Julia Leigh Livers v. Byron Randall Livers

CourtCourt of Appeals of Kentucky
DecidedApril 29, 2021
Docket2017 CA 001691
StatusUnknown

This text of Julia Leigh Livers v. Byron Randall Livers (Julia Leigh Livers v. Byron Randall Livers) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Julia Leigh Livers v. Byron Randall Livers, (Ky. Ct. App. 2021).

Opinion

RENDERED: APRIL 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals NO. 2017-CA-1691-MR

JULIA LEIGH LIVERS APPELLANT

APPEAL FROM MARION CIRCUIT COURT v. HONORABLE SAMUEL TODD SPALDING, JUDGE ACTION NO. 15-CI-00118

BYRON RANDALL LIVERS APPELLEE

AND NO. 2017-CA-1721-MR

BYRON RANDALL LIVERS CROSS-APPELLANT

CROSS-APPEAL FROM MARION CIRCUIT COURT v. HONORABLE SAMUEL TODD SPALDING, JUDGE ACTION NO. 15-CI-00118

JULIA LEIGH LIVERS CROSS-APPELLEE OPINION AFFIRMING

** ** ** ** **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

LAMBERT, JUDGE: Julia Leigh Livers appeals from the August 25, 2017, order

of the Marion Circuit Court, arguing that the circuit court erred in its division and

valuation of marital property and its holding that Julia was not entitled to

attorney’s fees. Byron Randall Livers cross-appeals from the same order, arguing

that the circuit court erred in its valuation of the non-marital interest of Julia’s

retirement account. After careful consideration, we affirm on appeal and cross-

appeal.

The parties were married in 2004. They share one son, born in 2007.1

They separated in 2014, and Byron filed for dissolution of marriage on April 23 of

the following year. Several hearings were held between then and the final hearing,

held on July 27, 2017. The circuit court entered its order of dissolution on July 31,

2017, and its findings of fact and order on August 25, 2017.2 Both parties filed

motions to alter, amend, or vacate pursuant to Kentucky Rule of Civil Procedure

1 Byron has two children (a son and a daughter) from his previous marriage. His first wife is deceased. 2 After Julia complained that she did not timely receive the August 25, 2017, order, the circuit court entered an order decreeing it, nunc pro tunc, to be entered on September 7, 2017.

-2- (CR) 59.05. The circuit court order ruling on the motions was entered on

September 22, 2017, after which the appeal and cross-appeal were filed.3

We begin by stating the standard of reviewing an order allocating

property and resolving other issues between parties dissolving their marriage. CR

52.01 provides the general framework for the circuit court as well as review in the

Court of Appeals:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (An

appellate court may set aside a lower court’s findings made pursuant to CR 52.01

“only if those findings are clearly erroneous.”). The Asente Court went on to

address substantial evidence:

“[S]ubstantial evidence” is “[e]vidence that a reasonable mind would accept as adequate to support a conclusion” and evidence that, when “taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men.” Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” because judging the credibility of

3 This matter was held in abeyance from May 31 to November 11, 2018.

-3- witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence. Id. at 354 (footnotes omitted). See also McVicker v. McVicker, 461 S.W.3d 404,

415 (Ky. App. 2015).

In Young v. Young, 314 S.W.3d 306, 308 (Ky. App. 2010), this Court

specifically addressed the standard of review for the classification of property:

A trial court’s ruling regarding the classification of marital property is reviewed de novo as the resolution of such issues is a matter of law. Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky. App. 2008). We review a trial court’s determinations of value and division of marital assets for abuse of discretion. Armstrong v. Armstrong, 34 S.W.3d 83, 87 (Ky. App. 2000) (quoting Duncan v. Duncan, 724 S.W.2d 231, 234-35 (Ky. App. 1987)).

KRS4 403.190 provides for the assignment and division of property and provides in

relevant part as follows:

(1) In a proceeding for dissolution of the marriage or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s property to him. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:

4 Kentucky Revised Statutes.

-4- (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.

KRS 403.190(2)(a) defines “marital property” as “all property acquired by either

spouse subsequent to the marriage except . . . [p]roperty 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[.]”

Julia first asserts that the circuit court abused its discretion in failing

to require Byron to trace the funds in his children’s bank accounts to prove that the

increase in value was nonmarital. We disagree with this contention. Byron

testified that the children’s bank accounts were funded with social security

payments received as benefits from the death of his first wife. Julia offered no

evidence to rebut this testimony. We can find no error in the circuit court’s

allocation of this property, including the growth during the marriage between

-5- Byron and Julia, as belonging to Byron’s children from his first marriage. CR

52.01; McVicker, 461 S.W.3d at 415.

Julia likewise insists that the circuit court erred in failing to assign an

increase to the value of the parties’ home. Julia concedes that Byron owned the

home, free of debt, prior to her marriage to him, and that the home itself was thus

nonmarital. She maintains, though, that the property increased significantly in

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Related

Armstrong v. Armstrong
34 S.W.3d 83 (Court of Appeals of Kentucky, 2000)
Young v. Young
314 S.W.3d 306 (Court of Appeals of Kentucky, 2010)
Heskett v. Heskett
245 S.W.3d 222 (Court of Appeals of Kentucky, 2008)
Moore v. Asente
110 S.W.3d 336 (Kentucky Supreme Court, 2003)
Duncan v. Duncan
724 S.W.2d 231 (Court of Appeals of Kentucky, 1987)
McVicker v. McVicker
461 S.W.3d 404 (Court of Appeals of Kentucky, 2015)
Wilson v. Askew
568 S.W.3d 375 (Court of Appeals of Kentucky, 2019)

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Bluebook (online)
Julia Leigh Livers v. Byron Randall Livers, Counsel Stack Legal Research, https://law.counselstack.com/opinion/julia-leigh-livers-v-byron-randall-livers-kyctapp-2021.