RENDERED: APRIL 22, 2022; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0978-MR

WADE B. LEWIS APPELLANT 

v. 

APPEAL FROM OLDHAM CIRCUIT COURT

HONORABLE DOREEN S. GOODWIN, JUDGE

ACTION NO. 13-CI-00247

LAURA R. FULKERSON APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.

MCNEILL, JUDGE: This case involves a property division dispute between 

former spouses Wade B. Lewis (hereafter “Wade”), and Laura R. Fulkerson 

(hereafter “Laura”). It has an appellate record that is necessary to cite at length in 

order to appropriately convey the factual and procedural foundation memorialized 

in a published decision issued by a previous panel of this Court: 

 Wade and Laura were married on February 13, 

2008, and have three children of the marriage. After 
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multiple separations and failed attempts to reconcile, 

Laura filed a Petition for Dissolution of Marriage on 

April 3, 2013, and the family court entered a limited 

decree of dissolution on May 14, 2014. The facts 

surrounding Wade's business ventures, as well as the 

corpus of a trust titled the “Laura Renee Fulkerson Trust

[LRF Trust],” form the fundamental disputes in this 

case.

 Wade, along with two business partners Silas 

Boyle and Chris Page, started Maximum ASP in August 

2000. The company was in the business of information 

technology and built and hosted a “cloud technology” 

platform for clients. . . .

. . . .

 In 2010, Wade and Boyle were approached with an 

offer to purchase Maximum ASP, Maximum COLO, and 

Maximum Holdings by Cbeyond Communications. The 

purchase price was $36,000,000 less the value of certain 

debts of the business. Wade received $7,413,687 as the 

net portion for his shares of the three Maximum 

businesses. Following the sale, Wade invested in a new 

business with Boyle, Automobile Storage Solutions, 

LLC.

. . . .

 During the parties’ marriage, they established two 

transfer on death trusts for themselves. Wade’s trust was 

created in 2009 and Laura’s aforementioned LRF Trust 

was created in 2011. The sum of $1,700,000 from Wade 

and Laura’s joint bank account with rights of 

survivorship was deposited into each trust. The original 

source of these funds was the proceeds from the sale of 

Maximum ASP to Cbeyond Communications. The 

parties agree regarding these facts, however, the intent 

for establishing the LRF Trust is adamantly contested. It 

is Laura’s position that the trust was a gift given to her to 
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control exclusively, which she did. She further argues 

that Wade told her on numerous occasions that she could 

spend the money in the trust any way she wanted and that 

they would each control the contents of their own trusts. 

Conversely, Wade argues the trust was established purely 

for estate planning purposes to avoid future tax 

implications and that he never advised Laura to spend the 

money as she saw fit.

After the parties’ final separation, the family court 

entered a limited decree of dissolution of marriage and 

orders detailing the temporary child support and 

parenting schedule. The parties advised the family court 

that the issues remaining in need of final adjudication 

were property division, allocation of debt, custody, 

parenting time, and child support.

. . . .

. . . The family court’s determinations, relevant to the 

instant appeal, were the following: (1) 100% of the 

proceeds from the sale of Maximum ASP – and any 

property purchased with those proceeds that was not 

deemed an outright gift to Laura – is Wade’s nonmarital 

property; (2) the LRF Trust was a gift to Laura from 

Wade and, therefore, is Laura’s non-marital 

property; and (3) due to the equal time-share schedule 

and considerable financial resources of both parties, 

neither shall pay child support to the other and they both 

shall equally split all expenses concerning the three 

minor children. Wade then filed a post judgment motion 

pursuant to CR 59.05, which was subsequently denied.

Wade and Laura both appeal from this final order.

Lewis v. Fulkerson, 555 S.W.3d 432, 435-37 (Ky. App. 2017) (footnotes omitted) 

(emphasis added) (hereafter Lewis I). In its analysis, the Court observed that “[t]he

only fact witnesses who testified regarding the key element in Laura’s gift claim 
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and Wade’s intent in funding the LRF Trust were Wade and Laura.” Id. at 440. 

However, the Court further observed that the attorney who drafted the LFR Trust, 

Ed Lowry, “would have added a third fact witness to this issue. Indeed, attorney 

Lowry is the only person, other than the parties, who would have first-hand 

knowledge regarding Wade’s intent.” Id. Ultimately, the Court held that the 

family court erred by barring attorney Lowry from testifying. Id. at 441. In so 

holding, the Court specifically determined that “the exclusion of attorney Lowry 

deprived Wade’s right to call a third fact witness regarding an issue where the only 

previous fact witnesses were the parties with opposing views of Wade’s donative 

intent.” Id. Accordingly, the Court affirmed the family court’s order in part, 

vacated in part, and remanded for further proceedings. Id. 

On remand, the case was assigned to a different family court judge 

due to the retirement of the previous judge. The family court held an evidentiary 

hearing for what appears to be the exclusive purpose of obtaining Lowry’s 

testimony. In an order entered on August 4, 2020, the court held that “[Wade] 

made a gift to [Laura] in the amount of $1,700,000. . . . [T]his asset is [Laura’s] 

non-marital asset and shall be awarded to her as a gift.” Wade appeals to this 

Court as a matter of right, wherein he argues that the family court failed to apply 

the clear and convincing standard to Laura’s gift claim, and that the court clearly 
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erred in ruling in Laura’s favor. Having considered the record and the law, we 

disagree. 

ANALYSIS

In Sexton v. Sexton, 125 S.W.3d 258 (Ky. 2004), our Supreme Court 

addressed the legal elements applicable to cases involving gifts between spouses: 

[T]he Court of Appeals set forth four (4) factors that trial 

courts should consider in determining if a transfer was a 

gift and thus a spouse’s nonmarital property: one, “the 

source of the money with which the ‘gift’ was 

purchased,” two, “the intent of the donor at that time as 

to intended use of the property,” three, “status of the 

marriage relationship at the time of the transfer,” and 

four, “whether there was any valid agreement that the 

transferred property was to be excluded from the marital 

property.” . . . Clearly, the donor’s intent is the primary 

factor in determining whether a transfer of property is a 

gift, and we likewise hold that the donor’s intent is also 

the primary factor in determining whether a gift is made 

jointly to spouses or individually to one spouse. The 

donor’s testimony is highly relevant of the donor’s intent; 

however, the intention of the donor may not only be 

“expressed in words, actions, or a combination thereof,” 

but “may be inferred from the surrounding facts and 

circumstances, including the relationship of the 

parties[,]” as well as “the conduct of the parties[.]”

Id. at 268-69 (footnotes and citations omitted). See also Hunter v. Hunter, 127

S.W.3d 656, 660 (Ky. App. 2003) (“Whether property is considered a gift for 

purposes of a divorce proceeding is a factual issue subject to the clearly erroneous 

standard of review.”). Furthermore, “[l]ike other nonmarital claimants of property 

acquired during marriage, a party claiming that property is nonmarital by reason of 
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the gift exception has the burden to prove it.” Sexton, 125 S.W.3d at 267 (footnote 

omitted). 

The issue before the family court on remand was whether the 

$1,700,000 LRF Trust was a gift from Wade to Laura, or if it was for another 

purpose, i.e., estate planning, etc. In our review of the family court’s decision 

finding it to be a gift, we cannot ignore the emphasis that the Court in Lewis I

placed on the necessity of Lowry’s testimony. On appeal, Wade describes this 

evidence as “the evidentiary tiebreaker.” However, this does not negate the 

consideration of any additional relevant evidence considered throughout the 

underlying litigation.1 

To be clear, the Final Decree of Dissolution that was the subject of the 

appeal in Lewis I was entered on July 9, 2015. Therein, the family court discussed 

all issues remaining at that time including custody, property, etc. It totaled fortysix pages in length and was entered after a two day trial. In concluding, inter alia, 

that the LRF Trust was a gift and therefore, Laura’s nonmarital property, the court 

considered the trust documents, the testimony of the parties, and the parties’ expert

1 We realize that Lewis I provided that “[i]f attorney Lowry testified that Wade deposited his 

nonmartial [property] . . . in the two separate trusts purely for estate planning purposes, there is a 

substantial possibility the outcome would have been different.” Lewis I, 555 S.W.3d at 440 

(emphasis added). However, we are not bound by this statement alone. To be clear, Laura has 

the affirmative burden of proving a gift. Wade need neither disprove a gift nor prove that the 

underlying transaction at issue be for purely estate planning purposes, although that may be 

sufficient to find in his favor. Nevertheless, we do not believe that this distinction materially 

affects the outcome here. 
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witness testimony. In its August 4, 2020 order that is the subject of the present 

appeal, the family court restated select portions of its findings previously 

memorialized in the Final Decree of Dissolution. And having now considered 

Lowry’s testimony on remand pursuant to the dictates of Lewis I, the court entered 

the following findings: 

There is sufficient language in the LRF Trust to allow 

this Court to conclude that [Wade] intended to gift [] the 

corpus of the LRF Trust to [Laura]. [Wade] was well 

aware that his marriage to [Laura] was on less than solid 

ground. Additionally he was aware that [Laura] felt 

financially insecure and her insecurity was a reason for 

her staying in the marriage. [Wade] has established a 

pattern of making “peace offerings” to [Laura] in the 

form of valuable assets. Lastly, and of great importance 

to this Court, [Wade] could have used a number of other 

documents and tools to transfer money to [Laura] upon 

his death for her benefit. . . . 

Nothing in Mr. Lowry’s testimony alters the prior 

conclusion of this Court. Although he stated his 

drawings appear to be representative of estate planning, 

they did not accurately reflect the final documents

executed. . . . 

The bottom line is that attorney Lowry could not 

shed any light on the actual intent of the parties at the 

time the LRF Trust was created. Although he mapped 

out an estate plan, its design was not followed by the 

parties. Laura retained sole control over the LRF Trust 

both as settlor and trustee. 

Although the family court’s order and findings did not expressly cite to Sexton, we 

believe that the relevant factors were adequately considered and addressed. More 
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precisely, Sexton, et al., were specifically cited in the court’s original Final Decree 

of Dissolution. And contrary to Wade’s argument on appeal, we do not believe 

that the court’s findings were clearly erroneous, i.e., that they were not supported 

by substantial evidence. Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). 

Substantial evidence is evidence that “a reasonable mind would accept as adequate 

to support a conclusion and evidence that, when taken alone or in the light of all 

the evidence, . . . has sufficient probative value to induce conviction in the minds 

of reasonable men.” Id. (internal quotation marks and footnotes omitted). See also

Shaida v. Shaida, Nos. 2019-CA-0688-ME and 2019-CA-0745-ME, 2021 WL 

2753950, at *6 (Ky. App. Jul. 2, 2021), discretionary review denied (Oct. 20, 

2021) (holding that, although the family court was presented with conflicting 

evidence concerning the existence of a gift transfer of real estate, the Court had “no

difficulty in concluding that the family court acted within its discretion in making

this finding and its ultimate classification of the property was correct as a matter of

law.”). 

In the present case, it is abundantly clear from our review of the 

record on appeal that there is no deficit of nuance and complexity here. Indeed, we 

cannot overly stress that in light of our stringent standard of review, two different 

trial judges have considered the evidence and held in Laura’s favor. Moreover, 

this Court in Lewis I has essentially indicated that the present issue is a “close 
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call.” Therefore, although reasonable minds may differ given the unique 

circumstances of this case, we cannot conclude that the family court clearly erred. 

CONCLUSION

For the foregoing reasons, we hereby affirm the Oldham Family Court’s 

order entered on August 4, 2020. 

ALL CONCUR. 

BRIEFS FOR APPELLANT:

William D. Tingley

Ft. Mitchell, Kentucky 

BRIEF FOR APPELLEE:

Justin R. Key

Jeffersonville, Indiana