Shenita Avery v. Robert Avery ( 2023 )

RENDERED: JANUARY 27, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1274-MR
SHENITA AVERY APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE ANGELA JOHNSON, JUDGE
ACTION NO. 20-CI-501512
ROBERT AVERY APPELLEE
OPINION
AFFIRMING
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BEFORE: THOMPSON, CHIEF JUDGE; DIXON AND GOODWINE, JUDGES.
GOODWINE, JUDGE: Shenita Avery (“Shenita”) appeals from the findings of
fact, conclusions of law, and decree of dissolution of marriage entered by the
Jefferson Family Court on August 30, 2021. Shenita argues the family court
abused its discretion in awarding Robert Avery (“Robert”) an equal distribution of
the marital property. After careful review, finding no error, we affirm.
The parties were married on October 2, 2009, in Jefferson County.
They separated on July 8, 2019. The parties had five children during the marriage.
Four children were minors on the date of the trial, and one is deceased. During the
marriage the parties resided in a home in Louisville purchased with funds from
their child’s wrongful death settlement. The parties vacated the home after they
separated. It fell into disrepair and was condemned.
The family court held a trial on July 30, 2021. On August 30, 2021,
the family court entered findings of fact, conclusions of law, and decree of
dissolution. Pertinent to this appeal, the family court found the home was
purchased during the marriage and was marital property. The family court ordered
the parties to sell the home and equally divide the net proceeds after delinquent
taxes were paid. Though Shenita wanted to keep the house, the family court found
she would be unable to pay Robert for his share of the equity and make repairs
necessary to reside in the home.
On September 9, 2021, Shenita moved for additional findings of fact
and to alter, amend, or vacate the court’s order. The family court denied the
motion by order entered September 27, 2021. This appeal followed.
We begin by addressing Robert’s argument that Shenita’s brief does
not comply with CR1 76.12(4)(c)(iv) and should be stricken. On January 1, 2023,
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Kentucky Rules of Civil Procedure.
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the Kentucky Rules of Appellate Procedure (“RAP”) replaced CR 76. Now, RAP
32(A) governs the organization and content of an appellant’s brief. Subsection (3)
provides: “A statement of the case consisting of a summary of the facts and
procedural events relevant and necessary to an understanding of the issues
presented by the appeal, with ample references to the specific location in the record
supporting each of the statements contained in the summary.” Additionally, RAP
31(H)(1) provides: “A brief may be stricken for failure to substantially comply
with the requirements of these rules.”
Robert complains Shenita’s brief fails to comply with CR
76.12(4)(c)(iv) because she makes several citations to the video record but only
one citation to the written record. RAP 32(A)(3) requires ample references to the
specific location in the record generally without specifying whether the reference is
in the written or video record. Shenita’s statement of the case substantially
complies with RAP 32(A)(3), so we decline to strike her brief.
Robert also argues Shenita failed to serve her brief on Robert’s
counsel as required by CR 76.12(6). This Court previously addressed this
argument in our July 8, 2022 order denying Robert’s motion to dismiss and
granting Shenita additional time to file her brief. We decline to overturn our
previous ruling on this argument and proceed with our review of Shenita’s
arguments.
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On appeal, Shenita argues the family court erred in equally dividing
the parties’ marital residence and raises an unpreserved issue we will address
below. “We review a trial court’s determinations of value and division of marital
assets for abuse of discretion.” Cobane v. Cobane, 544 S.W.3d 672, 676 (Ky.
App. 2018) (internal quotation marks and citations omitted). “The test for abuse of
discretion is 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).
Although Shenita “is obviously dissatisfied with the trial court’s
decision, threadbare recitals of the elements of a legal theory, supported by mere
conclusory statements, form an insufficient basis upon which this Court can grant
relief.” Jones v. Livesay, 551 S.W.3d 47, 52 (Ky. App. 2018). Apart from reciting
applicable law regarding setting aside a family court’s decision to equitably
divide marital property, Shenita advances nothing of substance in support of her
contention. We will not scour the record to construct Shenita’s argument for her.
Furthermore, the family court weighed the KRS2 403.190(1) factors in
making its decision. When determining how to equitably divide marital property,
the family court must consider, “without regard to marital misconduct” the
following factors:
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Kentucky Revised Statutes.
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(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, including the
desirability of awarding the family home or the right to
live therein for reasonable periods to the spouse having
custody of any children.
KRS 403.190(1).
First, the family court found the home was purchased in January 2014
with cash the parties received from a wrongful death settlement for their child.
Second, there was little other property set aside to each spouse. The parties owned
a Ford Taurus titled in Robert’s name. The family court allowed Robert to retain
the car and ordered him to pay Shenita half the value of the car from his proceeds
from the sale of the home. Shenita had a bank account in her name that both
parties deposited funds into. Robert did not have a bank account and instead
received his pay through a prepaid card. The family court awarded Shenita her
bank account and Robert his prepaid card free and clear of claims from each other.
Third, the parties were married for almost twelve years. Fourth, the family court
found that “the current value of the home based on the condition that it is in, would
render [Shenita] unable to pay [Robert] his share of the equity in the home, if the
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[c]ourt allowed her to retain the home. The home requires additional repairs and
based upon the testimony of the parties, this asset is best left to be sold.” Record at
173. Thus, the family court was presented with substantial evidence that equal
division of the proceeds from the sale of the marital home was equitable under the
circumstance based on the factors of KRS 403.190(1).
Shenita also argues Robert’s portion of the proceeds from the sale of
the home should be offset by (1) the cost of a vehicle forfeited during the marriage
as part of Robert’s plea agreement and (2) Robert’s child support obligation paid
from the marital account. Shenita fails to point out how these arguments are
preserved. Shenita failed to include a preservation statement for these arguments
as required by RAP 32(A)(4). The circuit court’s decree and order denying
Shenita’s motion to alter, amend, or vacate do not mention these arguments. “The
Court of Appeals is without authority to review issues not raised in or decided by
the trial court.” Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky.
1989). As Shenita failed to preserve these arguments and does not request review
for manifest injustice, we lack the authority to review them.
For the foregoing reasons, we affirm the order of the Jefferson Family
Court.
ALL CONCUR.
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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Colin D. Edmundson Emmett L. Ogden
Louisville, Kentucky Louisville, Kentucky
J. Gregory Troutman
Louisville, Kentucky
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