RENDERED: MAY 7, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2018-CA-1906-MR

AND

NO. 2019-CA-0214-MR

CHRISTOPHER J. WOLF APPELLANT/CROSS-APPELLEE

APPEAL AND CROSS-APPEAL FROM MADISON CIRCUIT COURT

v. HONORABLE JEFF MOSS, SPECIAL JUDGE

ACTION NO. 15-CI-50369

MELLISA N. HAMILTON APPELLEE/CROSS-APPELLANT

OPINION

AFFIRMING IN PART, REVERSING IN PART,

AND REMANDING ON DIRECT APPEAL; 

AND AFFIRMING ON CROSS-APPEAL

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Christopher J. Wolf appeals from the Madison Circuit

Court’s decree of dissolution, entered on December 18, 2018, arguing that its 

failure to restore nonmarital property was erroneous. Mellisa N. Hamilton cross-
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appeals, asserting that the circuit court erred in finding the parties’ settlement 

agreement to be unconscionable. We affirm in part, reverse in part, and remand on 

direct appeal. We affirm on cross-appeal.

The parties met in July 2009. Wolf, who was married to someone else 

at the time, proposed to Hamilton the following November. They were married in 

Madison County, Kentucky, on March 4, 2011. It was Wolf’s second marriage and 

Hamilton’s fifth. Each of them had children from prior relationships, but no 

children were born of their marriage to each other.

Wolf and Hamilton separated on August 3, 2015. Hamilton filed for 

dissolution of marriage, and her counsel prepared a property settlement agreement 

within ten days of the parties’ separation. Wolf, who was not represented by 

counsel, signed the agreement on August 14, 2015. The agreement divided the 

parties’ assets, pets, business interests, retirement accounts, and real property. 

Debts were assigned. The parties waived the family court rules’ requirements

regarding the exchange of preliminary verified disclosure forms and a formal 

hearing.

Wolf had second thoughts about the agreement. He hired counsel,

and he filed a motion to set the agreement aside as unconscionable and adjudicate 

the issues of allocation of the parties’ assets and debts. An initial hearing was held 

on October 1, 2015, and a non-dissipation order was entered in February 2016.
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The Madison Circuit Court judge assigned to the case retired in 

August 2016, and he was succeeded by his wife. Wolf filed a motion for summary 

judgment regarding his motion to set aside the settlement agreement, to which 

Hamilton responded. After holding a hearing on the matter, the circuit court ruled 

the separation agreement unconscionable and ordered the parties to “schedule a 

formal mediation as soon as possible to renegotiate another settlement agreement.” 

The parties were unable to renegotiate a second settlement agreement. 

In late September 2017, the judge disqualified herself (as did the other circuit court 

judge in Madison County), and a special judge was appointed to preside over the 

litigation. The final hearing was held over a two-day period in September 2018. 

The circuit court entered its findings of fact, conclusions of law, and decree of 

dissolution on December 13, 2018. Wolf appeals, and Hamilton cross-appeals.

We first consider Hamilton’s argument on cross-appeal, namely, that 

the circuit court erred in finding the separation agreement unconscionable. We use 

the following guidelines in reviewing this issue, beginning with Kentucky Revised 

Statute (KRS) 403.180(2), which provides, in pertinent part:

In a proceeding for dissolution of marriage or for legal 

separation, the terms of the separation agreement . . . are 

binding upon the court unless it finds, after considering 

the economic circumstances of the parties and any other 

relevant evidence produced by the parties, on their own 

motion or on request of the court, that the separation 

agreement is unconscionable.
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“[T]he trial court was obligated to follow the case law of this state and enforce the 

contract unless it was found to be ‘manifestly unfair or inequitable.’” Cameron v. 

Cameron, 265 S.W.3d 797, 801 (Ky. 2008) (citing Burke v. Sexton, 814 S.W.2d 

290, 292 (Ky. App. 1991)). See also Combs v. Combs, 787 S.W.2d 260, 261 (Ky. 

1990). 

The family court is in the best position to weigh the 

evidence and determine if a separation agreement is 

unconscionable or if it resulted from duress, undue 

influence, or overreaching. Shraberg v. Shraberg, 939 

S.W.2d 330, 333 (Ky. 1997). Regarding such 

determinations, we defer to the family court’s broad 

discretion, and are prohibited from disturbing its decision 

absent an abuse of its discretion. See id.; Peterson [v. 

Peterson], 583 S.W.2d [707,] 712 [(Ky. App. 1979)].

Andrews v. Andrews, 611 S.W.3d 271, 275 (Ky. App. 2020) (citing Mays v. Mays, 

541 S.W.3d 516, 524 (Ky. App. 2018), and Ford v. Ford, 578 S.W.3d 356 (Ky. 

App. 2019)). “[A] party challenging an agreement as unconscionable should have 

a relatively high burden of proof.” Peterson, 583 S.W.2d at 712.

In finding the agreement to be unconscionable, the sitting family court 

judge held that “sufficient detail must be provided in the parties’ Separation 

Agreement for the Court to determine whether or not the Agreement meets the 

statutory requirements.” It stated:

2. In the case at hand, the agreement reached 

between the parties involved a significant amount of 

money and property. This Court believes that much of 

the problems being addressed now would have been 
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prevented if [Hamilton] had been forthcoming with her 

attorney as to the circumstances surrounding the 

divisions of assets and the proposed assignment of 

[Wolf’s] nonmarital property to [Hamilton]. 

Nevertheless, a Separation Agreement was drafted by 

[Hamilton’s] counsel which lacked sufficient detail 

regarding same, and said Agreement was signed by 

[Wolf] who was not represented by counsel. Verified 

Factual Disclosure statements were not completed by the 

parties prior to [Wolf’s] Motion to Set the Separation 

Agreement aside, making it impossible for the Court to 

even determine on its own whether or not there was a just 

division of property and no Agreed Order was entered 

into by the parties waiving the filing of disclosures.

3. Due to the lack of detail in the Separation 

Agreement, the Court required testimony to ascertain 

whether said Agreement was manifestly unfair. The 

testimony confirmed the agreement was more than just a 

bad deal on the part of [Wolf]. It was clear from his 

testimony, [Wolf] lacked the sophistication necessary to 

know whether or not he was making a fair deal. 

Although[] KRS 403.180 encourages parties to enter into 

comprehensive agreements, the Court noted in Shraberg 

v. Shraberg, 939 S.W.2d 330[, 333] (Ky. 1997), that[,]

“in recognition of the intimate nature of the relationship 

and the ability of a strong and persistent spouse to 

overwhelm the other spouse, the statute broadly directs 

the trial court to review the agreement for 

unconscionability. In effect, the law has established a 

measure of protection for parties from their own 

irresponsible agreements.”

The circuit court made no specific finding of “fraud, undue influence, overreaching 

or manifest unfairness.” Pursley v. Pursley, 144 S.W.3d 820, 826 (Ky. 2004)

(footnote omitted). Even had such a finding been made, it would not have been 

supported by substantial evidence: Wolf’s testimony at the hearing indicated that 
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he signed the settlement agreement in order to “free up some money” and “ensure 

that he would get half.” He conceded that he read the agreement before signing it, 

and he admitted waiving the formal hearing and financial disclosures. Wolf 

acknowledged that his monetary settlement for a premarital work-related injury 

was absorbed into the couple’s joint accounts, business ventures, and lifestyle 

spending, and that he allowed Hamilton to manage their funds. He testified that 

“she’s better at setting things up,” and he was “used to her taking care of business.” 

Wolf also expressed his desire to avoid attorney fees. Although he claimed that 

Hamilton “had control of all the money,” Wolf also stated that, during the 

marriage, he preferred to keep it that way.

At first blush, receiving “half” does not appear to be a bad bargain,

much less indicative of fraud or duress. Pursley, supra. However, the circuit 

court’s finding of unconscionability was based on the lack of detail insofar as 

division of the parties’ numerous assets and debts. Furthermore, the settlement 

agreement failed to mention Wolf’s nonmarital worker’s compensation settlement 

(for the injury he suffered prior to the marriage). The agreement merely stated: 

“Each party acknowledges that all non-marital property has been restored to the 

party entitled hereto,” and “there is no other non-marital property to be restored[.]” 

Given the size of Wolf’s award ($781,200.00), the utter lack of mention of it in the 
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separation agreement was a red flag that there was at least the possibility of 

overreaching or manifest unfairness. Id.

We review the circuit court’s finding of unconscionability for abuse of 

discretion. “The test for abuse of discretion is whether the trial judge’s decision 

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

Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000) 

(citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999)). The circuit 

court did not abuse its discretion in finding the separation agreement 

unconscionable, and we thus affirm that decision.

We next address Wolf’s arguments on direct appeal, namely, that the 

circuit court erred in its rulings regarding disposition of assets and debts. KRS 

402.190. We begin by enunciating our standard of review. Kentucky Rules of 

Civil Procedure (CR) 52.01 provides the general framework for the circuit (family) 

court as well as review in the Court of Appeals: 

In all actions tried upon the facts without a jury or with 

an advisory jury, the court shall find the facts specifically 

and state separately its conclusions of law thereon and 

render an appropriate judgment[.] . . . Findings of fact 

shall not be set aside unless clearly erroneous, and due 

regard shall be given to the opportunity of the trial court 

to judge the credibility of the witnesses. 

See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted) (an 

appellate court may set aside a lower court’s findings made pursuant to CR 52.01 
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“only if those findings are clearly erroneous.”). The Asente Court went on to 

address substantial evidence:

“[S]ubstantial evidence” is “[e]vidence 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.” Regardless 

of conflicting evidence, the weight of the evidence, or the 

fact that the reviewing court would have reached a 

contrary finding, “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. Thus, “[m]ere doubt 

as to the correctness of [a] finding [will] not justify [its] 

reversal,” and appellate courts should not disturb trial 

court findings that are supported by substantial evidence.

Id. at 354 (footnotes omitted). See also McVicker v. McVicker, 461 S.W.3d 404, 

415 (Ky. App. 2015).

In Young v. Young, 314 S.W.3d 306, 308 (Ky. App. 2010), this Court 

specifically addressed the standard of review for the classification of property: 

A trial court’s ruling regarding the classification of 

marital property is reviewed de novo as the resolution of 

such issues is a matter of law. Heskett v. Heskett, 245 

S.W.3d 222, 226 (Ky. App. 2008). We review a trial 

court’s determinations of value and division of marital 

assets for abuse of discretion. Armstrong v. Armstrong, 

34 S.W.3d 83, 87 (Ky. App. 2000) (quoting Duncan v. 

Duncan, 724 S.W.2d 231, 234-35 (Ky. App. 1987)).

KRS 403.190 provides for the assignment and division of property and provides in 

relevant part as follows:
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(1) In a proceeding for dissolution of the marriage or for 

legal separation, or in a proceeding for disposition of 

property following dissolution of the marriage by a court 

which lacked personal jurisdiction over the absent spouse 

or lacked jurisdiction to dispose of the property, 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.

KRS 403.190(2)(a) defines “marital property” as “all property acquired by either 

spouse subsequent to the marriage except . . . [p]roperty acquired by gift, bequest, 

devise, or descent during the marriage and the income derived therefrom unless 

there are significant activities of either spouse which contributed to the increase in 

value of said property and the income earned therefrom[.]”

Here there is no dispute that Wolf’s worker’s compensation award 

was his nonmarital property. It was payment for an injury that occurred prior to 
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the parties’ marriage. KRS 403.190(2)(a). But Wolf deposited the proceeds into a 

joint account, and the subsequent reduction in the balance of that account was 

attributable to both parties, not just Hamilton (as Wolf would have this Court 

believe). 

The couple purchased an expensive home (complete with new 

furnishings), as well as adapted a newly extravagant lifestyle of travel, dining out, 

vehicle replacement, and (for Hamilton) cosmetic dentistry and surgery. The 

parties also entered into a joint venture of flipping properties in Florida. Hamilton, 

who was able to trace over $220,000.00 of her own funds as deposits into another 

account, claims these were also monies accessed for those investments. 

“When the original property claimed to be nonmarital is no longer 

owned, the nonmarital claimant must trace the previously owned property into a 

presently owned specific asset.” Sexton v. Sexton, 125 S.W.3d 258, 266 (Ky. 

2004) (citations omitted). Nonmarital funds which have been commingled with 

marital funds may be traced by showing that the balance of the commingled 

account “was never reduced below the amount of the nonmarital funds[.]” Allen v. 

Allen, 584 S.W.2d 599, 600 (Ky. App. 1979), overruled on other grounds by 

Chenault v. Chenault, 799 S.W.2d 575, 579 (Ky. 1990) (“Accordingly, we shall 

adhere to the general requirement that nonmarital assets be traced into assets 

owned at the time of dissolution, but relax some of the draconian requirements 
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heretofore laid down.”). The issue of diminished funds was revisited in Mattingly 

v. Fidanza, 411 S.W.3d 250, 257 (Ky. App. 2013), when this Court wrote:

However, the Supreme Court did not overrule Allen’s 

holding that the tracing of cash is met “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.” Allen, 584 S.W.2d at 600. Therefore, 

this holding appears to still be good law in the 

Commonwealth.

We cannot agree with Wolf that he properly traced all existing funds and assets to 

the deposit of his workers’ compensation settlement funds. It is undisputed that 

the joint account “was reduced below the amount of the nonmarital funds 

deposited.” Id.

1

 And the assets that remained by the date of dissolution came 

nowhere near total the amount of the funds he claims as his own. 

Wolf conceded that he did not expect restoration of certain 

expenditures, reflected in finding No. 44 (under “Available Assets for 

Distribution”) of the circuit court’s order:

44. The Court finds that the following amounts 

from the $781,200 have been received by Husband or 

have been spent or expended in such a fashion that he 

does not seek a recovery or restoration of these funds: a) 

$81,200 which Husband testified was received by Wife 

to pay debts incurred during his recuperation; b) 

$85,278.00 which the Court previously awarded to him; 

 

1

 The balance of the joint account was $1,644.16 on April 17, 2014.
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and c) the lease and lease payments on the Buick 

Enclave.

2

Wolf was required to trace the remaining amount, which the circuit court found he 

failed to do sufficiently. This finding is not “manifestly against the weight of the 

evidence[,]” and we decline to disturb it. Hempel v. Hempel, 380 S.W.3d 549, 551 

(Ky. App. 2012) (internal citation omitted).

It then became incumbent upon the circuit court to determine 

nonmarital contributions towards marital assets. We shall examine each of Wolf’s 

specific allegations of factual error separately, beginning with the finding 

regarding the parties’ marital home on Crimson Drive. The home, which had been 

purchased in 2013 for $330,000.00, sold for $459,000.00 in 2017. The net closing 

proceeds after satisfaction of the mortgage indebtedness and other expenses was 

$199,643.66, the entirety of which was held in escrow by Wolf’s attorney. The 

circuit court held that Wolf had sufficiently traced $165,000.00 from his 

nonmarital funds to the property, stating:

Husband and Wife’s purchase of 211 Crimson 

Drive included a $150,000.00 down payment. These 

funds came from the parties’ joint account (4278) to 

Wife’s checking account (4943) to the closing. Despite 

the $150,000.00 down payment traveling through Wife’s 

account, Husband had sufficiently traced this down 

payment back to its non-marital roots from the personal 

 

2

 Although Wolf agreed that the Enclave was a gift to his wife, he contested the charges 

(totaling $2,222.00) for excess mileage and unpaid tolls at the lease turn-in. The circuit court 

ordered one half of that amount (i.e., $1,111.00) restored to Wolf from Hamilton’s counsel’s 

escrow account.
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injury settlement. Husband also wrote a check to Jeremy 

Rigney, for improvements he was to make to the 

property. Husband has sufficiently traced this check to 

the non-marital personal injury settlement. This leaves a 

marital share of this property of $34,643.66 which will be 

divided equitably by the Court.

Even though his nonmarital contribution was restored to him, Wolf argues that it 

was erroneous for the circuit court to determine that the entirety of the increase in 

the home’s value was marital property and divide it accordingly. 

We agree that the circuit court failed to address whether the home’s 

increase in value should have been apportioned according to the formula 

enunciated in Brandenburg v. Brandenburg, 617 S.W.2d 871 (Ky. App. 1981); 

accord Fehr v. Fehr, 284 S.W.3d 149 (Ky. App. 2008). We are cognizant of the 

fact that it was Wolf’s burden to submit sufficient evidence to overcome the 

presumption that the increase in value was marital. See KRS 403.190(3); Travis v. 

Travis, 59 S.W.3d 904 (Ky. 2001); Kleet v. Kleet, 264 S.W.3d 610, 614 (Ky. App. 

2007) (“If nonmarital property increases in value during the marriage, the trial 

court must determine the reason for the increase. If the increase is attributable to 

general economic conditions, it is nonmarital; where the parties’ joint efforts cause 

the increase, it is marital property.”). Because the circuit court did not deal with 

the issue, the matter must be remanded for further findings on the issue of increase 

in value of the marital property. However, we add that the record fully supports 

the circuit court’s finding that Wolf was responsible for losing the parties’ first 
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(and higher) contract for sale of the property and affirm the holding in regard to 

allocating half the amount of that loss as restoration to Hamilton. CR 52.01; 

McVicker, supra; Young, supra. The same holds true for the court’s finding that 

Hamilton was entitled to reimbursement for excessive mortgage payments made by 

her after the sale of the property. Id.

The issue of the increase in value of the Medley Drive property 

(Hamilton’s residence acquired prior to the parties’ marriage) was evaluated 

pursuant to the Brandenburg principles. The circuit court’s allocation regarding 

the property ($14,870.76 of the proceeds to Wolf) is supported by substantial 

evidence of record, and we decline to engage in further discussion of that issue. Id.

Regarding Wolf Capital LLC (the parties’ house-flipping venture), the 

circuit court held that Wolf failed to meet his burden of proving that the initial 

investment (made prior to the business’s incorporation) was made solely with his

nonmarital funds. Wolf argues that this finding is clearly erroneous, but we 

disagree. The circuit court found that the purchase, remodeling, and sale of the 

four properties in question resulted in total profits of $76,493.66. The court 

concluded, in pertinent part, that:

There has not been sufficient proof that those funds were 

originally from the personal injury settlement. Chris 

Carter [the parties’ Florida contractor] testified that he 

believed the funds for the transaction were from 

Husband’s settlement, but he could not adequately 

support why that was his belief. His testimony coupled 
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with his long standing friendship with Husband requires 

the Court to find his testimony to be lacking. The 

accounts the funds were removed from and deposited 

into also showed other deposits and withdrawals by each 

party. The Court, having found the proceeds to be 

marital property, orders that the tax responsibility should 

also be divided evenly as well.

We defer to the circuit court’s superior position to judge the credibility of the 

witnesses. Moore, 110 S.W.3d at 354. Wolf’s arguments to the contrary are not 

persuasive, and we affirm the circuit court’s division of this asset as well.

Wolf next claims that the entirety of the parties’ joint household 

goods should have been given to him as purchased with funds from the workers’ 

compensation settlement. As the circuit court found, Wolf “testified that he has no 

desire to have any of the belongings that are currently in Wife’s possession. 

Husband also lives in Florida making transportation of these less-wanted items 

more problematic.” The circuit found the personal possessions to have a value of 

$11,982.22 and awarded them to Hamilton. Wolf fails to convince us that this 

finding is clearly erroneous. Id. 

We likewise find no merit to Wolf’s contention that Hamilton 

dissipated assets. The issue of alleged Civil Rules violations is moot.

The order of the Madison Circuit Court setting aside the settlement 

agreement as unconscionable is affirmed. The direct appeal is affirmed in part,
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reversed in part, and remanded for further proceedings consistent with this 

Opinion. The cross-appeal is affirmed.

ALL CONCUR.

BRIEFS FOR APPELLANT/

CROSS-APPELLEE:

Jimmy Dale Williams

Randy Martin O’Neal

Richmond, Kentucky

BRIEFS FOR APPELLEE/

CROSS-APPELLANT:

John P. Schrader

Lexington, Kentucky