Smith v. Smith

450 S.W.3d 729, 2014 Ky. App. LEXIS 83, 2014 WL 2154089
CourtCourt of Appeals of Kentucky
DecidedMay 23, 2014
DocketNo. 2011-CA-002306-MR
StatusPublished
Cited by16 cases

This text of 450 S.W.3d 729 (Smith v. Smith) 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
Smith v. Smith, 450 S.W.3d 729, 2014 Ky. App. LEXIS 83, 2014 WL 2154089 (Ky. Ct. App. 2014).

Opinion

OPINION

CLAYTON, Judge:

Janet L. Smith (now Milby) appeals from post-dissolution orders of the Taylor Circuit Court. She contends that the trial court erred in several of its decisions involving the distribution of property and computation of the child support obligation. After careful review, we affirm.

FACTS

Janet and John M. Smith were married on two different occasions. Initially, they were married on February 15, 1974, and divorced on April 19, 1977. The parties reconciled and began living together in March 1979. They remarried on September 30, 1984, but separated permanently on February 23, 1999. Janet filed a petition for dissolution of the second marriage on March 2, 1999. During the second marriage, Janet and John had two sons who were ages thirteen and eleven when the dissolution petition was filed. (The children were emancipated when the trial court entered its final judgment in 2010.) On December 4, 2001, the trial court entered a decree of dissolution.

The history of the action is contentious and protracted. While the decree dissolving the marriage was entered in 2001, a final hearing on the property division and related matters was held in August 2003. Following this final hearing, numerous motions regarding property division and child support were filed between 2003 and 2010. Related to these motions, the trial court had additional hearings.

Approximately seven years after the hearing on September 7, 2010, the trial court entered its nineteen-page “judgment for property division,” whereupon both parties filed motions to alter, amend, or vacate, which, for the most part, after further hearings the trial court denied on November 21, 2011. Janet now appeals both the final order and the order denying her motion to alter, amend, or vacate.

On appeal, Janet makes numerous claims of error by the trial court. She contends that the trial court erred by not awarding her traceable nonmarital assets; not granting her $4,870.00 to recompense her for one-half of an amount taken by John; not granting her $2,500.00 for the repair of a car; incorrectly valuing the parties’ personal property and granting John the difference in the valuation; and, lastly, allotting John $15,385.65 for overpayment of child support.

ANALYSIS

Prior to addressing Janet’s claims of error, we examine the fact that in portions of her brief Janet supports her claims by making reference to videotapes of hearings. However, on appeal Janet failed to certify any videotapes of the various hearings. It is the Appellant’s duty to ensure that the record on appeal is “sufficient to enable the court to pass on the alleged errors.” Burberry v. Bridges, 427 S.W.2d 583, 585 (Ky.1968).

Contrary to Janet’s assertions that submission by the court clerk of video recordings is automatic under Kentucky Rules of Civil Procedure (CR) 98, a properly filed designation of record must provide the court clerk with a list of the “untran-scribed portions of the proceedings steno-graphically or electronically recorded as appellant wishes to be included in the record on appeal[.]” CR 75.01(1). Nonetheless, the form submitted by Janet for certi[732]*732fication of the record, pursuant to CR 75.01, merely referenced 957 pages of the trial court’s files and did not reference any video records or CD/DVD recordings.

Janet asserts that since CR 98 requires the Circuit Clerk to certify one videotape within thirty days of an appeal, it was not necessary for her to specifically list electronically recorded items on the form for inclusion in the record. In fact the rule says:

To facilitate the timely preparation and certification of the record as set out in this rule, appellant or counsel for appellant, if any, shall provide the clerk with a list setting out the dates on which video recordings were made for all pretrial and post-trial proceedings necessary for inclusion in the record on appeal. Designation of the video recordings shall be filed within the ten (10) day time limitation and in the manner described in Rule 75.01(1).

CR 98(3).

Since Janet did not request any video recordings to be certified for the appeal, they are not part of the appellate record and, thus, we are unable to review them. Moreover, “[i]t has long been held that, when the complete record is not before the appellate court, that court must assume that the omitted record supports the decision of the trial court.” Commonwealth v. Thompson, 697 S.W.2d 143, 145 (Ky.1985). Accordingly, our resolution of this appeal is based upon the record provided to us, and we assume the missing portions of the record support the trial court’s decision.

1. Property distribution

Nonmarital assets

Statutory guidance is provided in Kentucky Revised Statutes (KRS) 403.190 for the disposition of property during dissolution of marriage action. In general, trial courts are directed to use a three-step process in dividing the marital estate, which includes: first, to characterize each item of property as marital or nonmarital; then to assign each party’s nonmarital property to that party; and finally, to equitably divide the marital property between the parties. Ensor v. Ensor, 431 S.W.3d 462, 470 (Ky.App.2013).

The determination of whether property is marital or nonmarital relates to the time or manner in which property is acquired. As provided in KRS 403.190(3), the basic rule is simple: all property acquired by either party after the date of the marriage and before the date of divorce or legal separation is marital property. Thus, any property acquired during this time span, which does not fall within a statutory exception, is marital property. KRS 403.190(2).

The presumption that all property acquired during the marriage is marital may be overcome by proving one of the five exceptions found in KRS 403.190(2). Here, the pertinent exception is found in KRS 403.190(2)(e). The exception in KRS 403.190(2)(e) treats the increase in value of nonmarital property acquired before the marriage as nonmarital to the extent that the increase did not result from the joint efforts of the parties.

Nonetheless, when the original property claimed to be nonmarital is no longer owned or in existence, it is incumbent upon the party making the nonmari-tal claim to trace the previously owned property into a presently owned specific asset. Chenault v. Chenault, 799 S.W.2d 575 (Ky.1990). The “source of funds rule” is often used to achieve tracing when the property before the court includes both marital and nonmarital components. See Travis v. Travis, 59 S.W.3d 904, 909 (Ky. 2001).

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Cite This Page — Counsel Stack

Bluebook (online)
450 S.W.3d 729, 2014 Ky. App. LEXIS 83, 2014 WL 2154089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-kyctapp-2014.