*2 GANT, Before GUDGEL and REYN- (me) is defined contribution Marital OLDS, JJ. marriage after expended amount the as the in funds nonmarital other than from GANT, Judge. the principal, mortgage appeal This of cer- involves the allocation made improvements value wholly tain as nonmarital which than other marriage after appellant/wife contends was both marital funds. and pieces nonmarital. Three involved, viz., were duplex a at 134-136 as defined (tc) is contribution Total Avenue, Nicholasville; duplex a on contri marital and the sum Nicholasville; Glen in Cove and residence butions. which apartment included a rental at 403 Bellevue, properties Wilmore. All three as the (e) is defined Equity by were owned at the date of the husband distribution. the time property at the 18, 1970, marriage, July payments on the decree date at the may This be either each properties of these were made from has dissolution, or, the if marriage. We funds after the may be proceeds the prior thereto sold the appellant with the lower the sale date traced, then properly declaring properties court erred in these equity is which the time shall be be totally nonmarital. computed. is: The formula to be utilized
FORMULA guidelines apportionment between marital and nonmarital Newman, Ky.,
were
issued Newman v.
The court therein
S.W.2d 137
the formula utilized
the lower
We do
or to
imply
not
intend to
husband reduced
adoption
$352.80,
of this formula that this Court will mortgage principal by
the court
approve
procedures
utilized
finding
value of the property
below
arriving
equitable
lower courts in
at an
and the nonmarital
marriage to be
long
division of
as
as the relation-
After
equity to be
ship
par-
18, 1975,
between the contributions of
July
before sale on
*3
is
$1,176.00.
ties
established.
by
principal
further
reduced
was
this
was realized from rents on
This sum
spouse
The
either
contribution of
funds un-
property, which rents are marital
than marital or nonmarital
funds
Brunson,
Ky.App.,
der
v.
Brunson
shall not be considered in the increase of
$32,-
price was
The sale
S.W.2d
equity
property,
any
dicta or
following
applied
which was
in the
other language
contrary
in Robinson
$13,471.20
applied
was
to extin-
manner:
Robinson, Ky.App.,
e - = = 19,028.80 9,815.25 x Value 51.6% 1.252.80 2.428.80 - = = 1,175.00 19,028.80 9,213.55 x Value 48.4% 2","428.80 paid GLEN COVE of which was in cash which was PROPERTY mortgage property, applied to the on this by purchased This was the hus- $17,500, mortgage were executed to 31, 1967, band and a note and July on with a payment $27,500. mortgage down and a The the husband for executed the husband in the amount of pro- paid from the balance of was $963.43 $15,000. marriage the husband Prior at the ceeds of the Ilhardt sale. payments made the mort- which reduced $26,536.57, was less $963.43 time of sale gage balance The lower court $807.30. Ilhardt sale and which was from the $3,307.30. fixed the computed already which sum has principal After balance of the equity. mortgage was further reduced from marital formula, we find the Again applying the $3,229.27. November, 1977, funds In $37,500, $10,000 following: this was sold for funds) = from marital $3,229.29 (mortgage me (48.4% $963.43 $466.30 $3,695.59. sale) or = $7,500.02 tc = $963.43, or $26,536.57 minus
e - = = 12,965.58 25,573.14 Value 3,804.43 x 50.7% 7,500.02 - = = 12,607.56 Value 3,695.59 25,573.14 x 49.3% *4 property 7,500.02 marital $13,800 sale of the application of from the WILMORE PROPERTY driveway a Additionally, property. Ilhardt prior two lots to purchased The husband marriage, from during the was installed $3,750.00 and constructed a marriage for at funds, $800.00. was valued marital which $15,000 thereon, executing a mort- house property was this separation, of At the date marriage. The gage just days few before encumbrance. $58,000, with no valued at was found time was of distribution at the time $1,200.00 During the $13,800 already has $58,000, which less the paid balance of principal was on the sale. Ilhardt equity on the computed as remaining mortgage, July, and in the formula, find the follow- Applying the retired balance of the was ing: = (the $7,120.80 $3,750 marriage) plus (equity nmc receipts Ilhardt nonmarital 51.6% $10,870.80 or $13,800 mortgage, to applied = funds) $1,200 (mortgage marital me (marital $6,679.20 plus 48.4% mortgage) $800 receipts $8,679.20 (marital improvements) or = $19,550.00 tc = $44,200 $13,800 or minus
e - = = 19,624.80 8,679.20 44,200 x Value 44.4% 19,500.00 concerning judgment Accordingly, equities in three value of the The total $88,801.94, above, is properties, computed and remand- as is reversed herein $47,356.03 proper- nonmarital of which was proceed- for further to the lower court ed $41,445.01 property. was marital ty, and opinion this ings in accordance with appellant to pursuant assigned The other error division of the marital be con- will not preserved was not 403.190. KRS sidered this Court.
REYNOLDS, J.,
giving
approv-
we should refrain from
tacit
concurs.
encouraged
trial courts are
al to a formula
GUDGEL, J.,
by separate opin-
concurs
determining
in
the value of rionmari-
use
ion.
believe,
so,
is
I
tal
interests. This
GUDGEL, Judge, concurring.
ap-
such an
principally because existence of
panel
majority
I concur with the
proved
may encourage trial courts
formula
judgment
must be
this case
duty
to fail
observe their
to exercise
However,
reversed.
I cannot
that the
independent
given
in a
case and
discretion
Court,
Newman,
Supreme
in Newman v.
formula,
though the
disregard the
even
Ky.,
(1980), approved a
traditionally been reluctant to interfere un-
less there has been a clear abuse of discre- legisla-
tion or a failure to observe a clear
tive Herron mandate set forth in a statute. Herron, Ky., S.W.2d present sta- my understanding
If correct, follows that
tus of the law is then it