Penrod v. Penrod
| Decision Date | 15 December 1972 |
| Citation | 489 S.W.2d 524 |
| Parties | Yvonne M. PENROD, Appellant, v. Robert Eugene PENROD, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Edward T. Ewen, Jr., R. D. McAfee, Louisville, for appellant.
Joseph V. Mobley, Jr., Hubbs & Mobley, Scott Miller, Jr., Louisville, for appellee.
CATINNA, Commissioner.
By a judgment entered in the Jefferson Circuit Court, Chancery Branch, Second Division, Yvonne M. Penrod was granted a divorce from Robert Eugene Penrod, custody of the parties' two infant daughters, maintenance for the children in the sum of $40 per week, and lump-sum alimony in the amount of $35,547.21, being 30% of the net estate of the parties accumulated during their marriage. No periodic alimony was awarded. Upon an appeal by Yvonne this court, after enumerating the rules in Colley v. Colley, Ky., 460 S.W.2d 821 (1971), remanded the case saying:
'* * * we remand the case with directions that the chancellor reconsider the case on the question of division of property accumulated during their marriage, and, after so doing, determine whether appellant is entitled to periodic alimony.'
Penrod v. Penrod, Ky., 463 S.W.2d 309 (1971).
The trial court, using the guidelines of Colley, entered a second or supplemental judgment awarding Yvonne, as a division of property accumulated during their marriage, a sum equal to 35% of the net estate of the parties. Yvonne was also awarded $250 per month as alimony and maintenance for the children of the parties.
Yvonne again appeals, claiming that the court was in error in not awarding her a more substantial part of the net estate of the parties.
We have reviewed the record and except for a mathematical error on the part of the trial court which we will discuss find nothing in this record indicating that the chancellor's findings of fact and judgment entered thereon were clearly erroneous or that a manifest injustice resulted from his actions. Stephanski v. Stephanski, Ky., 473 S.W.2d 806 (1971); Burke v. Burke, Ky., 416 S.W.2d 724 (1967) and Bramblette v. Bramblette, Ky., 448 S.W.2d 44 (1969).
The court committed mathematical errors in computing the sum due Yvonne under the property division, which errors we now discuss and correct.
The gross estate of the parties was $230,690.41. Yvonne had inherited a $14,600 farm at Taylorsville, Kentucky, from her grandfather which was restored to her under the rule in Colley. We have examined both the record on this appeal and the prior appeal and have determined that at no time was the Taylorsville farm ever considered to be a part of the gross estate of the parties. However, the court deducted the value of the Taylorsville farm from the established gross estate. In computing the net estate the court deducted certain identified liabilities totaling $112,199.72. This amount did not include an additional liability of.$11,046.37 secured by a mortgage on the residence. The correct liabilities of the parties were $123,246.09.
After correcting these mathematical errors, we have an established gross estate of $230,690.41, outstanding liabilities of $123,246.09, and a net estate of $107,444.32. Yvonne's division of the property accumulated during their marriage, being 35% of their net estate, was $37,605.51.
The trial court adjudged a partial payment of this amount by awarding Yvonne the residence at a fixed value of $20,000 subject to encumbrances and a 1965 Ford automobile at a fixed value of $1800 free of encumbrances. The court, in fixing the value of the residence, failed to take into consideration the mortgage lien. The fixed value of the residence should have been $8,953.65.
After a correction of the mathematical errors above discussed, two sections of the judgment of the court require amendment. Paragraph 3 of the original judgment reads as follows:
After the mthematical errors have been corrected, this section of the judgment shall read as follows:
3. The net value of the accumulated estate of these parties which is subject to division is $107,444.32, and plaintiff shall recover of the defendant a sum equal to 35 per cent thereof, which by calculation is $37,605.51.
Paragraph 4 of the original judgment reads as follows:
After the mathematical errors have been corrected, this section of the judgment shall read:
4. As a division in kind and as a part of the $37,605.51 above mentioned, plaintiff shall receive (a) the residence at 6307 Cooper Chapel Road at the fixed value of $8,953.63, subject to the encumbrance, and (b) the 1965 Ford automobile at the fixed value of $1,800.00, free of encumbrance. Defendant shall execute the necessary documents to effect the change of ownership so as to place the title to these properties in plaintiff's name.
Although the trial court allowed Yvonne alimony and maintenance in the amount of $250 per month, immediately upon perfecting this appeal, December 2, 1971, she moved this court for alimony and maintenance pendente lite. This court, by an order dated January 19, 1972, directed that she be paid temporary maintenance and alimony in the amount of $250 per month, being the same amount allowed by the trial court, and in addition directed Robert to make the monthly payments on the house mortgage. This order further provided that Robert should not alter, destroy, or carry away any property of the shopping center, including the fence around the residence.
On September 8, 1971, Yvonne filed a motion in this court asking that Robert be held in contempt for failing to make his maintenance payment. A response was filed on the same day, and on September 9, the next day, a letter was received stating that Robert had paid up, and it was requested that the motion to show cause be overruled. On September 9, 1971, an...
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