RENDERED: APRIL 8, 2022; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2021

- CA

- 0579

- MR

GREGORY ALLEN WILLIS APPELLANT

APPEAL FROM PENDLETON CIRCUIT COURT v. HONORABLE HEATHER FRYMAN , JUDGE ACTION NO. 19

- CI

- 0 0123

LAURA ELLEN RANKIN APPELLEES

OPINION AFFIRMING
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BEFORE: GOODWINE, MAZE , AND M C NEILL , JUDGES. MAZE, JUDGE: Gregory Allen Willis ( Gregory ) appeals from an o rder entered by the Pendleton Family Court on April 14, 2021 , denying his m otion to r econsider
and from its f

indings of f

act and c onclusions of l aw of March 11 , 2021

. The issue on appeal is the characterization of certain property assig ned to Laura Ellen Rankin (Laura) in the parties ’ dissolution proceeding. On appeal, Gregory argues that the- 2

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trial court erred by failing to characterize the Oak Hill Road property as marital and by failing to consider his nonmarital contribution to that property.

Gregory and Laura were married on November 23, 2016 . They separated on July 1 8 , 2019. Laura filed her v erified p etition for d issolution on July 30, 2019. At that time, she was seventy years of age and Greg was sixty

- seven years of age. In her f

inal v erified d isclosure s tatement filed March 13, 2020, Laura asserted her non marital interest in the real estate located at 1053 Oak Hill Road, Falmouth, Kentucky, supporting her claims by producing deeds to the three parcels that comprised that property. The matter was set for a three

- hour final hearing on February 24, 2021.

Prior to that hearing , the parties resolved all of the is sues between them except for the classification and assignment of non marital property. Laura testified that the residence and 20.45 acre lot was acquired first in 1993 , followed by a 14.4072 acre tract in 2002 , and a 40.0016 acre tract in 2009. All thre e tracts were purchased and paid for prior to the marriage.

The 40.0016 acre tract was then sold to a relative of Laura’s for $60,000 after the marriage . Although Gregory admitted that he had agreed to the sale, he testified that he did not know what he was doing at the time as he was in ill
health. The bulk of those proceeds was spent to pay the parties’ living expenses. However, Laura testified that $28,000 of the proceeds was deposited into the- 3

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parties’ joint checking account , along with the proceed s from the sale of Gregory’s
nonmarital real estate.

The remaining property was conveyed to the “Feltner and Willis Revocable Family Trust,” listing Laura and Gregory as joint trustees. Laura testified that this transfer had been made solely for estate p lanning purposes. However, Gregory testified that it was done as part of a bargain between the couple. He also testified that he contributed non marital funds to the improvement of the Oak Hill Road property in the form of fencing and gravel, an
enclosed back porch , and side awnings. However, he was unable to produce receipts documenting these expenditures or showing any increase in value as the result of them. Laura’s expert real estate appraiser testified that any such increase was nominal at best, sin ce generally there is no correlation between the amount contributed and any added value to the home.

The trial court, relying on Sexton v. Sexton , 125 S.W.3d 258 (Ky. 2004), concluded that the transfer of the Oak Hill Road property to the trust did nothing to alter its “character” as a non marital asset. Further, as Greg failed to produce any evidence showing an increase in the home’s value due to his expenditure of non marital funds, he had not demonstrated a non marital interest. Greg appealed the trial court’s f indings of f

act and c onclusions of l aw entered- 4

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March 11 , 2021 , as well as the trial court’s o rder d enying m otion to r econsider entered on April 14, 2021.

As the Court stated in Jones v. Livesay , 551 S.W.3d 47, 51 (Ky. App. 2018): The inherent nature of domestic relations

proceedings tends to breed hostility. Dissen s ion is not uncommon, emotions are heightened, and the proffering of conflicting evidence is a virtual certainty. Trial courts are faced with the difficult task of weeding through emotionally

- charged testimony and often slanted evidence to reach a fair and equitable result. Because of this, trial courts are afforded broad discretion in dividing marital property and marital debt. We will not disturb a trial court’s rulings on these issues in the absence of an abuse of its discretion or clearly erroneous factual findings. An abuse of discretion occurs where a court indulges in an arbitrary or capricious action. Findings of fact are clearly erroneous where they are not
sup ported by “substantial evidence.” Mullins v. Picklesimer , 317 S.W.3d 569, 581 (Ky. 2010). As noted in Barber v. Bradley , 5 0 5 S.W.3d 749, 754 (Ky. 2016), the Court’s review on appeal is de novo

.

KRS 1 403.190(1) provides a blue print for the trial cou rt with regard to the disposition of property in a dissolution proceeding. First, the trial court must characterize the parties’ property as marital or non marital and then “assign each

1 Kentucky Revised Statutes

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spouse’s property to him.” Then, the trial court must divide the rem aining property, presumed to be “marital property” as defined in KRS 403.190(3). This presumption applies regardless of “whether title is held individually or by the spouses in some form of co

- ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property.” Id. However, that presumption may be rebutted by a showing that the property in question was acquired pursuant to one of the exceptions provided in KRS 403.190(2)(a)

- (e).

As the Court finds the case of Sexton , 125 S.W.3d 258 , relied upon by the trial court to be dispositive , it will be discussed at some length. Jennifer (Appellant) and Larry (Appellee) Sexton were married May 26, 1984. At that time, Larry owned an apartment building valued at $165,000 with equity therein of $75,100. The amount of the mortgage was reduced during the parties’ marriage by the use of rent payments and the application of gifts from Larry’s parents.

Thereafter, in March of 1992, the parties conveyed the apartment building in exchan ge for a 1/6 interest in a real estate partnership. That interest was placed in the parties’ joint names. Upon dissolution, the trial court found that at the time of the transfer, Larry’s interest was 94% non marital, leaving a 6% marital interest for di stribution. The court also found that the partnership interest was placed in the parties’ joint names for the sole reason that they were married. The Kentucky Court of Appeals affirmed the findings of the trial court. The- 6

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Kentucky Supreme Court also aff irmed the trial court’s disposition of the partnership interest.

The Court recognized that : Neither title nor the form in which property is held determines the parties’ interests in the property; rather, “Kentucky courts have typically applied the ‘source of funds’ rule to characterize property or to determine parties’ nonmarital and marital interest s in such property.” “The ‘source of funds rule’ simply means that the character of the property, i.e. , whether it is marital, nonmarital, or both, is determined by the source of the funds used to acquire the property. Id

. a t 265 (footnotes and citations omitted)

.

While Jennifer argued that Larry failed to meet his burden of proving a nonmarital interest in partnership, the Court found that he had pr operly “traced”
his interest in the nonmarital real estate into the partnership. The Court stated that:

“Tracing” is defined as “ [t]he process of tracking property’s ownership or characteristics from the time of its origin to the present.” In the conte xt of tracing nonmarital property, “[w]hen the original property claimed to be nonmarital is no longer owned, the nonmarital claimant must trace the previously owned property into a presen tly owned specific asset.” The concept of tracing is judicially cre ated and arises from KRS 403.190(3)’s presumption that all property acquired after the marriage is marital property unless shown to come within one of KRS 403.190(2)’s exceptions. A party claiming that property, or an interest therein, acquired during the marriage is nonmarital bears the burden of proof. Id. a t 266 (footnotes and citations omitted)

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- The Court then held that the trial court’s findings with regard to the tracing of Larry’s nonmarital interest into the 1/6 interest in the real estate
pa rtnership were supported by sufficient facts, including the testimony of Larry, his parents , and his accountant.

In this case, certified copies of recorded Deeds to the Oak Hill Road property were introduced during Laura’s testimony. These records clear ly reflect the nonmarital nature of the property.

The Sexton Court specifically rejected Jennifer’s assertion that Kentucky should adopt the “doctrine of transmutation.” Transmutation is alleged
to occur when:

separate property is treated in such a wa y as to give evidence of an intention that it become marital property. One method of causing transmutation is to purchase property with separate funds but to take title in joint tenancy. This may also be done by placing separate property in the names of both spouses. The rationale underlying [this doctrine] is that dealing with property in [this] way[] creates a rebuttable presumption of a gift to the marital estate. This presumption is based also upon the provision in many marital property statutes tha t property acquired during the marriage is presumed marital. The presumption can be rebutted by evidence of circumstances or communications clearly indicating an intent that the property remain separate. Id. a t 270 (quoting 2 H. Clark, T HE L AW OF D OMES TIC R ELATIONS IN THE U NITED S TATES § 16.2 , at 185 (1987) ).- 8

- The Court specifically rejected the doctrine of transmutation deeming it “inconsistent” with KRS 403.190 as well as the tracing principles and source of funds rule set forth above. The Court found that “transmutation through joint title would cause spouse s not to trust each other. Rather than placing property in their joint names for estate planning purposes, they would be careful that their nonmarital property remains solely in their individual names and does not transmute into marital property

. ” Id . at 271 ( e mphasis added )

. Thus, this Court must reject Gregory’s argument that, by placing the funds in question in both names, Laura’s nonmarital properly was “transmuted” into marital property.

In cases where nonmarital property has been held to be conve rted into marital property, it has been held to be either the product of a gift to the marital estate or part of an agreement between the parties. In Barber , 505 S.W.3d 749, the
Court found that although the property in question was clearly nonmarital in origin, applying the factors set forth in O’Neill v. O’Neill , 600 S.W.2d 493 (Ky. App. 1980), Barber did, in fact gift his nonmarital interest to Bradley.

The O’Neill factors are: (1) the source of the funds, (2) the intent of the donor, (3) the “status of the marriage relationship at the time of the transfer,” and (4) “whether there was any valid agreement that the transferred property was to be excluded from the marital property.” Id

. a t 495. The Barber Court found that the funds in question were gif ts from his parents and , therefore, clearly- 9

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nonmarital. The Court then found that the evidence demonstrated that Barber had contributed his nonmarital funds to the construction of the residence, intending that it become “a marital asset that the couple ow ned jointly.” Id. at 758. Indeed, the testimony reflected repeated assurances by Bar b er that Bradley would be the owner of a one

- half interest in the home. The deed ultimately executed named the couple as joint tenants with right of survivorship. Altho ugh the testimony as to this factor was challenged, the Court recognized that issues as to the weight and credibility were for the trial court to resolve. The Court further found that there was no evidence that the “status” of the marriage was in any way questionable at the time of the transfer. The Court then addressed the final factor of the O’Neill test, the existence of an agreement as to the characterization of t he property. Although this issue was hotly contested, the trial court found Bradley’s testimony that Barber intended to make the property “half his and half hers,” was more persuasive.

In this case, the trial court found that it was Laura’s intention , in establishing the revocable trust, to provide for Gregory and his family in t he event
of her death. Indeed, t his is precisely the scenario envisioned by the Court in
Sexton , 125 S.W.3d at 271, and formed the basis for its rejection of the doctrine of transmutation. Laura also testified that the property was never transferred dire ctly to Gregory, but directly into the revocable trust. Gregory, however, stated in his Answers to Interrogatories #6 that his claim that the property was marital was- 10

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based upon his belief that the property had been “deeded to a trust in both of our

names in consideration of me putting my money and proceeds from the sale of my home into the joint bank account.” At trial, he testified that he told Laura that she needed to be “all in” and that she could become so by adding his name to the title of her prope rty. Laura testified that there was no such bargain between them. Based on this testimony , the trial court having judged the weight and credibility of the evidence concluded that there was no agreement as to the nature of the property. However, Gregory has also argued that the proceeds from the sale of his nonmarital property were used for the improvement of 1053 Oak Hill Road. Laura agreed that awnings had been installed on the home for an expenditure of $4,750. However, she also test ified that the back porch was partially completed prior to the improvements commenced by Gregory. She stated that no weather proofing was used to protect the structure. She concluded that t he remaining improvements were performed by people who were not p rofessional remodel ers and she found that the work on the side room and deck was incomplete.

Gregory testified that he had fencing installed and gravel spread on the driveway. He estimated the cost for the gravel at $3,000. He also indicated
that the cos t of enclosing the back porch was approximately $15,000. He confirmed Laura’s testimony as to the cost of the awnings. However, he presented- 11

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no documentation of the other expenditures since he was just “an old hippy” who didn’t keep records. Further, he presented no testimony as to the value added to the property as the result of these improvements.

Laura, however, produced Angela Jacobs, a certified real estate appraiser, as an expert witness. She testified that due to the poor quality of the work perf ormed, the improvements commenced by Gregory were merely nominal. The trial court rejected Gregory’s claim of a nonmarital contribution and
concluded that the Oak Hill Road property was entirely Laura’s nonmarital property

. Based upon Gregory’s inability to properly trace the proceeds of the sale of his nonmarital prope r ty to improvements resulting in an increase in value to the Oak Hill Road property , the Court finds no error in the trial court’s conclusion.

In Jones v. Livesay , 551 S.W.3d 47 (Ky. App. 2018) , the trial court awarded husband a $45,000 nonmarital interest in a farm purchased after the parties’ marriage, based upon “the amount of the increase in value of the real estate due to the work [

. ] ” Id. at 53. Wife challenged husband’s tracing of nonmarital assets as “unclear and incomplete.” Id. On appeal, the Court found that husband’s testimony as to his inheritance upon the death of his mother as the “source of the funds,” and his production of bank records revealed that the inheritance h ad been deposited into the marital account in order to reimburse the costs of remodeling the farmhouse. Id. He testified that he knew that the inheritance would be- 12

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forthcoming and that the remodeling would not have been possible without it. As a result, the Court found that the evidence presented was “sufficient to require a finding the increase in the value of the farm was due to Sam’s expenditure of nonmarital funds and should be assigned to him.” Id. at 53. Since Gregory neither demonstrated the amo unt of his nonmarital investment nor the amount by which it increased the property, there was no error in the trial court’s classification and distribution of property herein.

Accordingly, we affirm the f indings of f

act and c onclusions of l aw of the Pendl eton Circuit Court as well as its o rder d enying r econsideration.

ALL CONCUR.

BRIEF FOR APPELLANT: John Hayden Dawn M. Gentry Newport, Kentucky BRIEF FOR APPELLEE: Claude J. Victor Florence, Kentucky