Underwood v. Underwood
836 S.W.2d 439
Ky. Ct. App.
1992
Check Treatment

*3 EMBERTON, Before HUDDLESTON presumption This be rebut- erty_” STUMBO, JJ. convincing proof and by clear and ted amongst acquired by, other property was HUDDLESTON, Judge. devise, means, “gift, bequest, or descent.” 403.190(3); 403.190(2)(a); an KRS appeals D. Underwood from KRS Ky.App., 551 finalizing Browning, Browning Court order Oldham Circuit (1977).1 marriage of her to John Thomas dissolution standard, (1978). convincing It seems this standard was 1. "clear and evidence” 403.190(3) context, originated apparently the Court because as used in this created Browning specify quantum of evidence re- case has since been cited does not with the and property opinions presumption that quired Mun- to rebut the in numerous of this Court. See separation marriage Munday, Ky.App., acquired before day 584 S.W.2d recognize Adams, property. Although we Adams v. is marital determining This has said on numerous occa- whether a transfer factor Clark, See Clark primary gift. sions that the donor’s intent is the is a Adm’r., Tuggle’s Ky. applied Kentucky this standard has been quite Prudential Ins. Co. v. time, question validity. some Lawson, Kentucky Evidence Professor Kentucky recently Supreme de Handbook, (2d 1984), ed. convincing *4 means, convincing evidence” the Court said: This confusion still remains. In Bartlett v. per- We conclude that where the 'burden of Commonwealth, (1986), Ky., 705 S.W.2d 470 requires proof by clear and convinc- suasion’ ing Simmons, Court, quoting Simmons v. 479 evidence, concept than relates more 585, (1972), presump- S.W.2d 587 stated that the approach anything to else to an attitude or during legitimacy of of a child born wed- tion evidence, weighing a rather than to clear, "only by so lock can be rebutted evidence precisely defined in formula that can be convincing ques- remove the distinct and as to beyond ‘proof words. Like a reasonable doubt.” Id. tion from the realm of reasonable doubt,’ ‘proof by convincing clear and evi- at 472. any incapable more dence’ is of a definition Kentucky quotes Lawson two statements from precise detailed or than the words involved. view, that, by in his describe "the standard cases approach requires say It suffices to that this determine if the ini- which a trial court should proof produce party of to with the burden impact presumption has been over- tial substantially persuasive more than a a evidence come_” at Lawson 325: evidence, beyond preponderance of but not Assuming presumption that a rebuttable has reasonable doubt. created, entitling plaintiffs] a to [the been Id. per- unless reduced to a less directed verdict why We to see the division of are unable status, question is whether the suasive marriage proceed- property in a dissolution of injected enough doubt that defensive evidence high proof, warrants such a standard jury a to not have been reasonable it would arising importance as the to the same level unconvinced_ origi- (Emphasis in remain Surely parental rights. the most termination nal.) important any issue divorce case is the custo- 526, Patterson, Ky., 400 S.W.2d 530 Scott v. (1966). children; yet, require party dy a we do convincing show living clear and evidence countervailing evidence need defensive would be in the with that individual support a ‘substantial’ in that it would not be It seems child’s best interest. unreasonable positive that the work was not a conclusion require party presumption a to rebut the then to cause; only enough contributing cast it need by producing property clear and is marital presump- validity of the initial doubt on the convincing evidence. justify a reasonable tion in the case at hand Evidence, Kentucky One of the new Rules of must, however, disregarding It man in it.... 1, (KRE 301), July effective KRS 422A.0301 together with all the other when considered 1992, presumptions in civil ac- describes how case, enough substance evidence in the have tions work: satisfy man’ test as it the 'reasonable general Presumptions in civil actions and prece- expressed here and in various been pro- proceedings. all civil actions and —In dents. ... ceedings provided otherwise when not Home, Wesley Methodist Manor Workman rules, presumption a im- statute or these Ky., 462 S.W.2d 900-901 poses party it is directed on the whom presumption applied established If going with evidence to the burden of forward 403.190(3), "reasonable man" standard but does not rebut or meet require that amount of evidence would party proof the burden of in the shift to such finder, which, mind of the fact would nonpersuasion, which of the risk of sense justifiably person to dis- a reasonable cause regard party throughout remains presumption that originally it cast. on whom was property. question is marital sixty years ago, Kentucky’s highest Nearly case, not believe the amended In this we do clearly explained presump- effect of a enough validity as to the contract creates doubt tion: permit property" presumption to of the "marital thing, a mere is an artificial [A] justifiably disregard cards, finder to a reasonable fact stands house of which one moment requiring issue, though "clear we believe that it. Even force to determine an with sufficient next, the "marital evidence” to rebut slightest and property" presumption but at the reason improper, evidence, utterly "reason- rebutting topples con- out of a (Emphasis would not have created able man” standard of the trier of facts. sideration supplied.) in this case. different result

443 1988 1987 1986 O’Neill 180,177.00 186,443.00 O’Neill, Ky.App., S.W.2d addition, (1980). In of the Su- decisions 155,200.00 1985 1984 require “be preme Court that a contract 121,012.00 whole, to all giving construed as effect 143,664.00 every possible.” in it if parts and word gross Applying the above method Newland, Ky., 705 City Louisa v. (and apparently mak- for 1988 commissions expert ar- adjustment), Agnes’ ing a minor $399,602.80. Tom’s rived at value Although a debt agree same but reduced expert used the method subject gift by a creditor agen- by taking into account the figure debtor, Ky. Ratliff, Ratliff account cy’s transferability, limited (1940),upon examina expenses due to characteristics and excess contract, tion of the entire we do not be He ar- Tom’s extensive business travel. forgiven lieve that the debt this case was figure at a rived Although generosity. out of disinterested for the contract states the debt was ultimately The court valued “in given consideration of the love $200,000.00, a sum claims which *5 has for his affection” which Tom’s father the of valuation is inconsistent with method son, later “in con paragraph a states that Upon request for adopted the court. a debt, forgiveness the the sideration of [for used, the the court findings on method promises employ to continue to [his Tom] following: supplied the salary mutually agreed aat father] impressed that as- was [T]he them in upon between to advise and assist that indicated it was pect of the business operation orderly the of the insurance busi $75,- in 1978 for of purchased an amount City As the stat ness.” Louisa Court addition, although In there were 000.00. ed, legal interpretation of a contract “[t]he concerning the experts that were called in way should be made a as to make such business, the of this valuation promises par mutually binding on all unique it indicated was somewhat wholly a ties unless such is construction figure 1.5 times not take and would negated by language used.” Louisa at year of last gross commission operation. logical interpretation the only We believe The Court was inclined to believe of the amended contract is that development the insurance during the promises supported by mutual consid- were gradual recognized is agency, there given gratuitously. eration and were not in increase of the business. growth Consequently, we trial court hold that the Therefore, be- the Court inclined to was clearly erred when it excluded a applied if 1.5 was to be lieve proper- agency the insurance from marital that it would be gross commissions ty. Ghali, Ghali most whereby formula weighted on a (1980). not be year’s commission would recent criteria, but there would be some the sole challenges also Agnes in- given gradual consideration agency. court’s valuation the insurance years. the last or three crease over two Expert testimony regarding the value of recognized by the Court It is also parties. was offered both in at least the commissions earned indeed Agnes’ expert most fre testified that the years client was one of those from one quently used method involves valuation fairly substantial commission which in multiplying gross 1.5 annual times the reflected record. agency. gross agency’s come of the appears that years findings, for six From these it previous commissions factors other follows: the trial court considered were as pri- incurred experts than those utilized valu- services rendered costs ing Although not proceed- insurance business. or to the commencement exactitude, calculated with mathematical ing judgment. or after figure clearly the court’s falls within may paid order that the amount be range competent testimony. A trial attorney, directly to the enforce court’s valuation in a divorce action will not the order his name. appeal clearly disturbed on it is unless attorney’s The allocation of fees evidence, contrary weight entirely within the discretion of Heller, Heller v. Moss, Ky. mandatory. and is not Moss v. (1984); and in this case we cannot App., 639 Wilhoit 52.01; conclude that it was. CR Roberts v. Wilhoit, Ky., Roberts, Ky.App., 587 S.W.2d $5,000.00 fees, attorney’s addition to $3,500.00 Agnes the court awarded Agnes also contends that the court’s hiring expert costs incurred witnesses. award of maintenance at the rate of Furthermore, attorney’s Agnes’ fees total $1,350.00 inadequate. The per month was $17,000.00 are based on the cost of $46,- trial court found Tom’s income to be Considering employing attorneys. two per year. In addition property Agnes and the amount of $16,200.00 $1,350.00 month, per per or trial, awarded at we do believe maintenance, year, court ordered are such that parties’ financial resources carry Agnes Tom to medical insurance on the trial court abused its discretion. through age at a cost of $400.00 Tom cites as cross-appeal, In his month, $4,800.00 Also, per year. testi trial court’s valuation of certain error the mony at trial indicated that could parties. can real estate owned We $12,- approximately earn *6 findings on trial court’s not set aside a per year 000.00 as an artist. they clearly questions fact unless are Considering Agnes approxi- that received Reichle, erroneous, 52.01; Reichle v. CR $132,000.00 marital mately equity in the (1986); and be furniture, home, parties’ an inter- all of testimony present expert cause there was pension plans, in two life insurance est findings, supports the trial court’s ed that car, in insur- policies, her an interest they do not believe were. $28,- agency totaling approximately ance (which a result of 000.00 will increase as argues the court Tom also decision), and one-half of an account our prove a finding in that he failed to erred $15,000.00, totaling approximately we are in these resi parties’ non-marital interest unable to find that the trial court abused $3,000.00 Tom testified at trial dence. $1,350.00per awarding in her its discretion purchase his father to was borrowed from month, providing as well as the cost of that the debt was subse the house and insurance. medical gift forgiven quently as Christmas father, Tom, on According to his parties. attorneys argue that Agnes’ envelope an Day, delivered awarding in Christmas its discretion abused read couple an invoice $5,000.00 light the extreme which contained in fees Memo, Underwood, ing from J.T. disparity financial resources. “Credit $3,000.59.” Jr., This Agnes, to Tom and provides: 403.220 trial court’s clearly supports the evidence Attorney’s fees.— Action and Costs of proper gift was marital conclusion that the to time after consid- The court from time ty. par- resources of both ering the financial Next, court erred in Tom asserts that the party pay a reason- ties order a $35,000.00 previous assigning to him cost to the other amount for the able payment on a home advance for a down maintaining defending any party of purchased subsequent of the chapter and for under this proceeding argues that fees, including of dissolution. Tom attorney’s sums for decree they pre $10,000.00 parties’ marriage, are payment came tion of the down funds; remaining obligations. Since funds to be marital from marital sumed himby monies not rebut this came from earned Tom did portion assigning decree. not err in entry of the did trial court Spra Spratling to him. of the debt findings do not address fact tling, Ky.App., in which the trial court arrived the manner Accordingly, the court’s order hold- trial determination that the con that a of the Furthermore, property.2 stituted reversed and non-marital accurately have not directed our parties proceedings con- this case is remanded for portions attention to those of the record opinion. In all other with this re- sistent which address issue. is affirmed. spects, the trial court’s order tried requires 52.01 that in all actions CR jury, the court the facts without a J., EMBERTON, concurs. specifically and state “shall find the facts STUMBO, J., part and concurs in separately its of law there- conclusions part. dissents goes provide Rule on. ..The on to findings necessary “requests for are not STUMBO,Judge, concurring part except provided of review purposes dissenting part: 52.04.” Rule opinion excep- I with this with the concur provides judg- final CR “[a] regarding tion of the decision maintenance. or remanded ment shall be reversed lifestyle apparently luxurious Given the failure trial court to because of during parties marriage, the dura- finding fact make a on an issue essential marriage, non-liquid nature tion of judgment the failure is unless wife, and assets awarded the brought to the attention of the trial court resources, I financial believe husband’s request finding on that written too increase the low. I would award pursuant issue or a motion to Rule award to the amount maintenance 52.02.”3 pensions become receive when Tom’s will $1,800.90 month, with payable, that is In this case apparent monthly Tom to receive credit ly finding regarding make a did not factual obligation pension as each does become parties Because the did not *7 payable. so, court to request the do the error Cherry Ky., 634 Cherry, been waived. 423, 425 Whick Whicker

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Since we are unable to determine $35,- holding reason for court’s Harold Helen June McVEY property, we will 000.00 constituted marital McVey, Appellants, G. presume that its decision is correct. Finally, Tom that it was contends BERMAN, M.D., Appellee. Robert S. require pay him error to one-half No. 91-CA-0064-MR. expenses. Agnes’ uninsured medical Debts subsequent separation, be accrued Appeals Kentucky. entry of a divorce are rebutt- fore decree July 10, 1992. ably presumed to be marital debts. Dan Daniels, Ky.App., 726 S.W.2d iels v. (1986). Inasmuch the medical ex

penses prior incurred to the dissolu were course, party move is a it was authorizes a within there 3. CR 52.02 Of days judgment for amendment 403.190(3). ten property. KRS findings. judgment or for additional Law notes § fined the "clear and evidence” stan Burns, difficulty Kentucky courts have had in deter- dard in Fitch v. grandparents mining standard which evidence offered Fitch involved who were seeking custody grandchildren. three be measured. He of their to rebut a is to abrogate "convey[ impres- past The Court held that in order to parents' dren, observes that cases an] right going fundamental to raise their chil forward with sion that evidence, the burden of grandparents parents’ show the through must litigant appli- if allocated to a "clear and evidence.” unfitness cation of a is more harsh than defining precisely phrase “clear and what the ordinary under circumstances.” Id.