Cindy Robinson v. Terry Robinson ( 2021 )

RENDERED: APRIL 9, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1465-MR
CINDY ROBINSON APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
v. HONORABLE MARCUS L. VANOVER, JUDGE
ACTION NO. 17-CI-00628
TERRY ROBINSON APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, JONES, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Cindy Robinson appeals the Pulaski Circuit Court’s findings of
fact, conclusions of law, and decree of dissolution ending her marriage to Terry
Robinson. She contends the circuit court erred in classifying real estate and
personal property as marital property. Finding no error, we affirm.
BACKGROUND
Terry and Cindy were married for nine years before Terry filed for
dissolution. Immediately, the divorce action became contentious with both parties
filing multiple motions and seeking restraining orders.
Eventually, the circuit court heard contested issues during a two-day
hearing. The circuit court divided multiple personal property items and real estate
between the parties in its findings of fact, conclusions of law, and decree of
dissolution entered August 2, 2018. However, Terry was dissatisfied with the
outcome and moved the circuit court pursuant to CR1 59 to alter, amend, or vacate
the decree. Cindy filed a response. Due to the contentious nature of the case, the
circuit court held the motion until it could review the entire record again. Over a
year later, on August 22, 2019, the circuit court granted Terry’s motion, and
amended its findings of fact, conclusions of law, and decree of dissolution.
That amended decree is the subject of this appeal. In it the court
found two tracts of real estate—the Mill Springs property and the Lakeview
property—were classified as marital property and ordered the sale of the properties
with equal division of the profits among the parties. It also found the parties’
pontoon boat was marital property, along with some other personal property items.
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Kentucky Rules of Civil Procedure.
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Cindy disagreed, and this appeal followed. Additional, relevant facts
will be laid out as necessary below.
STANDARD OF REVIEW
The standard of review on appeal for a question involving the
characterization of whether property is marital or nonmarital is two-tiered. Factual
findings of the circuit court are reviewed under the clearly erroneous standard of
CR 52.01, but the circuit court’s legal conclusions are reviewed de novo as an issue
of law. Smith v. Smith, 235 S.W.3d 1, 6-7 (Ky. App. 2006).
ANALYSIS
The Mill Springs Property
Cindy contends the circuit court erred by classifying this property as
marital. We disagree. The parties purchased the property during the marriage for
$95,000, with a $40,000 down payment. Cindy financed the remaining balance.
According to Cindy, the down payment came from the sale of a previously owned,
non-marital residence in Ohio. That money was deposited into the parties’ joint
account before the purchase of the Mill Springs Property.
Cindy failed to provide any further tracking of the money used to
purchase the home. She did not provide previous bank statements or any other
evidence demonstrating that the $40,000 came from a non-marital account. Due to
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the lack of evidence, the circuit court determined the property must be marital
because the tracing stopped at a joint account.
This is not the first time we have upheld a court’s decision labeling a
property as marital due to a lack of tracing. See Terwilliger v. Terwilliger, 64
S.W.3d 816, 821 (Ky. 2002) (remanded “to reconsider the issue of whether the
claimed nonmarital share is sufficiently established.”); Travis v. Travis, 59 S.W.3d
904, 909 (Ky. 2001) (appellant failed to rebut presumption disputed proceeds were
marital); Marcum v. Marcum, 779 S.W.2d 209, 211 (Ky. 1989) (“husband did not
produce sufficient proof to overcome the presumption that property acquired
during the marriage shall be considered marital property”).
Because Cindy did not have sufficient proof to overcome the
presumption that the Mills Spring property was marital, we affirm the circuit court.
The Lakeview Property
The parties purchased this property for $56,000. Terry admitted he
attempted to purchase the house on his own but was denied financing. Once Cindy
learned Terry could not purchase the home, she used money from a settlement she
received before the parties were married. Cindy testified she had a money market
account with a fiduciary agreement allowing Terry access, and a savings account
that Terry could not use. She was adamant the money came from the latter.
Originally, the circuit court found Cindy traced the money to a nonmartial account
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and awarded her the home. However, after reviewing the record, the circuit court
found the property was purchased prior to the marriage, but with the parties’ joint
checking account, with a deed titled jointly with rights of survivorship.
For the same reason as the Mills Spring Property, the circuit court
found Cindy did not trace the funds back far enough to demonstrate she purchased
the property with nonmarital funds. The tracing stopped with the parties’ joint
checking account. We cannot say the circuit court erred in ruling the property
marital because the documentation suggests otherwise. Cindy gave no further
tracing evidence of the money used to purchase the property.
Pontoon Boat
The parties acquired a pontoon boat during the marriage. There is no
evidence in the record indicating the date of purchase, purchase price, or any
associated debt or financing. The record only contains a 2016 bank statement
indicating a check was written in the amount of $9,500, but the bank statement
supplies no information to connect that amount to the personal property. Nothing
indicates this personal property was nonmarital.
Tools
Cindy alleges Terry is in possession of her father’s tools. She states
the tools have little real value, but they now have sentimental value to her and the
circuit court should have awarded her the tools in the original decree. She also
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acknowledges that she did not object to the circuit court’s failure to do so.
Therefore, the issue is not preserved for this Court’s review.
Cindy asks this Court to conduct a palpable error review. Upon such
a review, this Court will reverse only to prevent a manifest injustice. See CR
61.02. Cindy has not identified the tools with any degree of specificity necessary
to justify awarding them to anyone, nor has she established their existence or
location. We cannot say the circuit court erred when Cindy never raised the
question to the circuit court.
CONCLUSION
For the foregoing reasons, we affirm the Pulaski Circuit Court’s
findings of fact, conclusions of law, and decree of dissolution.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Amanda Hill Penny L. Hines
Corbin, Kentucky Somerset, Kentucky
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