Shepherd v. Shepherd, No. 2007-CA-000409-MR (Ky. App. 2/20/2009), 2007-CA-000409-MR.
| Decision Date | 20 February 2009 |
| Docket Number | No. 2007-CA-000409-MR.,2007-CA-000409-MR. |
| Parties | Jonathan David SHEPHERD, Appellant v. Carolyn SHEPHERD, Appellee |
| Court | Kentucky Court of Appeals |
Jimmy C. Webb, Prestonsburg, Kentucky, Brief for Appellant.
James D. Adams, II, Prestonsburg, Kentucky, Brief for Appellee.
Before: CAPERTON, TAYLOR, and WINE, Judges.
NOT TO BE PUBLISHED
Jonathan Shepherd ("Jonathan") appeals an order of the Floyd Circuit Court denying his motion to alter, amend, or vacate a previous order entered December 27, 2006, granting appellee, Carolyn Shepherd ("Carolyn") onehalf of the value of the marital business in the amount of $27,015.00.
Jonathan and Carolyn were married on November 24, 1999, in Floyd County, Kentucky. On or about April 12, 2004, the parties separated. During the marriage and at the time of separation, the parties ran a business called Shepherd's Lawn and Landscape. Then, on December 15, 2004, the trial court entered the findings of facts, conclusions of law and a decree of dissolution of marriage.
Pursuant to that judgment, the court ordered that Shepherd's Lawn and Landscape and all of the assets associated with the business to be sold. All the proceeds were to be divided equally between the parties, with any reasonable and regular debt being first paid prior to distribution to the parties of the proceeds from the sale. Jonathan was to provide all of the documents necessary (assets, liabilities, contracts, etc.) for said sale to take place.
According to Jonathan, his new wife began a similar business with Jonathan as her employee. The new business was called Shepherd Services. However, Carolyn points out that in September 2004 an advertising order was executed with Bell South Yellow Pages by Mr. Shepherd for "Shepherd Services" with the responsible person listed as "David Shepherd" and the authorized signature "David Shepherd". Carolyn insists, that in fact, Jonathan just continued to operate the business of Shepherd's Lawn and Landscape using the equipment from the marital business.
From January 26 to June 7, 2005, the parties discussed or attempted to discuss either selling the business or the possibility of Jonathan buying Carolyn's share of the business. On June 29, 2005, Jonathan informed Carolyn that there were outstanding taxes owed for income generated by the marital business during the year 2004 in the amount of $14,837.73. Subsequent to their separation, the business lost the contract with Kentucky-West Virginia Gas, which encompassed seventy percent of the income of the business. The 2004 income tax return for the business stated that the total income generated for the year was $54,030.00. In addition, the 2004 income tax return reflects income from Kentucky-West Virginia Gas. While Jonathan argues that both parties testified that Kentucky-West Virginia Gas was no longer a client when they separated, Carolyn urges that she in fact testified that it was her belief the Kentucky-West Virginia Gas was not a client at the time of the final hearing. Neither party has cited to the record in their respective briefs. Also, the video of the November 3 final hearing was not designated in the record for our review.
Regardless, on November 3, 2006, the trial court held a final hearing wherein the parties testified regarding the operation of Shepherd's Lawn and Landscape. At the hearing, in order to determine the value of the marital business, the court considered the testimony of Jonathan, Zack Layne ("Layne"), and Carolyn. Jonathan testified that the marital business was defunct, and presented estimates as to the value of the reported remaining equipment. Layne testified that he had never viewed the equipment and was not an expert as to valuation of such equipment. Carolyn offered testimony that the valuation of the business, including goodwill, was $27,015.00, or one-half of the net profit for the year 2004.
Jonathan...
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