RENDERED: FEBRUARY 27, 2026; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-1138-MR
DUSTIN ALLEN ANDERSON APPELLANT
APPEAL FROM CUMBERLAND CIRCUIT COURT v. HONORABLE DAVID L. WILLIAMS, JUDGE ACTION NO. 23-CI-00017
KRISTEN NICOLE ANDERSON1 APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, MCNEILL, AND TAYLOR, JUDGES.
TAYLOR, JUDGE: Dustin Allen Anderson (Dustin), appeals the August 21,
2024, order of the Cumberland Circuit Court regarding the division of property and
child-related issues in the parties’ dissolution of marriage action. The court’s order
adopted in part and overruled in part recommendations of the court’s Domestic
1 Appellee’s name was spelled as Kristin and Kristen in the underlying record. The Court has chosen to use Kristen since it was the spelling utilized in the notice of appeal. Relations Commissioner (DRC) and further made additional findings.2 After
careful review, we affirm.
BACKGROUND
Dustin and Kristen Nicole Anderson (Kristen) were married in 2015
and had two children born during their marriage. Dustin filed a petition for
dissolution of marriage in February of 2023. In May of 2023, the circuit court
issued temporary orders concerning the children and the parties’ finances,
reserving the issue of child support. The matter was then referred for a hearing
before the DRC on August 15, 2023. Prior to the hearing, the parties reached an
agreement on the division of some vehicles and personal property. Dustin had
provided a list of his nonmarital property which Kristen agreed to at the hearing.
The parties agreed Kristen would provide her list subsequent to the DRC hearing.
Dustin agreed Kristen could retain the property on her list unless he disagreed
thereto. The remaining issues consisted of the division of the parties’ marital
property and timesharing. The parties agreed to reserve the division of their
retirement accounts. Notably, child support was not addressed at all during the
hearing.
Approximately a year prior to marriage, the parties had purchased
their residence for $200,000. However, the deed and the mortgage on the marital
2 Cumberland County does not have a family court judge.
-2- residence were solely in Dustin’s name. Notwithstanding, both parties testified
Kristen obtained loans which were used towards the downpayment on the
residence. During the DRC hearing, neither party knew when the loans were paid
off or the amounts paid prior and during the marriage. Kristen indicated that
documentation about the loans would be provided to Dustin’s counsel after the
hearing, to which Dustin’s counsel did not object. No proof was given by either
party about the current value of the residence.
At the DRC hearing, Kristen, as well as a maternal aunt and
grandmother, testified that Kristen had been the primary caregiver of the children
during the marriage. All witnesses acknowledged that there had been some
behavioral issues with the oldest child (who was five years old at the time) after the
parties separated, namely some distress during exchanges for Dustin’s overnight
timesharing. Kristen also had concerns with Dustin being able to adhere to the
children’s routines while he had them for overnight timesharing.
In late December of 2023, the DRC issued his report and
recommendations to the circuit court. The DRC acknowledged the parties’
agreement regarding nonmarital personal property. The DRC assigned the
residence to Dustin as his nonmarital property, based upon the deed, and assigned
each party half of the total equity in the property, less the amount of the remaining
mortgage. The DRC also recommended an equal timesharing arrangement for the
-3- children after analyzing the best interest factors set forth in Kentucky Revised
Statutes (KRS) 403.270(2).
In January 2024, Kristen filed exceptions to the DRC’s
recommendations, taking issue with the DRC’s findings that she failed to provide
documentation relating to the loans she obtained for the residence as well as a list
of her nonmarital property; she argued that she had provided the documents to
Dustin’s counsel subsequent to the DRC hearing. Kristen also took issue with the
recommendation of equal timesharing and noted the DRC failed to mention that
the division of the parties’ retirement accounts had been reserved, and that child
support was still a pending issue. Dustin did not file exceptions to the DRC report.
The circuit court heard Kristen’s exceptions on February 29, 2024.
At the hearing, Kristen’s counsel provided loan documentation that showed Kristen
had obtained loans in the amount of $27,000, which the parties used as a
downpayment on the residence.3 Dustin’s counsel objected to the circuit court’s
reliance on these documents on the basis that Kristen did not submit the
documentation during the DRC hearing. Kristen’s counsel also presented an
appraisal of the residence, obtained after the DRC hearing, which valued the
residence at $280,000. The circuit court allowed the appraisal to be filed into the
3 The parties previously testified that Kristen Nicole Anderson (Kristen) had obtained $17,000 in loans during the Domestic Relations Commissioner (DRC) hearing.
-4- record, and while Dustin’s counsel disagreed with the value, he made no objection
to the appraisal’s filing. Following this hearing, the circuit court entered a
bifurcated decree of dissolution in March of 2024 and instructed counsel to file
memorandums briefing the remaining issues. Neither party objected, nor did they
request an additional hearing. Both parties filed memorandums as instructed.
On August 21, 2024, the circuit court entered an “Order Adopting in
Part and Overruling in Part the Recommendations of the Domestic Relations
Commissioner & Making Additional Findings.” Record at 161-176. In that order,
the circuit court adopted some of the findings made by the DRC. The court
additionally found that Kristen had provided $27,000 as a downpayment for the
home using the two loans she obtained, and that the parties had exchanged
documentation about their retirement accounts and agreed upon the amounts
therein. Dustin had a 401k retirement account which contained a balance of
$23,095.38 at the time of the parties’ marriage and a balance of $341,503.91 at the
time of the parties’ bifurcated decree of divorce.4 Kristen had a retirement account
through the Teacher’s Retirement System of the State of Kentucky with the value
of $48,446.49. The circuit court also noted its concern that the DRC did not
4 The circuit court also found that Dustin Allen Anderson (Dustin) had another retirement account which he had prior to the marriage. The circuit court characterized the entirety of that account as a nonmarital asset and assigned it to Dustin. Neither party challenges this ruling on appeal.
-5- address child support or provide any information about the parties’ agreement that
the division of the retirement accounts was reserved for further determination.
Relying upon the appraisal value of $280,000 for the home, the circuit
court determined that the entire equity in the marital residence was a marital asset
and the difference between the remaining balance of the mortgage and $280,000
should be divided equally between the parties. Notably, there was no
determination that Kristen or Dustin had any nonmarital interest in the equity of
the residence.
The circuit court did not address an issue raised in Dustin’s
memorandum regarding two pieces of furniture in the residence, namely a couch
and bedroom suit.5 Dustin argues the furniture was his nonmarital property and
that Kristen’s claim that the property was nonmarital was without merit.
Apparently, Kristen had listed this property on her nonmarital property list
submitted after the DRC hearing. As noted, the DRC reported that the parties had
agreed to the division of nonmarital property as submitted by the parties. Dustin
did not file an objection to any findings regarding nonmarital property, including
that based on Kristen’s list submitted after the DRC hearing. The circuit court
ruled that the parties had previously agreed to a division of personal property and
no evidence had been presented to the contrary to the court.
5 Dustin raised this issue for the first time in his memorandum to the circuit court. Record at 97.
-6- As concerns the retirement accounts, the circuit court determined that
the $23,095.38 in Dustin’s 401K before marriage was nonmarital and that the
remaining $318,408.53 was marital. The court also determined that the entirety of
Kristen’s retirement account was marital and ordered for the difference between
the marital portion of Dustin’s 401K and Kristen’s retirement account to be
divided equally between the parties.
Regarding the children, the circuit court rejected the DRC’s
recommendation and determined that the presumption of equal timesharing had
been rebutted in Kristen’s favor after conducting an analysis of the factors set out
in KRS 403.270. The court laid out a timesharing schedule in which it stated time
with each parent was maximized and included a provision that the timesharing
arrangement would revert to equal time when the youngest child turned four years
old. The circuit court also ordered that the parties would submit to a child support
calculation based on a “Kentucky Child Support Worksheet,” to be calculated by
the Cumberland County Child Support Office. Record at 194. The order did not
address child support arrearages.
Dustin timely filed a notice of appeal on September 13, 2024.
ANALYSIS
To begin, we will first address the issues raised by Dustin regarding
the disputed furniture and child support. The circuit court’s division and allocation
-7- of the furniture in question was based upon the purported agreement by the parties
before the DRC regarding the division of the nonmarital property. As noted, this
included the couch and bedroom suit set out on Kristen’s list submitted after the
DRC hearing, which Dustin disputed. Effectively, the circuit court adopted the
DRC’s recommendation regarding the nonmarital property as a finding by the
court. The court did not address the two pieces of furniture.
What is problematic for this appeal is twofold: First, Dustin did not
file an exception to the DRC report even though he had received Kristen’s list of
nonmarital property in September of 2023. The DRC report was filed on
December 27, 2023. Any objection was due to be filed ten days thereafter.
(Kentucky Family Court Rules of Practice and Procedure (FCRPP) 4(4)(a)).
Second, and more importantly, upon entry of the circuit court’s final order, Dustin
was aware that the circuit court did not address his argument set out in his
memorandum regarding the two pieces of furniture. In Kentucky, the law is clear
that when the circuit court makes findings of fact that are incomplete, it is
incumbent upon a party to file a motion requesting specific findings of fact under
Kentucky Rules of Civil Procedure (CR) 52.04. Anderson v. Johnson, 350 S.W.3d
453, 458 (Ky. 2011). The failure of a party to do so constitutes a waiver of such
error. Polley v. Allen, 132 S.W.3d 223, 230 (Ky. App. 2004).
-8- In this case, the circuit court made findings of fact relevant to the
nonmarital property by effectively adopting the DRC’s position. However, Dustin
failed to file a motion for more definite findings per CR 52.04. Hence, this error is
not properly preserved for appellate review and was waived. We thus decline to
address the issue in this appeal.
Similarly, Dustin seeks our review of child support and presumably
possible arrearages, after our review of the court’s timesharing order therein.
Again, we do not believe this issue is properly before this Court on appeal at this
time. Child support calculations were deferred by both the DRC and circuit court
to the Cumberland County Attorney Child Support Office. We assume this is a
customary practice in Cumberland County that Dustin is not challenging. We must
also assume that child support was to be calculated per the statutory guidelines of
KRS 403.212. Dustin also seeks direction of whether child support could be
assessed “retroactively.” Dustin’s Brief at 17-18. However, the circuit court did
not enter a final child support order below. Accordingly, the issue is not ripe for
our review. Additionally, any opinion at this time would be advisory, which we
decline to do. Commonwealth v. Hughes, 873 S.W.2d 828, 829-30 (Ky. 1994).
We further note that after the filing of this appeal, Kristen has filed a child support
motion in the circuit court which has been held in abeyance pending the resolution
of this appeal. When this appeal is final, the circuit court may address the child
-9- support issue as a post-decree matter in accordance with Anderson, 350 S.W.3d
458, whereupon either party may file an appeal from the final order resolving child
support, including any arrearages.
Dustin’s remaining arguments concern the conduct of Kristen’s
counsel and the circuit court’s actions after the DRC hearing, the final division of
marital property, and timesharing. We take these in turn.
In Dustin’s memorandum to the circuit court following the hearing
below, he made a general objection that the circuit court erred in allowing the
“entire practice of briefing the issues anew, as well as allowing for the introduction
of new evidence/exhibits, following a final hearing with the Domestic Relations
Commissioner.” Record at 94. He continues this argument on appeal, arguing that
the circuit court failed to address the actions of Kristen and her counsel below,
which he claims were dilatory. Dustin’s Brief at 22-23. These actions include
Kristen’s filing of her final memorandum on the issues below two days after
Dustin’s instead of contemporaneously as ordered, and not introducing into
evidence the appraisal or the documents concerning Kristen’s loans during the
DRC hearing.
A circuit court has broad discretion in how it conducts its proceedings,
including how the court addresses violations of its orders, disputes over the
discovery process, and the imposition of time limits that govern the proceedings.
-10- See Wilson v. Commonwealth, 381 S.W.3d 180, 191 (Ky. 2012); see also Furnish
v. Commonwealth, 267 S.W.3d 656, 664 (Ky. 2007); Sexton v. Bates, 41 S.W.3d
452, 455 (Ky. App. 2001). Furthermore, “[i]t is well-established that a circuit
court has ‘the broadest possible discretion with respect to the use it makes of
reports’ or recommendations of a DRC.” Hartlage v. Hartlage, 601 S.W.3d 495,
498 (Ky. App. 2020) (citing Eiland v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997)).
A circuit court may accept the recommendations of a DRC, reject them, modify
them, receive further evidence, or “recommit” them for further hearing. Hartlage,
601 S.W.3d at 499; FCRPP 4(4)(a).
In its ruling, the circuit court acknowledged that Kristen’s counsel
was late with some of her filings but was otherwise substantially compliant. The
court also cited to FCRPP 4, noting its concerns with the insufficiency of the
DRC’s recommendations, and determined further action by the circuit court was
necessary. This action included allowing the introduction of the residence
appraisal at the circuit court hearing and directing the parties to file memorandums
on the issues after the hearing so that the court could take the matter under
submission. Pertinent to our review, it is clear that FCRPP 4 does not contemplate
that proceedings before a DRC would be final. Rather, the rule provides for
recommendations to be made by the DRC to the court. Likewise, the local rule
cited by Dustin provides that additional evidence may be considered at the
-11- discretion of the court. This is further reflected in the parties’ agreement to
exchange documents after the hearing, and the reservation of the division of
retirement accounts for the court. Additionally, Dustin did not initially object to
Kristen providing documents after the DRC hearing; Dustin did not file any
exceptions to the DRC recommendations himself; and Dustin did not initially
object to the filing of Kristen’s appraisal at the circuit court hearing in February of
2024. Given the circumstances, we agree with the circuit court’s rulings and
conclude the court did not abuse its discretion in the court’s handling of the DRC
recommendations or addressing the actions of Kristen and her counsel.
Dustin next takes issue with the division of the parties’ marital
property, namely the circuit court’s decisions regarding the marital residence and
the parties’ retirement accounts. In dividing property in a divorce proceeding, the
circuit court must follow a three-step process: “(1) the trial court first characterizes
each item of property as marital or nonmarital; (2) the trial court then assigns each
party’s nonmarital property to that party; and (3) finally, the trial court equitably
divides the marital property between the parties.” Travis v. Travis, 59 S.W.3d 904,
909 (Ky. 2001) (footnotes omitted).
There is a statutory presumption that all property acquired during the
marriage is marital. KRS 403.190(3). Once property has been classified and
nonmarital property has been assigned, a circuit court must then divide marital
-12- property in just proportions. KRS 403.190(1); Smith v. Smith, 235 S.W.3d 1, 6
(Ky. App. 2006). In dividing property, a circuit court may be required to value it;
in making such valuations the circuit court may consider different dates of
valuation and other relevant factors. See Gaskill v. Robbins, 361 S.W.3d 337, 340
(Ky. App. 2012).
As concerns the classification of property, “[t]he question of whether
an item is marital or nonmarital is reviewed under a two-tiered scrutiny in which
the factual findings made by the court are reviewed under the clearly erroneous
standard and the ultimate legal conclusion denominating the item as marital or
nonmarital is reviewed de novo.” Smith, 235 S.W.3d at 6 (citation omitted). A
judgment is not clearly erroneous if it is supported by substantial evidence, which
is “evidence of substance and relevant consequence having the fitness to induce
conviction in the minds of reasonable men.” Owens-Corning Fiberglas Corp. v.
Golightly, 976 S.W.2d 409, 414 (Ky. 1998) (citations omitted). And, this Court
will not disturb the lower court’s ruling on a property division issue unless the
court has abused its discretion. Smith, 235 S.W.3d at 6. “The test for abuse of
discretion is whether the trial judge’s decision was arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
-13- Regarding the marital residence, Dustin argues that the circuit court
erred in valuing the home at $280,000, not characterizing the home as his
nonmarital property, and dividing the equity in the home equally rather than
proportionally based on the parties’ incomes.
As mentioned in our discussion above, Dustin’s dispute with the
circuit court’s valuation of the marital home is based on his argument that
Kristen’s appraisal should have been presented during the DRC hearing rather than
later at the circuit court hearing in February of 2024. We disagree. As noted,
while Dustin’s counsel disagreed with the appraisal valuation at the February of
2024, hearing, Dustin did not object to the actual filing of the appraisal into the
record. Furthermore, Dustin never requested a separate hearing on the issue, or
filed a separate appraisal on Dustin’s behalf. The circuit court explicitly stated that
it would accept an appraisal from Dustin and gave him the opportunity to obtain
one if he so desired in February of 2024. Dustin had at least sixty days to obtain an
appraisal or to rebut Kristen’s appraisal before filing his memorandum in May of
2024, which he failed to do. Thus, we do not believe the circuit court abused its
discretion in relying on Kristen’s appraisal to value the residence at $280,000.
Dustin next argues that under the statute of frauds, the marital
residence should have been characterized as his nonmarital property because it was
acquired before the parties’ marriage and deeded solely to him. See KRS
-14- 371.010(6). However, the fact that Kristen’s name was not on the deed is not
dispositive of the home’s characterization. See Basham v. Basham, 710 S.W.3d 1,
7 (Ky. App. 2025). The circuit court explicitly characterized the entire equity in
the home as marital, as did the DRC.
Dustin argues at length about Kristen’s limited nonmarital
contributions to the home’s equity; however, this line of argument is irrelevant.
We observe the circuit court, like the DRC, did not characterize any portion of the
home’s equity as nonmarital.6 Dustin also did not provide substantial evidence that
he made any nonmarital contributions. Thus, we find no error in the circuit court’s
characterization of the equity in the marital residence.
In the division of the equity of the marital residence, both the DRC
and circuit court recognized the parties’ testimony that they intended for the
residence to be marital when it was purchased, and both parties contributed to the
property’s equity during the marriage. And, both the DRC and circuit court
determined that the equity should be divided equally between the parties based on
their respective contributions.7 In dividing the property, the circuit court addressed
6 Though one might question why the circuit court did not assign a nonmarital portion of the equity in the home to Kristen considering its findings concerning her loans being used as a downpayment, Kristen has not challenged this on appeal. 7 The circuit court in particular considered Kristen’s contributions as a homemaker, which is a factor to be considered under Kentucky Revised Statutes 403.190(1)(a).
-15- the factors set out in KRS 403.190(1). See Thielmeier v. Thielmeier, 664 S.W.3d
563, 574 (Ky. 2022). Having complied with applicable law, we conclude the
circuit court’s findings were not clearly erroneous and otherwise supported by
substantial evidence.
As concerns the parties’ retirement accounts, Dustin does not
challenge the court’s classification of the accounts. Rather, he argues that the
circuit court erred in equally dividing the marital portion of his 401K (offset by the
amount of Kristen’s retirement account) rather than proportionally to the parties’
incomes. In support, he asserts that Kristen’s retirement account through the
Kentucky Teacher’s Retirement System has benefits that “cannot be quantified or
divided by [the] courts.” Dustin’s Brief at 19. However, absolutely no evidence
was presented before the DRC or at the court hearing concerning these
unquantified benefits, nor was there a request made to introduce such evidence.
Dustin also argues that division should have been made in his favor because
Kristen did not address the issue in her memorandum filed below. Such a
requirement would run contrary to KRS 403.190 as it is the responsibility of the
circuit court to divide all marital property in just proportions. We find no merit in
this argument by Dustin nor did the court abuse its discretion regarding the same.
Finally, we address Dustin’s argument concerning timesharing. There
is no dispute that the court’s ruling in this case constituted an initial custody
-16- determination which is governed by KRS 403.270. Layman v. Bohanon, 599
S.W.3d 423, 430 (Ky. 2020). “Under KRS 403.270, an initial determination of
custody requires consideration of the best interests of the child, with a rebuttable
presumption that joint custody and equal parenting time [timesharing] is in the
child’s best interests.” Id. “When an appellate court reviews the decision in a
child custody case, the test is whether the findings of the trial judge were clearly
erroneous or that he [or she] abused his [or her] discretion.” Frances v. Frances,
266 S.W.3d 754, 756 (Ky. 2008) (citing Eviston v. Eviston, 507 S.W.2d 153
(Ky.1974)). In weighing the evidence before it, we shall give “due regard . . . to
the opportunity of the trial court to judge the credibility of the witnesses.” CR
52.01; see also Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). “[I]n reviewing
the decision of a trial court the test is not whether we would have decided it
differently, but whether the court’s findings were clearly erroneous or that it
abused its discretion.” Gomez v. Gomez, 254 S.W.3d 838, 842 (Ky. App. 2008)
(citations omitted).
Dustin does not challenge the custody ruling by the court, but rather
the court’s ruling on timesharing. In this case, both the DRC and circuit court
made significant findings concerning the best interests of the children while
considering the factors outlined in KRS 403.270. Though the DRC recommended
that the parties should have equal timesharing, the circuit court determined that the
-17- rebuttable presumption of equal timesharing had been overcome and ordered a less
than equal timesharing schedule in favor of Kristen while taking care to maximize
the amount of time the children spend with Dustin. Dustin maintains that the
circuit court should have accepted the DRC’s findings, because the circuit court
took no further testimony about the children from the parties. However, as
mentioned above, the circuit court was not bound to the DRC’s recommendations
and has broad discretion in accepting, rejecting, or modifying those
recommendations. Hartlage, 601 S.W.3d at 498; CR 53.05; FCRPP 4. From our
review of the record on appeal and the findings made, substantial evidence exists
which supports the circuit court’s findings, and therefore we again find no abuse of
discretion in the court’s timesharing ruling.
CONCLUSION
For the foregoing reasons, we affirm the Cumberland Circuit Court’s
August 21, 2024, order.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
W. Matthew Garmon Angela M. Capps Monticello, Kentucky Columbia, Kentucky
-18-