RICHELLE HARDY (now MIZELL) v. RICHARD HARDY
Annotate this Case
Download PDF
RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000641-MR
RICHELLE HARDY (now MIZELL)
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 97-CI-00208
v.
RICHARD HARDY
APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, GUIDUGLI, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from those portions of a
decree of dissolution which distributed the parties’ marital and
non-marital property.
Appellant argues that the court erred in
valuing the parties’ real estate, in awarding appellee $10,000
for his non-marital contribution to the purchase of said real
estate, and in the division of the parties’ personal property.
Upon review of the record herein and the applicable law, we
affirm in part as to the valuation of the real property and the
division of personal property.
As to the court’s award for
appellee’s alleged non-marital contribution to the purchase of
the real property, we reverse and remand for redistribution of
this property.
Appellant, Richelle Hardy (now Mizell), and appellee,
Richard Hardy, were married in 1988.
In March of 1997, Richelle
filed the petition for dissolution of marriage.
A hearing was
held regarding the distribution of the parties’ property on
January 26, 1998.
On January 27, 1998, the court entered its
judgment valuing the parties’ residence at $100,000.
The court
also found that Richard had contributed $10,000 of non-marital
funds to the down payment on the property.
As to the parties’
personal property, the court awarded each party the property they
had in their possession, as well as certain pieces of furniture
and each party’s respective collectible items.
The court went on
to make the following finding in deciding to award Richard the
motorcycle and sidecar valued at approximately $11,000:
Based upon the testimony, the Court finds
that the Petitioner [Richelle] purposely
filed an inaccurate tax return and received
all of a $4,100 refund which was marital
property and further that she caused the
Respondent to incur several thousands of
dollars in unnecessary tax liability. The
Court further finds that the Petitioner took
most of the marital property from the marital
residence before leaving and has understated
the extent of the collectibles removed by
her. Accordingly, the Respondent is awarded
the motorcycle and sidecar.
From this judgment, Richelle now appeals.
Richelle first argues that the trial court erred in
finding that Richard had contributed $10,000 in non-marital funds
to the down payment on the parties’ residence.
Richelle
maintains that Richard did not meet his burden of proving this
-2-
contribution because he produced no written documentation
thereof.
At the hearing, Richard testified that the $10,000 in
question had come from a bonus he had received and put into a
savings account before using it for the down payment.
Richard
claimed that he had located a statement from this savings account
dated prior to the marriage, which indicated that he had $14,000
in savings at that time.
He also claimed to have that statement
at the courthouse on the day of trial.
On redirect, Richard
stated that the statement showed a $8,000 withdrawal from this
account in May of 1988.
According to Richard, he moved the other
$2,000 from this savings account at a later date.
However, that
statement was never produced by Richard at trial.
In fact, no
written documentation to support this claim was ever produced by
Richard at trial or prior to trial during discovery.
At some
point in his testimony, Richard insinuates that he lacked the
documentation in question because Richelle took all of his files
when she moved out of the house.
KRS 403.190(2)(b) provides that property acquired in
exchange for property acquired before the marriage is non-marital
property.
KRS 403.190(3) states in part, “[t]he presumption of
marital property is overcome by a showing that the property was
acquired by a method listed in subsection (2) of this section.”
Thus, the burden to show that the down payment monies were from a
non-marital source was on Richard.
In Chenault v. Chenault, Ky.,
799 S.W.2d 575 (1990), the Court relaxed the strict tracing
requirements espoused in cases such as Turley v. Turley, Ky.
App., 562 S.W.2d 665 (1978) and Brunson v. Brunson, Ky. App., 569
-3-
S.W.2d 173 (1978).
However, the Court stated, “we believe the
concept of tracing is too firmly established in the law to be
abandoned at this time.”
Chenault, 799 S.W.2d at 579.
The Court
specifically held, “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 draconian requirements
heretofore laid down.”
Id.
In the instant case, the only evidence of Richard’s
$10,000 contribution to the house down payment was Richard’s
self-serving testimony.
Although he claimed that he could
produce a bank statement showing he had these funds in a savings
account prior to the marriage (which, in our view, would have
constituted sufficient tracing under Chenault), no such record
was ever produced.
True, Richelle does not offer any explanation
as to where all of the down payment funds came from (it is
undisputed that some of the funds came from a loan from
Richelle’s parents).
However, Richard has the burden of proving
these funds were non-marital.
Neither are we swayed by Richard’s
insinuations that he had no documentary proof regarding the funds
because Richelle took these records when she moved out of the
house.
Richard could easily have obtained a copy of his prior
bank statements from the archives of his bank.
We cannot allow
the trial court to base a finding regarding a significant nonmarital contribution to marital property solely on the testimony
of the party seeking to prove the contribution was non-marital,
without any other corroborative evidence.
We believe that
Chenault at least requires some other proof regarding the non-
-4-
marital property.
In Chenault, although the wife could not
document every interest payment and reinvestment of her nonmarital property, she did present evidence that she owned a home
prior to the marriage, that it sold during the marriage for
$14,000, and that she bought a $10,000 Treasury Note prior to the
marriage.
Here, Richard has presented no corroborative evidence
of the existence of these non-marital funds.
Accordingly, we
believe there was not substantial evidence of Richard’s $10,000
non-marital contribution to the purchase of the parties’ home.
See Black Motor Co. V. Greene, Ky., 385 S.W.2d 954 (1964).
Thus,
we reverse the court’s judgment crediting Richard for the $10,000
contribution to the purchase of the marital residence and remand
for a redistribution of this asset.
Richelle’s next argument is that the trial court erred
in valuing the parties’ marital residence at $100,000.
The only
documentary evidence regarding the value of this property was the
appraisal of Micheal R. Helton, a certified real estate
appraiser, which was submitted by Richelle.
property at $112,000.
Helton appraised the
On cross-examination, Richard expressed
disagreement with the appraisal, stating that it was not an
accurate valuation of the house.
his own appraisal of the property.
However, Richard did not obtain
On direct, Richard testified
that the house was purchased in 1998 for $79,000 and that it was
presently in need of about $15,000 in repairs.
Although the
court did not state how it arrived at the $100,000 figure in the
original order of January 1988, in its order on Richelle’s
-5-
subsequent motion to alter or amend, the court clarified its
reasoning, stating:
The court
submitted
high, and
necessary
further finds that the appraisal
by Petitioner’s expert was slightly
did not take into consideration all
repairs.
It is Richelle’s position that because there was only
one appraisal of the property offered into evidence, the court
was required to accept the value set by the appraiser.
A trial
court’s valuation of property in a domestic action will not be
disturbed on appeal unless it is clearly contrary to the weight
of the evidence.
439 (1992).
Underwood v. Underwood, Ky. App., 836 S.W.2d
In the case at bar, the court clearly did not
believe that the appraisal was completely accurate and chose to
accept the testimony of Richard that the house was in need of
some repairs.
A finder of fact has the right to believe part of
the evidence and disbelieve other parts, even if the evidence
came from the same witness.
Sroka-Calvert v. Watkins, Ky. App.,
971 S.W.2d 823 (1998). (In Sroka-Calvert, that witness was also
an expert witness.)
Accordingly, we cannot say that the court’s
valuation of the property at $100,000 was clearly contrary to the
weight of the evidence.
Richelle’s final argument is that the trial court erred
in its division of the parties’ personal property.
In
particular, Richelle complains about Richard being awarded the
motorcycle and sidecar worth approximately $11,000.
Under KRS
403.190, the court is required to divide marital property in
“just proportions”.
proportions.
This does not necessarily mean equal
Quiggins v. Quiggins, Ky. App., 637 S.W.2d 666
-6-
(1982).
From our review of the record, the court did not abuse
its discretion in awarding Richard the motorcycle and sidecar.
See Johnson v. Johnson, Ky. App., 564 S.W.2d 221 (1978).
Richard
presented expert testimony supporting the court’s finding that
Richelle filed her tax return so as to gain certain tax
advantages of which both parties should have gotten the benefit.
Further, there was sufficient evidence to support the court’s
finding that when Richelle moved out, she took much of the
marital personal property.
For the reasons stated above, the judgment of the Boyd
Circuit Court is affirmed in part, reversed in part, and remanded
for redistribution of the parties’ real property consistent with
this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gordon J. Dill
Ashland, Kentucky
Richard A. Hughes
Ashland, Kentucky
-7-
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.
