RENDERED: APRIL 17, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1327-MR
BRIDGETT F. WELLS APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT, FAMILY DIVISION v. HONORABLE DAVID D. FLATT, SPECIAL JUDGE ACTION NO. 21-CI-00133
BRIAN C. WELLS APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND CETRULO, JUDGES.
CALDWELL, JUDGE: Bridgett F. Wells (“Bridgett”) appeals from a post-divorce
order ruling that her ex-husband, Brian C. Wells (“Brian”) would receive 95
percent of nearly $212,000.00 in marital property. The property was acquired after
the parties separated but before they divorced. The parties did not obtain a decree
of legal separation, and the divorce decree did not address how this marital property—consisting of over $200,000.00 in income tax overpayments—was to be
divided. For the reasons set forth herein, we AFFIRM.
FACTS
Bridgett and Brian were married in October 2009 and separated in
October 2021. They have three minor children. Bridgett filed for divorce in
November 2021. In December 2021, the family court entered an order providing
the parties would have joint custody and equal timesharing. Neither party was
ordered to pay temporary child support. However, the court ordered Brian to pay
Bridgett $5,000.00 per month in temporary maintenance.
In November 2023, the family court entered a divorce decree
incorporating a settlement agreement recently signed by the parties. The parties
agreed to joint custody and equal timesharing. They also agreed that no
maintenance would be paid henceforth, but that Brian would pay Bridgett
$3,250.00 per month in child support. The parties agreed that Brian would pay for
expenses including the children’s health insurance and any medical expenses not
covered by insurance.
The parties further agreed that Brian would receive the marital
residence and would pay the mortgage and taxes on the home. They agreed each
party would retain his/her non-marital personal property and all non-retirement
accounts in their individual names. They also agreed Bridgett would retain her
-2- own retirement and would also receive one-half of Brian’s retirement as valued on
December 31, 2022, offset by her retirement and any non-marital portion of
Brian’s retirement.
Under the settlement agreement, Brian retained his interests in the
Wells Group companies. (Estimates prepared for the parties valued Brian’s
ownership interest in the Wells Group companies at between two and four million
dollars. The family court later found that, under the agreement, Brian also retained
his ownership interest, including a non-marital portion, in the Wells Building—
which was valued at over $900,000.00.)
The agreement called for Bridgett to receive a $500,000.00 payment
as a lump sum settlement for her support, property rights, or other claims. It also
allowed her to claim the children as her dependents on post-divorce federal and
state income tax returns.
The agreement also provided that each party had made full and candid
disclosures to the other and had not withheld pertinent information. Also, the
agreement stated each party must deliver to the other those documents necessary to
accomplish the intentions reflected in the agreement.
The agreement also stated: “The parties filed joint federal and state
income tax returns through the 2022 tax year. Husband [Brian] agrees to pay and
to indemnify wife [Bridgett] from any taxes due for income taxes during those
-3- years. Beginning the 2023 tax year each will file separate returns.” (Record on
Appeal (“R”), p. 498; also attached in Tab 1 to the Appellant Brief’s Appendix).1
Despite the statement in this agreement (executed in the fall of 2023)
indicating the parties had already filed their joint tax return for the 2022 tax year, it
turned out that the parties had still not filed their joint 2022 return as of early 2024.
In February 2024, Brian filed a motion requesting that Bridgett be
ordered to sign the parties’ joint 2022 federal and state income tax returns prepared
by an accountant. Brian acknowledged that he had made payments in 2022 and
2023 for 2022 income taxes according to an accountant’s estimates of the income
taxes due for each quarter. (He admitted that he paid the estimated taxes due for
some quarters of 2022 in 2023.) He also noted that according to the prepared tax
returns, he had made income tax overpayments totaling nearly $212,000.00 for tax
year 2022. Brian argued he should receive the entirety of the overpayments.
In a prehearing memorandum, Brian pointed out the parties were
separated, both employed, and had equal timesharing with the children during
1 The first item in the appendix to an appellant brief after the index should be the order or judgment on appeal. See Rules of Appellate Procedure (“RAP”) 32(E)(1)(a) (“The appellant shall place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court.”). The order on appeal here is the order entered by the family court on May 13, 2024, dividing the marital property at issue, which was placed in Tab 3 of the Appendix to the Appellant Brief. We also note the index for the appendix to Brian’s brief does not state where in the record we may locate his appended documents. See RAP 32(B)(6); RAP 32(E)(1)(d). We encourage counsel to carefully review the Rules of Appellate Procedure and additional briefing resources available on our court website, https://www.kycourts.gov/Courts/Court-of-Appeals (last accessed Mar. 20, 2026).
-4- 2022. He also emphasized that Bridgett was then receiving $5,000.00 a month in
temporary maintenance. He also stressed that in addition to the $500,000.00 lump
sum payment, Bridgett had also received approximately $71,000.00 in another
account—representing one-half of the parties’ joint 2021 tax refund. He asserted
Bridgett had not contributed to his payment of estimated taxes for 2022.
Bridgett filed a response to Brian’s motion. She pointed out the
settlement agreement, which the parties signed in October 2023, erroneously stated
the parties’ 2022 tax return had already been filed. She alleged that she had relied
on Brian’s representations that the 2022 tax return had already been filed. She
asserted she had not previously been told about Brian’s making tax overpayments
of almost $212,000.00 until a proposed tax return was recently forwarded to her
attorney. She suggested the overpayments indicated Brian tried to keep the
existence of those funds unknown to her. She argued Brian should not be allowed
to benefit from such actions to her detriment.
In late March 2024, the family court conducted an evidentiary hearing
on Brian’s motion concerning the tax overpayments. Both Brian and Bridgett
testified at the hearing. The court sustained Brian’s objection to Bridgett’s
testimony about her contributions as a homemaker prior to the separation, but
Bridgett offered such testimony by avowal.
-5- Bridgett testified by avowal that she had been a homemaker during
earlier years of the marriage, although she had been employed in more recent
years. She also testified to often being the only adult home with the children while
Brian frequently traveled for work during the early years of their marriage. She
asserted that her staying home with the children so that Brian could travel for work
in earlier years allowed him to build his business and to maximize his earnings for
later years (including 2022, when the parties were separated).
Bridgett also testified that if she had filed her tax returns separately,
she believed her earnings would have been subject to a lower tax rate than that
which applied to the parties’ joint 2022 return.
The court took the matter under advisement at the end of the hearing.
In May 2024, the court issued an order requiring both parties to sign
and file the prepared 2022 tax return. The court determined the tax overpayments
were marital property. The court acknowledged that all other marital assets had
been divided according to the terms of the parties’ settlement agreement. The
court declined to revisit the settlement agreement’s terms. However, since the
settlement agreement did not address the tax overpayments and the parties did not
agree about how these funds should be distributed, the court proceeded to
determine how to divide the tax overpayments. The court concluded it was just for
-6- 5 percent of the overpayments ($10,600.00) to be distributed to Bridgett and the
rest (95 percent) to Brian.
Bridgett filed a motion to alter, amend, or vacate. After the court
denied this motion, Bridgett filed a timely appeal.
Further facts will be provided as needed in our analysis.
ANALYSIS
KRS2 403.190 states that upon divorce, a court must assign each
spouse’s non-marital property to him/her. KRS 403.190 further provides the court
must divide the marital property in just proportions, considering certain listed
factors, and it indicates that property acquired during the marriage is presumably
marital property except for when certain exceptions are shown:
[The court] shall also divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including: (a) Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;
(b) Value of the property set apart to each spouse;
(c) Duration of the marriage; and
(d) Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.
2 Kentucky Revised Statutes.
-7- (2) For the purpose of this chapter, “marital property” means all property acquired by either spouse subsequent to the marriage except:
(a) Property acquired by gift, bequest, devise, or descent during the marriage and the income derived therefrom unless there are significant activities of either spouse which contributed to the increase in value of said property and the income earned therefrom;
(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 marriage.
(3) All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.
There is no dispute that the property at issue—the nearly $212,000.00
of income tax overpayments for tax year 2022—is marital property. See Appellee
-8- Brief, page 4 (“Brian acknowledges the income tax overpayments are marital
property under KRS 403.190”).
As the family court essentially recognized, this property was acquired
while the parties were still married despite their actual, but not legal, separation
and no KRS 403.190(2) exception applied, so the property is marital. See
generally Stallings v. Stallings, 606 S.W.2d 163, 163-64 (Ky. 1980). Thus, the
family court was required to divide this marital property, which was not addressed
in the settlement agreement or divided in the divorce decree, in just proportions.
Standards of Review
We review the family court’s division of marital property for abuse of
discretion and its factual findings for clear error. Davis v. Davis, 720 S.W.3d 622,
625 (Ky. App. 2025). Factual findings which are not supported by substantial
evidence are clearly erroneous. Id. at 627.
“We review the family court's resolution of purely legal issues such as
questions of statutory interpretation under the non-deferential de novo standard.”
Id. at 628.
With these standards in mind, we consider the parties’ arguments.
-9- Family Court Did Not Issue Clearly Erroneous Factual Findings, Abuse its Discretion, or Fail to Follow Controlling Statutes and Precedent So We Must Affirm its Decision
Bridgett contends on appeal that the family court failed to divide the
property at issue in just proportions, especially since it refused to consider
evidence of her pre-separation contributions as a homemaker. She also suggests
the family court essentially rewarded Brian for hiding funds by ruling that 95
percent of the tax overpayments should be distributed to him. She contends the
family court erroneously added to the economic disparities between the parties.
In response, Brian argues the family court did divide the property in
just proportions as called for by KRS 403.190.
Brian asserts he paid 2022 income tax estimates according to the
advice of his accountant, after previously paying the parties’ joint 2021 tax
liability. He emphasizes the substantial property Bridgett received under the
settlement agreement. And he asserts she did not contribute to the payments for
estimated taxes for 2022. He points out the family court considered the factors
listed in KRS 403.190 in dividing the property. Brian also contends that the family
court’s factual findings are supported by the evidence and that the court’s decision
was consistent with controlling precedent.
Both parties’ briefs discuss Shively v. Shively, 233 S.W.3d 738 (Ky.
App. 2007). In Shively, this Court stated that marital property acquired after actual
-10- (but not legal) separation did not have to be divided in the same manner as marital
property acquired before the separation nor did such marital property have to be
divided equally. Id. at 740 (discussing Stallings, 606 S.W.2d at 163). Instead,
such property must simply be divided in just proportions considering the factors
listed in KRS 403.190, including the parties’ respective contributions to acquiring
the property. This Court noted such contributions could include a spouse’s
contributions as a homemaker—which do not necessarily cease after separation
because a homemaker would still assist the other spouse by caring for the children.
Shively, 233 S.W.3d at 740 (quoting Stallings, 606 S.W.2d at 164).
The central dispute in Shively was whether the trial court had properly
divided assets acquired between the parties’ actual (but not legal) separation and
their divorce, especially income earned by the husband during the separation. Id.
at 739. The husband had graduated from law school during the marriage, several
years before the separation. His earnings had “increased drastically” around the
time of separation. Id.
Although the trial court in Shively divided marital assets acquired
prior to separation equally, it did not divide marital assets acquired after separation
equally. Instead, it ruled each spouse would retain his/her own income earned after
the separation but before the divorce, as well as assets purchased with post-
separation income. Id. at 740. Thus, the trial court divided the total marital estate
-11- (excluding the marital residence and retirement accounts) of over one million
dollars such that the wife received less than four hundred thousand dollars and the
husband received nearly seven hundred thousand dollars. Id.
On appeal, the wife argued the trial court failed to consider her
contributions towards the husband’s law degree (obtained during the pre-separation
portion of the marriage) when dividing assets acquired post-separation. Id. at 739-
41. However, this Court upheld the lower court’s rejection of this argument and
affirmed the division of post-separation assets under the abuse of discretion
standard. Id. at 741. We noted the lower court made findings on the required KRS
403.190 factors in dividing the assets. Id. at 740.
We also concluded the trial court had not abused its discretion. We
noted the trial court relied on evidence that the wife no longer contributed to the
payment of the mortgage and utilities for the marital home after separation and that
both parties made contributions as homemakers. Id. at 741. We also noted both
parties received substantial assets in the divorce, and both earned high salaries in
their respective careers. We discerned no reversible error in the lower court’s
rejecting the wife’s arguments about contributing to the husband’s law decree
based on its assessment of the evidence. We indicated the lower court construed
the evidence to show that the husband’s employer paid for him to attend law
-12- school and that the husband continued to work and to care for the parties’ child
while he attended school and his wife “continued to advance her career.” Id.
Brian contends that Shively supports the family court’s decision to
award the great majority of the marital property at issue—the tax overpayments—
to him. Bridgett disagrees, asserting Shively is distinguishable because it involved
two high-earning spouses and did not involve the same economic disparity
between the two spouses as this case.3
In addition to both spouses’ earning high wages in Shively, this case is
significantly different in other respects. For example, the lower court in Shively
had itself divided all marital assets—including both those acquired pre-separation
and those acquired post-separation. Id. at 739. In contrast, all of Brian’s and
Bridgett’s marital assets except for the income tax overpayments at issue were
divided according to their settlement agreement.
Additionally, Bridgett certainly did not earn nearly as much money as
either Shively’s spouse or Brian. But Bridgett had also been receiving $5,000.00
monthly temporary maintenance during the parties’ separation in addition to
3 Bridgett acknowledges that the family court found that she faced much less favorable financial circumstances than Brian. However, she asserts the family court erroneously denied her a larger share of the property at issue simply because she had received substantial assets in the divorce. She suggests the family court failed to thoughtfully consider what a just division of this property would be.
-13- receiving $500,000.00 to settle property and support claims pursuant to the
settlement agreement.
This case is also distinct from Shively in that Bridgett has suggested
that Brian attempted to hide assets with the nearly $212,000.00 in income tax
overpayments. Nonetheless, although Bridgett also raised this suggestion to the
family court, the court’s factual findings indicate that it did not find Brian’s
testimony about the way he paid estimated taxes suspicious. For example, the
family court found that both the Wells Group and its owners (including Brian)
typically obtained extensions for filing tax returns and that this was a “normal
practice for the business and owners for a period of years.” The court also found
the Wells Group distributed funds to Brian for estimated taxes and Brian would
pay the estimated taxes after receiving such distributions, which the court
described as “the historical practice” and “the practice for the 2022 tax estimates.”
(R, p. 550, see also Appendix 3 to Appellant Brief).4
4 Brian’s testimony suggested that changes in rules about claiming depreciation occurring between the time in which the accountant estimated the tax due and the deadline for filing tax returns might explain why overpayments of over $200,000.00 in income taxes were made. See also Appellee Brief, page 3, describing a portion of Brian’s testimony as indicating that: “Brian’s understanding of the reason for the significant over payment was that the company was able to take advantage of bonus depreciation that significantly reduced its taxable income.” However, the family court did not discuss this testimony in its order dividing the property.
-14- Essentially, the family court implicitly found Brian to be credible.
We must defer to the family court’s assessment of witnesses’ credibility. See CR5
52.01 (“[D]ue regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.”). Moreover, based on our review of the record, the
family court’s factual findings are supported by substantial evidence and are not
clearly erroneous.
Furthermore, we cannot say that the family court misapplied
controlling authority or abused its discretion based on the record before us.
Despite this case being distinct from Shively in many respects, the
principles expressed in Shively—that assets acquired during separation may be
treated differently than assets required prior to separation and that a court does not
have to divide marital assets 50/50 to divide them in just proportions—still apply.
See generally 233 S.W.3d at 740-41.
And regardless of whether we or another court would have made the
same decision, we discern no abuse of discretion. The family court made findings
on the factors set forth in KRS 403.190(1). For example, it made findings about
the parties’ contributions to acquiring the marital property. See KRS
403.190(1)(a). Specifically, it found that Brian alone contributed to the tax
overpayments and that Bridgett did not contribute to the overpayments as a
5 Kentucky Rules of Civil Procedure.
-15- homemaker or otherwise.6 It made this finding at least in part because at the time
the property was acquired, the parties were separated and had equal timesharing,
and Bridgett was receiving temporary maintenance. The court also found the
parties were both employed and kept their finances separate and Brian paid for
various expenses including the parties’ 2021 income tax liability, insurance and
taxes on Bridgett’s vehicles, and the mortgage, insurance, taxes and utilities for the
marital residence.
In addition to making these findings, the court also acknowledged its
duty to divide marital property in just proportions pursuant to KRS 403.190, and it
cited Shively, 233 S.W.3d 738. The family court noted it was presented with a
situation in which the parties had entered into a settlement agreement dividing the
marital property except for the income tax overpayments at issue. The court found
that a substantial disparity between the parties’ financial circumstances still
existed. But it also found that Bridgett had received substantial assets in the
divorce and maintenance during the separation and that Brian was also responsible
for paying other expenses on her behalf.
6 The court also found that Bridgett received substantial assets in the divorce, including the $500,000.00 lump sum settlement payment. And the court made findings about the value of assets which Brian retained or received under the settlement agreement. See KRS 403.190(1)(b) (requiring consideration of “Value of the property set apart to each spouse”). The court found the parties had been married for fourteen years. See KRS 403.190(1)(c) (requiring consideration of the “Duration of the marriage”). Lastly, the court found that Brian’s economic circumstances were much more favorable than Bridgett’s. See KRS 403.190(1)(d) (requiring consideration of “Economic circumstances of each spouse when the division of property is to become effective”).
-16- Based on these factual findings, the court determined it was just for
the income tax overpayments to be distributed 95 percent to Brian and 5 percent to
Bridgett. While perhaps another court might find it more just to divide this
property in different proportions, we discern no abuse of discretion in the family
court’s division of the marital property at issue under the unique facts of this case.
Moreover, we conclude that, under the unique facts of this case, any
error in the family court’s refusal to consider evidence of Bridgett’s pre-separation
contributions as a homemaker was harmless. CR 61.01. We express no opinion on
whether, under different facts and circumstances, a court might properly consider
evidence of pre-separation contributions as a homemaker when dividing marital
assets acquired after an actual (but not legal) separation but prior to divorce.
Thus, we AFFIRM the family court’s judgment. Further arguments
raised in the briefs which we have not discussed herein have been determined to
lack merit or relevancy to our resolving this appeal. We specifically decline to
address the non-binding unpublished Kentucky appellate opinions cited for our
consideration in Brian’s Appellee Brief.
CONCLUSION
For the foregoing reasons, we AFFIRM.
ALL CONCUR.
-17- BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
W. Jeffrey Scott Earl Rogers III Grayson, Kentucky Morehead, Kentucky
-18-