RENDERED: JUNE 18, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0812-MR

ROBERTA ANN PHELPS APPELLANT

APPEAL FROM BOYD CIRCUIT COURT

v. HONORABLE GEORGE W. DAVIS III, JUDGE

ACTION NO. 19-CI-00123

MICHAEL PHELPS APPELLEE

OPINION

AFFIRMING IN PART AND 

REVERSING AND REMANDING

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BEFORE: CLAYTON, CHIEF JUDGE; K. THOMPSON, AND L. THOMPSON, 

JUDGES.

CLAYTON, CHIEF JUDGE: Roberta Ann Phelps (“Roberta”) appeals from the 

Boyd Circuit Court’s order adopting the report of the Domestic Relations 

Commissioner (“DRC”). On appeal, Roberta argues that the trial court erred in 
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failing to value a retirement account as of the date of the entry of the decree of 

dissolution and in failing to award Roberta maintenance. 

Upon review of the record and applicable law, we agree with Roberta 

that the retirement account should have been valued as of the date of the entry of 

the decree of dissolution. Further, we find that the trial court did not abuse its 

discretion in denying Roberta’s request for maintenance. Hence, we affirm in part, 

reverse in part, and remand for further proceedings. 

FACTUAL AND PROCEDURAL BACKGROUND

Roberta and Michael Phelps (“Michael”) were married on June 30, 

2007 and separated in January of 2019. The parties had no children together, 

although Roberta had adult children from a previous relationship. On January 17, 

2019, Roberta filed a Petition for Dissolution of Marriage (the “Petition”). Roberta 

also filed a motion for temporary maintenance, in which she requested a sum of 

$20,000.00 from Michael “to assist in legal fees and costs and to assist with the 

standard of living . . . to which she has become accustomed,” as well as temporary 

possession of the marital residence and vehicle.

Before the scheduled hearing on Roberta’s motion for temporary 

maintenance, the parties came to an agreement, which was memorialized in an 

Agreed Order (the “Agreement”). As part of the Agreement, Roberta received a 

net sum of $20,000.00 from Michael’s retirement account held through his 
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employer, American Electric Power (“AEP”) (the “Retirement Account”). The 

parties further agreed that the total amount received by Roberta would be credited 

to her as a distribution from any award that she ultimately received from the court.

On June 28, 2019, Roberta filed a motion requesting an additional 

$15,000.00 to be paid to her from the Retirement Account. Michael objected, 

noting that, in a period of a little more than three months, Roberta had spent the 

entirety of the initial $20,000.00, while she had sworn under oath that she had only 

$3,222.00 in monthly expenses. Michael further requested an accounting of the 

monies that Roberta had expended. 

The trial court subsequently entered a decree dissolving the parties’ 

marriage on November 7, 2019 (the “Decree”) and submitted the disputed issues of 

marital property and debt, as well as Roberta’s request for maintenance, to the 

DRC. The DRC held a final hearing on the merits on September 23, 2019 and, on 

April 21, 2020, filed a Report and Recommendation (the “Report”). Particularly, 

the DRC made the following findings of fact and issued the following 

recommendations regarding the Retirement Account in the Report: 

15. [Michael] has a retirement account with AEP. As of

June 30, 2007, the balance in [Michael’s] retirement 

account was $90,139.11. As of January 7, 2019, the 

balance was $490,853.20. The contributions to the plan 

from June 30, 2007 through January 7, 2019 were 

$107,062.39 in employee contributions and $53,531.26 

in employer contributions for a total of $160,593.65.
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The nonmarital portion of $90,139.11 is 35.95% of 

the total amount of “contribution” as of June 30, 2007 

([$]90,139.11 divided by [$]250,732.76). That results in 

$86,323.30 out of the total increase of $240,120.44 being 

nonmarital. As a result, the total nonmarital portion of 

the pension is $176,462.41 and the marital portion being 

$314,390.79.

[Roberta] received a net of $20,000 (or a gross of 

$25,000) from [Michael’s] pension plan in March 2019. 

Based on all of the foregoing, [Roberta] should be 

awarded 26.89 percent of [Michael’s] retirement account 

as of January 30, 2019 for which a Qualified Domestic 

Relations Order should enter with each party bearing the 

burden of the respective gains and los[s]es in the stock 

market. (In calculating the percentage, the $25,000 was 

deducted from the amount due as of January 30, 2019.)

Additionally, regarding maintenance, the DRC made the following 

findings and issued the following recommendations:

16. [Roberta] requested that she be awarded 

maintenance, stating that she needs $3,000 per month for 

expenses. She noted that her car payment was $514.91 

per month, she needs to rent a place to live, pay for 

utilities, food, etc.

[Roberta] was employed prior to the parties’ 

marriage and then worked after the parties’ marriage. At 

one time [Roberta] did have thyroid surgery and lost her 

voice for a short time. She was employed at Cintas 

where she was making $11.00 per hour. She quit that 

job. She was also employed at AEP earning $14.00 to 

$15.00 per hour. She took sick leave and never went 

back. She was previously in nursing but stated that she 

dropped out of that. [Roberta] testified that she is 

physically able to do household cleaning activities. 

[Roberta] stated that she has not applied for any jobs 
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since the parties separated and she has not applied for 

disability.

She received the $20,000 in March 2019 and then 

asked for an additional $15,000 less than 90 days later. 

[Roberta] stated that she gave her daughter some of the 

money, bought food, paid water bill, etc. [Roberta] 

denied that she gave any of the money to her son, who 

died on August 16, 2019. (Based on the testimony, 

[Roberta’s] son had drug issues.) [Roberta] also stated 

that she owes about $10,000 to Evans Funeral Home and 

$3,000 to Bellefonte Gardens for her son’s funeral bill.

[Michael] testified that he has expenses of over 

$4,000 per month. He noted that although he made 

$120,000 in 2018, he has less overtime now as AEP has

added a third person to his department. He stated that he 

earns $42 per hour and works 40 hours per week. 

[Michael] also testified that he is on medication for high 

blood pressure and AFIB. He stated that he gave 

[Roberta] $100 just a few days prior to the hearing.

Based on all of the above, the [DRC] finds that 

[Roberta] is quite capable of working, she just chooses 

not to. The [DRC] is also concerned that [Roberta] may 

have other issues that prevent her from responsibly 

handling money. There is very little doubt that much of 

the $30,000 in cash withdrawals and ATM withdrawals

probably went to the Greyhound Racetrack in WV.

However, the DRC found that if Roberta was working full time, “she 

may need some additional short-term monetary help” and recommended that she 

be awarded the parties’ Hyundai Elantra. Further, the DRC recommended that 

Michael pay off the remaining balance of the car loan, which was determined to be 

$8,000.00.
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Roberta filed exceptions to the DRC’s Report (the “Exceptions”) on 

May 5, 2020. On May 15, 2020, the trial court overruled the Exceptions and 

adopted the Report in its entirety as an order of the court. This appeal followed. 

ANALYSIS 

a. Standard of Review

We begin with a statement of our standard of review. Under

Kentucky Rule of Civil Procedure (CR) 52.01, in an action tried without a jury:

[f]indings of fact, shall not be set aside unless clearly 

erroneous, and due regard shall be given to the 

opportunity of the trial court to judge the credibility of 

the witnesses. The findings of a commissioner, to the 

extent that the court adopts them, shall be considered as 

the findings of the court. 

A factual finding is not clearly erroneous if it is supported by substantial evidence. 

Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). 

Substantial evidence is evidence, when taken alone or in light of all the evidence, 

which has sufficient probative value “to induce conviction in the mind[]” of a 

reasonable person. Golightly, 976 S.W.2d at 414. An appellate court, however, 

reviews legal issues de novo. Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 

2001).

b. Discussion

 1. The Retirement Account
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We first address Roberta’s claim that the DRC erred by valuing the

Retirement Account as of January of 2019 rather than the date of the Decree in 

November of 2019. Kentucky Revised Statutes (KRS) 403.190(2) provides that all 

property acquired during the course of the marriage is marital property, unless the 

property can be shown to have originated in one of the excepted ways outlined in 

KRS 403.190(2). “A party claiming that property acquired during the marriage is 

other than marital property, bears the burden of proof.” Terwilliger v. Terwilliger, 

64 S.W.3d 816, 820 (Ky. 2002) (citations omitted).

In Stallings v. Stallings, the Kentucky Supreme Court addressed 

whether marital assets should be valued as of the date the parties separated or as of 

the date of the dissolution decree. 606 S.W.2d 163, 163-64 (Ky. 1980). The Court

of Appeals had held that only the values at separation were includable in the 

marital estate because later increases in value were not the product of the “team or 

joint efforts” of the parties. Id. at 164. The Supreme Court reversed, holding that 

the concept of “team or joint efforts” is irrelevant to the determination of whether 

property is marital. Id. Rather, all property acquired during a period of separation 

will be presumed marital unless it fits into one of the exceptions set out in KRS 

403.190(2). Id. Particularly, the Supreme Court stated that “‘[s]eparation’ means 

a legal one granted by a decree entered pursuant to KRS 403.140(2). The language 
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of the legislature is so definitive it not only does not require, but rather prohibits, 

us from engrafting any exception based on mere ‘actual’ separation.” Id. 

In this case, the DRC’s findings, as adopted by the trial court, valued 

the Retirement Account as it existed in January of 2019, almost one year prior to 

the date of the Decree on November 7, 2019. However, such date is not legally 

significant, and “KRS 403.190 and Stallings . . . both clearly indicate that the 

correct date for such valuation is the date of the dissolution decree.” Clark v. 

Clark, 782 S.W.2d 56, 62 (Ky. App. 1990); see also Brown v. Brown, 456 S.W.3d 

823, 826 (Ky. App. 2015), Perry v. Perry, 143 S.W.3d 632, 633 (Ky. App. 2004), 

and Armstrong v. Armstrong, 34 S.W.3d 83, 86 (Ky. App. 2000) (“[i]t is clear, 

however, that pension and profit sharing plans should be valued on the date of the 

divorce decree.”) 

Thus, the Retirement Account should have been valued as of 

November 7, 2019, and we reverse this part of the trial court’s order. On remand, 

the parties must provide the family court with evidence upon which the court may 

rely to establish the value of the Retirement Account as of November 7, 2019.

 2. Maintenance

Roberta also argues that the trial court erred in denying her request for 

maintenance. Particularly, Roberta argues that the DRC failed to make any 

findings as to her “reasonable needs” and whether Roberta could support herself 
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“through appropriate employment.” Pursuant to the relevant provisions of KRS 

403.200(1), a family court may award maintenance only upon a finding that the 

spouse seeking maintenance:

(a) lacks sufficient property, including marital property 

apportioned to him, to provide for his reasonable needs;

and

(b) is unable to support himself through appropriate 

employment[.]

After the trial court has made such initial determinations, various factors are to be 

considered by the trial court in setting the amount and duration of maintenance. 

See KRS 403.200(2)(a)-(f).

An award of maintenance is left to the sound discretion of the court, 

and a reviewing court will reverse the decision of the court only if the appellant 

can show a clear abuse of discretion. Powell v. Powell, 107 S.W.3d 222, 225 (Ky. 

2003). An abuse of discretion occurs when the court’s decision is “arbitrary, 

unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire &

Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). The family court’s 

findings of fact are conclusive if supported by substantial evidence of probative 

value. See Spurlin v. Spurlin, 456 S.W.2d 683, 685 (Ky. 1970).

Here, the record clearly indicates that the DRC and the trial court 

properly considered whether Roberta would be able to support herself through 
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appropriate employment, and Roberta has not shown that the such finding was 

inadequately supported by the evidence or that the court otherwise abused its 

discretion. Thus, we find that the trial court’s findings regarding Roberta’s

entitlement to maintenance were supported by substantial evidence and should not 

be disturbed.

We note that, as a general rule, a trial court should not make a final 

decision on whether to award maintenance until after all of the marital and nonmarital property has been allocated. Owens v. Owens, 672 S.W.2d 67, 69 (Ky. 

App. 1984). Because we are reversing the trial court’s division of the Retirement 

Account, normally we would direct the trial court to reconsider its decision on 

maintenance in light of any adjustment to the property division. See Brunson v. 

Brunson, 569 S.W.2d 173, 178 (Ky. App. 1978). 

In this case, however, we find no need for the trial court to revisit this 

issue. Again, before awarding maintenance, the family court is required to make 

two findings: that the party seeking maintenance lacks sufficient property to 

provide for his reasonable needs and that he is unable to support himself through 

appropriate employment. Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990). In this 

case, the DRC affirmatively found that Roberta was able to support herself through 

appropriate employment, and the trial court adopted the DRC’s findings. Based on 
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that particular finding, Roberta could not qualify for an award of maintenance 

under the provisions of KRS 403.200(1), and no further analysis was necessary. 

CONCLUSION

For the foregoing reasons, while we affirm the trial court’s decision 

and judgment regarding maintenance, we reverse the judgment awarding Roberta 

Retirement Account benefits valued as of January 2019 and remand for further 

proceedings to introduce additional evidence as to the value of the Retirement 

Account as of November 7, 2019. 

ALL CONCUR.

BRIEF FOR APPELLANT:

MaLenda S. Haynes

Grayson, Kentucky

BRIEF FOR APPELLEE:

Robert T. Renfroe

Greenup, Kentucky