RAYMOND JOSEPH FIERRO v. CYNTHIA HELEN DECKER FIERRO
Annotate this Case
Download PDF
RENDERED: APRIL 22, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000485-MR
RAYMOND JOSEPH FIERRO
v.
APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE KEVIN L. GARVEY, JUDGE
ACTION NO. 02-CI-504538
CYNTHIA HELEN DECKER FIERRO
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI AND MINTON, JUDGES; EMBERTON, SENIOR JUDGE.1
GUIDUGLI, JUDGE:
In this dissolution action, Raymond Joseph
Fierro has appealed from the Jefferson Family Court’s Findings
of Fact, Conclusions of Law, Decree of Dissolution and Judgment
entered December 10, 2003, and from the portion of its February
6, 2004, order denying his motion to vacate, alter or amend.
Issues raised in this appeal include the designation of furs and
jewelry as gifts, the award of maintenance to Cynthia Fierro,
1
Senior Judge Thomas D. Emberton, sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 100(5)(b) of the Kentucky Constitution
and KRS 21.580.
and the amount of non-marital interest in the marital residence
awarded to Raymond.
We affirm.
Cynthia and Raymond were married in Cleveland, Ohio,
on November 19, 1977.
They separated on September 1, 2002, and
Cynthia filed a Petition for Dissolution of Marriage in
November.
During the marriage, Cynthia took on the role of
homemaker, raising the children and running the house.
Their
youngest child was 16 years old at the time the petition was
filed.
At the time of the hearing in this matter, Cynthia was
working full-time and earning $10.49 per hour at Aperture
Credentialing.
However, she had begun Sullivan University’s 2½-
year culinary arts program in January 2003.
Raymond worked
outside of the home during the marriage in sales for PPG
Industries.
He earned $68,780 in 2002 and $79,017 in 2001, as
well as benefits.
On December 10, 2003, the family court entered its
Findings of Fact, Conclusions of Law, Decree of Dissolution and
Judgment, the relevant portions of which are set out below:
DIVISION OF PERSONALTY
The parties testified that the
personalty of the parties has been divided
between the parties. However, there are
some jewelry and furs, a John Deere garden
tractor, and a 1996 Cadillac automobile at
issue. The Court finds the jewelry and furs
to have been gifts from [Raymond] to
[Cynthia], and she shall retain these items
as her own property free and clear of any
-2-
claim of [Raymond]. The remaining John
Deere garden tractor shall be awarded to
[Raymond] and the 1996 Cadillac shall be
awarded to [Cynthia]. Thus, the Court
concludes that the personalty of the parties
has been justly and equitably divided and
each shall retain same free and clear of any
claim or contribution by the other.
RESTORATION OF NONMARITAL
PROPERTY/DIVISION OF MARITAL RESIDENCE
[Raymond] has made a claim to a
significant nonmarital interest in the
parties’ marital residence. He has
submitted several documents which he claims
to be “tracing” materials which support his
claim for a substantial nonmarital award.
[Cynthia], on the other hand, disputes
both [Raymond’s] tracing techniques as well
as his method of computing what he believes
to be his nonmarital interest in the
parties’ marital home, located at 18702
Shelbyville Road. [Cynthia] asserts that
Brandenburg v. Brandenburg, [] 617 S.W.2d
871 ([Ky.App.] 1981), upon which [Raymond]
bases his claim, has been overruled by
Travis v. Travis, [] 59 S.W.3d 904 ([Ky.]
2001). However, such is not the case. The
court in Travis simply clarified the
situation with regard to increases in value
due to pure economic factors versus noneconomic factors. In effect, it is the
opinion of this Court that Travis simply
provides yet another option by which marital
and nonmarital interests in real property
can be calculated.
However, despite the language of both
Travis and Brandenburg, KRS 403.190(3)
creates a presumption that any increase in
value is marital property, and therefore,
the party asserting that they should receive
appreciation upon a nonmarital contribution
bears the burden of proving the portion of
the increase in value to be attributable to
-3-
a nonmarital contribution. Moreover, this
is a court of equity and such principals
must apply herein. Case law in the
Commonwealth is clear that a housewife
contributes to the creation of a home as
much as the financial provider for the
family. A spouse should not necessarily be
punished simply because of the family’s
decision that one spouse be the source of
income for the family while the other tends
to the home and family.
The Court concludes that [Raymond] did
succeed in tracing a portion of the amount
he seeks to retain as nonmarital money,
however, he by no means provided the Court
enough evidence to find that he should walk
away with over seventy (70) percent of the
marital residence as his nonmarital
contribution. There was a significant
amount of commingling of assets of the
parties, as well as uncontroverted testimony
by both parties that they received monetary
gifts from parents. The problem lies in the
lack of evidence substantiating the amounts
and actual intent of the gifts. The only
thing certain the Court can ascertain is
that [Raymond] received $33,446.00 from the
sale of his home obtained through the
divorce from his first wife. It is
uncontroverted that he used this sum as a
down payment on the home the parties
purchased at Foxwood Road. It is at this
point that the picture becomes muddied with
bridge loans, home equity loans, and alleged
monetary gifts.
In light of the lack of sufficient
evidence beyond the initial down payment on
the parties’ second home, the Court shall
utilize the formula set forth in Brandenburg
v. Brandenburg, supra, and determine
[Raymond’s] proportionate nonmarital
interest in, and through, the Foxwood
Property, and the resulting proportion in
the Shelbyville Road residence. Utilizing
such, the Court finds as follows:
-4-
Nonmarital contribution $32,859.00
Marital contribution
$34,287.00
Total Contribution
$67,146.00
NMC = 32,859/67,146 x 106,000 =
$51,865.80
MC = 34,287/67,146 x 106,000 =
$54.126.60
The Court concludes that upon the sale
of the Foxwood Road Property, [Raymond’s]
initial nonmarital contribution had
appreciated to $51,865.80. Next, this money
was put into the current residence located
on Shelbyville Road. This property was
appraised by both David Waterman, the Court
appointed appraiser, as well as Raymond
Suell, who was retained for a separate
appraisal by [Cynthia]. Mr. Waterman
appraised the property at $350,000.00 while
Mr. Suell appraised the same property at
$385,000.00. While the Court respects the
opinions of both gentlemen, it finds that
Mr. Waterman’s appraisal is most
representative of the true market value of
the home, particularly in light of the
problems which were discovered during the
inspection process. Thus, for purposes of
determining each [party’s] interest in the
home for division purposes, the Court shall
utilize Mr. Waterman’s figure of
$350,000.00. Therefore, using same, the
Court finds the following:
Nonmarital contribution $ 51,865.80
Marital contribution
$220,762.60
Total contribution
$272,628.40
NMC = 51,865/272628.4 x 313120.23 =
$59,555.46
MC = 220762/272628.4 x 313120.23 =
$253[,]533.45
The Court concludes that [Raymond] has
a nonmarital interest in the Shelbyville
Road property in the amount of $59,555.46.
The parties have a marital interest in the
home in the amount of $253,533.45, with each
-5-
being entitled to one half, or $126,766.72.
It was established at trial that [Raymond]
wishes to retain the residence and purchase
[Cynthia’s] interest in same. Therefore, in
order for [Raymond] to buy out [Cynthia’s]
interest in the residence, he shall pay to
her the sum of $126,766.73 pursuant to terms
agreeable to purchaser and seller. In the
event such agreement cannot be reached
within sixty (60) days of the date of this
Judgment, the residence shall be placed on
the market for public sale.
. . .
MAINTENANCE
An award of maintenance is within the
discretion of the Court. Moss v. Moss, []
639 S.W.2d 370 ([Ky.App.] 1982).
Maintenance cannot be awarded until a
division of marital property has been
achieved, and the award is predicated on
whether the party seeking maintenance lacks
sufficient property to meet her reasonable
needs, and whether she is unable to support
herself through appropriate employment.
Drake v. Drake, [] 721 S.W.2d 728 ([Ky.App.]
1986). The Court has discretion to set a
maintenance award at an amount and for a
period of time as it deems just based upon
the following factors: (a) the financial
resources of the person seeking maintenance;
(b) the time necessary to acquire the
education or training necessary to find
appropriate employment; (c) the standard of
living established during the marriage; (d)
the duration of the marriage; (e) the age
and physical and emotional condition of the
person seeking maintenance; and (f) the
ability of the spouse to meet his needs
while meeting those of the spouse seeking
maintenance. KRS 403.200(2). Furthermore,
the Court may order maintenance even if the
spouse seeking it is employed, but is living
below the standard to which she had become
-6-
accustomed during the marriage.
Drake, supra.
Drake v.
The parties in this matter have been
married for over twenty-two (22) years. It
was well established that, during the
marriage, [Raymond] was the primary income
producer while [Cynthia] was the primary
caregiver for the children as well as the
one who ran the household on a daily basis.
[Cynthia] did engage in some employment
during the marriage, however, none for a
substantial period of time and at no
position did she earn more than $11.00 per
hour.
As noted above, [Cynthia] is forty-nine
(49) years of age and, while she is in
relatively good health, she does have some
medical issues which must be maintained on a
daily basis. [Cynthia] suffers from a
hyperactive thyroid, asthma and has kidney
issues. In addition, she has diabetes and
is Type 1 Insulin dependent.
Both parties submitted expense lists
which appeared to the Court to be somewhat
inflated. [Cynthia] has a roommate who
allegedly contributes “approximately
$400.00” per month, however, it is asserted
that none of this contribution is for the
purpose of contributing to rent or ordinary
household bills (i.e., electricity, phone,
etc.).
By the same token, [Raymond] tendered a
list of expenses, however, he admitted that
a number of the claimed expenses were
actually for the parties’ son. For example,
car payment and car insurance are actually
for the benefit of Anthony as [Raymond’s]
employer provides him with a company
vehicle, insurance for that vehicle, as well
as other fringe benefits associated with his
employment.
-7-
Despite the issues surrounding the
monthly expenses of the parties, the Court
concludes that [Cynthia] is entitled to
maintenance. In light of the foregoing
discussion regarding both the statutory
requirements as well as the factors set out
in case law, it is clear that [Cynthia] is
unable to meet her reasonable needs through
appropriate employment. [Cynthia’s] earning
history, as well as her age and current
health problems, convince the Court that she
will not be able to obtain employment at a
higher income level than that at which she
is currently earning. Moreover, her current
health concerns require a constant
prescription intake as well as medical
oversight.
Upon review of the circumstances
surrounding this matter, the Court concludes
that maintenance is proper. The Court
directs that [Raymond] shall pay to
[Cynthia] the sum of $1,000.00 per month for
a period of ten (10) years. Said payments
shall commence on the first day of the month
immediately following the entry of this
Order and shall be payable on the first day
of each month thereafter.
Raymond filed a motion for reconsideration on these
three issues as well as on the child support award.
The family
court denied the motion, except as to the child support portion,
which was altered.
This appeal followed.
Raymond raises three issues in his brief:
1) that the
family court abused its discretion by refusing to divide gifts
of jewelry and furs as marital property; 2) that the family
court’s award of maintenance was an abuse of discretion; and 3)
that the family court abused its discretion by failing to award
-8-
a more substantial amount of non-marital interest in the marital
residence to Raymond.
On the other hand, Cynthia asserts in her
brief that the family court did not abuse its discretion and
that its decision should not be reversed for any reason.
Our standard of review in dissolution actions is well
settled, and was recently restated by this Court in Hunter v.
Hunter:2
Under CR[] 54.02, in an action tried without
a jury, “[f]indings 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. The findings of a
commissioner, to the extent that the court
adopts them, shall be considered as the
findings of the court.”[] A factual finding
is not clearly erroneous if it is supported
by substantial evidence.[] Substantial
evidence is evidence, when taken alone or in
light of all the evidence, which has
sufficient probative value to induce
conviction in the mind of a reasonable
person.[] An appellate court, however,
reviews legal issues de novo.[] (Footnotes
omitted.)
With this standard in mind, we shall review the case before us.
Raymond first argues that the family court should have
divided his gifts of furs and jewelry to Cynthia during the
marriage as marital property, rather than awarding them to
Cynthia as non-marital gifts.
In response, Cynthia points out
that in his tendered findings of fact, Raymond suggested that
2
127 S.W.3d 656, 659 (Ky.App. 2003).
-9-
each party should retain the personal property in his or her
possession, and that this would create a just division of
marital personal property.
Cynthia argues that even if the
family court had held that the jewelry and furs were marital
property as requested by Raymond, they would have been assigned
to her anyway pursuant to Raymond’s request.
KRS 403.190(2)(a) excepts from “marital property” all
“[p]roperty acquired [by either spouse subsequent to the
marriage] by gift, bequest, devise, or descent during the
marriage and the income derived therefrom.”
O’Neill v. O’Neill3
sets out a four-part test to determine whether property given
from one spouse to another falls within the statutory meaning of
“gift”:
In each case, consideration should be given
to the source of the money with which the
“gift” was purchased, the intent of the
donor at the time as to intended use of the
property, status of the marriage
relationship at the time of the transfer,
and whether there was any valid agreement
that the transferred property was to be
excluded from the marital property.[4]
In O’Neill, the husband testified that the items in question,
including a ring with an appraised value of $35,000 and other
jewelry with an appraised value of $15,900, were purchased as
3
600 S.W.2d 493 (Ky.App. 1980).
4
Id. at 495.
-10-
investments.
However, in Ghali v. Ghali,5 the same court held
that the evidence supported the trial court’s determination that
two rings given to the wife were gifts.
And recently this Court
again addressed this issue in Hunter,6 holding that “the intent
of the purported donor is considered the primary factor in
determining whether a transfer of property is a gift. . . .
Whether property is considered a gift for purposes of a divorce
proceeding is a factual issue subject to the clearly erroneous
standard of review.”
(Citations omitted.)
In the present matter, we cannot conclude that the
family court was clearly erroneous in finding that the jewelry
and furs were given to Cynthia as gifts.
Although the items
were purchased with marital funds, as was the case in O’Neill,
Raymond did not present any evidence that those items were
intended to be anything other than gifts.
Furthermore, the
relatively low appraised values of the jewelry ($2,590) and furs
($435) would tend to negate any claim that the items were bought
for investment purposes.
The family court did not abuse its
discretion in awarding the jewelry and furs to Cynthia as gifts.
We shall next address Raymond’s argument that the
family court abused its discretion in awarding maintenance to
5
6
596 S.W.2d 31, 32 (Ky.App. 1980).
127 S.W.3d at 660.
(2003).
See also 15 Ky. Prac. Domestic Relations L. § 15.18
-11-
Cynthia in the amount of $1,000 per month for ten years.
He
argues that Cynthia was awarded sufficient property to provide
for her reasonable needs and that she could support herself
through appropriate employment.
Cynthia disagrees, arguing that
the family court’s findings were supported by the evidence.
KRS 403.200(1) provides that a court may grant
maintenance only if it finds the spouse seeking it:
(a)
Lacks sufficient property, including
marital property apportioned to him, to
provide for his reasonable needs; and
(b)
Is unable to support himself through
appropriate employment.
The decision whether to award maintenance is reviewed for abuse
of discretion.7
Once it has been decided that maintenance is
appropriate, a court must then consider all relevant factors in
determining the amount and duration of maintenance pursuant to
KRS 403.200(2).
These factors include the spouse’s financial
resources, the time needed to obtain sufficient education or
training, the standard of living during the marriage, the
duration of the marriage, the age and condition of the spouse
seeking maintenance, as well as the ability of the paying spouse
to meet his needs.
Similarly, “the amount and duration of
maintenance is within the sound discretion of the trial court.”8
7
Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003); Sayre v. Sayre, 675 S.W.2d
647, 647 (Ky.App. 1984).
8
Weldon v. Weldon, 957 S.W.2d 283, 285 (Ky.App. 1997).
-12-
We shall first address the family court’s decision to
award maintenance.
After setting out the applicable law, the
family court recognized the primary facts introduced during the
hearing, including the length of the marriage, that Raymond was
the primary income-producer while Cynthia ran the household and
raised the children, Cynthia’s age and medical conditions, as
well as their “somewhat inflated” monthly expenses.
The family
court concluded that, “[i]n light of the foregoing discussion
regarding both the statutory requirements as well as the factors
set out in case law, it is clear that [Cynthia] is unable to
meet her reasonable needs through appropriate employment.”
The
family court also indicated that Cynthia would not ever be able
to earn more than what she was currently earning, which, coupled
with her age and health problems, led to a maintenance award of
$1,000 per month for ten years.
Regarding Cynthia’s entitlement to maintenance, we
agree with Raymond that the family court did not specifically
address the first prong of the test, namely whether she lacked
sufficient property, including marital property, to provide for
her reasonable needs.
However, we can infer from the family
court’s ruling that this factor was considered and that even
with the marital property awarded to her there is sufficient
evidence of record to establish her entitlement to maintenance.
-13-
The family court did not abuse its discretion in this
determination.
Next, we must address the amount and duration of the
maintenance award.
The family court awarded Cynthia $1,000 per
month for ten years, reasoning that because of her earning
history, age and health problems, she would not be able to earn
any more than she was currently earning.
The record contains
substantial evidence to support both the amount and duration of
the award, based upon the length of the marriage, Cynthia’s
efforts to obtain training, as well as Cynthia’s age and health
conditions.
Furthermore, the maintenance award was limited to
ten years, rather than being unlimited.
While we note that
Cynthia’s future completion of the culinary arts program might
have some impact on her earning potential, that would be a
matter to raise in a motion to modify maintenance.
The family
court did not abuse its discretion in the amount or duration of
maintenance awarded.
We shall next address Raymond’s argument that he
should have received a larger non-marital interest in the
marital residence.
He asserts that precise tracing of non-
marital property is not required and that he satisfied his
burden of tracing his claimed non-marital assets, entitling him
to a 73% non-marital interest in the marital residence.
disputes this claim, arguing that Raymond did not present
Cynthia
-14-
sufficient evidence to meet his burden by clear and convincing
evidence and that his reliance on Allen v. Allen9 and Chenault v.
Chenault10 is misplaced.
While we agree with Cynthia that Allen and Chenault
have different factual patterns, we are still able to utilize
those opinions for the proposition that tracing is required.
In
Chenault, our Supreme Court addressed this requirement:
In KRS 403.190(2)(b), marital property
is defined, in part, as “all property
acquired by either spouse subsequent to the
marriage except: . . . (b) Property acquired
in exchange for property acquired before the
marriage or in exchange for property
acquired by gift, bequest, or devise or
descent.” Subsection (3) of KRS 403.190
creates a presumption that all property
acquired during the marriage is marital
property, but permits this presumption to be
overcome by proof that the property was
acquired as in subsection (2) of the
statute. Numerous decision of this Court
and the Court of Appeals have construed this
statutory provision and from these decision
has emerged the concept of “tracing”
although this term is nowhere found in the
statute.[11]
The Chenault court then held that “we shall adhere to the
general requirement that nonmarital assets be traced into assets
owned at the time of dissolution, but relax some of the
9
584 S.W.2d 599 (Ky.App. 1979).
10
799 S.W.2d 575 (Ky. 1990).
11
Id. at 578.
-15-
draconian requirements heretofore laid down.”12
(Emphasis
added.)
In the present case, the family court did in fact give
Raymond credit for his non-marital interest in the marital
residence, which was comprised of funds he received from the
sale of a house he owned during his first marriage.
After that,
the family court described the situation as “muddied with bridge
loans, home equity loans, and alleged monetary gifts.”
Furthermore, and despite the notebook of documentary evidence he
introduced, Raymond was unable, and admitted he was unable, to
provide any documentary verification to create a record of what
money he claimed was non-marital.
He admitted that the closest
documentary proof was his and his mother’s tax records.
We
agree with the family court that Raymond did not provide enough
tracing evidence to establish his entitlement to be awarded any
more of a non-marital interest, especially in light of the
significant commingling of assets that took place in this case.
The family court did not abuse its discretion in limiting
Raymond’s non-marital interest in the marital residence.
For the foregoing reasons, the family court’s judgment
is affirmed.
ALL CONCUR.
12
Id. at 579.
-16-
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John K. Carter
LaGrange, KY
Katie Marie Brophy
Louisville, KY
-17-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
