Zink v. Zink
| Decision Date | 08 March 2013 |
| Docket Number | NO. 2011-CA-000846-MR,NO. 2011-CA-000707-MR,NO. 2010-CA-002208-MR,NO. 2011-CA-000620-MR,NO. 2010-CA-002172-MR,2010-CA-002172-MR,2010-CA-002208-MR,2011-CA-000620-MR,2011-CA-000707-MR,2011-CA-000846-MR |
| Parties | STEPHEN F. ZINK APPELLANT/CROSS-APPELLEE v. TERRI H. ZINK APPELLEE/CROSS-APPELLANT AND TERRI H. ZINK APPELLANT/CROSS-APPELLEE v. STEPHEN F. ZINK APPELLEE/CROSS-APPELLANT AND STEPHEN F. ZINK APPELLANT v. TERRI H. ZINK APPELLEE |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
Stephen and Terri Zink were married on May 8, 1981. Three children were born of the marriage, none of whom remain a minor. During the course of the marriage, Stephen was employed at a closely held corporation in which he and his father were major stockholders. Terri and Stephen separated in June 2000, reconciled in April 2001, separated in August 2004, and on December 8, 2004, Terri filed a petition for dissolution of their marriage. A three-day trial was held in July 2006. Following the trial, the Jefferson Family Court entered findings of fact, conclusions of law, and a judgment and decree of dissolution of marriage on October 2, 2006. Both parties filed motions to alter or amend the judgment. The case was then appealed, Zink v. Zink, 2007-CA-000419-MR and 2007-CA-000563-MR, and 2007-CA-002402-MR (Feb. 27, 2009).3
The estate which the trial court divided was considerable. It included several valuable tracts of real estate, bank and brokerage accounts, and stock in the corporation that employed Stephen. Previously on appeal, this court affirmed in part, reversed in part, and remanded the matter to the trial court for further proceedings (and reapportionment of the marital property if necessary) on thefollowing issues: (1) the amount of Terri's marital share of properties located at 106 and 108 East Broadway; (2) whether the increase in value of the Business Office Supply Company, Inc. ("BOSCI")/Office Resources, Inc. ("ORI") stock was due to the significant efforts of either party; (3) the character of Office Resources, Inc. Acquisition ("ORIA") and AEON Legacy Partners, Inc. ("AEON") stock; (4) the portion of the Parthenon account which is marital property; (5) dissipation of marital assets; and (6) whether the educational expenses for the parties' child (who was then a minor) should be allocated between the parties and if so, in what proportion.
On remand, by order entered July 21, 2010, the trial court granted Terri one-half of the parties' interest in the East Broadway properties ($179,961.85), one-half of the increased value of the BOSCI/ORI stock ($486,344.05), and a share of the increased value of the Parthenon account ($329,816.52). The trial court reserved the issues of modifying child support, maintenance and allocation of educational expenses for a future hearing.
Both parties filed motions to alter, amend or vacate the July 21, 2010, order. By order entered November 1, 2010, the trial court denied their motions, finding: (1) Terri was not entitled to pre-judgment interest on the $989,572.42 awarded to her in the July 21, 2010, order; (2) Stephen was not entitled to an offset for previous maintenance and child support payments against the lump sum award to Terri on remand; (3) the increase in value of the Parthenon account was income and therefore marital property and the date of dissolution was the correct date todetermine its value; and (4) Stephen's nonmarital share in the BOSCI/ORI stock was properly calculated and the increase in value of that stock was marital property.
On November 15, 2010, the trial court conducted a hearing on modification of child support, modification of maintenance, and the allocation of expenses for the child's private school education. On November 29, 2010, the trial court held a hearing on Stephen's motion for a reduction or elimination of post-judgment interest. By order entered December 9, 2010, the trial court (1) modified Stephen's monthly child support payment from $715.40 to $131, effective April 17, 2009, through June 15, 2010; (2) terminated maintenance to Terri, effective January 1, 2011; (3) ordered the parties to equally share the private school expenses for their child; as a result, Terri owed Stephen $13,501.50; (4) ordered Terri to reimburse Stephen $8,196.164 for child support paid after April 17, 2009; (5) denied Stephen's motion for a reduction or elimination of post-judgment interest; and (6) ordered Terri to reimburse Stephen for taxes incurred as a result of liquidating stocks to pay her. Terri moved to alter, amend and/or make additional findings of fact, which the trial court denied by order entered March 9, 2011.
On April 11, 2011, the trial court entered an order denying Stephen's CR 60.02 motion for relief from the portion of the July 21, 2010, and November 1, 2010, orders awarding Terri an additional $486,344.05. The trial court found thatcontrary to Stephen's assertion, it had not made a mathematical error in calculating the amount. These consolidated appeals followed.
Appeal Nos. 2010-CA-002172 and 2010-CA-002208
Stephen's appeal and Terri's cross-appeal are directed towards the trial court's characterization of certain property as marital and its distribution of marital property.
Statutory framework and standard of review
When disposing of property in a dissolution action, the trial court is required by KRS5 403.190 to follow a three-step process: (1) characterize each item of property as marital or nonmarital; (2) assign each party's nonmarital property to that party; and (3) equitably divide the marital property between the parties. Travis v. Travis, 59 S.W.3d 904, 908-09 (Ky. 2001) (citation and footnotes omitted). KRS 403.190(3) creates a presumption that all property acquired after the marriage is marital property. Sexton v. Sexton, 125 S.W.3d 258, 266 (Ky. 2004) (footnotes omitted). Thus, the party claiming that property acquired during the marriage is nonmarital bears the burden of proof. Id. (citations omitted).
The classification of an asset as marital or nonmarital property "involves an application of the statutory framework for equitable distribution of property upon divorce and therefore constitutes a question of law subject to this Court's independent determination." Holman v. Holman, 84 S.W.3d 903, 905 (Ky. 2002) (citations omitted). On appeal, we review the trial court's findings of fact only todetermine if they are clearly erroneous. CR 52.01. A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). Substantial evidence is "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable men." Id. Though, a trial court's division of marital property and assignment of debts acquired during the marriage will not be disturbed absent an abuse of discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001).
BOSCI/ORI stock
Stephen argues that the trial court erred by (1) determining that the increase in value of the BOSCI/ORI stock was due to the joint efforts of the parties, (2) calculating the value of the BOSCI/ORI shares at the time they were acquired, and (3) calculating their increase in value.
KRS 403.190(2)(a) provides, in pertinent part:
During the marriage, Stephen acquired stock in BOSCI, a company founded by his father and a few other individuals. BOSCI later merged with another company to form ORI, and Stephen's BOSCI shares were exchanged for ORIshares. Eventually, ORI was sold and Stephen invested a portion of his share of the proceeds from the sale in a new company, AEON. In its 2006 judgment, the trial court found that 74% of Stephen's BOSCI/ORI shares, and the assets they were used to acquire, were nonmarital property because Stephen received those shares as a gift from his father. The trial court further found that the increase in value of the shares was nonmarital property since the increase was not due to the significant activities of either spouse.
Previously on appeal, this court affirmed the trial court's decision that 74% of Stephen's BOSCI/ORI shares, and the assets they were used to acquire, were nonmarital property. However, with respect to the marital versus nonmarital character of the increase in value of the shares, this court remanded that issue to the trial court to make additional findings of fact. Specifically, this court instructed the trial court to make findings of fact relating to either spouse's contribution to the increase in value of the stocks from the time ...
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