RENDERED: JUNE 10, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1003-MR
TONYA SHERRIE HALL APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE MONICA K. MEREDITH, JUDGE ACTION NO. 20-CI-00508
PAUL BRADY HALL APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
DIXON, JUDGE: Tonya Sherrie Hall appeals from the Findings of Fact,
Conclusions of Law, Judgment and Decree of Dissolution entered July 29, 2021,
by the Bullitt Circuit Court. After careful review of the briefs, record, and law, we
affirm in part, reverse in part, and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND
The parties married on September 17, 1994, and in July 2020, Paul
Brady Hall petitioned for a dissolution of marriage. Tonya timely answered and
filed a counter-petition seeking maintenance. On March 3, 2021, pursuant to the
parties’ agreement, the court appointed an appraiser to assess three categories of
personal property – weapons; possessions of the parties’ son, Nathan, who died
intestate in 2017; and the parties’ miscellaneous personal possessions – and divide
the items equitably by fair market value into lists designated as A and B. Prior to
the final hearing, the parties submitted an agreed order resolving various issues
including, relevantly, that Tonya had a non-marital interest in the parties’ home,
totaling $114,330.40, and in the $70,000 held in her Abound account.
On July 29, 2021, after taking proof, the court entered its Findings of
Fact, Conclusions of Law, Judgment and Decree of Dissolution. Therein, the court
made the following findings and conclusions: (1) Tonya had elected personal
property list B, and though the court noted it was not provided with the lists, she
was granted possession of those items; (2) the $30,000 held in escrow was marital
property awarded to Tonya; (3) in accordance with the parties’ agreement, Tonya
was assigned $184,330.40 as her non-marital property; (4) the marital home was
allocated to Paul, but he was required to pay Tonya her half of its equity,
approximately $63,834.85, in addition to reimbursing her non-marital interest in
-2- the property; and (5) considering the property awarded to Tonya, including the
approximate $278,165.25 total in cash and her future income from the parties’
evenly divided retirement accounts, Tonya was not entitled to maintenance. This
appeal timely followed. We will introduce additional facts as they become
relevant.
ANALYSIS
As an initial matter, we must address Tonya’s failure to comply with
various provisions of the Kentucky Rules of Civil Procedure (CR).
CR 76.12(4)(c)(iv)-(v) requires that factual assertions contained in the
statement of the case and argument sections of an appellant brief be supported by
ample and specific citations to the record on appeal. Here, Tonya’s brief is non-
compliant since she provides scant, improperly formatted citations – her references
to the video record lacking both the “VR” designation and the date of proceeding
required by CR 98(4)(a). “It is well-settled that an appellate court will not sift
through a voluminous record to try to ascertain facts when a party has failed to
comply with its obligation . . . to provide specific references to the record.” Parker
v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009). Additionally, in violation of
CR 76.12(4)(c)(v) and (vii), Tonya did not state whether her various claims of
error were preserved for appeal and failed to identify where the multiple exhibits
appended to her brief, including the property lists the court did not receive, may be
-3- found in the record on appeal. As a court of review, we are “without authority to
review issues not raised in or decided by the trial court” and are “constrained by
the record from the lower court[.]” Regional Jail Auth. v. Tackett, 770 S.W.2d
225, 228 (Ky. 1989); Johnson v. Wood, 626 S.W.3d 543, 549 (Ky. 2021).
Where a party fails to abide by the rules of civil procedure, we are
permitted to ignore the deficiency, strike the brief in whole or part, or review the
issues raised for manifest injustice. CR 76.12(8); Elwell v. Stone, 799 S.W.2d 46,
47 (Ky. App. 1990). Given that the brief demonstrates little attempt at compliance
with the civil rules, the size of the record on appeal – eight volumes of record and
over twenty separate video recordings – and the fact that many of the issues raised
by Tonya are questions of fact, we are disinclined to ignore the deficiency. Rather
than striking the brief, we will conduct a review only for manifest injustice.
Manifest injustice requires that the appellant either demonstrate a probability of a
different result or an error which “seriously affected the fairness, integrity, or
public reputation of the proceeding.” Jones v. Bailey, 576 S.W.3d 128, 145 (Ky.
2019) (quoting Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014)).
Tonya raises various claims that the court failed to execute its
mandatory duty under KRS1 403.190 to properly classify the parties’ property, to
1 Kentucky Revised Statutes.
-4- restore ownership of her non-marital property, and to divide the marital property in
just proportions. We will address her individual contentions in turn.
Tonya first asserts the judgment should be reversed because the court
failed to divide all of the parties’ personal property. Though Tonya admits the
court awarded her the property on list B, she contends the referenced lists included
solely the possessions received from their son’s estate – the court appointed
appraiser having merely inventoried and valued the remainder of the parties’
personal property without dividing the items into lists A and B – and argues the
judgment is, therefore, deficient. Paul concedes their miscellaneous personal
property was not included on the lists referenced in the judgment, but because the
parties have already divided the items, he opines the matter is moot.
On alternate grounds, we agree with Paul that reversal is not merited.
“A final judgment shall not be reversed or remanded because of the failure of the
trial court to make a finding of fact on an issue essential to the judgment unless
such failure is brought to the attention of the trial court by a written request for a
finding on that issue or by a motion[.]” CR 52.04. In Anderson v. Johnson, 350
S.W.3d 453 (Ky. 2011), the Court explained the rule requires parties to assist the
trial court in its good faith efforts to render sufficient findings of fact by making a
written request for additional findings where, as Tonya alleges here, they are
incomplete. Appellate review cannot be had of matters on which the trial judge did
-5- not rule and as to which the appellants made no requests for specific findings.
Abuzant v. Shelter Ins. Co., 977 S.W.2d 259, 262 (Ky. App. 1998). Herein, Tonya
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RENDERED: JUNE 10, 2022; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2021-CA-1003-MR
TONYA SHERRIE HALL APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT v. HONORABLE MONICA K. MEREDITH, JUDGE ACTION NO. 20-CI-00508
PAUL BRADY HALL APPELLEE
OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND LAMBERT, JUDGES.
DIXON, JUDGE: Tonya Sherrie Hall appeals from the Findings of Fact,
Conclusions of Law, Judgment and Decree of Dissolution entered July 29, 2021,
by the Bullitt Circuit Court. After careful review of the briefs, record, and law, we
affirm in part, reverse in part, and remand for further proceedings. FACTS AND PROCEDURAL BACKGROUND
The parties married on September 17, 1994, and in July 2020, Paul
Brady Hall petitioned for a dissolution of marriage. Tonya timely answered and
filed a counter-petition seeking maintenance. On March 3, 2021, pursuant to the
parties’ agreement, the court appointed an appraiser to assess three categories of
personal property – weapons; possessions of the parties’ son, Nathan, who died
intestate in 2017; and the parties’ miscellaneous personal possessions – and divide
the items equitably by fair market value into lists designated as A and B. Prior to
the final hearing, the parties submitted an agreed order resolving various issues
including, relevantly, that Tonya had a non-marital interest in the parties’ home,
totaling $114,330.40, and in the $70,000 held in her Abound account.
On July 29, 2021, after taking proof, the court entered its Findings of
Fact, Conclusions of Law, Judgment and Decree of Dissolution. Therein, the court
made the following findings and conclusions: (1) Tonya had elected personal
property list B, and though the court noted it was not provided with the lists, she
was granted possession of those items; (2) the $30,000 held in escrow was marital
property awarded to Tonya; (3) in accordance with the parties’ agreement, Tonya
was assigned $184,330.40 as her non-marital property; (4) the marital home was
allocated to Paul, but he was required to pay Tonya her half of its equity,
approximately $63,834.85, in addition to reimbursing her non-marital interest in
-2- the property; and (5) considering the property awarded to Tonya, including the
approximate $278,165.25 total in cash and her future income from the parties’
evenly divided retirement accounts, Tonya was not entitled to maintenance. This
appeal timely followed. We will introduce additional facts as they become
relevant.
ANALYSIS
As an initial matter, we must address Tonya’s failure to comply with
various provisions of the Kentucky Rules of Civil Procedure (CR).
CR 76.12(4)(c)(iv)-(v) requires that factual assertions contained in the
statement of the case and argument sections of an appellant brief be supported by
ample and specific citations to the record on appeal. Here, Tonya’s brief is non-
compliant since she provides scant, improperly formatted citations – her references
to the video record lacking both the “VR” designation and the date of proceeding
required by CR 98(4)(a). “It is well-settled that an appellate court will not sift
through a voluminous record to try to ascertain facts when a party has failed to
comply with its obligation . . . to provide specific references to the record.” Parker
v. Commonwealth, 291 S.W.3d 647, 676 (Ky. 2009). Additionally, in violation of
CR 76.12(4)(c)(v) and (vii), Tonya did not state whether her various claims of
error were preserved for appeal and failed to identify where the multiple exhibits
appended to her brief, including the property lists the court did not receive, may be
-3- found in the record on appeal. As a court of review, we are “without authority to
review issues not raised in or decided by the trial court” and are “constrained by
the record from the lower court[.]” Regional Jail Auth. v. Tackett, 770 S.W.2d
225, 228 (Ky. 1989); Johnson v. Wood, 626 S.W.3d 543, 549 (Ky. 2021).
Where a party fails to abide by the rules of civil procedure, we are
permitted to ignore the deficiency, strike the brief in whole or part, or review the
issues raised for manifest injustice. CR 76.12(8); Elwell v. Stone, 799 S.W.2d 46,
47 (Ky. App. 1990). Given that the brief demonstrates little attempt at compliance
with the civil rules, the size of the record on appeal – eight volumes of record and
over twenty separate video recordings – and the fact that many of the issues raised
by Tonya are questions of fact, we are disinclined to ignore the deficiency. Rather
than striking the brief, we will conduct a review only for manifest injustice.
Manifest injustice requires that the appellant either demonstrate a probability of a
different result or an error which “seriously affected the fairness, integrity, or
public reputation of the proceeding.” Jones v. Bailey, 576 S.W.3d 128, 145 (Ky.
2019) (quoting Young v. Commonwealth, 426 S.W.3d 577, 584 (Ky. 2014)).
Tonya raises various claims that the court failed to execute its
mandatory duty under KRS1 403.190 to properly classify the parties’ property, to
1 Kentucky Revised Statutes.
-4- restore ownership of her non-marital property, and to divide the marital property in
just proportions. We will address her individual contentions in turn.
Tonya first asserts the judgment should be reversed because the court
failed to divide all of the parties’ personal property. Though Tonya admits the
court awarded her the property on list B, she contends the referenced lists included
solely the possessions received from their son’s estate – the court appointed
appraiser having merely inventoried and valued the remainder of the parties’
personal property without dividing the items into lists A and B – and argues the
judgment is, therefore, deficient. Paul concedes their miscellaneous personal
property was not included on the lists referenced in the judgment, but because the
parties have already divided the items, he opines the matter is moot.
On alternate grounds, we agree with Paul that reversal is not merited.
“A final judgment shall not be reversed or remanded because of the failure of the
trial court to make a finding of fact on an issue essential to the judgment unless
such failure is brought to the attention of the trial court by a written request for a
finding on that issue or by a motion[.]” CR 52.04. In Anderson v. Johnson, 350
S.W.3d 453 (Ky. 2011), the Court explained the rule requires parties to assist the
trial court in its good faith efforts to render sufficient findings of fact by making a
written request for additional findings where, as Tonya alleges here, they are
incomplete. Appellate review cannot be had of matters on which the trial judge did
-5- not rule and as to which the appellants made no requests for specific findings.
Abuzant v. Shelter Ins. Co., 977 S.W.2d 259, 262 (Ky. App. 1998). Herein, Tonya
did not file the required motion; accordingly, any error has been waived. See
Underwood v. Underwood, 836 S.W.2d 439, 445 (Ky. App. 1992), overruled on
other grounds by Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001).
Next, challenging the court’s conclusion that the $30,000 held in
escrow was marital property, Tonya argues the court erroneously relied on the
theory of transmutation. She further avers that had the court applied the proper
standard – the source of funds rule – it would have been compelled to conclude the
money was her non-marital property since she irrefutably traced it from her non-
marital Abound account. We disagree.
Transmutation is a method for characterizing property which holds
that the comingling of non-marital and marital property renders all of the property
marital. Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004). Kentucky law is settled
that transmutation is not a valid basis to classify property, and instead, as Tonya
correctly states, the source of the funds is determinative. Id. However, there is no
evidence the court herein failed to apply the correct law. Though the court did
state that the intermingling of funds over time impedes reliable tracing, this was
merely a commentary on the evidentiary challenges inherent to the source of funds
rule, not an improper statement of the law. See id. at 271.
-6- Moreover, Tonya has failed to demonstrate adequate tracing upon
which the court could properly rely. In her brief, Tonya claims that on two
separate occasions, in anticipation of large purchases which did not ultimately
occur, she transferred funds, in sums of $20,000 and $10,000 respectively, from
her Abound account – which the parties agreed contained her non-marital money –
to a joint account before returning the funds to her personal account and finally, by
court order, into escrow. To support her tracing, Tonya cites her testimony
regarding the transfer and withdrawal of $20,000, Paul’s admissions he did not
contribute money to the joint account, and a bank statement, which was attached to
her brief without reference to whether it was filed in the record. The bank
statement demonstrates that $20,000 was transferred from an Ameritrade account
to the joint account and then withdrawn for deposit in another unidentified account.
This purported tracing is insufficient given that the cited evidence pertains only to
a portion of the disputed sum and neither the bank records nor Tonya’s testimony
support her contention the funds originated from the Abound account.
Consequently, we conclude the court’s determination is not manifestly unjust.
Similarly, we reject as unfounded Tonya’s next contention that the
court applied the theory of transmutation or otherwise erred by classifying an
F-350 truck awarded to Tonya as marital property where it was uncontroverted that
she purchased it with non-marital funds. Again, nothing demonstrates that the
-7- court applied the incorrect law, and Tonya has failed to refer this Court to any
evidence tracing the asset to a non-marital source.2
Tonya next complains that the court erred generally by concluding
that all of the parties’ personal property was marital. KRS 403.190(2)-(3) creates a
presumption that all property acquired during the marriage is marital unless the
property was acquired via a delineated exception. Therefore, to merit reversal,
Tonya would have to establish that specific items of property were excepted from
the marital presumption by clear and convincing evidence. Barber v. Bradley, 505
S.W.3d 749, 755 (Ky. 2016).
On appeal, Tonya has identified only three items to which she asserts
a non-marital claim: the money in escrow, the F-350 truck, and a David Brown
tractor. We have already addressed and rejected Tonya’s arguments pertaining to
the funds and truck. Regarding the tractor, the sole support offered for Tonya’s
claimed exception as a non-marital gift, pursuant to KRS 403.190(2)(b), is her
attorney’s statement to the circuit court that the item originated from her father
absent any mention of an agreement. This is not evidence. See Chipman v.
Commonwealth, 313 S.W.3d 95, 99-101 (Ky. 2010). Hence, Tonya has failed to
2 While Tonya did cite this Court to a time segment of the video proceedings, she did not provide the corresponding date of the hearing. We presume the citation refers to April 14, 2021, the date of the final hearing; however, therein Paul was questioned regarding the purchase of a Massey Ferguson tractor, not the truck.
-8- demonstrate the court erred in concluding the property is marital, and we find no
manifest injustice.
Finally, Tonya maintains that the court erred in denying her request
for maintenance. To receive maintenance, Tonya was required to establish that she
lacks sufficient property to provide for her reasonable needs and is unable to
support herself through appropriate employment. KRS 403.200(1). Citing her
guaranteed income, the value of the non-marital and marital assets awarded to her,
and the assured, yet unspecified, income she will receive from her share of various
pension and retirement accounts, the court concluded Tonya did not satisfy her
burden of proof.
Tonya disagrees with the court’s assessment of the evidence where
she proved: she has been adjudged disabled by the Social Security Administration;
her only source of income is the $1,450 she receives monthly from disability; her
uncontested estimated expenses, as supported by a filed statement of financial
necessity, total $5,716.12; and she is unable to access the retirement funds for at
least ten years. Further, citing Colley v. Colley, 460 S.W.2d 821, 827 (Ky. 1970),
Tonya disputes the court’s reasoning that the awarded property, which produces no
income, obviates the need for maintenance when, by necessity, she would have to
exhaust the principal to meet her needs. Paul contends the court’s conclusion is
proper considering that her present assertions of being dependent on Paul’s support
-9- are contrary to her prior claims that he did not contribute financially to the
marriage, as well as Tonya’s financial assets.
The court found that Tonya was unemployed as a result of medical
disability. Thus, the only question is whether she has sufficient property to meet
her reasonable needs. Though Tonya was awarded a substantial amount of liquid
assets, approximately $278,165.25, as well as property of an unknown value, the
court’s findings do not demonstrate that it contemplated her glaring budgetary
shortfall, which will exhaust her cash reserves in less than seven years, the amount
of her anticipated retirement benefit, or when Tonya is eligible to receive her
retirement benefits. The latter consideration is perhaps the most important given
the court’s reliance on the future benefit and the fact that the parties were only 47
and 49 years of age, respectively, at the time of the judgment.
Accordingly, we hold that the court’s conclusion Tonya has sufficient
assets3 to meet her reasonable needs until she is able to collect on her retirement is
manifestly unjust and remand the matter for further consideration. On remand, the
court shall address the concerns noted above and decide anew whether Tonya can
meet her reasonable needs; if not, the court shall weigh the KRS 403.200(2) factors
3 It may be necessary to assign specific monetary value to all property awarded to Tonya in order to make this determination; i.e., list B and all vehicles granted to Tonya.
-10- for setting maintenance. See Shafizadeh v. Shafizadeh, 444 S.W.3d 437, 446 (Ky.
App. 2012).
CONCLUSION
Therefore, and for the forgoing reasons, the order of the Bullitt Circuit
Court is AFFIRMED IN PART, REVERSED IN PART, and REMANDED for
additional proceedings consistent with this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Joseph J. Wantland Amber L. Cook Shepherdsville, Kentucky Shepherdsville, Kentucky
-11-