author: HOGGE, Judge. PARK, Judge

text:
    C. C. Howard GRAY and James N. Gray Construction Company, Inc., Appellants, v. CENTRAL BANK AND TRUST COMPANY, Executor of the Estate of Garvice D. Kincaid, and Central Bank and Trust Company, Appellees. CENTRAL BANK AND TRUST COMPANY, Executor of the Estate of Garvice D. Kincaid, and Central Bank and Trust Company, Cross-Appellants, v. C. C. Howard GRAY and James N. Gray Construction Company, Inc., Cross-Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.

      Lyle G. Robey, Stoll, Keenon & Park, Lexington, H. J. Herbert, Jr., Wilson, Herbert & Garmon, Glasgow, for appellants and cross-appellees.
    Earl S. Wilson, Kincaid, Wilson, Schaef-fer & Hembree, Harry B. Miller, Jr., Lexington, for appellees and cross-appellants.
    Before HOGGE, PARK and WINTER-SHEIMER, JJ.
   HOGGE, Judge.

In 1974 the Lexington-Fayette Urban County Airport Board advertised for bids for the construction of a new airport terminal building. Seven Lexington banks, including Central Bank and Trust Company, were to participate in financing the project. On August 23, 1974, the bids were opened, and Gray Construction Company, Inc. was the lowest bidder. White & Congleton Construction Company was the second lowest bidder. The initial bids were valid for a fifteen day period.

On September 6,1974, one day before the bids expired, the air board met but was unable at that meeting to reach a decision as to whom the contract would be awarded. Both Gray and White & Congleton were asked if they would extend their bids for an additional ten days. White & Congleton agreed to extend their bid. However, Gray refused to extend his bid. Nevertheless, both bidders were asked to submit a list of materials, equipment, and subcontractors. Gray’s list of materials and equipment was found to contain major substitutions.

Garvice D. Kincaid was a member of the air board and, subsequent to the September 6 meeting, he initiated an investigation of Gray Construction. On September 16,1974, members of the air board met with representatives of the banks that were to provide financing for the project. At that meeting, Kincaid disclosed the results of his investigation and expressed reservations about the qualifications of Gray Construction Company. On September 17, the air board met and voted unanimously to select White & Congleton as the contractor.

Following the decision of the air board, Gray Construction threatened to take legal action against the air board if the contract was awarded to White & Congleton. As a result, First Security National Bank and Trust Company withdrew its financial support. Faced with this dilemma, White & Congleton offered to withdraw its bid and allow the air board to solicit new bids. This offer was accepted by the air board, and new bids were solicited. Upon rebidding, White & Congleton’s bid was the lowest and they were awarded the contract.

Appellant, thereafter, filed this action alleging that Garvice Kincaid had defamed him and interfered with prospective business relationships. The trial court granted a summary judgment in favor of the defendant on the ground that members of the air board enjoy an absolute privilege from liability for statements made by them in the scope of their duties.

There has been considerable dispute concerning whether the alleged defamation and interference with prospective contractual relationships were separate causes of action and which, if either, survived the death of Garvice D. Kincaid.

Prosser, in his treatise, Law of Torts, 4th Edition, Chapter 25, Section 130, at page 926 states:

Defamation, interference with contract, injurious falsehood, and the broader tort of interference with prospective economic relations, áre all different phases of the same general wrong of depriving the plaintiff of beneficial relations with others . . . the greatest protection is given to personal reputation, and existing contracts, the least to competitive interest in future advantage

At page 924, Prosser further states:

In general, it may be said that injurious falsehood which is a tort that never has been greatly favored by the law, is subject to all of the privileges recognized both in cases of personal defamation and in those of other types of interference with economic advantage. The question of absolute privilege to disparage in judicial, legislative, and executive proceedings has seldom arisen, except in connection with pleadings, motions, and the like in the course of. litigation, where it has been recognized. [Emphasis added.]

On page 953 in ff. 97, Prosser further states:

Although there are almost no cases, it appears that the absolute privileges in defamation will be available as a defense here, (cases of interference with prospective economic relations.) [Emphasis added.]

We are, therefore, of the opinion that any privilege conferred by statute applies equally to actions founded upon defamation and to actions founded upon the tort of interference with prospective economic relations.

KRS 84.050(5) extends absolute immunity to members of city legislative bodies. In Jacobs v. Underwood, Ky., 484 S.W.2d 855 (1972), the Court of Appeals discussed the immunity conferred by KRS 84.050(5) and stated at page 857: “We believe the general assembly has effectively granted to members of city legislative bodies an absolute privilege under which they cannot be liable for statements made during a debate before a formal meeting of the assembly.” [Emphasis ours.]

Legislative status has been delegated to city/county air boards by KRS 183.132, which provides as follows:

(1) Any city or county acting jointly, or in any combination of two or more cities and/or counties may establish a nonpartisan airboard composed of six members.
(2)The board shall be a body politic and corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with, and do all things reasonable or necessary to effectively carry out the duties prescribed by statute. The board shall constitute a legislative body for the purposes of KRS 183.630 to 183.740. [Emphasis ours.]

While KRS 183.630 to 183.740 specifically relate to the issuance of revenue bonds, the air board was created by an act of legislature, delegating to it numerous legislative powers, functions, and duties. For example, KRS 183.133 grants to the air board the power to adopt such ordinances as it may find necessary to effectuate the duties imposed by statute. Violations of such ordinances shall be prosecuted in police court or county court. This is clearly a legislative function.

Thus, it is the opinion of this court that the air board is a legislative body and, as such, its members are granted absolute immunity for statements made while acting within the scope of the duties imposed upon them by statute.

It is also the opinion of this court that Kincaid, although simultaneously protecting the interests of Central Bank, was acting within the scope of his duties as a member of the air board, in as much as he was seeking to insure that the contract was awarded to the lowest and best bidder, and thereby enjoyed an absolute privilege from the liability for his remarks. This privilege extends to protect both the estate of Kincaid and Central Bank from liability for either cause of action. Spears v. Burchett, Ky., 289 S.W.2d 731 (1956); Cheasapeake & O. R. Company v. Williams’ Adm’x., 300 Ky. 850, 190 S.W.2d 549 (1937).

Although the preceding ground is adequate to support the judgment, the following grounds may also have been sufficient to support the judgment. It has often been held that the judgment of the trial court must be affirmed if there exists any valid ground which supports it. Haddad v. Louisville Gas & Electric Company, Ky., 449 S.W.2d 916 (1969). First, as to the defendant Garvice D. Kincaid, it cannot be disputed that his death terminated the cause of action against him and his estate for slander. KRS 411.140 provides that actions for slander and libel do not survive the death of the tortfeasor.

Second, the appellants have utterly failed to prove that they would have been awarded the contract in the absence of ap-pellee’s interference. The record clearly discloses that the appellant did not have before the air board a valid bid. Gray’s fifteen day bid expired on September 7, 1974, and the appellant refused to extend the bid beyond that date. Even so, the appellant’s bid did not comply with the requirements of the bidding documents, in that he had substituted a number of construction materials without obtaining the approval of the air board’s architect. Gray also failed to comply with the air board’s request that he submit a list of the subcontractors he proposed to employ.

Appellees have filed what has, perhaps erroneously, been designated as a cross-appeal alleging that the trial court improperly allowed into the record evidence relating to statements made during a meeting of the air board. Since the appellees do not attack any portion of the judgment, this is not properly the basis for a cross-appeal. The issue- may, nevertheless, be raised in the appellees’ argument in support of the judgment even in the absence of a cross-appeal. See Clark v. Wells-Elkhorn Coal Company, 215 Ky. 128, 284 S.W. 91 (1926). The cross-appeal is accordingly dismissed.

Judgment affirmed.

All concur.

PARK, Judge

(concurring).

Although I concur in the result reached in the majority opinion, I cannot agree that all of the actions taken by Garvice D. Kin-caid were absolutely privileged under the provisions of KRS 84.050(5). However, I believe that the judgment of the circuit court should be affirmed for other reasons.

In Jacobs v. Underwood, Ky., 484 S.W.2d 855, 857 (1972), the court recognized that, at common law, members of quasi legislative bodies enjoyed only a qualified privilege. The statements of members of such quasi legislative bodies were privileged only if the statements made were without malice and without reckless disregard for the truth. The question whether the statements were reckless or malicious was generally for the jury. In the Jacobs case, the defamatory statements were made by a member of the Lexington City Commission during a meeting of the commission. At the time, the city of Lexington was operating under the city manager form of government. KRS 89.390 et seq. The city of Lexington was a second class city and was subject to all of the general statutes applicable to second class cities to the extent that they were not inconsistent with the city manager form of government. KRS 89.400. Chapter 84 of the Kentucky Revised Statutes makes general provision for the government of cities of the second class. KRS 84.050(5) provides:

For anything said in debate, members of the general council are entitled to the same immunities and protection allowed to members of the general assembly.

In the Jacobs case, the court held that KRS 84.050(5) conferred an absolute privilege on members of the city council for statements made during a meeting. Id. at 857. However, I do not believe that the absolute immunity provided members of city councils of cities of the second class under KRS 84.050(5) can be extended to the members of an airport board organized under Chapter 183 of the Kentucky Revised Statutes.

KRS 183.132(2) provides that an airport board is “a body politic and corporate” and that it constitutes “a legislative body” for the purpose of issuing revenue bonds. Without doubt, the airport board is a municipal corporation. However, it does not follow that the airport board is governed by the statutes applicable to a city of the second class, thereby affording its board members the absolute immunity provided by KRS 84.050(5). In the absence of any specific legislation applicable to airport boards, the members of an airport board possess only a qualified, rather than absolute, privilege for statements made during official meetings.

Furthermore, the record establishes that on September 16, 1974, Kincaid met with representatives of the other banks proposing to finance the construction of the airport terminal. Kincaid stated that he would withdraw the Central Bank and Trust Company from participation in the loan if Gray Construction were awarded the contract. On that occasion, Kincaid was not acting solely as a member of the airport board. Clearly, Kincaid was also acting in his capacity as president and director of the Central Bank. The court should be extremely reluctant to cloak members of quasi municipal corporations such as an airport board with absolute immunity when they are acting in a dual capacity.

Even though Kincaid should not have absolute immunity for his actions, it does not follow that the appellants have shown that there was any genuine issue of material fact. By their pleading, the appellants have attempted to set up three possible theories of liability on the part of Kincaid and Central Bank: (1) slander; (2) injurious falsehood; and, (3) wrongful interference with prospective contractual relations. In my opinion, the record demonstrates that the appellants were not entitled to recover on any theory.

As the basis for the action for slander, Gray relies upon three statements allegedly made by Kincaid. According to Gray, Kin-caid stated that Gray was (1) wet behind the ears; (2) twenty-three years of age, rather than twenty-four; and, (3) inexperienced in large construction projects. These statements are not defamatory per se. The language in question is not calculated to subject Gray to hatred, ridicule, contempt, or disgrace, or to induce an evil opinion of him in the minds of right thinking people. See Bell v. Courier Journal and Louisville Times Company, Ky., 402 S.W.2d 84 (1966), and the cases collected in the annotation, 6 A.L.R.2d 1008.

With respect to Gray Construction Company, Kincaid is alleged to have stated that the company had little experience in projects of the magnitude of the airport terminal. This statement is not defamatory. It is not a charge of general incompetence, but related solely to the company’s ability to do a particular job. See Manire v. Hubbard, 110 Ky. 311, 61 S.W. 466 (1901). Kincaid is also alleged to have stated that the company failed to provide a requested list of sub-contractors and materials to be used. From the record, it is apparent that this statement is true, and, in any event, it is not defamatory. Kincaid also read from a Dun & Bradstreet Report on the construction company. As a member of the airport board and president of the Central Bank, Kincaid clearly was entitled to consider the Dun & Bradstreet Report, and he was privileged to pass that information on to the other board members and the representatives of the other banks participating in the terminal construction loan. The record conclusively demonstrates that neither Gray nor Gray Construction Company had any valid claim for defamation against Kincaid.

Although the same statements which could give rise to an action for defamation can also be the basis of an action for injurious falsehood, there are substantial differences between the two actions. In an action for injurious falsehood, not only must the plaintiff show a false statement with respect to the plaintiff’s business, but the plaintiff must also plead and prove special damage. W. Prosser, Law of Torts § 128 (4th ed. 1971). In the present case, the record establishes that there can be no special damages. Gray Construction Company’s bid had expired by its own terms. Gray Construction refused to extend the period of its bid without an agreement by the airport board to increase the contract price. This was never done. Consequently, at the time the board determined to award the contract to White and Congleton, the only valid bid before the airport board was the bid of White and Congleton. Gray Construction Company cannot claim that it was deprived of the contract when it refused to extend the period of its bid.

The last theory of liability is based upon Kincaid’s threat to withdraw Central Bank from the financing of the airport terminal if the contract were awarded to Gray Construction Company. In effect, Kincaid was charged with improper interference with a prospective contractual relationship. However, it is difficult to see how Kincaid induced or caused the airport board not to enter into a contract with Gray Construction Company when Gray Construction Company itself refused to extend its bid. Furthermore, Kincaid had a right to act to protect both the interests of the airport board and the Central Bank in attempting to persuade the other members of the airport board not to contract with Gray Construction Company. Kincaid did not employ wrongful means which were themselves tortious. Consequently, Kincaid did not interfere improperly with a prospective contractual relation between Gray Construction Company and the airport board. Restatement (Second) of Torts, §§ 769 and 770 (Tentative Draft No. 23, 1977).

For the foregoing reasons, I do not believe that the circuit court erred in sustaining the motion for summary judgment.

      . I would afford Kincaid only a qualified privilege under the Restatement (Second) of Torts, § 895 D(3)(b) (Tentative Draft No. 19, 1973). See Thompson v. Huecker, Ky.App., 559 S.W.2d 488 (1977).


source: Caselaw Access Project

author: PARK, Judge.

license: Public Domain

text:
    Mossie Lee ANGEL, Appellant, v. Ester ANGEL, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.

      Maxie E. Higgason, Higgason & Davis, Corbin, for appellant.
    Garrett G. Teague, Jr., Teague & Cox, Williamsburg, for appellee.
    Before PARK, VANCE and WHITE, JJ.
   PARK, Judge.

This is an appeal from a judgment dissolving the marriage between the petitioner-appellant, Mossie Lee Angel and her husband, Ester Angel, the respondent-appellee. The sole issue raised by this appeal relates to the trial court’s division of the property accumulated by the parties during their marriage.

The parties were married for thirty-four years. At the time of the entry of the decree dissolving the marriage, Mrs. Angel was fifty-four years of age and Mr. Angel was fifty-six years of age. The only child of the marriage, a daughter, is an adult. Both parties worked at various jobs throughout the period of the marriage. In recent years, Mrs. Angel has been the chief wage earner. Because of injuries, Mr. Angel has not been regularly employed other than caring for the operations of the farm which is the chief item of dispute.

In paragraph eight of the trial court’s findings of fact, the “property accumulated during this marriage” was described as a thirty acre farm and various items of personalty including cattle, hay, farming equipment, household goods, and two automobiles. In paragraph three of the trial court’s conclusions of law, the “marital property” of the parties was designated as the property described in paragraph eight of the findings of fact. Although not included in the property described in paragraph eight of the findings of fact, the sum of $1,300.00 was on deposit in a bank account in Mrs. Angel’s name. The trial court found that the parties “were almost even contributors to the accumulation of the marital property consisting of the real estate.” There was a specific finding that Ester Angel contributed $4,500.00 and that Mossie Lee Angel contributed “approximately” $5,000.00 to the acquisition of the thirty acre farm. The trial court also found that the parties were equal contributors to the accumulation of the marital property consisting of personalty.

In the judgment, the trial court awarded Mrs. Angel the bank account and all household goods and furniture “in lieu of lump sum alimony.” Each party was awarded the automobile he or she was then driving and those personal items he or she was then using. The trial court directed that the real property, cattle and farming equipment be sold and that the proceeds be equally divided between the parties. Mossie Lee Angel asserts that this division of property is erroneous for two reasons. First, she claims that the trial court failed to assign to her the property she received by inheritance and gift. Second, she contends that the trial court did not give adequate recognition to her contribution to the acquisition of the marital property.

Under KRS 403.190, the trial court must first assign to each spouse all of his or her separate property. Only after the non-marital property has been restored does the trial court divide the marital property between the parties. See Farmer v. Farmer, Ky., 506 S.W.2d 109 (1974).

The trial court made no specific finding that any property of the parties constituted nonmarital property. As the bank account did not fall within the property described as being marital property, it would be logical to assume that the trial court considered the bank account to be nonmarital property. However, the bank account is included in the property awarded to Mossie Lee Angel “in lieu of lump sum alimony.” If the bank account constituted her separate nonmarital property, then there was no need to award it to her as maintenance under KRS 403.-200. On the other hand, the award of the bank account to Mrs. Angel may not have been intended as an award of maintenance because the court made no findings of fact as required by KRS 403.200.

As the thirty acre farm was described as being marital property, it would be logical to assume that the trial court found that no interest in the farm constituted nonmarital property. However, the trial court made a specific finding that Ester Angel contributed $4,500.00 and Mossie Lee Angel contributed approximately $5,000.00 to the acquisition of the farm. It is not clear whether the trial court considered these contributions to be nonmarital property. Consequently, we must consider whether either assumption would be correct.

At the time of their marriage, neither party owned any significant property. The first asset acquired after the marriage was a farm known as the Bethlehem Church farm. This farm was purchased for $1,800.00. Of that sum, $1,400.00 had been inherited by Ester Ai.gel on the death of his father. The parties lived on the Bethlehem Church farm for twelve years. During this time, they built a house, barn, and outbuildings. The Bethlehem Church farm was sold for $4,500.00.

That portion of the proceeds from the sale of the Bethlehem Church farm attributable to the investment of Ester Angel’s $1,400.00 inheritance constituted nonmarital property. Farmer v. Farmer, supra; KRS 403.190(2). The payment of the balance of the purchase price and the improvements were the result of the “team effort” of the parties during the marriage. That portion of the proceeds from the sale of the Bethlehem Church property attributable to the improvements and the payment of the balance of the purchase price for the land constituted marital property. Sharp v. Sharp, Ky., 491 S.W.2d 639 (1973) (first appeal); KRS 403.190(2)(e). Unfortunately, there is no evidence in the record indicating the value of the improvements. Consequently, Ester Angel has .not demonstrated that there was any increase in the value of the investment of his $1,400.00 inheritance. Except for the initial investment of his $1,400.00 inheritance, Ester Angel has not overcome the presumption that the proceeds of the sale of the Bethlehem Church farm constituted marital property. KRS 403.190(3).

The thirty acre farm owned by the parties at the time of the dissolution of the marriage was originally a part of a larger farm owned by Mossie Lee Angel’s father. Following the death of her father, Mrs. Angel and the other heirs partitioned the farm. Although the tracts in the partition varied in size, all were intended to be of equal value. In 1958, Mrs. Angel received a deed to one tract as her allotment in the partition of her father’s farm. During 1959 and 1960, two sisters and a brother sold their tracts from the partition to the Angels. Two of the tracts were purchased for $350.00; the third, for $500.00. In 1961, the Angels acquired a fifth tract from another brother of Mrs. Angel. No casn consideration was paid for this tract. Mr. and Mrs. Angel were both named as grantees in all five of the deeds. As a result of the various transactions, Mr. and Mrs. Angel had acquired five tracts out of her father’s farm containing approximately forty-five acres.

Subsequently, the parties built a home on the farm and expended considerable effort in clearing the farm of brush and timber. The evidence did not indicate the particular tract on which the residence is built. Mr. and Mrs. Angel later conveyed a fifteen acre tract to their daughter. Again, the record is silent as to which tract or tracts were conveyed to the daughter.

Ester Angel contends that the proceeds from the sale of the Bethlehem Church farm were used to acquire the tracts from Mrs. Angel’s sisters and brother or were invested in the construction of the residence on the farm. Mossie Lee Angel asserts that the entire farm constitutes her nonmarital property. In addition to the tract which she received in the partition of her father’s real estate, Mrs. Angel testified that she received approximately $5,000.00 in cash upon the settlement of her father’s estate. She claims that this money was used to purchase the two tracts from her sisters and to purchase a Ford tractor, a mower and a turning plow. She also asserts that the last tract acquired was a gift to her from her brother. The trial court made no specific finding with respect to these conflicting contentions. However, this court notes that there was no request for additional findings of fact by either party pursuant to CR 52.04.

The trial court’s findings that Ester Angel contributed $4,500.00 and that Mossie Lee Angel contributed approximately $5,000.00 to the acquisition of the farm are both conflicting and clearly erroneous. Ester Angel did not contribute $4,500.00 to the acquisition of the farm because only $1,400.00 of the proceeds of the Bethlehem Church farm represented his nonmarital property. Mrs. Angel did not contribute the $5,000.00 cash received from her father’s estate because a portion of that money was used to buy farm equipment and the total cash investment was substantially less than $5,000.00.

Both parties have assumed on this appeal that the farm had an approximate value of $30,000.00. However, there is no expert testimony as to the value of the farm. Moreover, there is no testimony in the record to indicate what portion of the present value of the farm is attributable to the improvements made by the parties. Considering the failure of the parties to introduce evidence upon which the court could make a proper division of the marital and nonmarital property, it is not surprising that the trial court decreed an equal division of the property. Nevertheless, the absence of specific findings of fact on crucial issues makes it impossible for this court to afford a meaningful review of the trial court’s division of the property.

The tract received by Mrs. Angel in the partition of her father’s farm clearly constituted nonmarital property. KRS 403.190(2)(a). If the purchase price for any of the other tracts could be traced to an inheritance by either party, then such tracts would constitute nonmarital property. On the other hand, if the purchase price for a tract could not be traced to an inheritance by either party, that tract would constitute marital property. However, when the non-marital property of one spouse is expended as a part of the “team effort” for the benefit of the marriage, that amount should be considered by the trial court in measuring the contribution of each spouse to the acquisition of the marital property. Sharp v. Sharp, Ky., 516 S.W.2d 875 (1974) (second appeal); Farmer v. Farmer, supra. Even if there were no substantial accumulation of marital property, the expenditure by one spouse of nonmarital property for the benefit of the marriage is a factor which might be considered in awarding maintenance under KRS 403.200. Cf. Scrivner v. Scrivner, Ky., 453 S.W.2d 265 (1970).

The tract conveyed without consideration by Mrs. Angel’s brother in 1961 was a gift and not marital property. KRS 403.-190(2)(a). The only question is whether the tract constituted the nonmarital property of Mossie Lee Angel alone or was owned equally by Mossie Lee and Ester Angel. Prior to the repeal of the restoration statutes (KRS 403.060 and 403.065) by the enactment of the present divorce act (1972 Ky.Acts, ch. 182, § 29), a wife would have been awarded real estate conveyed by a deed of gift from her relatives if the husband had been named as a grantee solely because of his marriage to his wife. Griffith v. Griffith, Ky., 458 S.W.2d 449 (1970). We conclude that a different result is not required under the present act. Under KRS 403.190(3), marital property is divided without regard to record title. When the trial court assigns “each spouse’s property” pursuant to KRS 403.190(1), record title should not be controlling. Therefore, the tract conveyed in 1961 by gift from the wife’s brother should be considered as the wife’s nonmarital property unless the trial court finds that Ester Angel was named as a grantee for a reason other than his marriage to Mossie Lee.

The increased value of the thirty acre farm attributable to the improvements constitutes marital property. Sharp v. Sharp, supra (first appeal). However, the trial court made no finding of fact allocating the value of the farm between marital property and nonmarital property. Because of the erroneous findings of the trial court relating to the contribution of the parties to the acquisition of farm and because of the absence of the specific findings respecting the nonmarital property of the parties, the case must be remanded to the trial court for further proceedings. Robinson v. Robinson, Ky.App., 548 S.W.2d 155 (1977).

The judgment of the circuit court is reversed with the following directions:

(1) The trial judge shall make specific findings with respect to the nonmarital property owned by the parties.

(2) The trial court shall divide the marital property in just proportions in accordance with the standards set forth in KRS 403.190(1), taking into consideration the nonmarital property assigned to each party.

(3) If the trial court concludes that it is impossible to make the necessary findings on the basis of the existing record, the trial court may order the parties to introduce proof on such issues as the trial court may designate.

WHITE, J., concurs in this opinion.

VANCE, J., concurs in the result for the reasons stated in his concurring opinion in Turley v. Turley, Ky.App., 562 S.W.2d 665 (this day decided).


author: PARK, Judge. VANCE, Judge,

text:
    Wardie Ellen TURLEY, Appellant, v. Ernest Loyd TURLEY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.

      Athol Lee Taylor, Taylor & Waller Law Offices, Shepherdsville, for appellant.
    Charles C. Sanders, Shepherdsville, for appellee.
    Before PARK, VANCE and WHITE, JJ.
   PARK, Judge.

This is an appeal from a judgment dissolving the marriage between the appellant, Wardie Ellen Turley and her husband, Ernest Loyd Turley, the appellee. Mrs. Tur-ley raises three issues: (1) whether the trial court arbitrarily assigned erroneous values to marital property; (2) whether the trial court’s division of the property accumulated during the marriage was erroneous; and (3) whether the trial judge should have disqualified himself because of kinship with counsel for Mr. Turley.

The parties were married for twenty-three years. At the time of the commencement of the action, Mrs. Turley was forty-nine years of age, and Mr. Turley was sixty-three years of age. There were no minor children. Mr. Turley suffered a stroke in 1974, and he has not worked since that time. Mrs. Turley had been employed by General Electric Company. At the time of the hearing she was on sick leave as a result of an injury and was “drawing compensation.”

I

The trial judge found that the property owned by the parties at the time of their separation had a value of approximately $15,000.00. Mrs. Turley contends that the values assigned by the trial court to the various items of property were erroneous. The only testimony respecting value was offered by Mr. Turley himself. Mrs. Turley did not contradict his estimates, and she offered no evidence of her own as to value. Considering the state of the record submitted to the trial judge for determination, we conclude that his findings as to the value of the items of personal property were not clearly erroneous. CR 52.01.

A more difficult question is presented by the trial court’s finding that the parties’ equitable interest in a lot and mobile home had a value of $5,000.00. The evidence did show that $3,500.00 from the sale of Mr. Turley’s farm in 1956 had been invested in the purchase and improvement of the lot. The mobile home had been purchased four years before the separation for $9,995.00. The purchase of the mobile home was financed over a twelve year period, and at the time of separation the balance due was $13,000.00 which included interest charges and insurance premiums for eight years in the future. No proof was offered to indicate what portion of the balance due was attributable to the unaccrued finance charges and insurance premiums. Mr. Turley testified that, in his opinion, the mobile home itself was worth not more than $8,000.00. An eighty foot strip had been sold off the original lot for $500.00. This constituted all of the evidence respecting the value of the mobile home and lot. Mrs. Turley offered absolutely no evidence respecting the value of the mobile home and lot. With such scanty proof as to the value of the lot and mobile home and with Mrs. Turley having offered no evidence whatever as to value, we cannot find that the value assigned by the trial court was clearly erroneous. In the absence of any other evidence in the record, the trial judge was entitled to draw on his own experience and knowledge. Certainly, we cannot say that the value assigned was excessive when the complaining party offered no evidence respecting the principal asset owned by the parties.

II

At the time of their marriage, Mrs. Tur-ley had approximately $500.00 in cash. The sum was used by the parties during the marriage, and it could not be traced into any present asset owned by them. At the time of the marriage, Mr. Turley owned a farm which was subsequently sold during the marriage for $3,500.00. The proceeds were invested by the parties in the purchase and improvement of the lot upon which the parties resided in the mobile home at the time of their separation. At the time of the marriage, Mr. Turley also owned a car and some furniture which was valued by the trial court at $2,200.00. During the marriage, he inherited the sum of $1,684.40. The automobile, the furniture, and the inheritance were used by the parties during the marriage, and could not be traced into any present asset owned by them.

In dividing the property belonging to the parties, the trial court assigned the bulk of the property to Mrs. Turley. However, the trial court directed that she pay to her husband the sum of $9,360.70. According to the findings of fact, conclusions of law, and judgment of the trial court, this sum represented one half of the marital property, plus the value of the property owned by Mr. Turley at the time of the marriage or inherited by him during the marriage, less the value of the marital property assigned to him.

In making this award, the trial court erred in failing to take into account the sum of $659.00 withdrawn by Mr. Tur-ley from an account at the People’s Bank. This sum should have been taken into account in making a division of marital property. Mrs. Turley further contends that the trial court erred in its division of the property of the parties because Mr. Turley did not trace the proceeds of the inheritance received by him and the furniture and automobile owned by him at the time of the marriage into specific assets owned at the time of the separation. We agree that this also was error.

KRS 403.190(2) defines “marital property” to include all property acquired by either spouse subsequent to the marriage except:

(a)Property acquired by gift, bequest, devise or descent;
(b) Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation;
(d) Property excluded by valid agreement of the parties; and
(e) The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during [the] marriage.

Subparagraph (3) of KRS 403.190 then provides that all property acquired by either spouse after the marriage is presumed to be marital property without regard to record title. This presumption is overcome only by a showing that the property was acquired by one of the five exceptions listed in subsection (2) of the statute.

In this case, Mr. Turley failed to show that any property owned by the parties at the time of the separation was acquired by use of his inheritance or from the proceeds from the sale of the automobile and furniture owned by him prior to the marriage. Because he did not trace the inheritance or the proceeds, if any, from the disposition of the automobile and furniture, it was error for the trial court to award him the value of such items. Sharp v. Sharp, Ky., 516 S.W.2d 875, 878 (1974); Farmer v. Farmer, Ky., 506 S.W.2d 109, 112 (1974). Likewise, the trial court erred in awarding Mrs. Tur-ley the sum of $500.00 which she owned at the time of the marriage and which she could not tracé*into specific assets owned by the parties at the date of separation. Mr. Turley did trace the proceeds from the sale of the farm which he owned at the time of the marriage into the lot which was owned by the parties. Consequently, it was not error for the trial court to award him that sum as nonmarital property in lieu of the lot itself.

Even though we have approved the values assigned by the trial court to the property owned by the parties, the errors in the judgment in dividing the property of the parties cannot be corrected by this court. This court has held that there is a presumption that each spouse contributed equally to the accumulation of the marital property in marriages of substantial duration in which the accumulation of marital property is relatively modest. Herron v. Herron, Ky.App., 24 Ky.L.Summ. 15 (Nov. 4, 1977). Under KRS 403.190(1), the trial court is required to consider the contribution of each spouse to the acquisition of the marital property. When the nonmarital property of one spouse is expended as a part of the team effort for the benefit of the marriage, that amount can be considered by the trial court in measuring the contribution of each spouse to the acquisition of the marital property. Sharp v. Sharp, supra; Farmer v. Farmer, supra. In addition, the trial court may consider the economic circumstances of each spouse, which would include health and ability to work. Taking into consideration Mr. Turley-s contribution of nonmarital property to the team effort and taking into consideration his present health, we cannot assume that the trial court would decree an equal division of the marital property.

Consequently, we conclude that the case must be remanded to the trial court so that he may consider the division of the marital property in light of our holding that only the lot constitutes nonmarital property. In light of the unsatisfactory evidence relating to the value of the lot and the mobile home, the trial court may in its discretion permit or require the parties to introduce further testimony as to value of that property.

Ill

Mrs. Turley contends that the trial judge should have disqualified himself in the case because his son was counsel for Mr. Turley. There is no merit for this argument. No motion to vacate was ever made, and the issue was raised for the first time on appeal. The new statute respecting the disqualification of judges did not go into effect until after entry of the judgment in 1976 Ky. Acts (Ex.Sess.), ch. 22, this case. § 4.

The judgment of the circuit court is reversed with directions to make a new findings of fact and to enter a new judgment as provided in this opinion.

WHITE, Judge, concurs in this opinion.

VANCE, Judge, concurs by a separate opinion.

VANCE, Judge,

concurring.

I concur in the result reached by the majority solely because I accept the view of the majority that Sharp v. Sharp, Ky., 516 S.W.2d 875 (1974), and Farmer v. Farmer, Ky., 506 S.W.2d 109 (1974), require that inheritances, gifts, and property owned at the time of marriage must be traced to some asset currently owned by the parties before the inheritances, gifts or previously owned property can be claimed as nonmari-tal property which was later exchanged for other property.

I think this premise should be reexamined. KRS 403.190 does not use the word “trace.” The tracing of one asset into another is a complicated legal and accounting process and, in my opinion, it is inimical to the spirit of marriage.

Marriage connotes sharing, with the concentration upon what is “ours” rather than what is “his” and what is “hers.” It does not bode well for the institution of marriage if each partner must keep in the back of his mind the possible advantage to be obtained by keeping up with and being able to trace every penny brought into the marriage. In addition, the process of tracing is usually so complex that the expense involved cannot be justified when the accumulation is small as in this case.

If either marriage partner has property at the time of marriage, or later acquires property by gift, descent or devise, and that property remains intact at the time of dissolution, assignment of that property as a nonmarital asset is required by statute. If the property owned at the time of marriage, or later acquired by gift, devise, or inheritance, is converted into cash and used during the marriage so that it cannot be traced into any asset owned at the time of dissolution, I see no reason why each partner should not still be assigned as nonmari-tal property the value of the property that would otherwise have been regarded as nonmarital property except for the fact that it cannot be traced.

The purpose of the classification of property as marital and nonmarital is to facilitate restoration to each party of his property which was acquired outside of the marriage and to divide that which was accumulated during the marriage.

Regardless of whether assets can be traced, there is no accumulation of property during marriage unless the assets owned by the parties at the time of dissolution have a greater value than the total value of the property owned by them when married added to the value of property later acquired by gift, descent or devise. As long as the parties own at least as much when they separate as they owned before marriage, or acquired by gift or devise, the previously owned property and the gifts and devises have in one way or another changed in form and I would see no difficulty in holding that this changed form constitutes property acquired in exchange for the property previously owned, or acquired by gift or devise, whether the exchange can be actually traced or not.

Great inequity can result from any other course. For example, consider a husband and wife who each have $10,000.00 when married, his in the form of a certificate of deposit and hers in cash. If, when the marriage is dissolved, they own $20,000.00 worth of property in addition to the certificate of deposit, it goes without saying that her original $10,000.00 is included therein although she might find it impossible to trace it.

I would prefer to assign each of them $10,000.00 in nonmarital property rather than to assign the husband the $10,000.00 certificate as nonmarital property and attempt to divide the remainder as nonmari-tal. That is what the trial judge did in this case. I would like to affirm the judgment but I feel bound by the decisions in Sharp and Farmer and therefore must concur in the reversal.


author: MARTIN, Chief Judge.

text:
    KENTUCKY WORKMEN’S COMPENSATION BOARD, Appellant, v. Eldrie ALEXANDER, the McLean Trucking Company, and Transport Insurance Company, Appellees. KENTUCKY WORKMEN’S COMPENSATION BOARD, Appellant, v. KIMCO MINING COMPANY and Aden Ward, Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.

      Charles E. Jennings, Workmen’s Compensation Board, Frankfort, for Workmen’s Compensation Bd.
    John T. Reed, McMurry & Livingston, Paducah, for Eldrie Alexander.
    Herbert Schultzman, Paducah, for McLean Trucking Co. and Transport Ins. Co.
    William D. Gregory, Mount Vernon, for Aden Ward.
    Charles R. Luker, Jr., Luker & Luker, London, for Kimco Mining Company.
    Before MARTIN, C. J., and LESTER and WHITE, JJ.
   MARTIN, Chief Judge.

These two appeals are brought by the Workmen’s Compensation Board (Board) from separate judgments of the McCracken Circuit Court and Jackson Circuit Court. They present nearly identical questions: whether upon an appeal of a workmen’s compensation case to the circuit court, the circuit court may approve a lump sum settlement agreement and dismiss the appeal without the approval of the Board.

In No. CA-1755-MR, Kentucky Workmen’s Compensation Board v. Eldrie Alexander, et al. (Alexander), the Board awarded the claimant Alexander temporary total disability for a period specified, and thereafter, a weekly sum for the duration of his 10% occupational disability, plus future medical expenses. His employer, McLean Trucking Co., filed an appeal in the McCracken Circuit Court and Alexander filed his response. Thereafter, they reached a lump sum settlement agreement, and the circuit court, finding the settlement to be “reasonable and fair,” entered an order remanding the case to the Workmen’s Compensation Board and ordering the Board to approve the lump sum settlement.

In No. CA-1907-MR, Kentucky Workmen’s Compensation Board v. Kimco Mining Co., et al. (Kimco Mining), the Board awarded Aden Ward temporary total disability for a period specified, plus a weekly sum for the duration of his 20% permanent partial disability, together with medical benefits. His employer, Kimco Mining Co., appealed the award to the Jackson Circuit Court, and in due course, a response was filed by Ward. Thereafter, Ward and Kim-co Mining Co. filed a joint motion requesting the court to approve a lump sum settlement. The court then approved the settlement and dismissed the appeal. No memorandum of the settlement agreement was ever filed with the Board, nor was its approval obtained.

Years ago it was well settled, under sections 8a and 26 of the Compensation Act then in effect, that all settlements were subject to approval of the Board. See Workmen’s Compensation Board v. Abbott, 212 Ky. 123, 278 S.W. 533 (1925); Stewart v. Model Coal Co., 216 Ky. 742, 288 S.W. 696 (1926); Eagle Fluorspar Co. v. LaRue, 231 Ky. 757, 21 S.W.2d 1026 (1929) and Hatfield v. Billiter & Wiley, 231 Ky. 736, 22 S.W.2d 129 (1929). The language of section 26, to the effect that nothing “shall operate as a final settlement except a memorandum of agreement filed with and approved by the board in accordance with this section,” is now incorporated into K.R.S. 342.265. Section 8a, which became § 4889 of the statutes and then § 342.050 of the present act, was repealed January 1, 1973. It stated that except as provided elsewhere in the act, “no contract or agreement, written or implied, no rule, regulation or other device, shall in any manner operate to relieve any employer in whole or in part of any obligation created by this act.”

It is our opinion that the requirement of Board approval is dictated by K.R.S. 342.-265 alone, and that any settlement of claims made under the Workmen’s Compensation Act must be approved by the Board in conformance with that statute. Its language is clear and is susceptible to no other interpretation.

The necessity for gaining the Board’s approval of a lump sum settlement is more than a technical bureaucratic requirement. The rationale is well stated in Eagle Fluorspar Co. v. LaRue, 231 Ky. 757, 760, 21 S.W.2d 1026, 1028 (1929):

The purpose of periodic payments is to give the employee an income payable as his wages were paid and to preclude any possibility of an imprudent employee or dependent wasting the means provided for his support and thereby becoming a charge upon society. In most cases it is much better for the employee and his family that the compensation be paid in installments corresponding to the payment of his wages. This is the plan of the act and it is only in exceptional cases that the board should approve commutations.

Because in each of these appeals the circuit court was without jurisdiction to approve the settlement, or to order its approval, the respective order of each court was void. Stewart v. Model Coal Co., supra; Eagle Fluorspar Co. v. LaRue, supra; Hatfield v. Billiter & Wiley, supra.

As these orders are void, we are faced with a further procedural problem. In neither of these cases did the appellant move the circuit court to set aside its order. Under § 763 of the former Civil Code, no void judgment could be acted upon by the appellate court unless a motion to set it aside had been denied by the circuit court. The purpose, of course, was not only to prevent unnecessary appeals, but also to provide the circuit court with an opportunity to correct its own error. When § 763 was superseded by Kentucky Rules of Civil Procedure (CR) 60.02, the prohibition was not continued. In Epling v. Ratliff, 364 S.W.2d 327 (Ky.1963) it was decided that in the absence of a motion to dismiss, the court should entertain the appeal and declare the judgment void.

We believe we should hear both of these appeals and dispose of them on their merits. In Alexander we have been presented with no motion to dismiss. Further, it would appear that the McCracken Circuit Court was aware of the possible error it was committing, as it chose to remand the case and ordered the Board to approve the settlement, instead of simply accepting the settlement and dismissing the appeal.

In Kimco Mining, the appellees have filed a motion to dismiss, stating as grounds that appellant argues the judgment appealed from to be void, but filed no motion in the circuit .court to have it set aside. Under normal circumstances we would be inclined to grant the motion, dismiss the appeal, and direct the appellant to file a motion for relief pursuant to CR 60.02 in the circuit court. This would provide that court with an opportunity to correct its own error. However, inasmuch as the circuit court would be obliged to vacate its order under the holding of this opinion, we shall, in the interest of judicial economy, declare the judgment void and set it aside.

When presented with a settlement of claims such as occurred in these cases, the circuit court should abate its appeal proceedings and return the record to the Board. The parties may then file their memorandum of agreement with the Board. When approved, the circuit court should dismiss the appeal. If the settlement is not approved, the parties should make such order a part of the record on appeal. This Court has followed, and will continue to follow, this same procedure when the parties propose a settlement while the case is before this Court on appeal.

The judgment in each of these appeals is reversed, and they shall be remanded for further proceedings consistent with this opinion. The motion to dismiss in Kimco Mining is denied.

All concur.


author: HOWERTON, Judge.

text:
    Ervin VINCENT, etc., Appellant, v. FRUEHAUF CORPORATION et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.
    John Frith Stewart, Rex Dunn, Louisville, for appellant.
    William Kiel, Louisville, for appellees.
    Before HOWERTON, LESTER and REYNOLDS, JJ.
   HOWERTON, Judge.

This is a workmen’s compensation case involving the single issue of whether an appeal from the Workmen’s Compensation Board order was timely filed.

Appellant filed a claim with the Workmen’s Compensation Board for a work-related injury. The Board issued an opinion and award on March 28, 1977. Thereafter, on April 4, 1977, the Board, on its own motion, corrected an error in the original award, and on April 7, 1977, mailed copies of the amending order to the parties involved. The appellant filed his petition on appeal on April 27, 1977, thirty days after the original March 28th order.

The question on this appeal is which date began the running of appellant’s twenty-day period within which he could appeal.

In the facts presented by this appeal, we are faced with the question of whether rendition occurred on March 28th, when the Board rendered its original order, or whether final rendition occurred on April 7th, as alleged by appellant.

IÍ is our conclusion that the period in which to take an appeal began on March 28th. The changes made by the Workmen’s Compensation Board on its own motion were merely corrections. The errors were obvious on the face of the original award. The March 28th order stated that the injury was sustained on July 23, 1973. However, the order stated in the next paragraph that the Board found temporary, total disability from July 23, 1974 to January 7, 1974. Obviously, the period of disability did not run from July, 1974 to the preceding January, and obviously, the disability began on the date of the injury, not six months later. A mere correction of what appears to be in the nature of a typographical error, which in no way substantially harms the claimant, is not sufficient to restart the running of the period in which an appeal can be filed. The claimant was sufficiently aware of the award on March 28th to enable him to make a determination of whether or not he desired to appeal. The judgment of the trial court is affirmed.

All concur.


author: COOPER, Judge.

text:
    Betty HARTMAN, A. Lenaye Mayfield, Marilyn Hohmann, Anita Dalrymple, Vickie Walker, Joan Fox, Linda Tanner, Curtis Calloway, Marcia Schiller, Barbara Gray, Rita Johnson and John Sizemore, Appellants, v. BOARD OF EDUCATION OF JEFFERSON COUNTY, Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 10, 1978.

      Henry A. Triplett, Hogan, Taylor, Denzer & Bennett, Louisville, for appellants.
    E. Preston Young, Dan McCubbin, Louisville, for appellee.
    Before COOPER, HOWARD and PARK, JJ.
   COOPER, Judge.

This is an appeal from a judgment in the Jefferson Circuit Court dismissing a complaint filed by certain counselors, employees of the Board of Education of Jefferson County, Kentucky.

The counselors were demoted by action of the Board dated July 13, 1977. This action was commenced on July 14, 1977, one day after the Board demoted the counselors.

The process for demotion started May 10, 1977, when the following letter was written to each counselor:

At the meeting of the Jefferson County Board of Education on Monday, May 9, 1977, a recommendation was made by E. C. Grayson, Superintendent, pursuant to the provisions of KRS 161.765, that you be demoted as an administrator within the Jefferson County School System. The specific reason for the recommendation was the reduction in the number of counselor positions resulting from the financial status of the Jefferson County School District.
Under the terms of KRS 161.765, the Board of Education took no action upon the recommendation and is hereby giving ■ written notice to you of the recommendation of the superintendent. The provisions of the above statute require that if you wish to contest the above recommendation, you must file a written statement of such intent to contest with the superintendent within ten (10) days of receipt of this notice. If you do not file a written statement within ten (10) days of receipt of this notice, the Board may take action on the recommendation of the superintendent and such action shall be final.
Please be advised, if the recommendation of the superintendent is approved at the proper time and if, at a later date, we determine that a need exists for a counselor in your area of certification, you will be recalled in the order of seniority, which would be based on the date on which you were assigned to your present position. No staff vacancy will be filled through recruitment ■ of a person of a race, color, or national origin different from that of the individual reassigned until each displaced staff member who is qualified has had an opportunity to fill the vacancy and has failed to accept an offer to do so.

The counselors served notice on the Board of their intention to contest the demotions. The Board then served on the counselors a letter, or paper, dated June 21, 1977 (marked Counselors Exhibit 9) which it contends was in compliance with KRS 161.765 Section 2, Subsection b, Sub-subsections 1 and 2, a part of which is as follows, to-wit:

At the meeting of the Board of Education of Jefferson County Schools on Monday, April 25, 1977, the recommendation was made by the Superintendent to eliminate a number of positions at the local school level and in the Central Offices of the school district. The position which you hold as Counselor was recommended for elimination which necessitated the recommendation of your demotion.
We are in receipt of your notice of intent to contest the demotion as recommended by the Superintendent. The hearing before the Board of Education pursuant to your demotion will be held on Wednesday, July 13, 1977, at 9:00 A.M. at the VanHoose Education Center.
Pursuant to the provisions of KRS 765 [sic] (Procedures for Demotion of Administrative Personnel: Appeal) the specific and complete statement of grounds upon which your proposed demotion was based is the required reduction of expenditures in the 1977-78 budget of the Jefferson County School District.
Upon receipt of the above statement of grounds, you shall, within ten (10) days file a written answer to the Superintendent of Schools, c/o Mr. Ronald D. Barber, Associate Suprintendent for the Division of Employee Personnel. Failure to file such answer within the prescribed period of time will relieve the Board of Education of any further responsibility to hold the hearing and it may proceed to act upon the Superintendent’s recommendation for demotion.
The hearing shall be public or private at the discretion of the Administrator and shall be limited to the matters set forth in the grounds for demotion.

After the demotions occurred, the counselors filed suit and contended that the Board had not complied with the applicable statutes and, accordingly, the demotions were void.

The circuit court held that the demotions were valid; that the notice required by KRS 161.765 was sufficient; and that the counselors were demoted on a seniority basis which could be inferred from the letter dated May 9, 1977. The court also ordered a corresponding reduction in salary, although the letter of May 9, 1977, did not mention a reduction in salary nor did the purported statement of the complete and specific grounds for the demotion as required by KRS 161.765 refer to any reduction in salary. The court further held that the statement contained in Counselors Exhibit 9 was sufficient compliance with the statute.

Several contentions and questions are raised on this appeal. The counselors contend:

(1)That the Board did not comply with KRS 161.765, Section 2, Subsection b, Sub-subsections 1 and 2 because the. language,
Pursuant to the provisions of KRS 765 (Procedures for Demotion of Administrative Personnel: Appeal) the specific and complete statement of grounds upon which your proposed demotions was based is the required reduction of expenditures in the 1977-78 budget of the Jefferson County School District. is not a specific and complete statement of grounds upon which the proposed demotions may be based.
(2) As the circuit court’s judgment called for a reduction in salary and no notice was given to the counselors that the Board proposed to reduce their salary, and the Board did not do this before May 15, 1977, as required by KRS 161.760, such portion of the court’s judgment is erroneous.
(3) That the court was in error when it concluded that when demotions or reductions are done on a system-wide basis, such action does not have to be taken before May 15, 1977.

The Board raises the following issues:

1. WHETHER THE BOARD HAS THE AUTHORITY UNDER STATE LAW TO DEMOTE ADMINISTRATORS WHO HAVE COMPLETED AT LEAST THREE (3) YEARS ADMINISTRATIVE SERVICE PRECEDED BY A NOTICE THAT SETS FORTH THE GROUNDS FOR SAID DEMOTION AS STRICTLY ECONOMIC AND NONPERSONAL.
2. WHETHER THE STATUTORY PROCEDURE FOR SAID DEMOTION IS GOVERNED BY THE PROVISIONS OF KRS 161.765.

In our opinion the real issue in this case is:

WHETHER ADEQUATE AND PROPER NOTICE WAS GIVEN BY THE BOARD TO THE COUNSELORS IN COMPLIANCE WITH KRS 161.765.

One of the contentions that the counselors make relates to the specificity contained in Exhibit 9 which is the purported compliance by the Board with KRS 161.765, Section 2, Subsection b, Sub-subsections 1 and 2. KRS 161.765 provides in Section 2, Subsection b, Sub-subsection 1 “that a written statement of grounds for demotion . would be served upon an administrator. Said statement shall contain:

(1) A specific and complete statement of grounds upon which the proposed demotion is based, including where appropriate dates, times, names, places and circumstances.”

The appellants contend that the letter served on the counselors is not a specific and complete statement of grounds upon which the proposed demotions were based and does not include any dates, times, names, places and circumstances which would tell the counselors how they were selected for demotion as opposed to the counselors who were not demoted. An identical form statement was served upon each counselor. Counselors Exhibit 9, which contains the attempted compliance of KRS 161.765, only states that the demotion is based upon required reduction of expenditures in the 1977-78 budget of the Jefferson County School District. It does not say why expenditures were required to be reduced nor does it say why the reduction should be applied to the counselors as opposed to reducing some other expenditure. It does not say why a particular counselor was selected as opposed to another counsel- or or other administrator of equal pay and rank. It does not say or tell where the specific budget adjustment is made nor does it say when a budget will be adopted for the 1977-78 year or if one has been adopted.

We agree with the appellants on the above contention.

This Court very jealously and zealously guards the rights of public employees and requires charges for demotion or discharge to be very definite and certain. See Armstrong v. Board of Civil Service Commissioners, 243 Ky. 415, 48 S.W.2d 1055 (1932); Osborne v. Bullitt County Board of Educ., Ky., 415 S.W.2d 607 (1967).

We note in 68 Am.Jur.2d, Schools, Section 188, at page 519, the following language:

Under statutes requiring that a notice of dismissal state in detail the reasons for the proposed cancellation of the teaching contract, a notice which merely specifies a statutory cause in generic terms does not sufficiently inform the teacher of the charges against him, or provide the teacher with facts upon which he can reasonably formulate a defense.

While this specifically mentions teachers, we believe it to apply to administrative personnel as well.

When the statute involved here and the foregoing authorities are measured against what has happened here, it is clear that a specific and complete statement of grounds upon which the proposed demotions were based was not given to the appellants as required.

The judgment is reversed for proceedings consistent with this opinion.

All concur.


author: NORWIN D. HOUSER, Special Judge.

text:
    Michael SHEPARD, by Delores Shepard, his mother and next friend, and James Shepard, Plaintiffs-Respondents, v. Arch McGOUGAN, Jr., Defendant-Appellant.
    No. 37957.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Dec. 20, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied April 10, 1978.

      Fitzsimmons & Fitzsimmons Attorneys, Inc., George L. Fitzsimmons, Daniel J. McMichael, Clayton, for defendant-appellant.
    Gray & Ritter, Robert F. Ritter, St. Louis, for plaintiffs-respondents.
   NORWIN D. HOUSER, Special Judge.

Michael Shepard, 15 years of age at time of injury, brought this action, by his next friend, against Arch McGougan, Jr. for damages for personal injuries sustained by him when the right front tire of defendant’s automobile ran over Michael’s foot. Michael’s father James joined as a party plaintiff, suing for loss of his son’s services and reimbursement for outlays made for medical, surgical and hospital expenses. A jury awarded Michael $45,000 and allowed James $2,500. Defendant has appealed.

The first question is whether plaintiffs made a submissible case of humanitarian negligence based on failure to stop and failure to sound a warning.

Maxine Johnston was driving a pickup truck west on Vineland Road in DeSoto, carrying her daughter Wanda and Michael Shepard as passengers. It was dusk, dark enough for the lights on the pickup to be turned on. Maxine was on her way home, intending to drop Michael off at his grandmother’s house, which was located on the south side of Vineland Road. Vineland at that point is “wide enough for two cars to go up and down.” Maxine stopped the pickup on the pavement on the right (or north) side of the road, there being no shoulder. Maxine stopped the pickup 5 feet east of grandmother’s mailbox located on the north side of the road. Maxine turned on the flashers when she came to a stop. On the way, as Maxine passed intersecting Second Street, defendant McGougan’s automobile had entered Vineland, turned and followed Maxine’s pickup. Defendant’s lights were turned on. When the pickup stopped, defendant in turn stopped his car 10 to 20 feet behind the pickup. Michael did not leave the pickup immediately, tarrying long enough to tell Wanda, his girl friend, goodbye and give her a kiss. Maxine testified she told Michael to be sure and watch behind the truck because there was a car behind them, and to make sure it was going to stay there. Wanda testified that as Michael started to get out of the pickup her mother warned Michael to watch out, because there was a car behind them. Michael said nothing to acknowledge that he heard Maxine’s warning, and at trial did not remember whether Maxine gave him the warning. Nor did he remember whether he looked back and saw defendant’s automobile or its lights — he did not know it was “back there.” Michael got out on the right-hand side and walked around in front of the pickup, 2 or 3 feet from the front of the pickup. His height was 5 feet 3 or 4 inches. He could see across the hood to his grandmother’s house. He did not remember whether he stopped in front of the pickup, or whether he looked to his right or left to see if any cars were coming. He did not remember seeing defendant’s car at any time before it was on his foot. Michael did not run; he was walking at a normal pace. All he remembered was that he put his hand on the pickup, “and as soon as [he] started to step out then [his] foot got ran over.” The front bumper did not hit him; the right front wheel ran over his left foot. He said when the accident happened his foot was 3½ or 4 feet out (south) of the driver’s side of the pickup. There was nothing to prevent Michael from looking to the left to see if cars were coming, once he cleared the pickup truck. He said he could have stopped immediately if a warning had been given, but that no horn was honked. Maxine verified that Michael was walking, not running, “just a normal walk.” She said when Michael walked around in front of the pickup and got to the left headlight he paused in front of it, with his left hand on the hood, and looked first to the right and then to the left. Confronted with her deposition in which she had testified he looked first to his left and then to his right, Maxine said she could not remember which. All she knew was that he turned his head “to check the road both ways.” After Michael looked he “took a step to cross the road.” At the most Michael took one or two steps out into the street past the pickup when the accident happened. As Michael started to step out she could see the headlights from the car behind her “weave out enough to come around,” and then the car “hit him.” She heard no horn sounded. (Defendant admitted he did not sound his horn.) Michael was walking, standing up at all times before he was struck, “looking straight ahead when this happened.” He appeared to be “walking straight.” Defendant’s car stopped, resting on Michael’s foot. It had to be moved to release him. Maxine estimated 2 or 3 seconds elapsed from the time Michael first looked to the left until the “collision”; that it was 8 or 10 feet from the front headlight of the pickup to the driver’s door.

Wanda verified her mother’s testimony that Michael looked to the left, then to the right, then stepped out and the car “hit him”; that after looking both ways he took off, and it happened “just one, two, three.” She testified he could not have taken more than two steps; that the defendant’s car came around while Michael was looking to the right; that from the time he looked until time of impact a matter of 2 or 3 seconds elapsed. Wanda was aware of defendant’s car following them up Vineland because she saw the reflection of defendant’s headlights in the mirrors of the pickup.

According to defendant McGougan he stopped his automobile, not knowing whether “they” were going to get mail out of the mailbox, or had motor trouble. He did not see Michael get out of the pickup on the right side. He was stopped about 30 seconds, with his headlights on. He saw no activity whatever. He then turned on his left directional signals, looked behind him, “eased out slow because it was kind of on a hill,” and seeing no traffic from the rear or oncoming he “eased out about even with the [pickup] truck * * * not knowing whether somebody was working in front of the truck or what could be happening.” One of his concerns was that “somebody might be crossing the street in front of the truck.” As he pulled around the pickup, and as the hood of defendant’s car was even with the driver’s door of the pickup, he could see over the hood of the pickup to the area in front of the pickup. Defendant looked to his right and took a quick glance toward the hood of the pickup, thinking perhaps “they” had engine trouble and someone was working on the truck, or maybe getting mail out of the mailbox. The hood of the pickup was down. He did not see anything else. In his deposition defendant testified that as he was passing the pickup the right side of defendant’s car was three and a half or four feet from the left side of the pickup. At trial he put it at 2 to 3 feet. At that time he saw no pedestrian, “not a soul,” although it is inescapable that at that time Michael was in front of the pickup, standing in the light from its headlights. As defendant was moving forward, looking straight ahead, he heard a thud, and “stopped in one split second, immediately.” He had not seen Michael. If he had seen him he thought he could have stopped in time to have kept from hitting him. In his deposition he said he couldn’t have been going over 3 or 4 m. p. h. At trial he testified he was proceeding 2 or 3 m. p. h., looking straight in front of his car. He got out, heard the boy say, “You’re on my foot. Would you please back off my foot.” He immediately got in his car, put it in reverse and backed up 3 feet off the boy’s foot. He told Michael at the scene he didn’t see him and asked where he came from. He testified Michael said, “I saw you but it was too late. I tried to stop but my foot slipped out from under me, I slid under the wheel.”

As indicated, plaintiffs’ ease was submitted to the jury on failure to stop and failure to sound a warning, under the humanitarian doctrine. Considering the evidence in the light most favorable to the prevailing party, plaintiffs made a submis-sible case of humanitarian failure to stop. A determination of this issue involves precise computations of place, time, distance and speeds of two moving bodies: the pedestrian plaintiff and defendant’s automobile. The factor of defendant’s speed is based upon his own testimony that he “couldn’t have been going over three or four miles an hour.” Traveling at 3-4 m. p. h. defendant’s vehicle was moving at a rate of from 4V2 to 6 feet per second. Traveling at that speed defendant stopped “in one split second, immediately.” Defendant testified that at 3 m. p. h. he could stop “in a matter of inches”; at 4 m. p. h. it would be “close to a foot.” The trial court took judicial notice, and instructed the jury without objection, that an automobile travelling at a speed of 3-4 m. p. h. “may be stopped almost instantly.” In the absence of evidence of reaction time we take judicial notice that ¾ of a second is required. At 3 m. p. h. an automobile travels 3.375 feet in ¾ of a second. At 4 m. p. h. an automobile travels 4.5 feet in ¾ of a second. On the basis of these calculations the jury could find that, traveling at 3 m. p. h., defendant could have stopped in 4.375 feet, including reaction time, after the occasion to stop arose; that, traveling at 4 m. p. h. defendant could have stopped in 5.5 feet, including reaction time, after the occasion to stop arose. Michael was not running just before his injury; he was “walking at a normal pace.” The court took judicial notice, and instructed the jury without objection, that ordinary walking speed is 2 or 3 m. p. h. At that speed Michael would travel 2.9 to 4.4 feet per second. Bunch v. Mueller, 365 Mo. 494, 284 S.W.2d 440, 443 (banc 1955); DeLay v. Ward, 364 Mo. 431, 262 S.W.2d 628, 635[9] (banc 1953); Edwards v. Dixon, 298 S.W.2d 466, 469[3] (Mo.App.1957). Defendant’s duty to take evasive action arose when Michael came into a position of immediate danger. The jury could find that Michael reached a position of immediate danger when defendant saw, or by the exercise of the highest degree of care could have seen, Michael moving toward the path of his automobile apparently intending to continue into its path and apparently oblivious of its approach. Edwards v. Dixon, supra, 298 S.W.2d l.c. 469; Wofford v. St. Louis Public Service Co., 252 S.W.2d 529, 533[6] (Mo.1952); Wright v. Osborn, 356 Mo. 382, 201 S.W.2d 935, 938 (1947); Williams v. Ricklemann, 292 S.W.2d 276, 281[8] (Mo.1956); Triller v. Hellwege, 374 S.W.2d 104, 107[4] (Mo.1963); Murphy v. Land, 420 S.W.2d 505, 509[10] (Mo.1967). Michael was not in a position of immediate danger until he started forward, after having stopped at the left front headlight of the pickup. The jury could find that at the moment he started forward he was in immediate danger requiring defendant to stop or sound a warning to prevent injury to him. The distance from the point where Michael had been standing at the left front headlight, to the place where his foot engaged the right front tire of defendant’s automobile, considering the evidence in the light most favorable to Michael, was from 5 to 6 feet. At the speed Michael was walking (2-3 m. p. h. at most) he would have taken from 1.36 to 1.79 seconds to negotiate this short distance. On the basis of these facts the jury could find that at the time Michael started forward from his standing position defendant’s automobile, traveling at 3-4 m. p. h., was from 6.12 to 10.74 feet distant from point of impact. Defendant did not stop within the approximately 6 to 10 feet available to him, although he could have stopped within from 4.375 to 5.5 feet, including reaction time.

These computations assume that at the moment Michael started forward from his standing position he instantly attained maximum traveling speed of 2.9 to 4.4 feet per second, but the jury could find that he was not at fully attained speed during the first second. Upon such a finding the time it took him to reach point of impact would have been more than 1.36 to 1.79 seconds, which in turn would place defendant’s automobile farther back, giving defendant more time and distance within which to stop. Accepting Wanda’s testimony that from the time Michael looked until impact 2 or 3 seconds elapsed the mathematics are even more favorable to Michael. In that event, subtracting ¾ of a second for reaction time, the time lapse from Michael’s resumption of his walk until impact was as much as 2¼ seconds, which would place defendant’s car, in round numbers, from 10 to 13 feet distant from point of impact.

For some reason defendant simply failed to see Michael, who was there in front of the pickup, under this evidence, where he could be seen as he reached and paused at the left front headlight, illuminated by the headlights of both pickup and defendant’s car. For some reason defendant failed to observe Michael start forward into his path, looking straight ahead, apparently (and actually under Michael’s testimony) oblivious of danger, in time to avoid injury by stopping. Defendant admitted that if he had seen Michael he could have stopped in time to avoid hitting him. One possible reason why defendant did not see Michael is that defendant was looking straight ahead, preoccupied with the possibility that a car might be approaching from the west, coming over the crest of the hill ahead, which was only 60 or 70 feet west of the pickup. (Defendant admitted that if oncoming [eastbound] traffic had come onto the scene there would have been a head-on collision.)

The same considerations apply to the second assignment of humanitarian negligence: failure to sound a warning. If when Michael started forward, apparently oblivious of defendant’s approach and intent on crossing the street, defendant, 6 to 13 feet short of point of impact, had blown his horn, there is evidence that Michael could and would have instantly checked his course and avoided injury. Defendant admits that until the automobile tire and Michael’s foot met Michael was “entirely capable of stopping” and that Michael “could have stopped in mid-stride a split second before impact.” Defendant had sufficient reaction time within which to blow his horn, but failed to do so. Plaintiff made a case of humanitarian failure to sound a warning.

Defendant argues that plaintiffs’ theory is, and the evidence shows, that Michael took a normal step and put his foot on the pavement immediately in front of and under the right front tire of defendant’s automobile; that since Michael could have stopped instantly he was not in a position of immediate danger until the last step, or last half step; that' it was only after Michael “passed this infinitesimally close point of no return that defendant could be found guilty of humanitarian negligence”; that even if defendant could have seen this action of Michael defendant would neither have had time to stop or sound a warning in time to have done any good. This argument is based upon the thesis that Michael was not oblivious, and upon a misunderstanding of the time when the jury could have found that Michael first entered a position of immediate danger. As indicated, the jury could have found that Michael entered that position at the instant he resumed his forward progress, after stopping at the left front headlight of the pickup. Although the time frame is short, and the distance minimal, between the place where he entered that position and the place where his foot was run over, the essentials of a humanitarian case were present, and the court did not err in submitting the case to the jury.

Defendant argues that Michael was not oblivious and the jury could not have so found; that before Michael left the Johnston vehicle he was warned to watch for the car behind them; that both Maxine Johnston and his girl friend were aware of the approach of defendant’s car (and therefore Michael should have been); that both testified that Michael looked both ways before proceeding forward; that Michael did not deny looking both ways and did not deny he had independent knowledge of the presence and danger of defendant’s car (testifying only that he disremembered). As to the alleged warning: neither Maxine nor Wanda would testify that Michael responded or reacted to the warning by uttering an ae-knowledgment that he heard and understood, and the jury may have concluded that Michael was not conscious of the warning; that his mind was on something else, and not on his own personal safety. On the issue whether Michael looked before resuming his walk, the jury was at liberty to disbelieve and reject the testimony of Maxine Johnston and her daughter that Michael looked both ways, when considered in connection with Michael’s uncertain testimony on the issue, and the surrounding circumstances in the case. Hinds v. Kircher, 379 S.W.2d 607 (Mo.1964); Capriglione v. Southwestern Bell Tel. Co., 376 S.W.2d 205 (Mo.1964); Young v. K. C. Southern Ry. Co., 374 S.W.2d 150 (Mo.1964). Evidently the jury rejected the testimony that Michael looked both ways. Furthermore, the testimony of Maxine and Wanda on this issue related to Michael’s actions after he had stopped, while he was standing in front of the Johnston vehicle and before he resumed forward motion (during which time Michael was not in any danger). Michael could not be found in a position of imminent danger until he moved forward. “It is the reasonable appearances of the situation that imposes the duty to act.” Turbett v. Thompson, 363 Mo. 577, 252 S.W.2d 319, 321 (1952). As Michael moved forward after stopping, looking straight ahead, apparently intent on crossing the street, the jury could find that it reasonably appeared that Michael was oblivious at that time, thereby giving rise to the duty on defendant’s part to stop or awaken Michael from his apparent lethargy by issuing a warning. In other words, the jury could have found obliviousness, from the reasonable appearances of the situation, at the time Michael came into a position of immediate danger.

Defendant’s second point is that the verdict of $45,000 for Michael and $2,500 for his father, a total of $47,500, is so grossly excessive as to indicate bias and prejudice on the part of the jury. The mere size of the verdict does not in and of itself establish that it was the result of bias or passion and prejudice, without showing some other error committed at the trial. Skadal v. Brown, 351 S.W.2d 684, 690 (Mo. 1961); Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102, 116[17] (Mo.1973). No such error and no untoward incident occurring during the trial likely to have biased the jury or aroused the passion and prejudice of the jury appears from a reading of the transcript, and defendant points to no such error or incident. Defendant is not entitled to relief under Point II.

Defendant’s third point is that a substantial remittitur should be ordered because even if there was no other error the verdict is excessive. Michael sustained a fractured fibula and a fractured tibia. These were crushing type fractures. There was separation and dislocation of the fractured fragments. There was marked swelling of the ankle; deep lacerations of the foot and ankle, one of which was 1 by 3 inches, the other 2 by 4 inches in size; ulceration or excavation-type laceration at the big toe and deep lesions of the medial malleolar area, which areas were studded with foreign bodies that could not be completely removed. An open reduction of the fracture was not possible due to extensive swelling. A cast was applied with a window in the area of the lacerations. Twenty-four days after the accident the cast was removed. There was an incomplete healing of the fracture. A short leg cast was applied. Michael spent six days in the hospital immediately after the accident. Readmitted to the hospital approximately six weeks after the accident, he underwent surgery for open reduction of the fractured ankle, since there was nonunion of the fracture site. (Ulcerations around the ankle were then healing.) An open reduction of the malleolus was done, with insertion of a metal screw and a new cast was applied. The screw was inserted by drilling a hole in the fractured fragment and affixing it to the broken bone, the screw driven into the bone with a screwdriver. Twenty-one days later this cast was removed, and a walking cast applied. About two weeks later it was discovered by X-ray examination that the screw had broken. Forty-one days later Michael was readmitted to the hospital for removal of the broken screw, which was done under general anaesthetic. A portion of the screw was removed. The other broken part of the screw was allowed to remain. When last examined by the operating surgeon Michael was informed that nothing further could be done. At that time and at trial time the ankle would get stiff. Michael was afraid to jump on it. It did not feel sturdy when he would run. At the end of the day when he is on it a lot it swells, and when it swells it pains and throbs. He used an ankle brace which kept the swelling down but the pain was still there. He cannot move the ankle in several ways the doctor told him to move it. It gives him trouble when he goes to sleep. He had been involved in sports activities, football, basketball and track, and had played on the teams before the accident, but afterward he has been unable to do any of that, and has not gone out for the teams. At trial time there were scars on the ankle. The ankle bone is enlarged and sticks out at the fracture site. “ * * * [Wjhen you’re going swimming it’s kind of ugly. I can’t wear certain kinds of boots or it will rub on that.” A Dr. Walters, who examined Michael some 27 months after the accident, reported complaints of pain, soreness, stiffness and swelling of his left foot and ankle; residual scars on the left ankle, and occasional throbbing sensation in the left ankle region; weakness and giving way of the ankle. Examination revealed a 2½-inch surgical scar across the middle portion of the ankle joint; a UA-inch scar across the area bisecting the first scar; a 1 by 3 inch scarred area typical of a third degree burn or deep abrasion over the medial aspect of the left foot in the arch region; a ½ by ½ inch scar over the base of the left great toe, which scars were tender to pressure. The left leg was ½ inch smaller in circumference than the right, due to atrophy. Motions of the ankle were restricted, doriflex-ion showing only 5 degrees (about a 16% loss); plantarflexion, which means bending the foot down, like turning the toes toward the floor, ranged to 20 degrees as compared to thirty degrees on the right foot; inversion (turning the foot in) was limited to 5 degrees on the left as compared with 15 degrees on the right; eversion (turning the foot out) was impossible with the left foot whereas eversion of the right foot was accomplished to 15 degrees. He was able to stand on the toes of both feet but in doing this he complained of a sensation of tightness and stiffness in the left foot and ankle. There was numbness — a slight diminution of sensation — over the scarred area, outer aspect of left ankle. X rays showed a healed fracture in fair position of the medial malleolus of the left tibia with a bony and fibrous union. There was scarring of the fractured site. The metal screw measured 1½ inches inside the fibula. The fibrous scar tissue across the ankle joint restricted the movement of the ankle, causing permanent stiffening of the ankle and inability to move it in various directions as described. The pain, soreness, stiffness, swelling, throbbing and weakness of Michael’s left foot and ankle will be permanent, in the doctor’s opinion. Arthritis, which formed in the ankle joint as a result of the injuries, will get worse over a period of years as he walks on it. If it gets more severe he may well experience more stiffness. Participation in any type of athletic activities is curtailed as a result of his disability in the left ankle. Any type of activity in industrial pursuits, such as heavy lifting, stooping, bending that joint, climbing or straining the ankle, will cause aggravation and pain. Plaintiffs’ medical evidence was undisputed. Michael was examined by a physician of defendant’s choice, who did not testify. Eighteen years of age at trial time, he had a life expectancy of 52.1 years. The medical bills totalled $2,034. Michael was unable to perform any physical services for his father during his recuperation period.

The question of excessiveness of the verdict was raised and presumably considered by the trial judge, who made no order of remittitur. The jury has a broad discretion in fixing damages. Considering all of the evidence on the question of damages in the light most favorable to the verdict; comparing the injuries, special damages, percentage and permanence of residual disabilities, relative ages and previous condition of health, changing economic eras and the ravages of inflation, and the compensation awarded and approved in cases of similar or fairly comparable injuries and damages; and considering the rule of uniformity of awards for similar injuries, we have concluded that the award is not excessive or manifestly unjust; that it is not so great as to shock the conscience of the court, and that a remittitur is not indicated.

Judgment affirmed.

SIMEONE, C. J., and ALDEN A. STOCKARD, Special Judge, concur.

      . Noting, among many others, awards of $50,-000 to 22-year-old in Dykeman v. Ashton, 8 Ariz.App. 327, 446 P.2d 26 (1968); $50,000 to 16-year-old in Pike v. Roe, 213 Kan. 389, 516 P.2d 972 (1973); $60,000 to 19-year-old in Powers v. City of Troy, 28 Mich.App. 24, 184 N.W.2d 340 (1970); $46,500 in Miles v. Ace Van Lines & Movers, Inc., 72 Wis.2d 538, 241 N.W.2d 186 (1976).


author: GUNN, Presiding Judge.

text:
    Richard Lee BUTLER, Respondent, v. Mary Kay BUTLER, Appellant.
    No. 38228.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Dec. 27, 1977.
    Motion for Rehearing and/or Transfer Denied Feb. 14, 1978.
    Application to Transfer Denied April 10, 1978.

      David G. Lupo, St. Louis, for appellant.
    William Gartenberg, Clayton, for respondent.
   GUNN, Presiding Judge.

The parties to this dissolution proceeding were in their seventh year of marriage when they agreed that the marriage was irretrievably broken. At the time of the proceedings in 1976 they had three minor children — a daughter two years of age and twin sons less than a year old. The husband, a 1970 medical school graduate, was participating in a cardiology fellowship at Jewish Hospital. His 1976 income was estimated to be $13,000 from the fellowship and approximately $20,000 from part time work in the emergency room at Christian Hospital Northwest. There was no evidence that the husband owned any stocks or bonds, nor was there any evidence of the value of insurance policies held by him. The family home, purchased in 1971, cost $16,000, and $12,900 was still owed on it. The estimated value of the house was $30,-000. Other marital assets were a 1974 Chrysler stationwagon and household furnishings having an estimated value of $5,000-$6,000. Cash in checking and savings accounts had been dissipated, according to the husband, for payments on the house, back taxes, loans and other bills. The wife’s attorney established that there was considerable activity in deposits and withdrawals from the checking and savings accounts, but the only evidence before us is that the funds in the accounts had been exhausted. At the time of the proceedings, the husband was borrowing money for his living expenses, because the wife had attached his wages by garnishment proceedings.

Although the husband had reported taxable income of $56,980 in 1974, he testified that due to ill health, primarily a back ailment incurred in an accident, he could no longer endure the rigors of general medical practice nor perform at more than one place of work. Consequently, the husband preferred to limit his work to academic medicine:

“. . . I’ve considered practice at various times, but I’ve decided for my health and my interests that what I’m interested in is research and I want to go into academic medicine.”

The tenor of the husband’s testimony was that in the future he would be working less and at a reduced income.

The wife, prior to the marriage, completed three years of college, with a major in psychology. Her last work experience was in July, 1970 as a railway clerk at a salary of $600 per month. She terminated her employment when the husband completed his medical school studies. Her estimated monthly living expenses were $1,345 without regard to medical, dental or educational expenses for the children.

There was testimony from the wife that she was both healthy and unhealthy. The wife contends that one of the twin boys is afflicted with cerebral palsy, requiring extensive medical treatment and expenses. The husband’s analysis of his son’s illness was that it was not as debilitating as depicted by the wife. But the husband did acknowledge the need for treatment for the son. The wife was also anxious for her daughter to attend a private Montessorial school costing $1,500 in yearly tuition.

Finding no unique issues regarding the dissolution, the trial court awarded the wife the automobile, the household furniture, $150 per month child support for each of the two healthy children and $225 per month for the son with the health problem. The wife was also awarded as maintenance $250 per month for 24 months through June 30, 1978. The husband and wife were ordered to each pay one half of the $152 monthly house payment. Possession of the house was awarded to the wife until the youngest child reached the age of 21 or until the wife remarried. On the happening of either event the house was to be sold with the proceeds divided equally between the parties.

The trial court noted that the wife’s attorney had been paid $2,500 in attorney’s fees and awarded an additional $1,000 in fees to be paid by the husband.

The wife’s appeal from the judgment presents a number of convoluted points for our consideration, but when sifted through the legal colander, the points of appeal refine to the basic issue of whether the trial court was too parsimonious in its award, and, hence, was guilty of an abuse of discretion.

We agree with the trial court that this case offers no novel theory of law to be resurrected for future guidance. Consequently, a full inditement of the pertinent law to the simple issue here presented is not warranted nor would it provide a necessary coruscation of legal rubric for guidance for the legal community. However, it is apparent that the award is not overly munificent. There is no danger that it would provide a sybaritic life style for the wife or for the children, and in view of the husband’s earning potential, it would be best to increase the award somewhat. Even the husband conceded at trial that the wife should not be required to work until the children had reached school age. We are also concerned that a parent would shirk financial responsibilities by deliberately reducing his income from a substantial earning capacity to satisfy his own desires, albeit that there is an apparent need for the husband to reduce his working activities due to health problems. As said in Klinge v. Klinge, 554 S.W.2d 474, 476 (Mo.App.1977): “The husband may still practice medicine; he has not lost his ability to earn substantial income. He may not escape his responsibility to his family or stymie justified support for them by deliberately limiting his work to reduce his income.” But we are also bound by the ligatures which bind our review to a determination or whether the trial court, cloaked with substantial discretion, has abused its discretion by issuing a decree unsupported by substantial evidence or against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Klinge v. Klinge, supra; Marriage of Schulte, 546 S.W.2d 41 (Mo.App.1977). Here, the husband has the potential for substantial earnings even though at a reduced working capacity. The wife is required to care for three young children, one of whom is handicapped with health problems, and the husband concedes that the wife should not work with the young children at home. Consequently, we believe that the award of maintenance to the wife should be modified by removing the limitation of her maintenance to two years. We also believe that the husband should be required to make the entire monthly house payment of $152 for so long as the wife is living in the house under the terms of the trial court’s award. In all other respects the award of maintenance and marital property is supported by substantial evidence, and no abuse of discretion appears in the award.

The wife complains of the award of attorney’s fees, claiming that the wife’s father had paid $1,500 of the fee. We read the order of the trial court as awarding the wife a total of $3,500 attorney’s fees to be paid by the husband. The fact that the husband has not paid all the fee is not a matter for our consideration on this appeal. It is not our obligation to enforce the collection of the attorney’s fees. The award of attorney’s fees is a matter resting in the discretion of the trial court, and we find no abuse of that discretion regarding the amount of fees awarded here. Barnhill v. Barnhill, 547 S.W.2d 858 (Mo.App.1977); Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976).

Finally, the wife complains that the trial court erred in failing to order the husband to comply with all previous court orders regarding payment of pendente lite awards. We do not view this matter as a proper subject for consideration on this appeal.

We have read the transcript, briefs and authorities cited by both parties and given effect to the relevant factors of § 452.330 RSMo Supp. 1975, and conclude that an extended opinion would have no preceden-tial value. See Rule 84.16(b).

Judgment modified as follows: (1) two year limitation for maintenance payment to wife is removed; wife to receive $250 per month as maintenance until wife remarries or except as modified in subsequent proceedings; (2) husband to pay entire $152 monthly house payment. Judgment affirmed in all other respects.

KELLY and WEIER, JJ., concur.

      . In response to questions the wife stated she was in good health, but then she proceeded to detail a long list of current infirmities.

      . “A. [Husband] Well, the consensus of opinion was that Danny [son] may or may not have a mild seizure disorder, but his electro-cepholagrams [sic] have all been normal, and then some problems with increased muscle tone of the lower extremities and it may be that he’s a little slow in developing neuro-muscular control and that he needs to take some medication three (3) or four (4) times a day and that he needs five (5) or ten (10) minutes of exercise which anyone can do about twice a day.”

      .There is evidence to the fact that the wife did indulge herself with certain extravagances.