RENDERED: JULY 16, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0295-MR

JULIUS J. PAOLI, III APPELLANT 

v. 

APPEAL FROM MARION CIRCUIT COURT

HONORABLE ALLAN RAY BERTRAM, JUDGE

ACTION NO. 17-CI-00253 

TERESA W. PAOLI APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.

TAYLOR, JUDGE: Julius J. Paoli, III, brings this appeal from a Property Division 

Order of the Marion Circuit Court entered on October 23, 2019.

1

 We affirm. 

Julius J. Paoli, III, and Teresa W. Paoli were married December 27, 

1980, in Lebanon, Marion County, Kentucky. After their marriage, the parties 

 

1 By order entered February 20, 2020, the Marion Circuit Court denied Julius J. Paoli, III’s, 

motion to alter, amend, or vacate the October 23, 2019, Property Division Order. A decree 

dissolving the marriage was also entered on October 23, 2019, which is not at issue in this 

appeal. 
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relocated to Pennsylvania. Upon moving to Pennsylvania, for approximately eight 

years, Teresa worked with Julius training thoroughbred horses. After the parties’ 

first child was born in 1988, Teresa became a stay-at-home mother; their second 

child was born in 1990. Teresa subsequently homeschooled the parties’ two

children from preschool through high school. After the children’s education was 

completed, Teresa worked part-time outside the home. Teresa initially worked as a 

pre-school aide and then as a physical therapy assistant.

2

 Throughout the marriage, 

Julius worked outside the home.

On June 28, 2017, the parties separated, and Teresa moved back to 

Marion County, Kentucky. Julius remained in the parties’ marital residence in 

Pennsylvania. Teresa filed a Verified Petition for Dissolution of Marriage on 

December 1, 2017. Julius responded with a motion to dismiss the petition as it was 

filed before Teresa had resided in Kentucky for the requisite six-month period. 

Teresa subsequently filed an Amended Verified Petition for Dissolution of 

Marriage on January 19, 2018. 

An evidentiary hearing was conducted by the circuit court on March 

4, 2019. Teresa and Julius were the only witnesses to testify. Following the 

hearing, the parties submitted briefs setting forth their respective positions 

 

2 Teresa W. Paoli was unable to continue working due to back pain and was subsequently 

determined to be permanently disabled as of December 1, 2018.
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regarding the unresolved property issues. A Decree of Dissolution of Marriage and 

a Property Division Order were simultaneously entered on October 23, 2019. The 

Property Division Order restored each parties’ nonmarital property, divided the 

parties’ marital property, and denied Teresa’s request for spousal maintenance. 

Julius filed a timely motion to alter, amend, or vacate the October 23, 2019, 

Property Division Order. An order was entered February 20, 2020, denying 

Julius’s motion to alter, amend, or vacate. This appeal follows. 

We begin our analysis by noting that an evidentiary hearing was 

conducted by the circuit court in adjudicating the contested issues in this divorce 

proceeding.3 Accordingly, our review of the circuit court’s findings of fact will

proceed pursuant to Kentucky Rules of Civil Procedure (CR) 52.01, which

provides that “[f]indings of fact, shall not be set aside unless clearly erroneous[.]” 

A finding of fact is not clearly erroneous if supported by substantial 

evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). Any questions of 

law raised on appeal are reviewed de novo. Allen v. Devine, 178 S.W.3d 517, 524

(Ky. App. 2005). If the factual findings are supported by substantial evidence and 

the correct law was applied by the court below, the court’s decision will not be 

 

3 The evidentiary hearing was essentially a bench trial where the case was tried upon the facts 

without a jury. This requires the application of Kentucky Rules of Civil Procedure (CR) 52.01 in 

our review.
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disturbed absent an abuse of discretion. M.C. v. Cabinet for Health and Family 

Servs., 614 S.W.3d 915, 921 (Ky. 2021).

Julius’s contentions of error in this appeal focus upon the circuit 

court’s division of the parties’ marital property. The division of marital property in 

a dissolution of marriage proceeding is governed by Kentucky Revised Statutes

(KRS) 403.190. Section (1) of KRS 403.190 provides that the circuit court must 

divide marital property in “just proportions considering all relevant factors” 

including the contribution each spouse made in acquiring the property, the value of 

the property each spouse is receiving, the duration of the parties’ marriage, and the 

economic circumstances of each spouse once the property is divided. KRS

403.190(1)(a)-(d); see McGowan v. McGowan, 663 S.W.2d 219, 223-24 (Ky. App.

1983). As KRS 403.190 merely requires “considering” all the factors relevant to a 

just or equitable division of marital property, the circuit court has wide discretion 

in its decision. Hempel v. Hempel, 380 S.W.3d 549, 553 (Ky. App. 2012). And, 

the circuit court’s division of marital property will not be disturbed on appeal 

absent an abuse of discretion. Muir v. Muir, 406 S.W.3d 31, 34 (Ky. App.

2013) (citation omitted).

Julius’s first contention of error is that the circuit court erred in its 

valuation and division of the parties’ personal property. In this regard, Julius 

asserts the circuit court: (1) erred in its valuation of the marital items of personal 
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property divided among the parties; (2) failed to offset the value of the property

Teresa took when the parties separated against Teresa’s award of personal 

property; and (3) erroneously classified a hot tub as personal property. 

In the October 23, 2019, Property Division Order, the circuit court 

assigned values to items of marital personal property remaining in the marital 

residence after Teresa’s departure. The largest value assigned to a single item was 

the parties’ hot tub. The hot tub was apparently located in the garage of the marital 

residence and the circuit court valued it at $3,000. Julius argued that the hot tub 

was part of the real estate and not personalty. The other items valued by the court

included various pieces of furniture, numerous household items, and miscellaneous 

tools and lawn care items. Other than two end tables and a coffee table, Julius was 

awarded all of the remaining personalty including the hot tub. After assigning a 

value to each of the items, the circuit court then awarded Teresa one-half of the 

total value of the personal property, or $4,815.

To begin, we note when the parties separated that Teresa had taken 

personalty from the residence by agreement of the parties. There was no evidence 

presented regarding the value of this personalty. Thus, any claim for offset for its 

value against the final property division was not properly preserved below. 

Teresa testified she believed the personal property remaining in the 

marital residence had a total value of between $8,000 to $10,000. Teresa’s
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testimony was subsequently summarized in her post-trial memorandum and values

were assigned to each individual item of personal property. Julius, on the other 

hand, failed to present any evidence regarding the value of the items of personal 

property. In fact, Julius only assigned values to the items of personal property in 

his motion to alter, amend, or vacate the court’s October 23, 2019, Property 

Division Order. At the hearing on the motion to alter, amend, or vacate, there was 

some discussion among counsel regarding whether Julius intended to sell the 

marital residence, and if so, whether the hot tub would be sold with the house. 

Regardless, the only evidence presented regarding the value for the hot tub was a 

$3,000 value provided by Teresa. There was no evidence to establish that the hot 

tub had become a fixture to the real estate. Accordingly, upon a thorough review 

of the record, we believe there was sufficient evidence presented to support the 

circuit court’s valuation and division of the personal property, and we do not 

believe the court abused its broad discretion in the valuation and division of same.

Julius next specifically contends the circuit court erred in its division 

of the cash located in the parties’ safe-deposit box. There was conflicting evidence

presented by the parties regarding the amount of cash Teresa withdrew from the 

safe-deposit box. Teresa testified there was $10,000 cash in the safe-deposit box 

and that she took one-half of the funds, or $5,000, and left the other $5,000 for 

Julius. Julius testified there was no money left in the safe-deposit box and claims 
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Teresa removed the entire amount. Julius testified a ledger was kept in the safedeposit box and he produced a photocopy. Julius claimed the photocopy 

demonstrated that all the cash had been withdrawn from the safe-deposit box. 

Teresa testified that the notations on the ledger were not authentic as they were not 

all in her handwriting. Teresa also pointed out that part of the ledger entries on the 

photocopy had been concealed by a sticky note placed on the ledger before it was 

copied.

As noted, it is well-settled in Kentucky that when conflicting evidence 

is presented in an evidentiary hearing conducted without a jury, our review 

proceeds pursuant to CR 52.01. CR 52.01 specifically provides that in actions 

tried without a jury, the circuit court has the sole authority to judge the credibility 

of witnesses. And, “[r]egardless of conflicting evidence . . . ‘due regard shall be 

given to the opportunity of the trial court to judge the credibility of the witnesses’

because judging the credibility of witnesses and weighing evidence are tasks 

within the exclusive province of the trial court.” Asente, 110 S.W.3d at

354 (quoting CR 52.01) (footnotes omitted). As the credibility of the witnesses in 

a bench trial is within the sole province of the circuit court, we cannot say the court 

erred by accepting Teresa’s testimony that she only removed $5,000 from the safedeposit box and left $5,000 for Julius.
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Julius also asserts the circuit court erred in its division of the parties’ 

2017 joint income tax refund in the amount of $3,044. Julius contends that an 

equal division of the 2017 tax refund was in error because the refund was 

generated solely from income he earned. Julius specifically claims that the equal 

division of such tax refund was in contravention of KRS 403.190(1)(a), which 

requires that the court consider the contribution of each spouse in obtaining the 

asset. Julius essentially argues that because he earned the income, he should get 

the entire tax refund.

It is well-established that income earned during the parties’ marriage 

is marital property. Dotson v. Dotson, 864 S.W.2d 900, 902 (Ky. 1993). And, 

pursuant to KRS 403.190(1) a circuit court shall divide the parties’ marital 

property “in just proportions considering all relevant factors[.]” And, among the 

relevant factors is the “[c]ontribution of each spouse to acquisition of the marital 

property, including contribution of a spouse as homemaker[.]” KRS 

403.190(1)(a). 

In the case sub judice, the circuit court was clearly cognizant that 

income earned during a marriage is generally marital property. Therefore, Julius’s

assertion that he is entitled to the entire tax refund because he earned the income is 

without merit. The circuit court obviously considered the contribution of Teresa as 
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a homemaker spouse and of Julius as the wage earner. As such, we do not believe 

the circuit court erred in its equal division of the parties’ 2017 income tax refund.

Julius’s next contention is that the circuit court erred in its equal

division of Julius’s retirement accounts. Again, Julius’s assertion is based upon 

the fact that the retirement accounts, which totaled approximately $400,000, were 

funded solely by income he earned during the marriage. 

The same basic analysis applies here as set forth above regarding 

division of the parties’ 2017 joint income tax refund. The fact that Julius worked 

outside the home and generated the income to fund the retirement accounts is not 

dispositive of the issue. It is well-established that retirement benefits are subject to 

division as marital property to the extent they were accumulated during the 

marriage. Tager v. Tager, 588 S.W.3d 183, 185 (Ky. App. 2019) (citation 

omitted). And, pursuant to KRS 403.190(1), the circuit court must divide marital 

property in just proportions while considering all relevant factors including the 

contribution each spouse made in acquiring the property, the value of the property 

each spouse is receiving, the duration of the parties’ marriage, and the economic 

circumstances of each spouse once the property is divided. KRS 403.190(1)(a)-

(d). 

 In this case, the circuit court properly considered Teresa’s contribution 

as the homemaker spouse, the duration of the almost 39-year marriage, and 
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Teresa’s economic circumstances, including her being disabled. See KRS

403.190(1); see McGowan, 663 S.W.2d at 223-24. Teresa’s only income was $223 

per month in social security disability payments and $305 per month in SSI 

benefits. The court denied Teresa’s request for maintenance, which is not an issue 

in this appeal. The court declined to award maintenance in part based on the 

equitable division of assets, including the retirement accounts. We find no legal 

error in this division and, thus, do not believe the circuit court abused its discretion 

in the equal division of the retirement accounts between the parties.

Julius’s final argument on appeal is that the circuit court erred in 

awarding Teresa one-half of the equity in the marital residence. The basis for 

Julius’s assertion is that despite being the sole wage earner during much of the 

marriage, Teresa was awarded one-half of the retirement accounts; thus, Julius 

believes he is entitled to more than an equal division of the equity in the marital 

residence.

In this case, there was conflicting testimony regarding the value of the 

marital residence. Neither party introduced an appraisal of the residence at the 

evidentiary hearing. Julius acknowledged that the residence had been previously 

appraised for $220,000; however, he opined that without needed repairs it only had 

a value of $200,000. Julius testified that cost of necessary repairs would be

$59,203, but acknowledged some of those repairs had since been performed. The 
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Property Valuation Administrator (PVA) assessed the value of the residence as 

$211,432. As of March 1, 2018, the balance on the parties’ mortgage was 

$129,063.67. The circuit court ultimately utilized the PVA value, then subtracted 

the outstanding mortgage, and calculated the parties’ equity in the marital 

residence as $82,368.33. The circuit court ordered Julius to pay Teresa one-half of 

the equity in the marital residence, or $41,184.17, if he elected to remain in the 

marital residence. However, if Julius elected to sell the marital residence, the court 

then ordered the parties to divide the net proceeds equally. We do not believe that 

an equal division of the equity in the marital residence was in error. If Julius was 

dissatisfied with the court’s determination of the equity, he could have opted for 

the circuit court’s second option, which was to sell the marital residence and 

equally divide the proceeds with Teresa. The court did not abuse its discretion on 

this issue. 

We further note that Julius argues the cumulative effect of the alleged 

erroneous decisions by the court in the division of marital property is unjust and 

otherwise fails to divide the property in just proportions as required by KRS 

403.190. Having concluded that the court’s rulings were not in error, this 

argument must also fail.

For the foregoing reasons, the October 23, 2019, Property Division 

Order of the Marion Circuit Court is affirmed.
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ALL CONCUR.

BRIEFS AND ORAL ARGUMENT 

FOR APPELLANT:

Jonathan R. Spalding

Lebanon, Kentucky

BRIEF AND ORAL ARGUMENT 

FOR APPELLEE:

Dawn L. McCauley

Lebanon, Kentucky