RENDERED: MAY 5, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1442-MR

SHANNON RAY FERGUSON APPELLANT 

v. 

APPEAL FROM KNOX CIRCUIT COURT

HONORABLE MARCUS L. VANOVER, SPECIAL JUDGE

ACTION NO. 18-CI-00446

CHAD TOY FERGUSON APPELLEE 

OPINION

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

**   **  **

BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.

CALDWELL, JUDGE: Shannon Ray Ferguson appeals from the Knox Circuit 

Court’s order allocating assets between Shannon and Chad Toy Ferguson, a 

formerly married couple. We reverse the trial court as to the maintenance award 

(in both the amount and duration), and we reverse the circuit court’s division of 

Chad’s retirement account and remand for further consideration of the date of 

valuation but we affirm the trial court in all other respects. 
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FACTS

The parties married in 1994 and had three children, all of whom have 

reached majority. The parties separated in September 2018. Shannon filed her 

petition for dissolution of marriage the following month. Besides asking for the 

marriage to be dissolved and an equitable division of the parties’ assets, Shannon 

further requested temporary maintenance of $2,000.00 per month and temporary 

possession of the parties’ marital residence. The circuit court allowed Shannon to 

remain in the home. By agreement of the parties, the circuit court fixed temporary 

maintenance at $750.00 per month, and also ordered Chad to make the mortgage 

payments and other household bills (including insurance, property taxes, and 

Shannon’s cell phone service). The parties were ordered to attend mediation; the 

final hearing was scheduled for October 21, 2020.

In the interim, Shannon’s attorney passed away. She hired new 

counsel, who moved to withdraw representation prior to the scheduled final 

hearing. Shannon was permitted twenty days’ time to hire replacement counsel. 

Subsequent to new counsel’s entry of appearance, the matter was rescheduled for 

final hearing in January 2021 (with mediation to occur before that date), and then 

the circuit judge, for reasons not stated on the record, disqualified himself.

A special judge was appointed shortly thereafter. He ordered the 

matter continued, with a status conference to occur in April 2021. The final 
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hearing was then set for the next month. Before that could occur, Shannon’s 

counsel broke her ankle and requested a continuance of the final hearing. Soon 

afterward, counsel submitted documentary evidence that Shannon’s medical issues 

made it too difficult to participate in a hearing as well as information concerning 

mold in the marital residence. Chad took issue with the latter allegation and 

expressed his frustration over the numerous delays. He requested that the circuit 

court bifurcate the petition and grant dissolution of the marriage, with all other 

issues to be heard at a later time.

A hearing was held on May 4, 2021, after which the circuit court 

entered an order dissolving the marriage and setting the remaining issues for final 

hearing on October 20, 2021. Shannon’s third attorney was permitted to withdraw 

after Shannon fired her. Shannon represented herself after that; she renewed a 

pending motion to hold Chad in contempt, addressed the circuit court directly to 

complain about irregularities in her case, responded to Chad’s requests for 

discovery, and filed a pretrial memorandum. However, less than one week prior to 

the final hearing, Shannon filed an “emergency motion” to “withdraw” her pro se

representation; she asked the court to continue the hearing and allow her a 

reasonable time to find new counsel.

The court denied Shannon’s motion for continuance and went forward 

with the hearing, during which Shannon represented herself. Both parties were 
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afforded the opportunity to supplement the record within one week of the hearing 

date. The final order was entered on November 8, 2021. Shannon, newly 

represented by a fourth attorney, timely filed a notice of appeal.

ANALYSIS

1. MAINTENANCE

Shannon first argues that the circuit court erred in both the amount 

and the duration of maintenance awarded to her. She specifically insists that 

$750.00 per month for eighteen (to possibly twenty-four) months is insufficient to 

meet her reasonable needs, citing the factors enunciated in Kentucky Revised 

Statute (KRS) 403.200(2)(a) through (f).1 Shannon asserts that she suffers from 

1

 KRS 403.200(2) states: 

The maintenance order shall be in such amounts and for such periods of time as 

the court deems just, and after considering all relevant factors including: 

(a) The financial resources of the party seeking maintenance, 

including marital property apportioned to him, and his ability to 

meet his needs independently, including the extent to which a 

provision for support of a child living with the party includes a 

sum for that party as custodian; 

(b) The time necessary to acquire sufficient education or training to 

enable the party seeking maintenance to find appropriate 

employment; 

(c) The standard of living established during the marriage; 

(d) The duration of the marriage; 

(e) The age, and the physical and emotional condition of the 

spouse seeking maintenance; and 
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100% disability, that she only finished the ninth grade (although she does have a 

GED certification), and that she has not been a member of the workforce for 

almost thirty years, having stayed home to be a homemaker and raise the parties’ 

children. She states that the assets allocated to her (namely, $4,000.00 in cash, a 

2005 vehicle, half the value of the marital property, and half of Chad’s retirement 

account) are not sufficient to support herself for the rest of her life. Shannon 

maintains that her reasonable expenses are approximately $2,000.00 to $2,200.00 

per month. She further contends that Chad makes ample pay to support both her 

and his new household. 

 “The statutory test for granting maintenance is whether the spouse is 

unable to support her own reasonable needs through her property, including her 

part of the marital estate, and is also unable to support herself through suitable 

employment.” Normandin v. Normandin, 634 S.W.3d 589, 602 (Ky. 2020), as 

modified and superseded on denial of reh’g (Apr. 29, 2021) (citing KRS 

403.200(1)). An award of maintenance, and the amount and duration thereof, is 

within the circuit court’s sound discretion and will only be disturbed on appeal if 

the appellate court “finds the trial court abused its discretion or based its decision 

on findings of fact that are clearly erroneous.” Powell v. Powell, 107 S.W.3d 222, 

(f) The ability of the spouse from whom maintenance is sought to 

meet his needs while meeting those of the spouse seeking 

maintenance.
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224 (Ky. 2003). The test for abuse of discretion is whether the decision of the 

circuit court was “arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001). This 

Court is “not authorized to substitute its own judgment for that of the trial court on 

the weight of the evidence where the trial court’s decision is supported by 

substantial evidence.” Maclean v. Middleton, 419 S.W.3d 755, 775 (Ky. App. 

2014). Simply put, the appellate court should avoid “usurp[ing] the discretion 

which properly rests in the trial court.” Perrine v. Christine, 833 S.W.2d 825, 827 

(Ky. 1992). 

While the trial court is afforded a wide range of discretion in 

determining maintenance awards, it is also true that this discretion is not without 

boundaries. As we have aptly stated:

Abuse of discretion implies that the family court’s 

decision is unreasonable or unfair. Thus, in reviewing 

the decision of the family court, the test is not whether 

the appellate court would have decided it differently, but 

whether the findings of the family court are clearly 

erroneous, whether it applied the correct law, or whether 

it abused its discretion. 

B.C. v. B.T., 182 S.W.3d 213, 219-20 (Ky. App. 2005) (footnote omitted).

While the findings of fact made by the trial court were limited, there 

appears to be the findings necessary for determining if an award of maintenance is 

indicated. A trial court may grant a maintenance order for either spouse only if it 
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finds, pursuant to KRS 403.200(1), 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 . . . .” In any case, the fact that Shannon is actually 

entitled to an award of maintenance is not disputed by either party, and is 

supported by the record.

It is the amount and duration of that award that is questioned. In that 

regard, the trial court abused its discretion. While the appellate court is not free to 

simply substitute its judgment for that of the trial court, it is also not free to simply 

ignore the trial court’s own findings and ignore reasoned analysis and application 

of the relevant statute. 

Upon finding that maintenance should be granted under KRS 

403.200(1), section (2) states:

(2) The maintenance order shall be in such amounts and 

for such periods of time as the court deems just, and after 

considering all relevant factors including:

(a) The financial resources of the party seeking 

maintenance, including marital property 

apportioned to him, and his ability to meet his 

needs independently, including the extent to which 

a provision for support of a child living with the 

party includes a sum for that party as custodian;

(b) The time necessary to acquire sufficient 

education or training to enable the party seeking 

maintenance to find appropriate employment;
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(c) The standard of living established during the 

marriage;

(d) The duration of the marriage; 

(e) The age, and the physical and emotional 

condition of the spouse seeking maintenance; and

(f) The ability of the spouse from whom 

maintenance is sought to meet his needs while 

meeting those of the spouse seeking maintenance.

Again, while the findings of fact by the trial court are somewhat 

sparse, the basic findings required are that the recipient spouse lacks sufficient 

property to provide for his/her reasonable needs and cannot support him/herself 

through appropriate employment. Drake v. Drake, 721 S.W.2d 728, 730 (Ky. App. 

1986).

2 Detailed findings regarding each relevant factor described in KRS 

403.200(2) are not necessarily required. 

Even so, when the KRS 403.200(2) factors are considered, based on 

the findings of fact the trial court did make in its order, then it is baffling how a 

maintenance award of $750 per month is anything other than unfair and 

unreasonable, the very definition of abuse of discretion. Also baffling is how the 

2

In Drake, this Court stated: “Kentucky law is clear that in order for an award of maintenance to 

be proper, the elements of both KRS 403.200(2)(a) and (b) must be established. In other words, 

there must first be a finding that the spouse seeking maintenance lacks sufficient property, 

including marital property, to provide for his reasonable needs. Secondly, that spouse must be 

unable to support himself through appropriate employment according to the standard of living 

established during the marriage.” Id. at 730. However, it appears that we mistakenly cited KRS 

403.200(2)(a) and (b) in Drake; it is actually KRS 403.200(1)(a) and (b) which refers to these 

two basic elements required for an award of maintenance. 
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duration of the maintenance award, for 18 months, or 24 months if Shannon 

applies for disability, especially given this lengthy 27-year marriage, is anything 

other than arbitrary; again, the very definition of an abuse of discretion. 

In today’s economy, $750 would not even cover a subsistence 

standard of living. And although there were no specific findings of facts made by 

the trial court as to the standard of living maintained during the marriage, there can 

be no reasonable doubt that it was significantly greater than bare subsistence. 

While the court did not make specific findings as to the actual amount 

of income Shannon would need to meet her reasonable needs, and whether Chad 

had sufficient income to support Shannon’s need while meeting his own needs, that 

fact is easily found in the parties’ temporary maintenance agreement which the 

court referenced in its order. In the agreement, Shannon stayed exclusively in the 

marital home even though Chad continued to pay the mortgage. Chad also 

continued to pay the household bills and Shannon’s cell phone bill, while paying 

Shannon $750 per month in additional maintenance. 

The trial court found that Chad made approximately $5,700 per month 

and had been paying Shannon’s necessary expenses, and $750 per month in 

maintenance, by agreement, through the pendency of the divorce. There was no 

finding, nor any argument made, that Chad was unable to meet his own reasonable 

needs while paying these expenses or this maintenance. Further, Shannon testified 
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that she expected to need $2,000 to $2,200 per month to meet her reasonable needs 

going forward as she would have to provide her own housing and household 

expenses. There was no evidence presented to dispute this amount.

Also, Shannon has no real means of her own to support herself. The 

evidence supports the family court’s finding that Shannon has always relied on 

Chad for support. She lacks post-secondary education and has a G.E.D. She has 

been deemed 100% disabled by her doctor. She currently has no source of income 

and was awarded liquid assets of only $4000 and her 2005 truck from the marital 

property. 

While she was also awarded half of Chad’s retirement, to be divided 

via a QDRO,

3

she should not have to drain funds needed for her future to survive 

now. Shannon is only in her early fifties and could easily live significantly longer. 

Retirement funds should not be deemed a readily available source of income for 

Shannon to meet her present-day needs. See Naramore v. Naramore, 611 S.W.3d 

281, 288 (Ky. App. 2020). See also Daunhauer v. Daunhauer, 295 S.W.3d 154, 

159 (Ky. App. 2009) (noting in dicta that retirement accounts are generally

intended to meet future needs in retirement rather than current needs for employed 

persons) and Smith v. Smith, 503 S.W.3d 178, 185-86 (Ky. App. 2016) (noting 

argument about the tax penalty consequences of withdrawing funds from 

3 Qualified domestic relations order.
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retirement accounts in upholding maintenance award for ex-wife who received a 

share of ex-husband’s retirement accounts.).

An award of maintenance of only $750 per month for a 27-year 

marriage, where the spouse needing maintenance was the homemaker, primary 

caregiver of the parties’ now grown children, and is otherwise disabled, is an abuse 

of discretion. That the award should terminate after 18 months, or 24 months if 

Shannon applies for social security disability, is arbitrary and a further abuse of 

discretion. 

In Gripshover v. Gripshover, our Supreme Court held that “KRS 

403.200 seeks to enable the unemployable spouse to acquire the skills necessary to 

support himself or herself in the current workforce so that he or she does not rely 

upon the maintenance of the working spouse indefinitely.” 246 S.W.3d 460, 469 

(Ky. 2008) (quoting Powell, 107 S.W.3d at 224). However, it further held:

We have recognized, however, that the statutory goal of 

rehabilitation will not always be attainable: 

[I]n situations where the marriage was 

long term, the dependent spouse is near 

retirement age, the discrepancy in incomes

is great, or the prospects for self-sufficiency 

appear dismal, our courts have declined to 

follow that policy [rehabilitation] and have 

instead awarded maintenance for a longer 

period or in greater amounts. 

Gripshover, 246 S.W.3d at 470 (quoting Powell, 107 S.W.3d at 224). 
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Perhaps it was the trial court’s intent, and certainly it is Chad’s 

argument, that Shannon’s maintenance award should be ultimately ended because 

she may be eligible for social security disability payments. And she may well be. 

However, our statutory scheme already accounts for that contingency. While it 

may not be out of order for the trial court to order Shannon to apply for social 

security disability benefits, since it has made a finding that she is disabled and 

unable to work, to reduce the amount and duration of her maintenance award based 

on the speculation of what she might receive and when, is an abuse of discretion. 

Should Shannon’s ability to provide for her own needs improve, whether via an 

award of social security disability or other windfall, “KRS 403.250 and the civil 

rules provide for mechanisms by which the maintenance award can be reduced or 

eliminated.” Calloway v. Calloway, 832 S.W.2d 890, 894 (Ky. App. 1992).

However, on remand, the court shall enter an order of maintenance in an amount 

and duration that considers all factors of KRS 403.200(2).

2. PENSION

We affirm the circuit court’s 50% division of Chad’s pension but 

reverse and remand on the issue of whether the date of the pension’s valuation 

should be the date of the parties’ separation or the date dissolution was granted. In

Thielmeier v. Thielmeier, ___ S.W.3d ___, No. 2021-SC-0532-DG, 2022 WL 

17726617 (Ky. 2022), the Kentucky Supreme Court clearly held that a party’s 
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401(k) (a type of retirement account) had to be valued as of the date of the divorce 

for purposes of determining the value of the marital estate, but that the family court 

had discretion to divide the marital estate in just proportions (not necessarily 

evenly) and also a duty to make findings explaining why its division was just under 

KRS 403.190:

When dividing martial [sic] property in a 

dissolution proceeding, a trial court must perform the 

following steps: (1) categorize each piece of contested 

property as either marital or nonmarital; (2) assign each 

party’s nonmarital property to that party; and (3) 

equitably divide the parties’ marital property. Trial 

courts have broad discretion in dividing marital property, 

and this Court may not disturb a trial court’s ruling on the 

division of marital property unless it has abused its 

discretion. “The test for abuse of discretion is whether 

the trial judge’s decision was arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.” 

Here, it was undisputed that Ken’s ACE 401(k) 

was marital property. The circuit court noted at the 

outset in its findings of fact and conclusions of law that 

“[t]he parties stipulate that all of their property is 

marital,” except for a non-marital piece of real estate that 

is not at issue. Even absent such a stipulation, the 

account was without question martial [sic] property 

under KRS 403.190 and applicable case law. 

Accordingly, the circuit court first erred by dividing the 

ACE 401(k) as of May 1, 2017. Instead, it should have 

divided it as of December 19, 2019, the date of the 

divorce decree.

The circuit court further erred in awarding Lisa 

nothing of the contributions Ken made to the 401(k) 

account after separation. The court agreed with Ken 

“that KRS 403.190(1)(a) permits him to retain 100% of 
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the post-separation to his 401(k) contributions.” But it 

did not engage in any analysis as to why it considered 

that division just under the facts before it. This alone is 

grounds for reversal, as a trial court must actually engage 

with the KRS 403.190(1) factors when dividing martial 

[sic] property; simply citing the statute is not enough. 

Id. at *7 (footnotes omitted). 

Our Supreme Court further directed: “On remand, the circuit court 

shall readdress the division of the . . . 401(k) as of . . . the date the divorce decree 

was entered, and shall explain why its chosen division is just under KRS 

403.190(1)(a)-(d).”4Id. at *8. 

In Thielmeier, the wife remained at home caring for a minor child, 

which may work to distinguish the Fergusons’ situation. However, the unique 

circumstances in this case (the wife’s automobile accident which required a year’s 

4

 KRS 403.190(1) states, in relevant part: 

(1) In a proceeding for dissolution of the marriage or for legal separation, . . . the 

court shall assign each spouse’s property to him. It also shall divide the marital 

property without regard to marital misconduct in just proportions considering all 

relevant factors including:

(a) Contribution of each spouse to acquisition of the marital 

property, including contribution of a spouse as homemaker;

(b) Value of the property set apart to each spouse;

(c) Duration of the marriage; and

(d) Economic circumstances of each spouse when the division of 

property is to become effective, including the desirability of 

awarding the family home or the right to live therein for reasonable 

periods to the spouse having custody of any children.
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stay at the Mayo Clinic in Minnesota, the pandemic shutdown which had an impact 

over the court system, the death of the wife’s first attorney, and the recusal of the 

original presiding judge) should weigh in the circuit court’s reconsideration of this 

issue regarding the date the pension should be divided. 

Furthermore, the date of valuation used by the circuit court 

(December 2018) was the date temporary maintenance was established, not the 

date of the parties’ separation. The circuit court made no finding regarding its use 

of that date rather than separation (September 2018), dissolution of marriage (May 

2021), or the final hearing (October 2021). 

Generally, precedent indicates that pensions should be valued as of 

the date of divorce rather than as of other dates, such as the date of a QDRO. See 

Clark v. Clark, 782 S.W.2d 56, 62 (Ky. App. 1990). But a circuit court has 

discretion to divide pensions, like other marital property, in just proportions so 

long as it explains why its division is just in light of the factors mentioned in KRS 

403.190(1)(a)-(d). See Thielmeier, 2022 WL 17726617, at *7-8. 

On remand, we direct the circuit court to divide equally the pension as 

valued on the date of dissolution unless the court makes a finding why it is just to 

effectively divide the pension as of another date – such as explaining why it is just 

not to give Shannon the benefit of Chad’s post-separation contributions to his 

pension with specific findings discussing KRS 403.190(1) factors. See id. The 
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presumption is that property acquired before a decree of dissolution or legal 

separation is marital and must be overcome by showing that a portion of the 

pension was acquired by a method listed in KRS 403.190(2). See KRS 403.190(3). 

So, the circuit court must divide the pension equally as of the date of the divorce or 

must explain why its division as of another date is just under KRS 403.190(1)(a)-

(d). See Thielmeier, 2022 WL 17726617, at *8. 

The judgment of the Knox Circuit Court is affirmed in part, reversed 

in part, and remanded for proceedings consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Lori B. Shelburne

Lexington, Kentucky

BRIEF FOR APPELLEE:

Shane A. Romines

Corbin, Kentucky