Glidewell v. Glidewell
| Citation | 859 S.W.2d 675 |
| Decision Date | 09 April 1993 |
| Docket Number | No. 91-CA-002834-MR,91-CA-002834-MR |
| Parties | Danny J. GLIDEWELL, Appellant, v. Carol GLIDEWELL, Appellee. |
| Court | Court of Appeals of Kentucky |
Katie Marie Brophy, Louisville, for appellant.
Brian E. Clare, Louisville, for appellee.
Before EMBERTON, SCHRODER and STUMBO, JJ.
This is an appeal from those portions of a decree of dissolution which divided the parties' property and debts and awarded attorney fees to the appellee. After reviewing appellant's arguments and the record, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Appellant, Danny J. Glidewell, and appellee, Carol Glidewell, were married on May 8, 1976. One minor child was born of the marriage, who was four years old at the time Carol filed the petition for dissolution herein on March 3, 1989. At the time of the divorce, Danny was 36 years of age and employed by the Louisville Police Department, earning $21,500 per year. Carol was 38 years of age and employed by Wesley Manor Nursing Home, earning $16,950 per year. A hearing was held on February 8, 1991, and the case was submitted on briefs of counsel. Subsequently, Danny filed a post-trial CR 59.01 motion based on newly discovered evidence regarding marital funds which had allegedly been dissipated by Carol. On May 31, 1991, the court entered its findings of fact, conclusions of law and judgment, awarding custody to Carol, awarding $850 in attorney fees to Carol and dividing the parties' property as follows:
To Petitioner [appellee]:
1. Marital residence, together with mortgage thereon: $21,131.46
2. 1982 Ford LTD 1,700.00
3. Lou. Med. Credit Union Acct. 190.25
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TOTAL $23,021.71
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Less cash adjustment to respondent -530.93
Balance Total $22,490.78
To Respondent [appellant]:
1. 1986 Ford Truck $ 5,000.00
2. Boat, with lien, net val. 1,534.86
3. Retirement Acct. 4,864.99
4. Savings withdrawn [and applied toward appellant's 3,200.00
student loan]
5. Prudential"Bache Acct. 5,000.00
6. LPD, deferred compensation 1,810.00
7. Child support arrearage 500.00
(Balance due petitioner, for which credit given against marital
residence.)
8. Cash adjustment due respondent with interest at 7% 530.93
per annum, to begin 30 days from this date
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TOTAL $22,490.78
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Danny thereafter filed a motion to amend, alter or vacate the court's judgment, raising several issues argued herein, including the court's failure to consider newly discovered evidence, the non-marital nature of his Louisville Police Department pension, the award of attorneys fees and the assignment to him of debts on his student loan, boat and car. The court overruled said motion and Danny now appeals.
We shall first address Danny's argument that the trial court erred in refusing to consider newly discovered evidence of Carol's dissipation of marital funds. Part of the evidence in question was a letter from the parties' insurance company stating that a claim of $407.00 was paid solely to Mrs. Glidewell because she falsely represented that their property was in her name only. Attached to this letter was evidence of the check written to Mrs. Glidewell to pay the claim. The other evidence was that one of the parties withdrew sums of money from their joint account on certain dates. Danny maintains this was evidence that Carol withdrew the money before a previous separation and applied same for her sole benefit. Danny maintains that said evidence should have been considered by the court in distributing the parties' assets.
Under CR 59.01(g), newly discovered evidence may be grounds for a new trial only if the moving party shows that she could not, with reasonable diligence, have discovered and produced the evidence at trial. Walker v. Farmer, Ky., 428 S.W.2d 26 (1968). The trial court is granted broad discretion in ruling on a CR 59.01 motion based on newly discovered evidence. Gibbs v. Commonwealth, Ky.App., 723 S.W.2d 871 (1986). With regard to the CR 59.01 motion in the present case, there was no showing of reasonable diligence as required by the rule, nor did counsel even attest to that fact in the motion. Therefore, we cannot say the trial court abused its discretion in failing to consider the evidence at issue.
The next issue presented for our review is whether the trial court erred in allocating Danny's pension from the Louisville Police Department as a distributive share of marital property. Danny contends that under KRS 427.120, his pension is exempt from division as marital property. The statute provides:
No part of any police or firefighters' pension fund established in a city of the first, second or third class shall, before or after its order for distribution to any person entitled thereto, be seized or levied upon by any writ or decree for the payment of any debt, claim or judgment against the beneficiary of the fund.
As there is no case law in Kentucky on whether the statute exempts police and firefighters' pensions from classification as marital property, we must look to the construction of similar statutes in other jurisdictions. In Cleveland v. Board of Trustees, Police and Firemen's Retirement System, 229 N.J.Super. 156, 550 A.2d 1287 (1988), the Court held that a statute which protects the retirement pension of members of Police and Firemen's Retirement System from garnishment, attachment or assignment, does not bar the equitable division of the pension as marital property. The Court recognized its state's public policy favoring support for a financially dependent spouse and reasoned that the essential purpose of the statutory immunity is the protection not only of the pensioner, but of his family as well. The Court went on to say that, absent a clear and definitive expression to the contrary, the exemption will not be read to enable the husband to claim the full benefit of the pension as against his dependent wife and children, thus subverting the very purpose of the exemption. The same result was reached in Matter of Marriage of Sedbrook, 16 Kan.App.2d 668, 827 P.2d 1222 (1992); McDermott v. McDermott, 507 N.Y.S.2d 390, 119 A.D.2d 370 (1986); and Rice v. Rice, Okl., 762 P.2d 925 (1988). In Rice, supra, the Court determined that the purpose of the exemption was to protect the pension from creditors and that a spouse in a divorce proceeding does not have the status of a creditor.
Our Attorney General has expressed his opinion that, based upon the principle that a child support obligation is not to be considered an ordinary contractual debt, but a moral obligation imposed by the state, and that the policy of Chapter 67A (Police and Firefighter's Retirement Fund) is to provide benefits for the pensioner's family as well as the pensioner, such benefits may be attached, assigned or garnished to satisfy a child support order. OAG 91-158. We would agree and extend his reasoning to a spouse's right to share in that portion of the pension accumulated during the marriage.
The funds contributed to a pension are funds that could have been spent by the family during the marriage. See Matter of Marriage of Sedbrook, supra. As such, they are marital assets, see Mosley v. Mosley, Ky.App., 682 S.W.2d 462 (1985), and will be treated accordingly absent a statute unequivocally stating otherwise such as KRS 161.700(2) which applies to teachers' retirement funds:
Retirement allowance, disability allowance, accumulated contributions, or any other benefit under the retirement system shall not be classified as marital property pursuant to KRS 403.190(1). Retirement allowance, disability allowance, accumulated contributions, or any other benefit under the retirement system shall not be considered as an economic circumstance during the division of marital property in an action for dissolution of marriage pursuant to KRS 403.190(1)(d).
Clearly, had the legislature intended to exempt the police and firefighters' pension from division as marital property, they could have used the express language in KRS 161.700(2). Since they did not, it remains classified as marital property.
The other argument made by Danny with regard to treatment of his pension was that the court improperly allocated Carol a portion of Danny's pension when his pension had a dollar value of zero on the date of the decree. Danny's argument...
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