this amount would be considered in the final division of the marital estate.

On January 31, 2012, Cynthia filed a motion requesting temporary maintenance or that she be advanced the sum of $7,000.00 from the marital estate so that she could pay her current expenses. In an affidavit attached, Cynthia stated that she had outstanding debts of $5,960.51, including credit card debt and medical fees, and that she did not have sufficient income to pay that amount. She earned a net income of $1,534.03 per month from her employment. William objected to the motion, stating that his income would be decreasing significantly in May 2012 from $1,815.81 to $520.81 per month. He had also assumed all of the marital debts, the cost of maintaining the marital residence, and the payment of medical insurance for himself, Cynthia, and their son. In his attached affidavit, William stated that since April 2010, Cynthia had received $42,900.00 from their investment account, and she was drawing $1,222.95 per month to help with her expenses in accordance with a 2010 agreement as well as other additional amounts she had requested.

On July 5, 2012, Cynthia filed a motion requesting the sum of $8,000.00 from the marital estate so that she could pay her living expenses and legal fees. In addition to her recurring monthly expenses, she stated that she needed the funds to pay for her car insurance and taxes, for car repair, and for summer yard maintenance. That amount also included $2,000.00 for medical care and for upcoming travel and family events, including weddings and graduations. Cynthia stated that William had permitted his medical insurance policy to lapse, leaving her with expensive, regular medical care.

In December 2012, Cynthia filed another motion requesting the court to allow her to withdraw $8,000.00 from the marital investments to pay her current living expenses and legal fees. She also moved the court to order an appraisal of the marital home and William’s tools. In an attached affidavit, Cynthia stated that she earned $1,654.00 per month through her employment and that pursuant to temporary orders of the court, she received $500.00 per month from the marital investment account to assist with the payment of her monthly expenses that totaled $2,393.42. She stated that she had incurred $2,000.00 in medical and dental expenses and that her car insurance and taxes were due to be paid. By Agreed Order entered January 7, 2013, the court granted Cynthia’s motion as to the release of funds and appraisals.

William filed his final disclosure statement in May 2012, listing his monthly net retirement income as $181.81 (his gross income was $520.81) and his monthly social security payment as $1,371.00. As non-[410]*410marital property, he listed $145,058.00 representing gifts from his parents that had been invested in stock. The original amount had been $117,000.00. He also listed $30,000.00 as pre-marital equity in the marital residence.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

James Lawrence Davis v. Ann Marie Davis
Court of Appeals of Kentucky, 2025
Mona Rhea Basham v. Broderick Nelson Basham
Court of Appeals of Kentucky, 2025
Michael Scott Adkins v. Allison Thomas Adkins
Court of Appeals of Kentucky, 2025
Robert Smith v. Heather Smith
Court of Appeals of Kentucky, 2024
Mary Burdette v. Amos Burdette
Court of Appeals of Kentucky, 2024
James Everette May v. Lisa Shannon May
Court of Appeals of Kentucky, 2024
Ethel P. Bradley v. Charles R. Bradley
Court of Appeals of Kentucky, 2023
Billie Childers v. Danny Childers
Court of Appeals of Kentucky, 2023
Brenda McGuire Sexton v. Charles Frank Sexton
Court of Appeals of Kentucky, 2022
Gregory Wayne Smith v. Kayla Michele Smith
Court of Appeals of Kentucky, 2022
Gleason F. Humphrey v. Carolyn Ann Humphrey
Court of Appeals of Kentucky, 2021
Lisa Thielmeier v. Kenneth Thielmeier
Court of Appeals of Kentucky, 2021
Tracie Massie v. Darrell Massie
Court of Appeals of Kentucky, 2021
Kevin Neal v. Tonya A. Neal
Court of Appeals of Kentucky, 2021
Christopher J. Wolf v. Mellisa N. Hamilton
Court of Appeals of Kentucky, 2021
Julia Leigh Livers v. Byron Randall Livers
Court of Appeals of Kentucky, 2021
Karen L. Bradford v. Jeffrey S. Bradford
Court of Appeals of Kentucky, 2021
Anthony Sigler v. Jasmine Curtis
Court of Appeals of Kentucky, 2020
Valarie Ann Naramore v. David Downey Naramore
Court of Appeals of Kentucky, 2020

Cite This Page — Counsel Stack

Bluebook (online)
461 S.W.3d 404, 2015 Ky. App. LEXIS 15, 2015 WL 495559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcvicker-v-mcvicker-kyctapp-2015.