Cindy Robinson v. Terry Robinson

• Court: Court of Appeals of Kentucky
• Decided: April 8, 2021
• Docket: 2019 CA 001465
• Status: Unknown

Opinion

RENDERED: APRIL 9, 2021; 10:00 A.M. NOT TO BE PUBLISHED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.

1 Kentucky Rules of Civil Procedure.

-2- 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

-3- 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

-4- 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

-5- 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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