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FAMILY LAW - Martial property division, Brandenburg: Atkisson v. Atkisson (COA 11/13/2009)

By Michael Stevens

Atkisson v. Atkisson
2008-CA-000376 11/13/09 2009 WL 3805824

Opinion by Judge Wine; Judges Acree and Stumbo concurred.

The Court affirmed in part, and reversed and remanded in part, a judgment and post-judgment orders of the circuit court in a dissolution action. The Court first held that the trial court did not err in declining to apply the formula set out in Brandenburg v. Brandenburg, 617 S.W.2d 871 (Ky. App. 1981), to apportion the equity in the marital residence. Even if appellant was credited with amounts for specific marital contribution and appellee?s withdrawal from a line-of-equity account, there was insufficient equity in

the resident to fully reimburse appellee for her non-marital contribution. Therefore, there was no marital equity to divide by the Brandenburg formula and the trial court properly awarded the entire equity amount to appellee.

The Court next held that the trial court properly awarded appellee the first amount of the proceeds from the sale of a timeshare after it accounted for the timeshare debt in its allocation of the equity in the residence.

The Court next held that the trial court did not err in denying appellant?s request that temporary maintenance payments be credited against appellee?s award of marital property. The temporary maintenance award was not excessive and the trial court imputed full-time income to appellee when determining and calculating the temporary maintenance award.
The Court next held that the trial court did not abuse its discretion in awarding attorney fees to appellee even though she received a substantial amount of liquid marital property when appellant retained a substantially higher earning capacity, received the residence and received most of the income-producing property.

The Court next held that the trial court did not err in ruling that appellee did not prematurely file writs of garnishment and a judgment lien. The compliance periods set out in the original judgment did not automatically re-commence upon entry of an order denying a CR 59.05 motion and the trial court?s judgment remained in effect until modified, although enforcement of the judgment was stayed by operation of CR 62.01. As to the first obligation, the period for compliance had lapsed before appellee filed her garnishment writs. As to the other two compliance dates, appellant still had time to make the remaining payments, the time periods were not unreasonable, and appellant was required to seek an extension of time if he had legitimate problems complying with the deadlines.

The Court finally held that, although appellee was within her rights to file the writs, the trial court erred in concluding that appellant could have avoided the tax consequences of the garnishment and judgment lien on tax-deferred accounts. By upholding the garnishment writs, the trial court subjected appellant to a penalty which was far in excess of his breach and fundamentally altered the underlying allocation of marital assets. The Court remanded for the trial court to determine the amount of penalties and taxes incurred as a result of the garnishment and to appropriately allocate the amount between the parties.

Full post as published by Kentucky Cases on January 15, 2010 (boomark / email).