Poe v. Poe
| Decision Date | 28 March 1986 |
| Docket Number | 85-CA-1515-S,Nos. 85-CA-1419-,s. 85-CA-1419- |
| Citation | 711 S.W.2d 849 |
| Parties | Joanne POE, Appellant, v. Robert POE, Appellee. Robert POE, Cross-Appellant, v. Joanne POE and Paul M. Lewis, d/b/a Lewis, Bland & Preston, Cross-Appellees. |
| Court | Kentucky Court of Appeals |
Paul M. Lewis, Barry Birdwhistell, Elizabethtown, for appellant/cross-appellees.
Robert S. Silverthorn, Jr., Louisville, for appellee/cross-appellant.
Before CLAYTON, DUNN and McDONALD, JJ.
This is an appeal and cross-appeal from a judgment of the Hardin Circuit Court dissolving the marriage of Joanne and Robert Poe. On appeal, Joanne argues that the trial court clearly erred in awarding custody of the couple's sole child, Robert E. Poe III (Bobby), to his father, and further erred in relying upon the testimony of two psychologists retained by the father to justify that grant of custody. Robert, by way of cross-appeal, first maintains that the trial court abused its discretion in awarding Joanne's counsel $1,500 as attorney's fees under KRS 403.220 given the absence of any evidence of record to support that amount. It is also argued that the circuit court clearly erred in granting Joanne a portion of Robert's nonvested military pension.
Robert and Joanne were married on July 15, 1972, at Fort Lee, Virginia. Approximately twelve years later, on September 24, 1984, Joanne petitioned for dissolution of marriage. At the time of the proceedings on the petition, Joanne was 29 years old and employed as a civil servant at Fort Knox, Kentucky, with an annual gross salary of $13,291. Robert, who had enlisted in the United States Army in July of 1971, was a career enlisted man with a pay grade of E-7, earning approximately $24,000 per year gross pay. Other than Robert's nonvested military pension, the major assets divided by the contested judgment consist of the couple's marital residence, valued at $46,900, two Toyota automobiles worth $8,900, and various miscellaneous items of personal property estimated to be about $15,500 in value. These items (excepting the pension) were primarily divided by agreement of the parties and are not involved in the present appeal.
On January 9, 1985, a judgment and decree of dissolution were entered, with questions regarding child custody, maintenance, and division of property being reserved. Supplemental findings of fact, conclusions of law and judgment were then entered on April 30, 1985. In that subsequent judgment, the circuit court finds, as to custody, that both parents are competent, qualified parents who could provide a good home for their son. However, based upon the expert testimony of psychologists Lippman and Rhodes, the court determined that only the father could provide for the eight-year-old son's psychological need for a male role model at this age in his life. Accordingly, Robert was awarded custody of Bobby with Joanne being granted liberal visitation rights.
As for Robert's nonvested military pension, it is declared to be marital property and is to be divided under the following formula:
150 months (duration of marriage) % of future monthly
---------------------------------
total months of military sevice = retirement payments which which
were earned during
the marriage
% of future 1/2 of Robert's that portion of
monthly retirement X disposable retired k any post-retirement
payments earned or retainer pay cost-of-living
during the (as defined in 10 increases (10 U.S.C
marriage U.S.C. section 140 section 140(a)) which
8(c)(1)), are proportional to
OR Joanne's interest
1/2 of the disposable in the disposable
retired or retainer retired or retainer
pay which would be pay computed as of
payable to Robert the date of
if he retired at retirement
the same rank and
basic pay rate
which he had
attained as of
January 5, 1985
WHICHEVER IS LESS.
---------------------
Reasoning to support this disposition, the circuit court notes that, under the federal law governing military pensions, a potential military pension may be treated as marital property if more than ten years of the pension had been earned prior to divorce and if more than ten years of it were earned during the marriage. The court also contrasts Robert's nonvested military pension with the vested pension of an unretired Ford Motor Company employee whose benefits are lost upon death and are offset by any future social security benefits awarded (taken from an actual case before the circuit court). Such employee's benefits are argued to be no more speculative than Robert's nonvested military pension, both of which are incapable of being reduced to present value. Though Ratcliff v. Ratcliff, Ky.App., 586 S.W.2d 292 (1979), and Light v. Light, Ky.App., 599 S.W.2d 476 (1980), are acknowledged to permit the treatment of nonvested pensions as an economic circumstance to be considered in an award of maintenance, the circuit court points out correctly that this approach is not adequate where the unpensioned spouse is otherwise disqualified to receive maintenance under KRS 403.200(1), as was found in the present case.
We begin our discussion of the issues with child custody and the expert testimony thereon. As the parties are well aware, this Court is bound by the "clearly erroneous" standard of review found in CR 52. Ghali v. Ghali, Ky.App., 596 S.W.2d 31 (1980). We may not disturb the findings of fact of the lower court unless they are unsupported by substantial evidence of probative value. Under KRS 403.270, the relevant factors which determine child custody, and upon which findings of fact must therefore be made, are the wishes of the child's parents as to his custody, the wishes of the child as to his custodian, the interaction of the child with his parents and siblings, the child's adjustment to his home, school and community, and the mental and physical health of all persons involved.
Of the five factors listed above, only the final one, mental and physical health, is seriously disputed. Obviously, both parents wish to have custody and consider themselves fit custodians, which the court notes and the record directly supports. Bobby's wishes in the matter are wisely disregarded by the trial court given his youth. As for the child's interaction with each of the parents, substantial evidence proves that the relationship and interaction of each parent with the child is excellent. Bobby's adjustment to his home, school or community is not a material consideration, as his parents have elected to continue living in the same community and Bobby will continue to attend the same school. Therefore, no clear error necessitating reversal is present with respect to any of the first four factors of KRS 403.270(a)-(d). Reversal, if it is to occur, must relate to the court's conclusion that Bobby's best interest requires that his father have custody in order to provide a needed male role model.
Although Joanne necessarily challenges this finding, the crux of her argument simply stated is that the expert testimony of psychologist Lippman and Rhodes is incompetent, apparently because the two professionals were retained by the father rather than appointed by the court under KRS 403.290. Joanne maintains that this expert testimony was simply an improper attempt to indirectly put before the trial court testimony concerning Bobby's wishes as to custody, in violation of the court's earlier decision not to interview the child on such matters. However, as the trial court specifically chose to disregard those portions of the psychologists' testimony regarding Bobby's preference (and also those portions relating to expert testimony on Robert's parenting skills), her argument in this regard has little weight.
Likewise, we find little merit in Joanne's argument on competency. The court is not limited by KRS 403.290 to hearing the testimony of only those professionals it elects to appoint. The statute expressly provides that the court may seek the written advice of professionals. Testimony of various experts retained by the parties is clearly admissible so long as the expert testifying is qualified as such and his testimony is relevant to the issues at hand. Indeed such testimony is commonplace in child custody actions. Joanne, had she chosen to do so, was free to acquire the testimony of her own outside professionals and also to cross-examine those which Robert retained (which she, by counsel, did). Therefore, any significance arising from the fact that Robert retained Doctors Lippman and Rhodes runs not to their competency, but solely to the weight to be given their testimony. In the instant case, the trial court elected to accept the testimony of the two psychologists of Bobby's need for a male role model. As substantial evidence in the form of their testimony as to various psychological tests performed and interviews taken supports the court's finding on the child's psychological needs, we are bound to affirm. See Atwood v. Atwood, Ky., 550 S.W.2d 465 (1976) (); Eviston v. Eviston, Ky., 507 S.W.2d 153 (1974) (). In concluding our discussion on this issue, we note that Joanne, by counsel, for the first time on...
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