RENDERED: MARCH 22, 2024; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0336-MR

SOUMAYA JABRAZKO APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE TERRI KING SCHOBORG, JUDGE

ACTION NO. 21-CI-01465

ERIC A. KLEIMAN APPELLEE 

AND

NO. 2023-CA-0353-MR

ERIC A. KLEIMAN APPELLANT 

v. 

APPEAL FROM KENTON CIRCUIT COURT

HONORABLE TERRI KING SCHOBORG, JUDGE

ACTION NO. 21-CI-01465

SOUMAYA JABRAZKO APPELLEE 
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OPINION AND ORDER

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING

**   **  **

BEFORE: COMBS, JONES, AND MCNEILL, JUDGES.

MCNEILL, JUDGE: This is an appeal/cross-appeal from a dissolution of 

marriage, wherein the Kenton County Circuit Court, Family Division, equitably 

divided various marital and nonmarital assets. The parties were married on June 

21, 2019. Husband filed a Petition for Dissolution on September 28, 2021. The 

Decree of Dissolution was entered on June 14, 2022. A Supplemental Decree was 

entered December 29, 2022. The Appellant/Cross-Appellee is Soumaya Jabrazko 

(Wife). Appellee/Cross-Appellant is Eric Kleiman (Husband). For the following 

reasons, we affirm in part, reverse in part, and remand. 

STANDARD OF REVIEW

KRS1 403.190 governs the disposition of marital property in a 

dissolution of marriage. The classification of marital and nonmarital property is 

reviewed de novo. Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky. App. 2008). 

However, “[w]e review a trial court’s determinations of value and division of 

marital assets for abuse of discretion.” Young v. Young, 314 S.W.3d 306, 308 (Ky. 

App. 2010) (citation omitted). “The test for abuse of discretion is whether the trial 

1

 Kentucky Revised Statutes. 
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judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations 

omitted). With these general standards in mind, we return to the record and 

arguments at issue in the present case. 

ANALYSIS

Before addressing the merits, we must address Husband’s pending 

motion to strike Wife’s reply brief on the basis of insufficient citations, as required 

under the Kentucky Rules of Appellate Procedure (RAP). The brief at issue is not 

a primary brief. Any deficiencies that may exist do not merit striking the brief. 

Moreover, striking this brief will have no material impact on our decision. 

Therefore, having considered the relevant arguments and law, Husband’s motion is 

denied. 

As to the merits, the parties collectively raise thirteen issues on 

appeal, most of which overlap. For the sake of clarity, we will provide a brief 

summary of the underlying judgment and then address each disputed asset/issue. 

First, we must provide the applicable legal standard. When dividing property in a 

divorce, a trial court is required to follow a three-step process:

(1) the trial court first characterizes each item of property 

as marital or nonmarital; (2) the trial court then assigns 

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

finally, the trial court equitably divides the marital 

property between the parties.
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Travis v. Travis, 59 S.W.3d 904, 909 (Ky. 2001) (footnotes omitted). KRS 

403.190(1) contains factors which the trial court must consider when dividing 

marital property:

(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.

At the time of trial, Wife was employed by General Electric Aviation

(GE). Her gross income in 2021 was $492,947.67. Husband was employed by 

Maxim Crane. His gross income in 2021 was $187,767.22. Wife owns a premarital residence in Morocco. Husband sold his premarital residence and 

deposited the proceeds into a savings account. Wife lives in the marital home, 

which had a stipulated value of $737,500 at the time of dissolution. The parties 

have no children. 

The family court ordered that the parties’ retirement accounts be 

divided pursuant to a Qualified Domestic Relations Order (QDRO). The court 

evenly divided the parties’ various cash accounts. Husband was awarded his one-
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half share of equity in the marital home. The net result is that Wife owed Husband

$222,260.08. The primary issue on appeal is whether the family court erred in its 

assessment of Wife’s Savings Account2as marital property, and thus, whether it 

also erred by dividing its balance evenly between the parties at the time of 

dissolution. And while we do not defer to the family court here, it is beneficial to 

cite its relevant conclusions of law:

As to HSBC-UAE savings account, this was an account 

set up by the wife pre-marriage. The wife put the 

husband’s name on the account post marriage and began 

to deposit marital funds into the account. She then made 

withdrawals from the account during the marriage, 

including expenses for the house. The balance of the 

account as of April 30, 2022, had dropped below the premarital balance. Wife claims that this balance should be 

declared non-marital but there is no Kentucky law to 

support this position. The wife has not been able to 

provide evidence of tracing regarding the account except 

the balances. Kentucky has provided a very generous 

tracing doctrine that will assume that an account is nonmarital despite being unable to trace all the funds 

provided the balance does not fall below the premarriage balance. See Chenault v. Chenault, 799 

S.W.[2]d [575], 578 (Ky. 1990), citing Allen v. Allen, 

569 S.W.2d 599 (Ky. App. 1979). The wife cannot meet 

this requirement; the balance fell below the stipulated 

amount of $300,379.00. As Justice Vance noted in his 

concurring opinion in Turley v. Turley, 562 S.W.2d 665, 

669 [(Ky. App. 1978)] this creates a harsh rule. 

However, he noted that under the legal theory of stare 

decisis, the court had on at least two previous cases held 

to such a rule and therefore he supported the decision in 

the Turley case. That is the situation here. The result is 

2

 Identified in the record as HSBC-UAE 299-050 Savings Account. 
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harsh, but it is also crystal clear under Kentucky law. 

The “last in-first out” theory for tracing co-mingled funds 

cannot be applied if the account balance fell below the 

pre-marriage balance. So here this account is marital as a 

matter of law, the wife having failed to meet her burden 

of proof as to tracing. 

The court concludes that Husband’s stipulated 

non-marital interest of $114,222.46 was also converted to 

a marital asset under Chenault. 

(Emphasis in original.) The Supreme Court has summarized Chenault as follows: 

The presumption in Kentucky is 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. While the word does not appear in 

the statute, judicial construction of KRS 403.190 has 

given rise to the concept of tracing. In Chenault, this

Court recognized that tracing to a mathematical certainty 

is not always possible, noting that: While such precise 

requirements for nonmarital asset-tracing may be 

appropriate for skilled business persons who maintain 

comprehensive records of their financial affairs, such 

may not be appropriate for persons of lesser business 

skill or persons who are imprecise in their record-keeping 

abilities.

. . . While Chenault recognized the potential difficulties 

of tracing and sought to relax the draconian requirements 

laid down in prior case law, it did not do away with the 

tracing requirements altogether.

Terwilliger v. Terwilliger, 64 S.W.3d 816, 820-21 (Ky. 2002), as modified (Feb. 

11, 2002) (internal quotation marks and citations omitted). 
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In addition to Chenault, the family court and the parties also rely on

the foundational case of Allen v. Allen, 584 S.W.2d 599 (Ky. App. 1979). Allen

held that “the requirement of tracing should be fulfilled, at least as far as money is 

concerned, when it is shown that nonmarital funds were deposited and commingled 

with marital funds and that the balance of the account was never reduced below the 

amount of the nonmarital funds deposited.” Id. at 600. More recently a panel of 

this Court has observed that, despite some disagreement, Chenault “did not 

overrule Allen’s holding . . . . Therefore, this holding appears to still be good law 

in the Commonwealth.” Mattingly v. Fidanza, 411 S.W.3d 250, 257 (Ky. App. 

2013) (internal quotation marks and citations omitted). 

Pursuant to the aforementioned case law, the family court foreclosed 

any premarital interest in Wife’s Savings Account because the end amount was 

less than the beginning amount. We agree with Wife that such a result is a 

misapplication of Allen, et al. To be clear, we do not overrule or modify Allen. 

Rather, we reiterate that when nonmarital funds have been comingled with marital

funds – resulting in a balance lower at dissolution than prior to the marriage –

tracing may permit a party claiming a nonmarital interest to obtain such, either in

whole or in part. Here, it is undisputed that the marital funds deposited into Wife’s

Savings Account consisted primarily of Wife’s salary from GE. These comingled

funds were used for marital expenses. Wife presented extensive tracing materials
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to the family court. We do not make a judgment on this evidence. However, it is

clear that the family court erroneously concluded that the Savings Account was

automatically “converted” into marital funds and were therefore, “marital as a

matter of law[.]”3 

Therefore, we remand this case for the family court to consider Wife’s

Savings Account tracing evidence in order to determine whether any portion of the

$272,300.00 ending balance should be classified as Wife’s nonmarital property and

if so, how much. And for the sake of consistency with the foregoing analysis, 

Husband shall also be permitted to produce tracing evidence for the family court to 

3

 The family court also summarily concluded that Wife failed to provide sufficient 

tracing evidence and that she provided only account “balances.” In consideration of the 

relaxed tracing requirements announced in Allen and Chenault, there is nothing

precluding mere “balances” from the court’s consideration. In fact, the tracing evidence

at issue here is much more detailed and should be reviewed by the family court. 

Moreover, an example ad absurdum may prove instructive: A nonmarital savings

account has a premarital balance of $300,000.00. It is comingled with marital funds and

its marital contributions are used for marital expenses. At the time of dissolution, its

balance is $301,000.00. Pursuant to the family court’s application of Allen, et al.,

$300,000.00 of that sum would be nonmarital, and the $1,000.00 would be divided

equitably as marital. In contrast, if the same account had a balance at the time of

dissolution of $299,000.00, then it would be automatically “converted” into entirely

marital funds and likely, as was the case here, divided by the court into marital halves. If

the latter result is to be obtained as matter of law, it must be clearly articulated in the case

law, which is not currently present. At the very least, tracing evidence should be

appropriately considered. We do not opine as to what type or degree of tracing evidence

is necessary here. However, we do observe that the thrust of Allen and Chenault is to

reduce overly stringent tracing requirements where appropriate. See Property division –

Permissible methods of tracing, 15 KY. PRAC. DOMESTIC RELATIONS L. § 15:13. 
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reconsider his nonmarital interest in Husband’s Savings Account.4 To be clear, 

this account concerns a similar Allen issue. And again, we make no decision as to 

the existence or amount of potentially nonmarital property in either of these 

accounts. We will now address any remaining issues, all of which concern the 

division of marital property, which is reviewed for an abuse of discretion. 

Wife further contends that the family court failed to properly consider 

KRS 403.190 when dividing the parties’ property. We disagree. The family court 

specifically cited to this provision, and clearly applied its principles throughout its 

detailed findings. Wife also asserts that the court failed to consider the funds Wife 

spent on a pool at the marital residence, additional construction costs, property 

taxes paid while the parties were separated, as well as funds she repaid GE for a 

housing stipend. These matters were appropriately resolved when assessing the 

value of the marital realty, and the allocation of its equity and title. There was no 

error here. 

Furthermore, Wife claims that the court erred by dividing funds 

contained in Wife’s checking account ending in 6792, because that account has 

been closed. Husband does not challenge this assertion. If the account is closed, 

the court should address this issue on remand, and identify a new source of funds if

necessary. Lastly, Wife alleges that the court failed to provide details concerning 

4

 Identified in the record as “Huntington Bank Savings Account ending in 9696.” 
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her interest in Husband’s GE Retirement Savings Plan, and that there is insufficient 

information to properly draft a QDRO. To the extent there is any confusion 

concerning Wife’s interest in those assets, the court may provide clarity as 

necessary. However, there is no need for the court to reconsider the merits of this 

issue. 

We have reviewed the entirety of Wife’s claims, and having carefully 

considered her arguments, cannot conclude that the court abused its discretion. To 

reiterate, “[t]he test for abuse of discretion is whether the trial judge’s decision was 

arbitrary, unreasonable, unfair, or unsupported by sound legal principles.” English, 

993 S.W.2d at 945 (citations omitted). We now turn to Husband’s arguments.

First, Husband contends that the court erred in determining the 

valuation date for Wife’s HSBC USA checking account ending in 6481. Wife 

does not challenge the merits of this assertion. On remand, the court shall consider 

the balance of that account as of April 29, 2022 – the date closest to dissolution –

which is the standard employed by the family court when evaluating the other 

assets at issue here, including Wife’s Savings Account. Husband’s final claim of 

error concerns the family court’s denial of his request for attorney’s fees award. 

The statute governing attorney’s fees is KRS 403.220. It has been summarized and 

applied as follows: 

Under this statute, a trial court may order one party 

to a divorce action to pay a reasonable amount for the 
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attorney’s fees of the other party, but only if there exists 

a disparity in the relative financial resources of the 

parties in favor of the payor. But even if a disparity 

exists, whether to make such an assignment and, if so, the 

amount to be assigned is within the discretion of the trial 

judge. There is nothing mandatory about it. Thus, a trial 

court’s ruling on attorney fees is subject to review only 

for an abuse of discretion. 

Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (internal quotation marks and 

footnotes omitted). Furthermore, “[the trial court] is in the best position to observe 

conduct and tactics which waste the court’s and attorneys’ time and must be given 

wide latitude to sanction or discourage such conduct.” Gentry v. Gentry, 798

S.W.2d 928, 938 (Ky. 1990). Although Wife’s income is significantly greater than 

Husband’s, both parties have sufficient resources to retain counsel throughout the 

duration of this litigation, which includes advanced property issues. Accordingly, 

there was no abuse of discretion here. However, in the interest of an equitable and 

prompt resolution to this litigation, the court may consider the appropriate 

allocation of future attorney’s fees incurred on remand. 

CONCLUSION

For the foregoing reasons, we AFFIRM in part, and REVERSE in 

part. We REMAND with instructions that the court reconsider the classification 

and division of Wife’s Savings Account funds and the Husband’s Savings 

Account. Any remaining issues concerning the retirement/checking accounts shall 

be addressed as necessary, and in accordance with this decision. 
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ALL CONCUR. 

ENTERED: _March 22, 2024___

JUDGE, COURT OF APPEALS

BRIEFS FOR APPELLANT/CROSSAPPELLEE:

Jennifer Scholl Overmann

Ft. Mitchell, Kentucky

BRIEF FOR APPELLEE/CROSSAPPELLANT:

Michael J. McMain

Florence, Kentucky 

Dominic V. Millard

Covington, Kentucky