Tamara Jay Hall v. Glenas Dewey Hall ( 2021 )

RENDERED: JANUARY 22, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2017-CA-1674-MR
TAMARA JAY HALL APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 15-CI-00184
GLENAS DEWEY HALL APPELLEE
AND
NO. 2018-CA-0514-MR
TAMARA JAY HALL APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 15-CI-00184
GLENAS DEWEY HALL APPELLEE
OPINION
AFFIRMING IN PART,
VACATING IN PART ,
AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; COMBS AND JONES, JUDGES.
COMBS, JUDGE: Tamara Hall appeals from the decree of the Laurel Family
Court entered in June 2016 that dissolved her marriage to Glenas Hall (Glen) and a
subsequent order of the Laurel Family Court entered in May 2017 that distributed
the couple’s property and divided their debts. In a separate proceeding, Tamara
appeals the court’s order directing her to post a supersedeas bond for the full fair
market value of three tracts of real property assigned by the court to Glen.
These appeals were consolidated upon our order entered in May 2020.
On appeal, Tamara raises allegations of error regarding the family court’s
valuation of certain marital property, the distribution of marital and nonmarital
property, and its division of debt. Additionally, Tamara contends that she was
unfairly prejudiced by the court’s order entered in June 2015 that denied her
motion to recuse and its refusal to permit her more time to present her case at its
final hearing. Finally, she argues that the court erred by delegating to counsel its
duty to make independent findings of fact. Upon a thorough review of the record,
we affirm in part, vacate in part, and remand.
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Tamara and Glen married in October 1973. During the marriage, the
couple established D & M Truck and Equipment Sales, Inc. (D & M). Glen bought
and sold used equipment; Tamara kept the books. The couple raised two sons,
Damian and Michael, and accumulated a substantial amount of real property. They
separated in January 2015. Glen continued to operate D & M. Tamara petitioned
the court to dissolve the marriage, and a limited decree was entered in June 2016.
Tamara and Glen owned Village Park Properties, LLC (Village Park)
with Damian and Michael, who intervened in the dissolution action in order to
protect their interests in the company. Tamara, Damian, and Michael purchased
Glen’s interest in Village Park, but its disposition is not relevant to the appeal.
Significant other real property holdings (including another development project)
have been liquidated and nearly all distributed.
Following a trial focused on resolution of the remaining property
issues, the court rendered its findings of fact and conclusions of law. With respect
to D & M, the family court valued the business at $315,000.00. There was a
mortgage on the real property totaling $150,000.00. The court assigned this
property -- along with the mortgage debt -- to Glen. Tamara had withdrawn
$66,000.00 from the parties’ PNC Bank account in January 2015; $30,000.00 from
the parties’ Hometown Bank account in February 2015; and $21,000.00 from the
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parties’ Hometown Bank account in March 2015. These sums of money were
awarded to her as an offset.
Two additional tracts of real property with equity totalling
$128,500.00 were also assigned to Glen. The court concluded that Tamara’s
interest in the real property was offset by an additional $66,000.00 that she
withdrew from the parties’ Hometown Bank account in January 2015.
The court awarded to Tamara two homes with an equity value of
approximately $166,000.00. She was awarded the contents of the home in which
she resided. Glen was awarded the contents of the home in which he resided.
The court divided equally between the parties 100 shares of
Hometown Bank stock valued at $23,000.00 and a certificate of deposit valued at
$2,200. The court awarded to each party Individual Retirement Account (IRA)
accounts held in their respective names. It awarded to each party the life insurance
policy held by each one. It also awarded vehicles to each party.
Funds remaining in an escrow account totalling $112,052.04 were
divided between the parties as follows: Glen was awarded $60,000.00 off the top
(offsetting Tamara’s earlier distribution from the account of $62,500.00); the
remainder was shared equally between them with each awarded an additional sum
of approximately $26,000.00 for a total to Glen of $86,000.00. Finally, various
items of personal property were awarded to each party. This appeal followed.
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For our analysis, we have re-ordered Tamara’s arguments on appeal.
Tamara argues that the family court erred by ordering that she post a supersedeas
bond in an excessive amount. She contends that provisions of the Kentucky Rules
of Civil Procedure (CR) require that the bond amount “be fixed at such sum only
as will secure the amount recovered for the use and detention of the property, the
costs of the action, costs on appeal, interest, and damages for delay.” CR 73.04(3).
After Tamara filed her notice of appeal, she sought to stay
enforcement of that part of the family court’s judgment awarding three tracts of
real property (with a total fair market value of $491,500.00) to Glen. She
presented to the circuit court clerk an executed supersedeas bond in the amount of
$100,000.00. Glen filed a motion objecting to the sufficiency of the bond and the
surety thereon. The family court granted his motion and ordered Tamara to post a
bond in the amount of $491,500.00.
CR 73.06(1) provides that the sufficiency of a bond will be
determined by the trial court. Even during an appeal, the trial court retains original
jurisdiction to determine all matters relating to the right to file a supersedeas bond
-- including the amount and sufficiency thereof. CR 73.06(2). This court lacks
authority to approve a bond. Instead, we are limited to granting leave to file a
bond or to reviewing “the sufficiency of supersedeas bonds already filed in a
pending appeal.” Strunk v. Lawson, 447 S.W.3d 641, 652 (Ky. App. 2013)
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(quoting Henry Vogt Machine Co. v. Scruggs, 769 S.W.2d 766, 767 (Ky. App.
1989)). Whether a bond amount ordered by the trial court is excessive “appears to
be beyond the scope of our authority to say.” Id. at 652. To review Tamara’s
allegation of error would require us to consider whether the bond amount set by the
family court is excessive. We are bound by precedent holding that such review is
beyond our authority. Consequently, we refrain from addressing this issue further.
Tamara argues that the family court’s bifurcated decree of dissolution
is void because the court failed to take testimony relevant to the residency of the
parties and the irretrievable breakdown of the marriage. The express provisions of
Kentucky Revised Statutes (KRS) 403.025 and 403.170 require proof of these
allegations. She contends that without this statutorily required testimony, the court
lacked authority to grant the decree.
The validity of a dissolution decree is not subject to appellate review.
KY. CONST. § 115; KRS 22A.020(3). Consequently, we do not have authority to
set aside that portion of the family court’s decree dissolving a marriage. See
Kenmont Coal Co. v. Fisher, 259 S.W.2d 480, 482 (Ky. 1953) (“Decrees of
divorce are given a special sanctity in Kentucky”).
In Clements v. Harris, 89 S.W.3d 403 (Ky. 2002), a wife appealed
from a decree of dissolution claiming that the judgment was void because her
husband had not satisfied the residency requirements. The Supreme Court of
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Kentucky held that although the husband was not a resident of Kentucky, the
decree of dissolution was valid. Thus, even where jurisdictional matters are
concerned, a judgment granting a divorce will be upheld. Lewis v. Lewis, 224 Ky.
18, 4 S.W.2d 1106 (1928); Weintraub v. Murphy, 240 S.W.2d 594 (Ky. 1951).
Furthermore, in her verified petition, Tamara stated that she had been resident of
the Commonwealth for more than 180 days and that the marriage was irretrievably
broken. The failure of the family court to take proof on jurisdictional issues such
as the residency of the parties is insufficient to void the judgment. Therefore, we
may not set aside the decree.
Tamara also argues that the family court abused its discretion by
failing to recuse following a hearing conducted on June 6, 2015. She argued that at
the hearing, there was the distinct appearance of impropriety because the judge’s
secretary is Glen’s step-sister. In her brief, Tamara contends that the biased
decisions of the court in “ruling for Glen on every possible issue” clearly
demonstrate that the court was not impartial.
As Tamara has noted, we apply an abuse-of-discretion standard when
we review a trial court’s denial of a motion to recuse. Adkins v. Wrightway
Readymix, LLC, 499 S.W.3d 286 (Ky. App. 2016) (citing Minks v. Commonwealth,
427 S.W.3d 802 (Ky. 2014)). We may reverse a trial court’s decision for abuse of
discretion only where the ruling was “arbitrary, unreasonable, unfair, or
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unsupported by sound legal principles.” Id. at 290 (citing Commonwealth v.
English, 993 S.W.2d 941, 945 (Ky.1999)).
When Tamara filed her motion, the Commonwealth’s judges were
bound by Kentucky’s Code of Judicial Conduct. The Code of Judicial Conduct
provided that a judge should recuse from deciding a case when his or her
impartiality might reasonably be questioned. Supreme Court Rule 4.300, Petzold
v. Kessler Homes, Inc., 303 S.W.3d 467 (Ky. 2010). The inquiry must be an
objective one -- made from the perspective of a reasonable observer who is
informed of all the surrounding facts and circumstances. Alred v. Commonwealth,
Judicial Conduct Commission, 395 S.W.3d 417 (Ky. 2012).
This principle is also codified in KRS 26A.015, which requires that
a judge disqualify himself or herself “[w]here [the judge] has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceedings, or has expressed an opinion concerning the merits of
the proceeding” as well as “[w]here he has knowledge of any other circumstances
in which his impartiality might reasonably be questioned.” KRS 26A.015(2)(a)
and (e). “The burden of proof required for recusal of a trial judge is an onerous
one. There must be a showing of facts ‘of a character calculated seriously to
impair the judge’s impartiality and sway his judgment.’” Alred, 395 S.W.3d at 430
(quoting Stopher v. Commonwealth, 57 S.W.3d 787, 794 (Ky. 2001)). Judges have
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an obligation to decide cases except where disqualification is required.
Presbyterian Church (U.S.A) v. Edwards, 594 S.W.3d 199 (Ky. 2018).
In Alred, the Supreme Court of Kentucky noted that the “intensity” of
a judge’s relationship with a trial participant is an important factor in assessing
whether the judge’s impartiality might reasonably be questioned. Alred, 395
S.W.3d at 429; see also Grubb v. Smith, 523 S.W.3d 409, 428 (Ky. 2017), opinion
modified on denial of reh’g (Aug. 24, 2017). The Court acknowledged a range of
circumstances between cases where a judge’s complete unfamiliarity with a trial
participant except in a judicial setting makes recusal unnecessary and cases where
a judge’s close personal relationship with a lawyer, a party, or a witness, such as a
family member or a spouse, requires recusal. Along this spectrum are cases where
a judge and a participant may have such a close relationship that a judge should
disclose the relationship to attorneys and parties in a case and, if need be, recuse.
Alred, 395 S.W.3d at 430.
The family court’s order denying the motion to recuse was a
comprehensive rejoinder to Tamara’s allegation. The relationship identified in this
case – that the judge’s secretary is Glen’s step-sister -- is not sufficient to cause a
reasonable person to question the judge’s impartiality. Moreover, Tamara’s strong
disagreement with the family court’s findings is an insufficient basis upon which a
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reasonable person could question the court’s impartiality. We are satisfied that
there was no error.
Tamara contends that the family court erred by refusing to give her an
adequate opportunity to complete her proof. She contends that time to present her
tracing evidence was unfairly cut short and that she was unable to offer an
effective rebuttal case. She also challenges the court’s failure to rule on her
motion, filed on April 17, 2017, to reopen and to supplement the record.
By an order entered on November 18, 2016, the family court set the
matter for an eight-hour final hearing be conducted to April 11, 2017, nearly five
months later. Tamara does not indicate that she raised an objection to the time
allotted in the months leading up to the hearing date.
At the start of its final hearing on April 11, 2017, the court reiterated
that a full day had been set aside for the matter. With ten minutes remaining in the
day, Tamara announced that she would need an additional two hours to present her
evidence. The family court declined to extend the day, and court was adjourned.
On April 17, 2017, Tamara filed her affidavit, a flow chart, and
records tracing funds that she had withdrawn from various marital accounts.
Several days later, she filed documents in support of her claim for maintenance
showing all the expenses that she had paid after separation and documents about
which she argued that she would have testified in rebuttal.
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The family court requested that Tamara produce and file in the record
more bank records adequately accounting for funds that she had withdrawn from
the couple’s accounts. She argues that that request indicated that she needed more
time to present her case. She contends that it is patently obvious that she was
prejudiced by the court’s unwillingness to extend its time limitation because the
court erroneously credited Tamara with receiving substantially more funds than
she had withdrawn and also found that Glen had paid out an inflated amount in
state and federal taxes. She indicates that the court’s confusion could have been
“cleared up” if she had been permitted to present additional testimony.
A trial court has inherent authority and wide discretion to impose
reasonable time limits for the presentation of proof. Addison v. Addison, 463
S.W.3d 755, 762 (Ky. 2015). We may not disturb the court’s decision as long as
trial time limits are neither arbitrary nor unreasonable. Hicks v. Commonwealth,
805 S.W.2d 144, 151 (Ky. App. 1990). A court does not err by directing parties to
use court time efficiently. Id.At the time of the final hearing, this matter had been pending for more
than two years. Discovery had been undertaken and experts retained. It was
actively litigated, generating thousands of pages of trial court record and hours and
hours of hearings. Tamara had notice of the time limitations months ahead of the
court date. So she had adequate time to prepare and to adapt her case to fit within
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the court’s time-frame. While there was an abundance of documentary evidence to
present, there was relatively little live testimony. Tamara filed evidence after the
conclusion of the hearing pursuant to the court’s instruction, and there is nothing to
suggest that the court failed to take that evidence into account. The family court
did not err by limiting the time in which evidence could be presented so that the
matter could be finally resolved. The time limit was neither arbitrary nor
unreasonable. The family court did not abuse its discretion.
Tamara also contends that the family court erred by failing to make
independent findings of fact. Characterizing the court’s distribution of assets as
“lop-sided,” Tamara attributes the court’s alleged errors to its decision to adopt
Glen’s proposed judgment nearly verbatim. She suggests that the court signed the
tendered order without a full and thorough review of the evidence presented.
Our rules of civil procedure provide that in actions tried without a
jury, the court shall find the facts specifically and state separately its conclusions
of law. CR 52.01. In Bingham v. Bingham, 628 S.W.2d 628 (Ky. 1982), the
Supreme Court of Kentucky rejected the notion that a trial court is prohibited from
adopting proposed findings tendered by a party. A trial court does not err by
inviting counsel to submit proposed findings of fact and conclusions of law -- and
then exercising its discretion in choosing a submission. Prater v. Cabinet for
Human Res., Commonwealth of Kentucky, 954 S.W.2d 954, 956 (Ky. 1997).
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We find no basis in this case upon which to conclude that the family
court abdicated to counsel its responsibility to make required findings of fact and
conclusions of law. Indeed, the court made changes to the findings of fact and
conclusions of law submitted by counsel to reflect its view of the evidence; it made
its own division of property. It is not error for a trial court to adopt as its own
findings of fact which were merely drafted by someone else. Bingham, 628
S.W.2d 628 at 629-30.
Tamara further contends that the family court awarded substantially
more of the marital assets to Glen based upon several erroneous findings of fact.
She also argues that the court erred by failing to accept her appraisal of D & M.
On appeal, we review the family court’s findings of fact only to
determine if they are clearly erroneous. CR 52.01. A factual finding is not clearly
erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas
Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998).
Pursuant to the provisions of KRS 403.190, the family court divides
marital property without regard to marital misconduct in just proportions
considering all relevant factors, including: the contribution of each spouse to the
acquisition of the property; the value of the property set apart to each spouse; the
duration of the parties’ marriage; and the economic circumstances of each spouse
when the distribution of the property is to become effective. The family court’s
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division of the marital property may not be disturbed except for an abuse of
discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513, 522 (Ky. 2001), overruled on
other grounds by Smith v. McGill, 556 S.W.3d 552 (Ky. 2018).
Summarizing again the court’s distribution of the property, we note
that the family court awarded D & M -- along with its mortgage debt -- to Glen.
Tamara’s withdrawal of $66,000.00 from the parties’ PNC Bank account in
January 2015; $30,000.00 from the parties’ Hometown Bank account in February
2015; and $21,000.00 from the parties’ Hometown Bank account in March 2015
was awarded to her as an offset. Two additional tracts of real property with equity
totalling $128,500.00 were also assigned to Glen. The court concluded that
Tamara’s interest in this real property was offset by an additional $66,000 that she
withdrew from the parties’ Hometown Bank account in January 2015. The court
assigned to Tamara two homes with an equity value of approximately $166,000.00.
Each party was awarded the contents of the home in which he/she
resided. The court also equally divided the parties bank stock and a certificate of
deposit. The court awarded to each party the IRA accounts held in his/her name.
It awarded to each party the life insurance policy in his/her name. It also awarded
vehicles to each party. Funds held in escrow totalling $112,052.04 were divided
between the parties: Glen was awarded approximately $86,000.00, and Tamara
was awarded approximately $26,000.00.
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Tamara contends that the family court erred by finding that she
withdrew $347,978.59 from the parties’ bank accounts and failed to account for it.
However, accepting her assertion, we are unable to discern how it ultimately
affected the family court’s division of the parties’ assets as summarized above.
Tamara concedes that she had the benefit of $79,978.59 taken from an escrow
account and that she withdrew a total of $127,000.00 from the parties’ other bank
accounts. She argues that she carefully accounted for those funds.
Tamara submits that the proof showed that she withdrew $66,000.00
from Hometown Bank on January 22, 2015; $30,000.00 from Hometown Bank on
February 12, 2015; and $21,000.00 from Hometown Bank on March 19, 2015
(amounts which equal $117,000.00); plus $10,000.00 from Hometown Bank in
January 2015 for a total of $127,000.00. In its conclusions of law, the family court
determined that the equity in D & M’s real property equaled $165,000.00 and that
each party’s share of the equity would be $82,000.00. Crediting Tamara with the
$117,000.00 (that she admits she withdrew), the court awarded the entirety of the
business to Glen. This division was not inequitable from Tamara’s point of view.
The family court’s finding that Tamara failed to account for $347,978.59 -- even if
erroneous -- had no prejudicial impact on the court’s distribution of the parties’
assets. There was no reversible error.
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Tamara also contends that the family court erred by dividing the funds
held in escrow totaling $112,052.04 whereby Glen received $60,000.00 off the top
(offsetting Tamara’s earlier payment from the account of $62,500.00) and the
remainder was shared equally between them with payment of approximately
$26,000.00 to each other. Tamara admits that the proof shows that she received an
advance of $79,978.59 from the original amount held in escrow. She argues that
the additional $62,500.00 that she received as maintenance should correctly be
charged as an advance against Glen’s share of the original escrow account. In light
of these figures, Tamara argues that in order to achieve an even division of the
escrow account, she should have been awarded $64,772.18 and Glen should have
been awarded $47,279.86. Tamara concedes that the family court was not bound
to divide the account equally, but she contends that the “lop-sided” division of the
escrow account whereby Glen was awarded an additional $17,492.32 was
inequitable and, therefore, an abuse of discretion. We disagree.
Again, assuming the family court’s findings were erroneous,
we conclude that the discrepancy had no discernable prejudicial impact upon the
family court’s distribution of the escrow account since the value of Tamara’s share
of the assets still exceeded Glen’s at this point. There was no reversible error.
Tamara additionally argues that the family court’s finding that each
party had a life insurance policy valued at approximately $77,000.00 was clearly
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erroneous. Instead, the evidence shows that Tamara’s policy had a cash value of
$54,637.96 and that Glen’s had a cash value of $77,111.13. Glen submits that the
error can be remedied on remand by the family court’s dividing equally the value
of the life insurance policies and awarding to each party $65,874.54. We agree,
and we direct that the family court correct this error accordingly on remand.
Next, Tamara argues that the family court erred in its findings
concerning the value of each of their IRA accounts resulting in an inequitable
distribution. She contends that the proof showed that she had IRA accounts valued
at $117,801.37 and that Glen had IRA accounts valued at $120,666.20. Glen
submits that this error can also be remedied on remand by the family court’s
dividing equally the value of the IRA accounts and awarding to each party
$119,233.78. We agree, and we so direct the family court on remand.
Tamara also contends that the finding of the family court that she had
received $62,000.00 in maintenance was reversible error. We agree that the proof
indicated that she received $62,500.00 in maintenance, but we are unable to
discern how the court’s slight error in her favor possibly prejudiced her. There was
no reversible error.
Next, Tamara argues that the family court erred by failing to order the
return of personal items that she requested. She explains that these items
(including her father’s chairs, bottle collection, old coins, knives, swords, and
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guns) have sentimental value and that the family court’s failure to order their return
is inexcusable.
Tamara was awarded the contents of the home in which she resided.
Additionally, Glen indicated during the court’s final hearing that she could have
any personal property in his possession. On remand, the family court should order
the return of the items specifically identified by Tamara.
Next, we consider Tamara’s contention that the family court erred by
finding that Glen paid $130,000.00 in taxes. She disputes Glen’s testimony and
argues that records indicate that he paid less than $101,000.00. Tamara submits
that the finding is not supported by substantial evidence of record and “may have
contributed to the Court’s inequitable division of assets. . . .” Following our
review of the distribution of the parties’ assets, we are not persuaded that the
family court’s finding concerning Glen’s payment of taxes had any impact
whatsoever on its division of the property. There was no reversible error.
Next, Tamara argues that the family court erred by reducing the equity
in the two tracts of real property awarded to Glen by $48,000 -- the debt
outstanding against them; and the equity in D & M’s real property awarded to him
by $150,000.00 -- the debt outstanding against it. She contends that the court erred
by reducing the value of the marital estate by $198,000.00 because she received no
benefit from the sums that Glen borrowed during their separation. We disagree.
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As Tamara correctly notes, there is no presumption that a debt
incurred during marriage is marital and subject to division. Allison v. Allison, 246
S.W.3d 898, 907 (Ky. App. 2008). Instead, the division of debts that arise during a
marriage is based upon many factors, including: one’s participation in acquiring
the debt, receipt of the benefit of the debt, and the “economic circumstances of the
parties” to repay the debt. Neidlinger, 52 S.W.3d at 523. The burden of proof
regarding whether a debt is marital falls upon the party that incurred the debt.
Allison, 246 S.W.3d at 907. We review the family court’s decision regarding the
division of marital debts for abuse of discretion. Id.Tamara concedes that Glen’s records indicate that he paid more than
$100,000.00 in state and federal income taxes during 2015 and 2016 and that he
paid $1,412.00 toward her property taxes in 2015. And, while Tamara disputes
Glen’s evidence, it indicates that that he expended $31,000.00 for the parties’
health insurance costs and paid at least $1,000.00 each month toward Tamara’s
credit card debt. He also paid the costs of the parties’ life insurance and utility
bills. He paid accountant’s fees, paid interest to banks of approximately
$45,000.00, bought equipment, paid for advertising, and other costs associated
with the business. The family court did not abuse its discretion in its division of
the parties’ debts. There was no reversible error.
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Finally, we address Tamara’s argument that the family court erred by
failing to value D & M as of the date of separation since the business remained
under Glen’s control throughout the parties’ separation. She contends that the
court abused its discretion by valuing the business as of the date of distribution
when it had no value beyond that of the real property.
As the Supreme Court of Kentucky has noted, valuing a business is a
complex, subjective task. Gaskill v. Robbins, 282 S.W.3d 306 (Ky. 2009).
Consequently, we review the family court’s decision to see if it “reasonably
approximated” a business’s value. Clark v. Clark, 782 S.W.2d 56, 59 (Ky. App.
1990). Tamara argues that the family court should have accepted the appraised
value of the company as provided by her expert -- $314,169.00. However,
recognizing that this valuation is susceptible to legitimate criticism, she concedes
that the court could have reduced this value to $214,169.00 per the testimony of
Glen’s accountant.
For purposes of this appeal, we can assume without deciding that the
family court erred by failing to value the business as of the date of separation.
Nevertheless, the court’s decision not to award Tamara any portion of the value of
D & M was not reversible error given its decision to award to Tamara the parties’
homes with equity totaling $166,000.00 The family court’s division of the marital
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property does not indicate that it abused its discretion. Thus, we find no reversible
error.
Based upon the foregoing, the judgment is affirmed in part and
vacated in part. We remand for entry of an order dividing the value of the parties’
life insurance policies and retirement accounts as well as the distribution of
specific items of personal property claimed by Tamara in accord with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Marcia A. Smith Mary-Ann Smyth
Corbin, Kentucky Corbin, Kentucky
David O. Smith
Corbin, Kentucky
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