TOLER (BOBBY CARROLL) VS. TOLER (TERESA)Annotate this Case
RENDERED: OCTOBER 24, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
BOBBY CARROLL TOLER
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE DURENDA LUNDY LAWSON, JUDGE
ACTION NO. 06-CI-00601
** ** ** ** **
BEFORE: ACREE AND VANMETER, JUDGES; HENRY,1 SENIOR JUDGE.
VANMETER, JUDGE: Bobby Carroll Toler appeals from a judgment entered by
the Laurel Circuit Court, Family Division, in a dissolution proceeding. His sole
contention on appeal is that the trial court erred by failing to allocate a portion of
Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
the value of the marital residence to him as nonmarital property. For the reasons
stated hereafter, we affirm.
Bobby and Teresa Toler married in 2003 and separated three years
later. During the marriage they purchased a residence for $120,000. Bobby
asserted, but Teresa denied, that he provided the $65,000 down payment from his
nonmarital funds. The trial court summarized the evidence and made findings of
fact in pertinent part as follows:
[Bobby] claims he used his non-marital funds to
make the $65,000 down payment on the marital home.
He claimed in an affidavit filed in support of his motion
for possession of the marital residence that the $65,000
was derived from the sale of property he owned prior to
the marriage. In his deposition he claimed that the
property he referred to was a six or seven year-old
doublewide mobile home that he sold to his mother and
brother in 1998 or 1999, some four or five years before
the marriage, for $10,000. He also claimed that the
$65,000 represented his life savings, saved over time
from working and from “bartering” guns, and from
“loaning” people money to buy cars. However, he
testified that he quit working at his job at London Auto
Mart/Childer’s Oil in February 2003 shortly before his
marriage to [Teresa] and had not had gainful, regular
employment since that time. In his testimony at the final
hearing in this matter, he admitted that he had gone to
Letcher Circuit Court in reference to a child support
matter concerning a child from a prior marriage and had
testified under oath that he had “been living off [Teresa]”
and had no money, at the same time he claims in this
matter that he was in possession of $65,000 of nonmarital funds.
The Court also finds that [Bobby] claims $30,000
of the $65,000 had previously been in the form of cash
held in a safety deposit box at Community Trust Bank.
He first claimed he had some record or receipt where he
would have taken that money out of the safe deposit box
and deposited in his Community Trust Bank account. A
review of those records shows no such deposit, nor do the
records show any $10,000 deposit representing the
proceeds from the sale of the mobile home.
[Bobby] has relied upon a deposit slip made out to
Laurel National Bank, and a corresponding check written
for $65,000 to Laurel National Bank on a Community
Trust Bank account as evidence that he withdrew monies
held in his name only at Community Trust and deposited
them in Laurel National Bank in another account held in
his name only, then making the $65,000 down payment
for the home out of the Laurel National Bank account.
The testimony was that the check from Community Trust
bank dated January, 2003 was before the parities [sic]
married. However, the check was written in January,
2003 according to [Bobby] and the funds were actually
withdrawn and re-deposited, in January 2004, after the
parties’ marriage. It is unlikely that one would write a
check to be deposited in an account that was not opened
and did not exist, until one year later.
[Bobby] claims that he has been “helping people
for years” by assisting them in buying cars, upon which
he places liens and the purchasers then make payments to
him, and that some of his savings came from that. He
claims that [Teresa] made no contribution to revenue
from such transactions, and therefore no contribution to
the savings that were deposited. However, the testimony
of [Teresa] and other witnesses reveal otherwise.
[Teresa] testified that her participation in this car
business began before the parties were married and
continued during the marriage. According to her, it
involved the detailing of cars, the writing of sales
contracts, and taking payments from the buyers. [Teresa]
testified that the parties both worked in this car business,
and that they were saving money from the sale of these
cars to buy a home. The payments they received from
the cars were to be deposited into an account to be
allotted in the future for that purpose. She testified that
she did not know that [Bobby] was putting the funds into
an account in his name only.
[Teresa’s] testimony concerning her participation
in the car business was corroborated by Juanita Hurley,
who purchased a vehicle from [Bobby] that had been
located on the property at 340 Taylor Circle Drive, in
London, Kentucky – the non-marital residence of
[Teresa]. Wanda Cathers testified that she “bought”
several vehicles from [Bobby] over the years, including
the period after the parties were married, and that
[Teresa] filled out paperwork or sales contracts for those
vehicles and took payments for them. [Teresa’s]
signature appears on several of the receipts attached as
exhibits to Ms. Cathers’ deposition. Roger Goss testified
that he purchased two vehicles from [Bobby]. The last
payment he made of $1,500 for the first vehicle he
purchased was made to [Teresa] in 2004. He then he
[sic] purchased a second car. At least two receipts
attached to Mr. Goss’ deposition as exhibits reflect the
signature of [Teresa]. Documents introduced during the
hearing through the testimony of Lloyd Morris also
reflect that [Teresa] was a participant in this business.
The Court finds that both parties worked in this car
business and made contributions to the monies
accumulated, and then used as the down payment for the
marital home. Therefore, the $65,000 down payment is
found to be marital.
The Court finds that [Bobby] has failed to meet his
burden that the funds were non-marital under KRS
403.190. Any equity in the home located at 305 East
Fifth Street, London, Kentucky is found to be a marital
The Court finds that both parties have made a
claim to the marital home and cannot agree on its
disposition. If the parties cannot agree that one shall buy
out the other’s interest, then the parties shall attempt to
agree upon a list price and a realtor, and the home should
be listed for sale within twenty (20) days from the date of
entry of this Decree. If they cannot agree upon a price
and realtor, the home should be listed with Ford Brothers
and sold at auction. The proceeds should first be applied
to closing, taxes and/or sales costs, the debt to GMAC
Mortgage should be paid, and the parties shall split
equally any remaining monies.
This appeal followed.
In a dissolution proceeding, KRS 403.190(1) requires a trial court to
“assign each spouse’s property to him.” As property acquired after the marriage is
presumed to be marital property, a spouse who claims property as nonmarital bears
the burden of proving that claim. KRS 403.190(3). The trial court’s findings as to
the marital or nonmarital nature of property will not be disturbed on appeal absent
clear error. CR2 52.01. See Sexton v. Sexton, 125 S.W.3d 258, 269 (Ky. 2004)
(citing Ghali v. Ghali, 596 S.W.2d 31, 32 (Ky.App. 1980)).
Here, as described by the trial court and substantiated by our review
of the record, Bobby failed to produce compelling evidence to support his claim
that the $65,000 down payment for the marital residence constituted nonmarital
property. Although Bobby was unemployed and claimed to be unable to pay
support for a child from an earlier marriage, the parties evidently participated
together in various profitable activities before and during the marriage. Moreover,
the evidence produced to support Bobby’s claims that he transferred nonmarital
funds from his savings and a previous mobile home sale to a Laurel National Bank
account to provide the down payment was less than persuasive. The trial court
therefore did not err by finding that marital funds were used for the down payment
Kentucky Rules of Civil Procedure.
on the house, and by declaring that any proceeds remaining from the sale of the
house, after payment of all costs, should be equally divided between the parties.
The court’s judgment is affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Larry W. Gilliam
Erin M. Butcher