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- 2

- OPINION AND ORDER

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING

**   **  **

BEFORE: COMBS, JONES, AND M C NEILL, JUDGES.

M C NEILL, 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 nonmar ital assets. The parties were married on June

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

Decree of Dissolution was entered on June 1 4 , 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

KRS 1 403

. 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).

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

marital assets for abuse of discretion.” Yo ung 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

.- 3

-

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 r eply brief on the basis of insufficient citations, as required

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

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

Moreover, s triking this bri ef will have no material impact on our decision.

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

denied.

As to the merits, t he 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 co urt equitably divides the marital property between the parties.- 4

-

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 e ach 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 Aviatio n

(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 pre

mar ital residence in Morocco. Husband sold his premarital residence and

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

which had a stipulated value of $73 7 ,5 0 0 at the time of dissolution. The parties

have no children.

T he family court ordered that the parties’ retirement accounts be

divided pursuant t o a Qualified Domestic Relation s Order (QDRO). The court

evenly divided the parties’ various cash accounts. Husband was awarded his one

-- 5

-

half share of equity in the marital home. The net result is that Wife owed Husband

$2 22

, 260

. 08

. The primary issue on appeal is whether the family court err ed in its

assessment of Wife’s S avings A ccount 2 as 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 bega n 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 pre

marital balance

. Wife claims that t his 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 non

marital despite being unable to trace all the funds provided the balance does not fall below the pre

marriage 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 $300,3 7 9.00. As Justice Vance noted in his concurring opinion in Turley v

. Turley , 562 S.W.2d 665,

669 [ (Ky

. App

. 197 8 ) ] this creates a harsh r ule

. 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.- 6

- 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

.

T he court concludes that Husband ’ s stipulated

non

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

a marital asset under Chenault

.

( E mphasis 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 financ ial 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).- 7

- 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 n onmarital 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

. . . . T herefore, this holding appears to still be good law

in the Commonwealth.” Mattingly v. Fidanza , 411 S.W.3d 250, 25 7 (Ky. App.

2013) (internal quotation mark s 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, w e do not overrule or modify Allen

.

Rat her, 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, i t is undisputed that the marital funds deposited into Wife’s

Savings Accoun t consisted primarily of Wife’s salary from GE. These comingled

funds were used f

or marital expenses. Wife presented extensive tracing materials- 8

-

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 A ccount was

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

mat t er 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,

H usband 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

prec luding 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 ha s a premarital balance of $300,000.00. It is comingled with mar ital funds and

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

balance is $301,000.00

. Pursua nt 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

mari tal funds and likely, as was the case here, divi ded by the court in to 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 evid ence 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 K Y

. P RAC

. D OMESTIC R ELATIONS L. § 15:13

.- 9

-

reconsider his nonmar ital interest in Husband’s Savings Account. 4 To be clear,

this account concerns a similar Allen issue. A nd a gain, we make no decisi on 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 mar ital 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 mar ital residence

, additional construction costs, property

taxes paid while the parties were separat ed

, 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.

Fu r thermore, 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, Wi fe alleges that the court failed to provide details concerning

4 Identified in the record as “ Huntington Bank Savings Account ending in 9696.”- 10

-

her interest in Husband’s GE Re tirement Savings Plan, and that there is insufficient

information to properly draft a QDRO. To the ex tent 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 t u rn 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 mer its of this assertion. On remand, the court shall consider

the balance of that account as of April 29, 202 2

– the date closest to dissolution

–

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

a ssets 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- 11

- attorney ’ s fees of the other party, but only if there exists a disparity in the relative financ ial 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.

Se xt on 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,

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

prompt resolution to t his litigation , the court may consider the appropriate

allocation of future attorney’s fees incurred on remand

.

CONCLUSION

For the for e going 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 account s shall

be addressed as necessary , and in accordance with this decision.- 12

- ALL CONCUR

.

ENTERED: _ March 22, 2024

___ JUDGE, COURT OF APPEALS

BRIEF S FOR APPELLANT /CROSS

APPELLEE :

Jennifer Scholl Overman n Ft. Mitchell, Kentucky BRIEF FOR APPELLEE /CROSS

APPELLANT :

Michael J. McMain Florence, Kentucky

Dominic V. Millard Covington, Kentucky