YOUNG (GARY STEVEN) VS. YOUNG (LAURA SUE)
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RENDERED: OCTOBER 23, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000714-MR
GARY STEVEN YOUNG
v.
APPELLANT
APPEAL FROM GREENUP FAMILY COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 04-CI-00698
LAURA SUE YOUNG
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, THOMPSON AND WINE, JUDGES.
THOMPSON, JUDGE: Gary Steven Young appeals from the Greenup Family
Court’s order adjudicating division and valuation of the parties’ marital and nonmarital property. For the reasons stated below, we affirm.
Gary and Laura were married on June 3, 1995, and she filed a petition
for the dissolution of marriage on November 5, 2004.1 During the marriage, Gary
worked as an engineer for Union Carbide until his resignation in 2002, and Laura
was a doctor employed at King’s Daughters Medical Center in Ashland until her
resignation in May 2006.
On January 20, 2005, the family court issued a restraining order
against Gary and ordered that “[t]he parties are each restrained from destroying,
conveying or otherwise dissipating the marital estate during the pendency of the
action.” A bifurcated decree of divorce was entered on August 18, 2006, reserving
other issues for further adjudication.
On October 16, 2006, the family court issued an order finding that
Gary’s conduct toward Laura “may” create irreparable harm if it continued.
According to the family court’s order, Gary continued confronting Laura in public
and failed to realize that their marriage had ended. The trial court ordered that “the
Respondent, Gary Steven Young, is permanently enjoined from further
communication with the Petitioner, Laura Sue Young, except for the express
purpose of effecting visitation with his children.”
On May 21, 2007, the Domestic Relations Commissioner (DRC)
issued his report and recommendation to the family court.2 After Gary filed
1
While three children were born of the marriage, neither party appealed the family court’s
rulings regarding issues relating to the children.
2
Although a family court division was established prior to the conclusion of this case, by
agreement, the Domestic Relations Commissioner was permitted to finalize his report and submit
it to the family court for final adjudication.
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exceptions, the family court denied his exceptions and adopted the DRC’s report
and recommendation in its entirety. This appeal followed.
Gary’s first argument is that the family court erred when it failed to
award him his share of the marital estate that was dissipated by Laura. Gary
argues that Laura’s voluntary unemployment resulted in the dissipation of $80,000
of the marital estate, which would not have been expended had Laura maintained
employment. We disagree.
In divorce proceedings where property division is an issue, a family
court first classifies each individual property as marital or non-marital. Smith v.
Smith, 235 S.W.3d 1, 5 (Ky.App. 2006). The family court then assigns each party
their respective non-marital property before dividing the parties’ marital property
between them in “just proportions.” Id. The review of a family court’s division of
marital property is limited to abuse of discretion. Overstreet v. Overstreet, 144
S.W.3d 834, 838 (Ky.App. 2003).
Dissipation is established only when “marital property is expended (1)
during a period when there is a separation or dissolution impending; and (2) where
there is a clear showing of intent to deprive one's spouse of her proportionate share
of the marital property.” Brosick v. Brosick, 974 S.W.2d 498, 500 (Ky.App. 1998).
“The concept of dissipation requires that a party used marital assets for a nonmarital purpose.” Id. at 502. The party alleging dissipation of marital assets bears
the initial burden of proof of demonstrating the other spouse’s inappropriate use of
marital assets. Bratcher v. Bratcher, 26 S.W.3d 797, 800 (Ky.App. 2000).
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After conducting multiple hearings, the DRC found that the parties’
Certificate of Deposit No. 5, originally in the amount of $50,000, was exhausted.
The DRC found that the financial instrument was marital property and that the
entire amount was expended by Laura between the parties’ separation and the
multiple hearings in 2006. However, the DRC found the following:
The Petitioner introduced evidence that this entire
amount was used for the support of the parties three
children and also for payment on the mortgage on the
marital domicile, utilities on the marital domicile, where
the Petitioner and her three children have resided, for
food, health insurance, gasoline, school expenses,
clothing from date of separation [in] 2004 through [the]
hearing.
The DRC further found that Laura introduced itemized statements showing that she
expended $81,000 during this two and a half year period for all of her and her
children’s expenses. The DRC further observed that the family court declined to
order Gary to pay child support and that she paid the parties’ monthly mortgage of
$1,469 during the period in question. Finding that the mortgage payments alone
constituted nearly $35,000 and considering her payments for their children’s needs,
the DRC recommended that Laura not be required to reimburse Gary proceeds
from CD No. 5. The family court accepted this recommendation.
Based on these facts, we conclude that the family court did not abuse
its discretion by denying Gary’s dissipation claim. While Laura disposed of
marital assets during the parties’ divorce proceedings, she expended the assets on
the parties’ marital residence and their children. Although she voluntarily resigned
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from her job, she testified that she sought a business opportunity in another city
and that Gary’s harassment made it difficult to cope with the stress of her job.
Therefore, considering these facts, the family court’s denial of Gary’s dissipation
claim was not an abuse of discretion.
Gary next argues that the family court erred in failing to restore
$6,000 in non-marital funds to him which were used for the down payment on the
marital home. According to Gary, one month before the marriage, he paid $6,000
toward the purchase of a home in Louisiana. He further contends that he sold this
home and used the $6,000 to pay toward the mortgage on the parties’ marital
residence in Kentucky. Thus, he argues that his $6,000 non-marital funds should
have been restored to him. We disagree.
Kentucky courts presume that all property acquired during a marriage
is marital in nature unless evidence established it was acquired in one of the
excepted ways outlined in KRS 403.190(2). Terwilliger v. Terwilliger, 64 S.W.3d
816, 820 (Ky. 2002). Notwithstanding, a couple’s property may consist of both
non-marital and marital components and, when this occurs, a family court must
determine the parties' separate non-marital and marital interests in the property
based on the evidence. Travis v. Travis, 59 S.W.3d 904, 909 (Ky. 2001). “A party
claiming that property acquired during the marriage is other than marital property,
bears the burden of proof.” Terwilliger, 64 S.W.3d at 820.
Although Laura concedes that Gary used $6,000 of non-marital
money to purchase the Louisiana home, she disputes that these funds were used,
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after the sale of the Louisiana home, on the marital residence in Kentucky. In such
a case, Gary was required, but failed, to trace the proceeds of the non-marital funds
into the marital residence in order to support his claim for restoration. Kleet v.
Kleet, 264 S.W.3d 610, 614 (Ky.App. 2007). Therefore, the family court did not
abuse its discretion by denying his request to be restored $6,000 in non-marital
property.
Gary next argues that the family court erred by finding that the
parties’ marital personal and household property was a different value than the
value he proposed. Contending that no other evidence was introduced on the
valuation of the parties’ marital personal and household property, he argues that his
proposed valuation should have been adopted by the family court. We disagree.
A family court’s valuation of marital property is a question of fact and
cannot be disturbed absent a determination that it was clearly erroneous. Lane v.
Lane, 202 S.W.3d 577, 581 (Ky. 2006). In reviewing factual findings, due regard
is granted to the family court in viewing and weighing the credibility of the
evidence. Ironton Fire Brick Company v. Burchett, 288 S.W.2d 47, 50 (Ky. 1956).
In this case, the family court, adopting the findings of the DRC, found
Gary’s valuation of the parties’ marital personal and household property unreliable.
We note that the DRC’s report and recommendation contained the following:
The Commissioner has considered evidence, pleadings,
exhibits, memorandum and the entire court record in this
matter. It is perhaps worthy of mention, that this will be
the final Report which the undersigned files as Domestic
Relations Commissioner after 28 years in that position
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and this particular Dissolution is perhaps the most
contentious, protracted and destructive proceeding which
he has encountered during that period of service.
With this backdrop, although no other specific evidence was introduced on the
valuation of the parties’ marital personal and household property, it is clear that the
family court, through the DRC, weighed the credibility of all the evidence,
including that the parties engaged in contentious and destructive conduct. Thus,
the family court’s decision not to fully adopt Gary’s valuation but to accept one of
a lesser amount, which must be considered in light of the entire proceedings, was
not an abuse of discretion.
For the foregoing reasons, the Greenup Family Court’s order is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
R. Stephen McGinnis
Greenup, Kentucky
Roger R. Cantrell
Greenup, Kentucky
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