Sexton v. Sexton

• Court: Supreme Court of Kentucky
• Writing for the Court: MONTGOMERY; OSBORNE
• Citation: Sexton v. Sexton, 433 S.W.2d 133 (Ky. 1968)
• Decision Date: 25 October 1968
• Parties: Emma SEXTON, Appellant, v. Edgar SEXTON et al., Appellees.

Page 133

433 S.W.2d 133

Emma SEXTON, Appellant, v. Edgar SEXTON et al., Appellees.

Court of Appeals of Kentucky.

Oct. 25, 1968.

Robert L. Dowell, Morris Butler, Greensburg, for appellant.

Clyde Williams, Jr., Campbellsville, Thomas F. Marshall, Frankfort, for appellees.

DAVIS, Commissioner.

In this divorce action the issues disputed on appeal and cross-appeal relate to the disposition of property. The wife has appealed, contending that the trial court erred by rejecting her claim that she owned an undivided half interest in all of the real estate. The husband has cross-appealed, insisting that the allowance of $11,000 as alimony is excessive and contending that an award of $800 as fee to the attorneys for the wife is unwarranted.

The chancellor found from the evidence that a house and lot situated on Coppock Street in Campbellsville, valued at $3,200, is jointly owned by the husband and wife. He found further that the husband owns an undivided one-third interest in a house inherited from his father and fixed the value of that interest at $700. A residence situated on Lebanon Avenue was valued at $11,000 in the chancellor's findings, and two brick rental houses facing Poplar Street were valued at $17,300. There is lien indebtedness affecting the Lebanon Avenue and Poplar Street properties in the approximate sum of $5,900.

The trial judge rejected the claim of the wife that she was entitled to be considered an outright owner of one-half of all the properties. Her claim in this regard was based on evidence in her behalf that she had worked in the tobacco and other crops during the early years of their married life and that for approximately the last seventeen years she has worked in the Union Underwear Plant and earned about $50 per week. It was shown that the couple realized some income from the various rooms and that the wife performed more of the menial tasks necessary to accommodate such patronage than did the husband. Relying on Jackson v. Jackson, Ky., 248 S.W.2d 411, and Roberts v. Roberts, Ky., 268 S.W.2d 423, the wife insists that she should have been adjudged to be an equal owner with her husband of all the property and that the property should be sold with equal division of the net proceeds.

In is significant that the trial judge provided in the judgment that the husband could satisfy the $11,000 lump sum alimony award by conveying to the wife the Lebanon Avenue house, along with his undivided interest in the Coppock Street property. The record before us reflects that the husband tendered deeds covering these titles in an effort to comply with the provisions of the judgment, but the wife refused the conveyances.

On the other hand, the husband contends that this case is ruled by Johnson v. Johnson, Ky., 255 S.W.2d 610, insofar as the wife's claim to joint ownership is concerned. Even though the deeds to the properties were held by the husband and wife with right of survivorship, there was ample basis for the trial judge's factual determination that the true owner of the properties is the husband. The wife did not present evidence sufficient to impel a finding by the chancellor that she was a joint owner of all the real estate. Thus, it was proper for the trial court to direct restoration from the wife to the husband as to the jointly held titles as provided by KRS 403.060(2), since kit appears that the title she held was acquired during and in consideration of marriage.

The husband maintains that the trial court erred as respects the Coppock Street property in light of the rule as stated in Stubblefield v. Stubblefield, Ky., 327 S.W.2d 24, and Kivett v. Kivett, Ky., 312 S.W.2d 884. Those decisions teach that in a true restoration situation the contributing spouse is entitled to have restored the sum contributed without reference to the increase or decrease in market value of property in which the money was invested.

It...