JAN. 4, 2008 - KENTUCKY COURT OF APPEALS DECISIONS (2008:01)
Update: Effective 2008, the weekly lawwire compilation of appellate decisions will only be digesting the published SCOKY & COAKY decisions. The non-published decisions will no longer be listed by name, keyword, and link to full text. You can find the non-published decisions in the minutes, and the names and lower courts should give you an "idea" of the general nature of each case. A list of the nonpublished SCOKY decisions will continue to be provided as before with names, case no., topic, and link to full text.
PUBLISHED (COA).
GREENE V. COM.CA affirmed Greene's convictions and 5 year sentence for operating a motor vehicle with an alcohol concentration of or above 0.08 (DUI), fourth offense (KRS 189A.010); and operating a motor vehicle while his license was revoked or suspended for driving under the influence (KRS 189A.090). TC did not err by denying the motion to suppress the Intoxilyzer results. Notwithstanding the inconsistencies in the documentation, the trial court accepted Officer Cox’s testimony that he observed Greene for twenty minutes prior to administering the Intoxilyzer test. The evidence could have supported a contrary conclusion. But CA could not say that the evidence would compel such a finding. The trial court is in the best position to judge the credibility of witnesses and this Court is bound by the trial court’s findings of fact unless there is a clear error or abuse of discretion. Although the documentation was not clear regarding exactly when the observation period began and ended, Officer Cox was certain that he observed Greene for the required twenty minutes. Under the circumstances, CA refused to say that Officer Cox’s testimony was so improbable as to render it unworthy of credence.
Police articulated specific facts supporting a reasonable suspicion justifying a traffic stop. First, Officer Cox received a credible report that Greene was operating his vehicle under the influence of alcohol. Second, Officer Cox observed the vehicle as described in the report. Third and most importantly, Officer Cox confirmed that Greene’s license was suspended. Finally, Officer Cox saw Greene’s truck miss a turn and drive into an empty parking lot. Considering the totality of these circumstances, Officer Cox had a reasonable and articulable suspicion that Greene was operating the vehicle under the influence of alcohol. While the results of a preliminary breath test ("PBT") are clearly inadmissible to prove guilt or for sentencing purposes, CA held that the pass/fail result of a PBT is admissible for the limited purpose of establishing probable cause for an arrest at a hearing on a motion to suppress. However that it is imperative the arresting officer demonstrate proficiency in utilizing the PBT as well as evidence the PBT be in proper working order. Greene was not subject to a custodial interrogation when he made his initial statements to Officer Cox, and therefore, Miranda warnings were not required. Although Greene was in custody when later statements were made, the failure to issue Miranda warnings was harmless error. Greene was not entitled to a missing evidence instruction.
Digested by Scott C. Byrd
www.olginandbyrd.com
HESKETT
V. HESKETT
FAMILY LAW: Marital property division by court of equity in home
2006-CA-001900
TO BE PUBLISHED: REVERSING AND REMANDING
PANEL: THOMPSON PRESIDING; WINE, HENRY CONCUR
COUNTY: FRANKLIN
DATE RENDERED: 01/04/2008
Wife appealed TC’s decision arguing that the court failed to restore her non-marital property. CA reversed and remanded, on a separate issue. CA opined that the TC was correct the property was marital but the TC erred because it failed to consider the issue of dissipation.
Husband and Wife separated in 2002. They drafted a settlement agreement but never signed the agreement. They did, however, divided the property and then began a physical separation. After several months of separation the couple reconciled and bought a house. As a down payment on the house Wife withdrew over $60,000 from CD’s purchased with her share of the previous property division. Husband contributed $8,500 to the purchase of the house from his portion of the property division. Again, however, the couple separated and Wife filed for divorce.
At the conclusion of trial the TC ordered Wife to pay Husband an equal share of the equity in the martial residence. Wife appealed and argued that the settlement agreement from the previous separation should control the classification and distribution of property. Therefore, she argued the money she used as a down payment on the house was her non-marital money and should be restored to her. CA opined that the TC was correct in its determination that the money was marital. CA reasoned that while the parties drafted an agreement during the first separation they never signed the agreement. Therefore, the agreement was not valid under KRS 403.180. Furthermore, when the couple reconciled the previous agreement was voided and not revived by the second separation. However, the CA went on to say that the TC erred because it did not consider the issue of dissipation.
At trial, Wife presented extensive evidence tracing her share of the assets received as a result the first separation. Husband, however, introduce virtually no evidence tracing his share of the assets. In fact, the trial court noted that it was unclear what Husband had done with his share. However, the TC divided the couple’s assets equally. The CA opined that, in the instant case, an equal distribution was not a just distribution. Husband’s inability to account for the majority of his share of the assets received during the first separation constituted dissipation of the marital estate. Therefore, Wife was entitled to have the money she used as a down payment on the marital residence restored to her.
Digested by Linda
Dixon Bullock, Diana
L. Skaggs + Associates
Husband appealed TC’s Order resulting from distribution of property in dissolution action, alleging that TC erred when it valued his interest in businesses partially owned by him and when it denied his CR 60.02 motion. Wife cross-appealed, alleging that TC erred when it determined Husband's income and that the amount of her maintenance award was an abuse of discretion.
Husband and Wife were married for sixteen years and have 2 minor children. Throughout the marriage, Husband was involved in several business ventures with his father and brother. Husband alleged that TC erred when it determined that he would not have to repay draws and advances made against the capital account of the family-owned businesses and, thus, were not properly characterized as debts owed by Husband nor debts that decreased the value of his business interests. In addition to his salary, there was evidence that Husband had taken draws from the partnership and had decreased its capital account in the amount of $324,508.
Wife’s CPA utilized the asset approach to value Husband's interest in the family businesses, but did not deduct draws and advances by either brother as there were no promissory notes or evidence that debts were owed to a third party as a result of the draws and advances. He concluded that the businesses were worth $13,500 and $183,150. One of Husband’s financial experts deducted the value of the draws and advances and a negative capital account from one business’ value and concluded that it had a negative value of $656,846, and he testified that if that business was dissolved or sold, the partners could require Husband to repay his portion of the money, which totaled $324,508. Husband’s other expert testified that real estate owned by the other business was worth less than the amount it appraised for a few years prior, even though Husband received his full portion of the appraised amount when the property was sold. TC concluded that the values of Husband's interests in the businesses were $162,800 and $13,500, as there was no credible evidence that upon dissolution of the partnership or its sale, Husband would be required to pay back the approximately $324,508 he received in draws and advances against the capital account as suggested by Husband's expert. The court then awarded $80,000 to Wife as her marital interest in the businesses and Husband $96,300.
CA found significant the absence of promissory notes signed by Husband, any specific evidence in the record that Husband was obligated to repay the money, or evidence that Husband had made any past payments toward the amount and agreed with Wife that there was no abuse of discretion in TC’s refusal to deduct that amount from the value of Husband's interest in the family businesses.
After receiving TC’s original ruling and rulings on CR 59.05 motions filed by both parties, Husband filed a CR 60.02 motion alleging that Wife had made a substantial down payment on a residence and possibly failed to disclose marital assets or had additional income, and that he had a non-marital interest in property included in the marital estate. He cited health issues as the reason for his failure to raise the issue earlier. Prior to the ruling on the motion, Husband filed this appeal. Husband contends that TC denied his CR 60.02 motion based on its erroneous interpretation of the law that since he had filed a notice of appeal prior to TC’s ruling on the motion, the court lost jurisdiction. However, he failed to cite to the record where TC expressed the basis for its denial of his motion. CA found that that the grounds alleged in Husband's motion and affidavit were insufficient to warrant the relief requested and, therefore, it was properly denied.
Wife challenged TC’s calculation of Husband’s income, asserting that TC should have calculated the businesses’ projected future earnings based on the past few years’ performance, rather than setting a lower amount based on predicted downturns in profitability. TC found, in agreement with Husband’s testimony, that Husband’s gross monthly income was $4,847.17. Wife argued that Husband's income should have been based on the years immediately preceding the dissolution hearing during which Husband's income was higher than $4,847.17. CA disagreed, finding that there was persuasive evidence that the profits from the family businesses had steadily declined over the past five years, and the fact that real estate owned by the businesses was listed for sale indicated that Husband’s future income was speculative.
Wife also challenged the amount of maintenance awarded on the basis that her reasonable living expenses exceed her income and the maintenance awarded. Wife is a 40 year-old high school graduate who receives Social Security Disability benefits of $804 per month. TC awarded permanent maintenance of only $250 per month, though her reasonable needs total $2,201 per month. CA disagreed with Wife, noting that Wife received $107,130.20 in marital property and that Wife was assigned a comparatively small amount of the marital debt. Thus, when it determined the amount of maintenance to award, TC properly considered the factors set forth in KRS 403.200(2). Affirmed.
As digested by Michelle
Eisenmenger Mapes, Diana
L. Skaggs + Associates
This case involves the classic jurisdictional dispute between District and Circuit Courts. The Court of Appeals applied Lee v. Porter, 598 S.W.2d 465 (Ky. App. 1980), and held that once an adversary proceeding (an estate settlement suit) was filed in Circuit Court, that court alone had jurisdiction over the case. With that procedural question out of the way, the Court of Appeals addressed two substantive issues.
The Court first held that where the residuary estate passed to both charitable and non-charitable beneficiaries, the non-charitable beneficiaries were not spared the effect of the estate and inheritance taxes. The Court reached this holding by applying Kentucky law calling for apportionment of the tax burden in the absence of contrary language. However, the Court of Appeals' opinion was misguided in this holding. The Court applied Kentucky law because the Will was that of a Kentucky resident. The Will, however, included a residuary clause that funded a Trust, which was governed by Pennsylvania law. Pennsylvania law would have reached a different result on the apportionment issue, but the Court of Appeals ignored the distinction between the Will and the Trust and merged the two into an Estate, which it governed by Kentucky law.
The Court next held that the executrix's fee was too high. Again, this part of the opinion is troubling because the Court reached this holding by conflating the Will and the Trust. Although the executrix's fee was governed by KRS 395.150, the Trustee fee should not have been. At this point, the case has been remanded to the Circuit Court. But, the law of the case is that the executrix's fee is too high. It seems that it would be more appropriate for the executrix to have an opportunity to effect a clear allocation of the fee between the Will and the Trust (and actually some other entities that are involved) on remand. Hopefully, a Petition for Rehearing or a review by the Court of Appeals will clarify that issue so that the Circuit Court can meaningfully address the issues on remand.
James Worthington
NOT PUBLISHED (COA)
MINUTES from AOC for this week saved at our site and click here for the AOC's Official Minutes [which is provided for backup purposes] contain all decisions rendered with links to the full text of the nonpublished cases.
INSKO V. RANSDELLMASON V. MONUMENTAL LIFE INS. CO.
INSURANCE: Life insurance contract, breach, election of remedies, district court
jurisdiction issues
2006-CA-002122
Size: 106
Date: 01/04/2008
WATTS V. COM.
2006-CA-001591
Size: 114
Date: 01/04/2008
DENNISON V. WEBB
2006-CA-001775
Size: 96
Date: 01/04/2008
BEARD V. COM.
2006-CA-001947
Size: 96
Date: 01/04/2008
LINDSEY V. COM
2006-CA-002189
Size: 87
Date: 01/04/2008
NAYLOR V. COM
2006-CA-002377
Size: 76
Date: 01/04/2008
JETT V. COM
2007-CA-000335
Size: 72
Date: 01/04/2008
KNIGHT V. COM
2007-CA-000663
Size: 84
Date: 01/04/2008
BOXLEY V. PHILLIP MORRIS
WORKERS COMP
2007-CA-001302
Size: 113
Date: 01/04/2008
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