*1 her, plinary proceedings against said sum
being forty two hundred six dollars and ($246.07), cents and for which execu-
seven may tion finali- issue this Court ty Opinion of this Order. 3.390, Respondent Pursuant to SCR shall, entry days within ten from the Order, notify writing Opinion of this all and all in which she clients courts pending inability have her matters services, legal and furnish provide further Bar the Director of Associa- copy tion with a of all letters. such All concur. 17, January ENTERED: Joseph E. Lambert /s/ CHIEF JUSTICE TERWILLIGER, Appellant,
Judith H. TERWILLIGER, Appellee. Thomas E. No. 1999-SC-1064-DG. Kentucky. Supreme Jan. Modified As Feb.
Jeffrey Stamper, Connelly, D. Kaercher Patterson, Louisville, Stamper, Alan M. & *2 III., Connelly, Stamper, $3,000.00; computer. Kaercher <& and Within two Louisville, appellant. signing for weeks of the of the settlement agreement before the and divorce decree Allen, Louisville, appel- Michael L. for entered, Terwilliger repre- Mr. was was lee. buyer senting potential to a that MAC was dollars. worth 1.7 million STUMBO, Justice. The of dissolution final decree was en- Terwilliger,
In October Thomas 6, 1994, January tered on incorporating filed a Petition for Marriage, Dissolution of agree- reference the settlement seeking seventeen-year to end his mar- signed Terwilliger. ment Mr. and Mrs. to riage Terwilliger, Appellant Judith month Less than one after the divorce Terwilliger herein. Mr. a marital drafted entered, Mr. Terwilliger decree was en- agreement settlement for custo- providing MAC, to agreement tered an sell visitation, dy, couple’s and support of the dollars, 1.6 million proximately paid to be children, minor two as well as division of 8, 1994, in stock and cash. On December couple’s marital property and debts. Terwilliger reopen Mrs. moved to the de- then parties signed agreement, The modify cree of dissolution the settle- se, acting pro Terwilliger’s both at Mr. pursuant agreement ment to CR 60.02 and urging. Specifically, argued KRS 403.250. she Terwilligers The owned closely- several division that she had corporations subject held which to were agreed procured to in the settlement was division as marital Terwilli- property. Mr. fraud, misrepresentation, through lack represented ger to Terwilliger Mrs. disclosure, full and overreaching on the corporations those fi- experiencing were Terwilliger. of Mr. difficulties, nancial particularly motion Appellant’s reopen to the decree TransAmeriea Cable Mid-America d/b/a 8, 1997, On granted. was December after (“MAC”) nearly bankrupt, Cable was over- holding hearing, the family court modi- $100,000.00 drawing per at the rate of day. division, awarding fied the Mrs. upon Appellee’s Based representations, $384,166.50 (equaling one-half assertion that to act she needed profits realized from the sale of or risk quickly losing her to credi- home MAC, previously monies she had less tors, Mrs. Terwilliger agreed accept the sale, setting received from aside following portion as her $200,000.00 Mr. Terwilliger separate, as home, property settlement: the marital non-marital invested him in at subject valued to a business). $51,000.00 mortgage; a automo- Hyundai $1,800.00; bile valued at Terwilliger appealed some the modifica- assets; cash Appeals, other tion Court of arguing, unencumbered and/or equaling companies stock among things, 10% of the that his other actions did couple, owned Terwilli- not a “fraud affecting pro- which Mr. constitute 60.02(d) $11,000.00; valued at ger ceedings” contemplated by and some CR $6,000.00 in credit the reopening improper. card debt. Mr. Terwil- and thus that family was to liger receive 90% of the stock the The Court of noted the (1) corporations, Appellee which valued at court’s had con- debt; counsel, $100,000.00,as corporate proceed well as the vinced his wife without residing; prepared a houseboat which he that he had the settlement Hyundai agreement, automobile he had convinced valued “fraud affect- corporations ceeding were near does not constitute his wife that the sign meaning within bankruptcy proceedings” and that she needed 60.02(d). Rasnick pre- settlement in order to draws agreement CR decision her home to possibility losing vent a distinction between fraud intrinsic *3 However, Rasnick citing creditors. nondisclo- proceedings, perjury such as or Rasnick, (1998), Ky.App., discovery 218 which during pretrial S.W.2d sure that, Ap- disturbing, the court held while “ex- injury single litigant, causes to a and which, held, “fraud pellee’s fraud, conduct did constitute con- the trinsic” Court the the mean- affecting proceeding” within affecting proceedings.” stitutes “fraud the and, therefore, 60.02(d), of CR the decision, the Rasnick reexamining basis, reopening improper. On this upon primarily relies decisions which family Appeals the Court of reversed the jurisdictions, this Court finds that other modifying property set- court’s order pro- “fraud affecting the definition of Terwilliger appeals to tlement. Mrs. now in Rasnick ceeding” utilized Court Court. overly conception of CR is an restrictive 60.02(d). this Court It is the Rasnick, In Rasnick v. Ky.App., is, fact, “fraud party that fraud on a (1998), Rasnick, Mr. and Mrs. S.W.2d Appellant affecting proceedings.” As divorce, contemplation both met with notes, by agreement filing a settlement attorney and an accountant discuss as- undervalued marital knowingly with consequences to their financial sets, proceedings Mr. used the planning impending their divorce. The as a tool to his defraud wife. had accountant informed the court that he detail, couple, in their reviewed with the be- popularity the distinction Whatever interests, holdings, partnerships financial fraud may tween intrinsic and extrinsic approximate During net worth. and enjoyed past, judicial in the tide have counsel, Rasnick meeting legal with in favor turning the distinction against specifically the room to allow Mrs. left leading au- equity. According to the attor- freely Rasnick consult Kentucky Rules of Civil thority had filed ney. Additionally, the Rasnick’s Procedure, returns, their an- joint fully disclosing tax affect- general proposition As a [fraud years preced- nual income over the three proceedings] to what is ing the relates divorce, Mrs. Rasnick admit- ing them cov- ‘extrinsic’ fraud. This denominated signed had seen and those ted she of the ers fraudulent conduct outside divorce, Subsequent forms. to the Mrs. court, upon the practiced trial which is reopen property set- Rasnick moved to in such a party, or the defeated support provisions tlement child prevented from manner he is of, among other agreement on the basis fairly pearing presenting fully 60.02(d), affecting things, CR “fraud case. side Her contention was proceedings.” The between extrinsic distinction par- had been to believe that the she led widely criticized has been intrinsic fraud really it net was far than ties’ worth less recent rejected by more been fraudulently induced was and that she was [federal] decisions. disproportionate share giving up into Practice, Jr., Philipps, 7 Kurt A. parties’ accumulated (5th Ed.1995). rule, 60.02, Our emt. 6 CR however, distinguish fraud Rasnick held that does between affecting as discussed pro- proceedings assets a divorce nondisclosure of herein, and presentation perjury found this sort of situation to fall evidence, 60.02(d) falsified clearly which is a fraud under CR as a affecting “fraud upon the impor- court. This distinction is Burke does not differ proceedings.” tant because the latter only can be raised significantly from the case at bar. While “not more year than one after the judge- perpetrated both cases a fraud was ment,” 60.02, CR while the former must be against dispute, party the ultimate “made within reasonable time.” result was a fraud against the court. Both appears that perpetrated fraud bar, in the case at as noted courtroom or through testimony under Burke, court in allowing original de- subject oath one-year to a limitation cree to stand would a miscarriage *4 while occurring fraud outside the court- justice. Id. at 292. room that presentation interferes with McMurry McMurry, Ky.App., In losing party’s evidence to the extent (1997), S.W.2d 731 McMurry’s Mrs. CR “prevented he or she is appear- from 60.02(d) reopen motion to was found to ing or presenting fully and fairly his side properly have been denied the trial of the case” subject is not to that limita- court. McMurry alleged Mrs. that she Jr., tion. Kurt A. Philipps, had relied to upon her detriment her hus- Practice, 60.02, (5th Ed.1995). CR cmt. 6 misrepresentations band’s concerning the Philipps goes say: on to “It may be said couple’s true value of the marital assets. the language specifying [fraud court, however, denied the motion to proceeding] quite broad and for allows reopen flexibility McMurry in the because Mrs. failed to determination of what constitutes ‘fraud affecting proceed- attempted show her husband had to ings’ where the net effect or had concealed or misrepresented any would cause an unjust judgment to stand.” fi- concerning While information fi- couple’s nality judgment is a goal, laudable Implicitly, nances. had such evidence precedence cannot take over the fair and produced, been McMurry Mrs. would have equitable resolution of disputes. been entitled reopening to a of the settle- 60.02(d). agreement pursuant ment Sexton, to
In Burke v. CR Ky.App., 814 S.W.2d Mrs. (1991), Terwilliger produced evidence of Mr. attorney Burke’s drafted a husband, fraud her and the trial court agreement, settlement which Mrs. persuasive. found that evidence signed Burke without benefit of counsel.
The agreement gave Mr. Burke essentially Terwilliger appeals Mrs. also couple’s assets,
all of the
and relieved him
decision
the trial court to set aside
child support or maintenance obli-
$200,000.00
proceeds
of the
gations.
from the sale
vehicle,
Mrs. Burke received a
separate
of MAC as the
property of Mr.
custody
couple’s
child,
of the
minor
Terwilliger. Mr. Terwilliger asserted that
waived notice of further
Af-
proceedings.
funds,
he had
separate
ter
invested his own
signing
agreement,
Mr. Burke led
originating
his wife to
from the settlement of a
believe that he
no
law
longer
divorce,
suit in
pursuing
Michigan,
prior
which arose
to
thus the divorce and
marriage.
support
contention,
settlement became final
of this
without
Mrs.
knowledge.
Burke’s
Mr.
Mrs. Burke sub-
submitted a note issued
$200,000.00.
sequently brought suit
reopen
MAC to himself for
set-
Howev
tlement,
er,
granted
which motion was
April
and the
the note was created in March or
settlement was found to be unconscionable.
September
backdated to
Burke,
appeal by
On
the Court of which was
settlement
Chenault,
$200,000.00
recognized
which he
He
trac-
claims
arose.
certainty
al-
copy
ing
a mathematical
also submitted a
of the release of
possible,
ways
noting that: “While such
claim,
Michigan
which indicates that
precise requirements for
$275,000.00,
nonmarital asset-
for
payable
claim was settled
tracing may
appropriate
for skilled
Tera,
Terwilhger
to Mr.
and a Mr.
but
persons
compre-
business
who maintain
money
specify
does not
amount of
affairs,
hensive records of their financial
payee. Finally,
each
going to
Mr. Terwilli-
appropriate
persons
not be
such
for
ger
produce
failed
admitted that
had
persons
are
lesser business skill
who
deposit slip
a canceled check or
imprecise
record-keeping
in their
abili-
$200,000.00,
but
submitted
canceled
ties.” Id. at 578.
payable
check
to MAC
amount
$75,000.00,
another
Chenault,
document evidenc-
rejected
this Court
MAC,
payment
which
Ruby
trial court’s
Chenault
he claims
have
been
her
adequately
had failed to
trace
non-
separate
investment of
assets held at the time
assets into
Chenault,
corporation.
into
Mrs. Terwilli- of divorce. The facts
howev-
funds
*5
er,
dramatically from the
in
differ
facts
ger stated that she had not been aware
Ruby
came
her
this case.
Chenault
a
and
settlement
testified
$14,000.00,
marriage with
home worth
specifically
Mr.
had
told her
Terwilliger
$21,000.00,
cash and
worth
and
securities
part
the
of Mich-
that his
settlement
the
the
some additional inherited stock. Over
$30,000.00,
igan
Mr.
claim was
(15) year
course of the Chenault’s fifteen
getting
Tera was
settle-
bulk
parties
low pay-
both
worked at
marriage,
proceeds.
response,
ment
In
Mr. Terwilli-
jobs.
Ruby’s testimony
It
part
in
as
ger testified that
had
re-
purchased
she
CDs and otherwise
settlement, he had received
Michigan
property,
though
her separate
invested
$200,000.00. He
checks for
documentary
provide
she
unable
did not recall if he
told
about
had
Judith
Ruby
had
holding
evidence.
suffi-
$200,000.00,
part
in
because he was
ciently
separate property
traced her
into
precluded
disclosing
from
terms of
divorce,
at
this
assets held
the time of
settlement,
had
they
but he assumed that
Ruby’s
testimony,
noted
own
as
it
private.
discussed in
fact
no
well
that there was
other
in
is
issue,
possible
source of
funds
property acquired during
that all
spouses
paying
had
low
since both
held
marriage
property,
course of the
jobs
marriage.
In the
throughout
can be shown to have
unless
was an ex-
Terwilligers,
case of the
Tom
excepted ways
originated
one
perienced
person,
juggling
business
403.190(2).
party
A
outlined
KRS
assets and liabilities of
number
cor-
claiming
property acquired during
complex
porations
orchestrating
busi-
is other than marital
such,
expect-
As
ness deals.
would
proof.
KRS
bears
burden
required
keep
ed
detailed
and/or
Brosick,
403.190(3),
Ky.App.,
records,
v.
certainly
Brosick
it
rea-
accurate
is
(1998).
the word
require
record
As
it
This case is reversed and remanded to
appear
does not
that he is the sort of
the trial court for action consistent with
person that
sought
protect
the Court
opinion.
Chenault
excessively stringent
trac-
ing requirements.
COOPER, GRAVES,
Additionally,
JOHNSTONE,
while the
WINTERSHEIMER,
JJ.,
Chenaults had no other likely source for
concur.
KELLER, J.,
the funds claimed
Ruby
part
Chenault as
concurs
and dissents
nonmarital,
in part, by separate
Tom Terwilliger
money
opinion,
had
LAMBERT, C.J.,
flowing in
corpora-
joining
opinion.
and out of his
various
tions from
number of sources. Based
KELLER, Justice, concurring and
upon the trial court’s finding
of fraud
dissenting.
Mr. Terwilliger,
appears
that Mr. Ter-
I would reverse the decision of the
williger was not found to be a credible
Court of
and reinstate the entire
witness.
the setting aside of the
judgment of the Jefferson Circuit Court.
$200,000.00 to Mr. Terwilliger appears to
Thus, while I concur in
be the result of a misconception by the
majority opinion which holds that the trial
trial court of
requirements,
properly
set aside the
set-
rather
than a
that Tom Terwilli-
tlement agreement and
prop-
reconsidered
ger was more credible than Judith Ter-
erty division issues in light of evidence of
williger
their conflicting testimony over
Appellee’s
overreaching, dissent from the
*6
origin
$200,000.00.
the
the
the
part
majority
of the
opinion that remands
trial court
in setting
erred
aside the
the case to
trial
the
court for it to “recon-
$200,000.00 as Mr. Terwilliger’s separate
$200,000.00
sider” the
Appel-
awarded to
upon
based
the
pre-
evidence
separate,
lee as
sented.
recognized
While Chenault
the
majority simply ignores
The
its role as a
potential
of tracing
sought
difficulties
reviewing Court1 —as well as the trial
to relax the draconian requirements laid
$200,000.00
court’s factual finding that the
law,
down in
ease
it did
away
not do
in question represented Appellee’s sepa-
with the tracing requirements altogether.
rate, nonmarital investment —and reaches
sum,
the trial court’s reopening of the
its own conclusions as to witness credibili-
settlement agreement
proper
herein was
ty.
majority’s
The
view of the evidence is
60.092(d).
under CR
We affirm as to the
conspicuous “Thus, the trial court erred
—
profits
division of the
$200,000.00
from the sale
in setting
aside the
as Tom’s
However,
MAC.
we remand to the
separate
upon
based
the evidence
court to reconsider the issue of
presented.”2
whether
labeling
Instead of
the trial
added).
See CR 52.01:
(emphasis
Largent
See also
v. Lar
In all actions tried
gent, Ky.,
("The
the facts without a
jury ...
the
specif-
court shall find the facts
...,
trial court is the finder of fact
and the
ically
separately
and state
in its conclusions
judgment
of the trial court
not be re
appropriate
of law thereon and render an
findings
clearly
versed unless the
are
errone
judgment
Findings
...
shall not be
of fact
ous.”).
erroneous,
clearly
set aside unless
and due
regard
given
shall be
opportunity
Majority Opinion
at
court’s clear error remand- business acumen and financial for the the Having actually the case trial court treat done but everything wink, majority as marital and to re- re- nudge and then previous of marital consider its division the case to trial court for it to mands however, majority distances “reconsider of whether issue fact-finding compounds itself from its sufficiently claimed nonmarital share is es- its errors. tablished.” explain Unable to the fact the trial position recognize our as Because both court, evidence, reviewing after that, reviewing particularly conclusion, majori- reached different this, give such as should due defer- cases ty findings rationalizes the trial court’s findings they ence to the trial court’s when misconception by “the result of the trial evidence,6 I supported by are substantial tracing requirements, court of the rather accordingly dissent from this second than a that Tom Terwilliger was opinion. of the more than credible Judith Contrary majority’s characteriza- conflicting their over testimony origin tion, Fact, Findings the trial court’s $200,000.00.”3 course Of there Law, do not Conclusions Order not a shred evidence record express equivocate regard- doubts support assertion, primary and the proof ing Appellee’s as to his authority from this addressing investment Mid-America particularly prone tracing of assets fact, found, Cable. trial court “misconceptions” process about the be- evidence,7 after clear and cause it re- hypertechnical removed “considerpng] presented, evidence courts quirements and vested trial counsel, being arguments of otherwise adequacy discretion to determine the advised,” sufficiently “Prior to nonmarital assets to as- Petitioner was also instant sets owned at the time of dissolution.4 place petitioner litigation taking un- majority’s “solution” is create *7 Michigan and which later was settled for that necessary complexity suggesting $275,000.00”; money he received “[T]he tracing trial must evidence courts examine claims, Michigan tort using settlement “sliding approach a scale” that $200,000.00, the initial investment parently requires adjust trial courts became party’s corporation. account for a This investment is requirements to Opinion, supra 2 at Majority Id. 5. 821. at 821. Chenault, Ky., 4. Chenault v. 799 S.W.2d Marcum, Ky., Marcum v. See (1990): (1989) ("[D]omestic require cases a greater degree of to the determina- deference Accordingly, general we shall adhere courts.”). tions made trial requirement assets assets at the traced into owned time dissolution, Although the the evi- trial court evaluated but relax some of draconian evi- dence under "clear and requirements laid We heretofore down. dence,” standard, I believe KRS 403.190 position, part, take this reliance decep- requires only that trial court be convinced courts of to detect the trial exaggeration require by preponderance or to addi- of an asset’s character tion and suspected. See and ac- proof when the evidence. notes 20-34 tional such is infra companying text. undisputed and, ty non-marital importantly, Peti- determinations more added); (emphasis tioner” “[T]he overlooks the fact that a can fact-finder parties marital interest of the in the sale is portions testimony believe of a witness’s $938,383.00, with the non-marital invest- endorsing without testimony whole- ment of being restored Perhaps cloth. the best that the added). petitioner” Later, (emphasis in trial properly performed court its fact- section, the “conclusions of law” the trial rejected function is the fact that it recognized cited—the KRS —and Appellee’s claims that other e.g., funds — 403.190(3) presumption that all property portion purchase price additional of the acquired during corporation payment of the and the down correctly observed that a party seek- on parties’ tangible residence—and ing to overcome the bears the e.g., speedboat and some — proving burden of acquired he or she tools—also constituted his nonmarital property pursuant exception to an list- so, property. doing the trial court 403.190(1). ed in KRS The trial court then found the evidence as to each item of concluded that “Petitioner made an initial claimed nonmarital insufficient to non-marital investment of 403.190(3) overcome the presumption. corporation.” Additionally, I must admit cannot Although majority opinion charac- discern the standard utilized or established terizes findings these as the result of the majority for the “tracing” of non- improper application court’s of the professing While to fol- tracing requirements, this assertion is in- paying low Chenault v. Chenault9 and extricably intertwined majority’s with the homage to Chenault’s declared relaxation own factual determinations. Specifically, of the requirements “draconian” majority concludes the trial court of nonmarital assets forth set could not possibly have Ap- found credible cases,10 majority earlier sends a loud pellee’s testimony regarding signal family practitioners law $200,000.00invested in corporation be- and the trial bench that —in a certain class cause the trial court clearly Appel- found unspecified which, coincidentally, cases testimony lant’s Appel- more credible than mirrors those cases where a lee’s when it determined that the original this court disagrees with the trial court’s agreement settlement resulted factual findings nothing less than a overreaching veri- Appellee’s part.8 — This overly myopic view fied audit conducted in why illustrates accordance with *8 appellate courts should not generally accepted make credibili- accounting principles Majority Opinion, supra proceeds note 2 at 821 proper- "trace” the of nonmarital ("Based upon finding the trial court's of fraud ty marriage at the time the was dissolved. by Terwilliger, appears it that Tom was effect, Appeals the Court of held that at witness.”). not found to be a credible dissolution, party undertaking the time of a prove to prop- the nonmarital character of Supra note 4. erty by documentary must do so precision. 10. Id. at and with near mathematical We 577: requirement beyond a believe such is granted discretionary This Court review of contrary mandate of KRS 403.190 and the decision of the Court of which imposed stringent requirements public policy. sound upon ap- Chenault, pellant, Ruby sought E. who Id. 824 justification separate I maintenance of estates.”13 also see no careful
will suffice.11 courts majority’s holding opinion no defer- majority gives Today’s apply proof requirements different must adopts to the trial court’s ence success, or lack upon the business based is heightened requirement a thereof, a claim- position and financial in opposition to the Chenault flagrantly may find agree that a trial court ant. holding. kept that a detailed the fact claimant has 403.190(3) presump- a establishes past accurate of other records during the property acquired that all tion matters to its decision similar relevant The mari- property.14 marriage the KRS a claimant has overcome whether 403.190(3) demonstrating however, presumption by rebuttable presumption, tal right his or her to nonmarital showing a may “by be overcome However, I cannot that a claimant’s agree a method by was property acquired 15 alone, success, standing wealth business 403.190(2)].” legisla- This listed in [KRS imposes requirement upon an additional genesis tively-created presumption is accu- produce detailed and the claimant judicially “tracing require- created rate records. great a deal of confusion ment.” While require- regarding “tracing has arisen this Chenault, trac- relaxed the ment,” that, simply “[w]hen means of its faith in ing requirements because nonmarital property claimed to be original ability factual deter- trial courts’ to make owned, claim- longer is no character of as- regarding minations prop- previously owned ant must trace heightened recognition and its sets as- specific erty presently into owned “may promote marital proof requirements so, If then the disharmony by premium on the set.” the claimant does placing a 403.190(3) ("All acquired Opinion, property Majority supra 2 at 820 14. KRS 11. See marriage ("[Tom spouse after and before either Terwilliger] expected would be and/or legal separation to be presumed decree of keep rec- required to and accurate detailed regardless title is of whether marital ords, require certainly and it is reasonable to individually spouses in some held records to produce him to maintain and to tenancy, co-ownership joint such as form establish his claims of nonmarital common, entirety, tenancy by the tenancy in business, beyond being injected into back- community (emphasis property.” slips for unexplained deposit dated notes added)). amounts.”). noted that varying It should be Terwilliger's claim stems Tom 403.190(3) ("The presumption of 15. KRS in a civil case from a settlement he received showing by a property is overcome Appellant. The to his acquired a method that the parties were in 1976 and final married (em in subsection of this section.” listed parties’ hearing division of Underwood, added)); Ky. phasis Underwood Thus, after property was held in 1997. (1992) (“This pre App., 836 S.W.2d twenty-three lapse of time of more than and con sumption rebutted years, requires Tom acquired vincing proof records to produce means, detailed and accurate 'gift, bequest, de by, amongst other ” added)). vise, claims. How prove his nonmarital (emphasis or descent.’ *9 require- many people can onerous meet this Keller, Kentucky & Prac- 16. 15 L. Graham J. few, Very posit. I would ment? (2nd tice, § ed. 15.10 Domestic Relations Law 2000) (hereinafter & Group “Graham West Chenault, supra 4. v. 12. See Chenault Keller”). 17. Id. at 578. 13. Id.
825
assigns
specific property,
A
question
second
which this Court
specific property,
interest
to the
evidentiary
must answer concerns what
claimant as his or her
property.
nonmarital
standard must be met to rebut the marital
contrast,
a claimant fails to meet
presumption
successfully
trace non-
tracing requirement when he or she is able
cases,
marital
In a number of
only
brought
show
that he or she
non-
Browning
v.
beginning
Browning,20
marital property
marriage
into the
because
the Court of
has held that
spent
he
she has
his or her nonmarital
burden is on the claimant of nonmarital
in a
assets
nontraceable manner during
property
presumption
to rebut
the marital
the marriage.
the trial court will
by “clear
and convincing evidence.”21
assign
the property to the claimant as
However,
itself,
Appeals,
Court of
and will consider
property,18
expressed doubts about the validity of the
nontraceable,
the claimant’s
clear and convincing evidence standard22
only
contribution
aas
factor when it makes
and, perhaps,
rejected
just
even
believe
parties’
division of the
prop-
it.23
reject
this Court should also
it.
erty.19
Brunson,
596,
18. See
Ky.App.
Munday
Brunson v.
Munday, Ky.App.,
569
v.
584 S.W.2d
173,
(1978).
(1979) ("We believe,
S.W.2d
176
See also American
under the circum-
Principles
stances,
Law Institute
Family
of the Law of
appellee
it is incumbent on the
Recommendations,
Analysis
Dissolution:
convincing
appellant
furnish
evidence that the
4.03,
(c)
Draft,
§
(Proposed
Comment
Final
$17,300
received the
or otherwise it will be
I,
14, 1997) ("When
February
Part
premarital property.”);
considered
Adams v.
yields only ambiguous
property
results the
is
Adams,
169,
Ky.App., 565 S.W.2d
marital.”).
typically treated as
("The question
property
of whether
is consid-
dependent
ered marital or nonmarital is
Angel Angel,
19. See
Ky.App.,
562 S.W.2d
property
gift
whether the
was a
or was re-
(1978) ("[W]hen
664-665
the nonmarital
ceived as a result of consideration. To over-
property
spouse
expended
one
is
as a
presumption
come
that the
is
of the ‘team effort’ for the benefit of the
marital,
convincing proof
clear and
must be
marriage, that amount should be considered
presented
given
to show that the
by the trial
measuring
court in
the contribu-
gift.”).
as a
spouse
acquisition
tion of each
Keller,
property.”);
supra
Graham &
Underwood,
supra
Underwood v.
note 15 at
§
note 16 at
15.11.
("The
convincing
445 n. 1
'clear and
evi-
standard,
context,
dence’
as used
Ky.App.,
in this
property
question
gift
clear,
in
was a
or was
convincing and free from reason-
Court,
consideration,24
for
and the
received
able doubt.29
discussion,
any reasoning,
without
or cita-
in
Apparently,
Browning
the Court
authority,
“[t]he
tion to
declared that
bur-
merely
evidentiary
took the
standard for
prove
den is
the
by
on
clear
[claimant]
gift
inter vivos
as stated
Bowman’s
proof
acquired
and
convincing
and
adopted
Adm’rs v. Bowman’s Ex’r
However,
immediately
gift.”25
interest
rebutting
standard
403
the
its
and
declaration
clear
.190(3)’s
presumption.
martial
It does not
necessary to
convincing evidence standard
appear from the
the
opinion itself
rebut
presumption,
Court
Browning
gave any independent
Court
cited
v.
to Bowman’s Adm’rs
Bowman’s
appropriate
consideration
evidentia-
support
Ex’r26 in
of its definition of
ry
respect
standard with
And,
“gift.”27
this
reliance
Bowman’s
Accordingly, I
presumption.
believe
Ex’r,
Adm’rs
albeit
v. Bowman’s
for the
prece-
little or
give
Court should
no
purpose
defining
gift,
ostensible
re-
weight
adopted
dential
to the standard
veals,
that the
perhaps,
the reason
Court
Browning
Browning applied
a clear and convinc-
perpetuated, but
its subse-
questioned,
ing
tracing
evidence standard to
quent decisions.
nonmarital
Ex’r,
convincing
a clear
standard
While
v.
Bowman’s Adm’rs Bowman’s
respect
to inter
necessary
with
Court stated
burden
the substantial risk
evidentiary
proving
gifts
standard for
an vivos
because of
fraud,30
generally
gift:28
inter
nonmarital claims
do
vivos
fraud,
present
a substantial risk
appellants
asserting
here
Were
inap-
loaned,
convincing
clear and
standard is
money
as evidenced
propriate
tracing
pri-
context. The
notes,
gifts,
showing
were
burden of
mary
them.
issue
certainly
same
rests
al.,
origi-
v.
is not
the claimant
Bell’s Ex’r et al. Lawrence et
272
whether
517,
owned,
439,
prop-
Ky.
nally
acquired,
114
we held that
or
S.W.2d
Browning
Browning, supra
convincing
living
27.
v.
note 20
that individual would be in the child’s best
825.
interest.
It seems unreasonable then to re-
gift
gift”
28.
"inter vivos
made dur-
"[a]
An
quire party
to rebut the
donor’s
and delivered with the
lifetime
producing
clear and
surrendering
irrevocably
control
intention of
convincing
believe that
evidence.[W]e
Dictionary
property.”
Law
Black’s
over
requiring "clear and
evidence”
1999).
(7th
697
Ed.
property” presump-
to rebut the "marital
improperD....
tion is
29.
Ex’r and
Bowman's Adm'rs v. Bowman's
supra
Adm’r,
Browning
Browning,
24.
v.
20 at
supra note 26 at 957.
("The question
of non-marital marital
Hale,
171,
Ky.
Ky.
224 S.W.
Hale
rests on whether or not
Harkins
that,
(1920) ("It
equally true
gift
received as a result
consideration.”).
ready
gifts of this
furnish a
since
character
of a
fraud,
perpetration of
the evi
means for the
necessary
all
the essen
dence
to establish
complete
must be
them
tials
convincing....”).
Ky.
cant to previous this Court’s review of the trial need would to reconsider its court’s findings applied that the trial property.36 According- court division of marital supra 31. See 4. there is no nonmarital to trace. See .190(2) (3). KRS 403 & Lawson, Robert G. Evidence Burns, Ky., 35. Fitch (3rd Ed.1993). § Law 10.05 Handbook at 549 ("[KRS 403.190(3)] is a clear indication Keller, 403.190(1); & See KRS Graham legislative party intent to shift ("KRS 403.190(1) § supra note 16 at 15.1 against presumption operates whom a full assign requires spouse each trial court to going burden of burden of forward belonging to him or —the nonpersua- with the evidence and the risk of her. The divide marital sionO.”) parties assign- only between after best, ment.”); ("At § Id. at 15.11 Mrs. Brun- significant 34. Of claimant will be re- course the first son’s assertion she made quired original satisfy monetary court of the contribution to the would otherwise, ownership property; property.”). her share of marital increase *12 least, very if ly, wishes impose findings its fact the trial
court, scope broaden the of its should properly remand to allow the trial court to the marital divide estate. LAMBERT, C.J., joins opinion, concurring dissenting part. BARNETTE, Appellant, Patricia LOUISA, INC., HOSPITAL OF d/b/a Center; Three Rivers Medical Inc., Community Systems, Ap Health pellees.
No. 2000-CA-002290-MR. Kentucky.
Jan. Belhasen, KY, Paintsville, K. for
Charles Appellant. Louisville, KY, Arnett,
Martin A. Appellees. GUDGEL, Judge,
Before Chief McANULTY, Judges. JOHNSON and OPINION JOHNSON, Judge. from a appealed
Patricia Barnette summary judgment entered the Law- 22, 2000, August rence Circuit Court against her tort claim which dismissed that there is appellees. Having concluded material fact genuine no issue law Barnette’s that as a matter of injury sustained remedy for exclusive the Workers’ from a fall at work under
Act, affirm. Compensation we