Smith v. Smith

503 S.W.3d 178, 2016 Ky. App. LEXIS 181, 2016 WL 6311213
CourtCourt of Appeals of Kentucky
DecidedOctober 28, 2016
DocketNO. 2015-CA-000339-MR
StatusPublished
Cited by6 cases

This text of 503 S.W.3d 178 (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, 503 S.W.3d 178, 2016 Ky. App. LEXIS 181, 2016 WL 6311213 (Ky. Ct. App. 2016).

Opinion

OPINION

J. LAMBERT, JUDGE:

In this dissolution action, Mark A. Smith has appealed from the portions of the Old-ham Family Court’s findings of fact and conclusions of law awarding his former wife, Amy H. Smith, a non-marital interest in the marital residence and in awarding her spousal maintenance. Finding no error or abuse of discretion, we affirm.

[180]*180Amy and Mark were married on July 3, 1989, in Gaffney, South Carolina. They separated on August 30, 2013, and Amy filed a petition to dissolve the marriage the following month. At th'e time she filed the petition, she and Mark were both 44 years old and had lived in Kentucky for fifteen years. Amy was a stay-at-home mother, and Mark was employed at Ford Motor Company. Two children were born of the marriage, and the younger child, a son, had not yet reached the age of majority. In addition to- the dissolution of their marriage, Amy sought sole custody of their minor child, child support, maintenance, restoration of non-marital property, division of marital property, and an award of costs and attorney fees. In his verified response, Mark requested joint custody of the minor child and disputed that Amy was entitled to maintenance or that there was any nonmarital property to be restored. A status quo order was entered.

By order entered February 7, 2014, the family court entered a pendente lite order and ruled that Amy and the parties’ two children would have exclusive possession of the marital residence; the parties would have joint custody of. their minor child, with Amy designated as the primary residential parent and Mark having visitation; Mark was to continue to pay the mortgage and utilities on the marital residence and maintain car insurance; Mark was to pay child support in the amount of $640.00 per month; Mark was to pay temporary maintenance in the amount of $800.00 per month; and Mark was to keep Amy and the children covered under his group health insurance plan.

Mediation attempts were unsuccessful, and a final hearing was scheduled for November 19, 2014. The court also ordered that the marital residence, as well as the improvements to it, be appraised.

The final hearing was held on November 19, 2014. Amy was the first witness to testify. After they married in 1989, they moved to North. Carolina. She became pregnant, and after having their daughter, Amy stayed at home to raise her. In 1992, the family moved to Ohio where Mark got a job with Ford Motor Company. Shortly after the birth of their second child in 1998, Mark transferred to the Louisville plant, and they moved to Kentucky.

When Amy and :Mark first- lived in North Carolina, they lived in a mobile home gifted to her prior to the marriage by her grandparents. She and Mark sold the mobile home-when they mcived to Ohio. After staying with her mother and stepfather for a short time, Mark, and Amy bought a house in- Amherst,- Ohio. When they moved to Kentucky, they lived in an apartment before purchasing' another house, which was the then-current marital residence. '

In 1990, shortly after their daughter, Jessica; was born, Amy’s grandmother gifted her a $25,000.00 Wachovia Bank certificate of deposit. The CD listed Jessica as the beneficiary. Amy later cashed in the CD, which had increased in value with accumulated interest, and they used this $26,000.00 as the down payment on the house in Amherst. Mark and Amy chose this area because it had a good school district. They paid $66,000.00 for the house, and they borrowed $40,000.00. They paid on the mortgage for about six years. In 1998, Mark and Amy purchased a house in Oldham County for $150,000.00. They borrowed $92,300.00 and paid $57,700.00 as a down payment, which came from the sale of the Amherst house. They refinanced the Oldham County property more than once, most recently in 2009 for $125,841.00. In addition, Mark’s grandmother had given Mark $5,000.00, which they used to convert [181]*181the one-car garage into a bedroom in their Amherst, Ohio home.

After purchasing the Oldham County property in 1998, Amy and Mark completed several improvements. They blacktopped the gravel driveway, built a pole barn, installed ceramic tiles in the bathroom and the basement, installed hardwood floors in the kitchen, converted the garage into a walkout living area, and built a sunroom on the deck. The current balance owed on the mortgage was $114,884.00. The property had also been appraised by Ida Davis, and she set the fair market value at $237,000.00. Amy believed value added by the six projects in the Oldham County property totaled $26,000.00. Amy stated that shé and Mark used the funds from refinancing the property to purchase land in Alabama and to pay for the renovation projects.

Amy testified that she had not worked outside of the home for more than twenty years. She briefly worked as a waitress in Ohio when their daughter, Jessica, was young, and she had about two years of college education, where she studied nursing and elementary' education. She planned to enroll in an eight-month dental assistant program. She admitted that she had only applied for two jobs at elementary schools. Amy testified about Mark’s monthly income and that her monthly expenses totaled $4,253.23 per month.

Amy’s mother, Elizabeth Orbison, testified next. Ms. Orbison drafted an affidavit on January 3, 2014, related to the $25,000.00 CD. She was aware that Florence Tash Hager, her former mother-in-law, had gifted this CD to Amy. She was also aware that Florence and Joseph Hag-er, her former in-laws, had given a mobile home to Amy in North Carolina. In 1984, Ms. Orbison’s aunt gifted Amy with 100 shares of Ohio Edison stock. She saw the CD that was given to Amy with Jessica listed as the beneficiary, but she did not have a copy of it. It was to be used at Amy’s discretion. These were all gifts to Amy.

Mark testified that he works at Ford Motor Company in paint repair and had worked for the company for more than 22 years. He earned $28.76 per hour and worked 50 hours per week, although his hours would eventually go to 40 hours per week. He also received performance bonuses and profit sharing, which were not guaranteed every year. Mark testified that his average net income per month was $4,646.76. He paid $3,319.71 to or on behalf of Amy every month, including child support, maintenance, and the mortgage. His monthly expenses totaled $1,109.94. Mark wanted the marital residence to be sold and the net proceeds from the sale, along with the' rest of the marital property, to be divided equally between him and Amy. Regarding the $25,000.00 CD, Mark said they had an understanding that it was to be used for Jessica’s college education. He and Amy decided they would rather use it for a down payment on a house in a good school system. They used the $5,000.00 he received from his grandmother to renovate the garage in the Amherst house; During cross-examination, Amy’s attorney introduced evidence that Mark earned $7,803.00 per month.

Following the hearing, the parties filed memoranda, and Amy included a Brandenburg v. Brandenburg, 617 S.W.2d 871 (Ky. 1981), calculation establishing that she had a non-marital interest in the marital residence in the amount of $66,158.00 and that Mark had a non-marital interest in the amount of $12,720.00. Mark disputed that Amy had adequately traced her non-mari-. tal interest. Amy also requested an open-ended maintenance award of $2,162.00'per month. Mark argued that she was not entitled to any maintenance.

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Cite This Page — Counsel Stack

Bluebook (online)
503 S.W.3d 178, 2016 Ky. App. LEXIS 181, 2016 WL 6311213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-kyctapp-2016.