RENDERED: OCTOBER 1, 2021; 10:00 A.M.

TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1446-MR

ANITA BOND APPELLANT 

v. 

APPEAL FROM CARTER CIRCUIT COURT

HONORABLE DAVID D. FLATT, JUDGE

ACTION NO. 15-CI-00255

JIMMY BOND APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: COMBS, JONES, AND McNEILL, JUDGES.

JONES, JUDGE: Anita Bond (“Anita”) appeals from the Carter Circuit Court’s

order denying her motion to classify Jimmy Bond’s (“Jimmy”) medical 

malpractice settlement proceeds as marital property. Following a review of the 

record and all applicable law, and being otherwise sufficiently advised, we affirm.
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I. BACKGROUND

Jimmy and Anita were divorced on October 30, 2015. At the time the

dissolution decree was entered, Jimmy had a personal injury claim pending in 

Boyd Circuit Court against King’s Daughters Medical Center (“King’s 

Daughters”). Jimmy’s claim against King’s Daughters alleged that certain of his 

medical providers performed unnecessary medical procedures on him. These 

procedures were performed during Jimmy’s and Anita’s marriage.1 As such, the

trial court reserved judgment on what portion, if any, of a future award to Jimmy 

would be classified as marital property. As part of the decree, Jimmy was ordered 

to report to Anita any award he received as a result of his lawsuit so that Anita 

could determine whether to pursue classification of the award as marital property 

by way of a motion to reopen the dissolution action. 

Jimmy’s personal injury claim against King’s Daughters was 

consolidated with approximately 125 other similar claims. Eventually, the parties 

entered into a global settlement. As part of the global settlement, King’s 

Daughters agreed to pay a lump sum into a settlement fund to be distributed 

amongst the various claimants by a Special Master. The Special Master was 

appointed by the Boyd Circuit Court; he had sole discretion in allocating the global 

1 On various occasions in 2005, and once in 2009, King’s Daughters performed five cardiac 

procedures on Jimmy consisting of a single bypass surgery, two pacemaker implementations, and 

two cardiac catheterizations. 
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settlement. The Special Master allocated the proceeds by phase. Phase 1 

compensated the claimants for the unnecessary procedures. To determine the 

amount of compensation, each claimant received various points based on the 

type(s) of unnecessary procedures that were performed on him. There was no 

accounting for any medical bills or lost wages, etc. The number of points each

claimant received in Phase 1 was then compared against the whole to determine

that person’s percentage of the whole settlement award, entitling him to that 

percentage of the whole as his Phase 1 award. A certain portion of the settlement 

was set aside to provide additional, Phase 2 compensation to claimants who 

suffered extraordinary damages not captured in the award for having had the 

unnecessary procedures. Phase 2 damages included things such as allergic 

reactions, disability, lost wages, aneurysms, and death. The excess funds not 

dispersed from the extraordinary injury fund were reallocated proportionally to all 

claimants.

Jimmy received a gross settlement award of $357,415.50. According 

to Jimmy’s personal injury attorney, Hans Poppe, this entire amount represented 

Jimmy’s share of the Phase 1 fund and the remaining excess Phase 2 funds that 

were reallocated after all Phase 2 claimants were compensated. Jimmy did not 

apply for any Phase 2 recovery. 

After Anita was apprised of Jimmy’s settlement, she filed a motion to 
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reopen the dissolution action claiming that all or a portion of Jimmy’s settlement

should be classified as marital property. Jimmy countered that the settlement was 

in the nature of compensation for his pain and suffering for having undergone the 

unnecessary medical procedures, and therefore, was his nonmarital property. To 

support his position, Jimmy filed an affidavit from Attorney Poppe. 

The family court held a hearing on August 26, 2020, at which 

Attorney Poppe was the sole witness. Consistent with his affidavit, Attorney 

Poppe testified that Jimmy did not file a Phase 2 claim; all of Jimmy’s settlement 

proceeds came from Phase 1 and the reallocation of excess Phase 2 funds. These 

funds were awarded to compensate Jimmy for the unnecessary procedures he 

underwent. Anita did not present any evidence or call any witnesses. Ultimately, 

the family court classified Jimmy’s entire award as nonmarital property after 

having determined that it was for pain and suffering. The family court’s order 

provides in relevant part: 

The testimony of Attorney Poppe clearly sets forth that 

the award for personal injury was a global settlement of 

damages arising from unnecessary cardiac procedures 

performed upon him by medical treatment providers. 

The settlement did not delineate exactly what damages 

the award was to compensate. There is no separation of

the award between pain and suffering or lost wages. 

Poppe testified [Jimmy] did not submit a claim for lost 

wages or earnings, or for impairment in his ability to earn 

monies. The settlement excludes earning capacity as a 

potential basis for recovery. [Anita] was unable to 

provide any evidence suggesting the settlement was
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based upon loss of earnings or impairment in the ability 

to earn. From the evidence presented this [c]ourt is 

unable to reach any conclusion other than the award was 

for pain and suffering. Pain and suffering damages are 

nonmarital in nature and not subject to division as a 

marital asset.

Record (R.) at 107-08. 

This appeal followed.

II. STANDARD OF REVIEW

“When property distribution is at issue in a dissolution proceeding, the 

trial court must undertake three steps: (1) the trial court must categorize each piece 

of disputed property as marital or nonmarital; (2) the trial court must assign each 

party’s nonmarital property to that party; (3) the trial court must equitably divide 

the parties’ marital property in just proportions.” Roper v. Roper, 594 S.W.3d 211, 

225 (Ky. App. 2019), as modified (Jan. 17, 2020) (citing Smith v. Smith, 235 

S.W.3d 1, 5 (Ky. App. 2006)). The trial court’s assessment of whether an item is 

marital or nonmarital is reviewed under a two-tiered scrutiny in which the factual 

findings made by the court are reviewed under the clearly erroneous standard and 

the ultimate legal conclusion denominating the item as marital or nonmarital is 

reviewed de novo. Smith, 235 S.W.3d at 6. 

III. ANALYSIS

Pursuant to statute, marital property is defined to include “all property 

acquired by either spouse subsequent to the marriage except”: 
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(a) Property 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;

(b) Property acquired in exchange for property acquired 

before the marriage or in exchange for property acquired 

by gift, bequest, devise, or descent;

(c) Property acquired by a spouse after a decree of legal 

separation;

(d) Property excluded by valid agreement of the parties; 

and

(e) The increase in value of property acquired before the 

marriage to the extent that such increase did not result 

from the efforts of the parties during marriage.

KRS2 403.190(2). 

Personal injury awards and settlements do not fit neatly within one of 

the above-mentioned exceptions. Accordingly, in Weakley v. Weakley, 731 

S.W.2d 243 (Ky. 1987), the Kentucky Supreme Court supplied additional guidance 

to assist the lower courts in determining how personal injury awards to a married 

person should be classified in the event of a dissolution of the marriage. The Court 

first noted that workers’ compensation benefits awarded for lost income that 

accrued during the marriage were considered marital property but that such 

benefits should be considered nonmarital property if they were intended to 

2 Kentucky Revised Statutes. 
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compensate the injured employee for lost income following the dissolution of 

marriage. Weakley, 731 S.W.2d at 244. However, the workers’ compensation 

cases were not dispositive with respect to personal injury awards because “[t]he 

award in workers’ compensation cases is limited to recovery for disability and 

medical expenses, while in tort cases an additional element of recovery for damage 

is allowed for pain and suffering.” Id. 

Accordingly, the Weakley Court determined that a court must 

determine whether any portion of the award was for “loss of earnings and 

permanent impairment of ability to earn money[.]” Id. If so, the court must next 

determine whether the award for lost income is “applicable to the years while the 

marriage existed[.]” Id. If so, it is marital property; however, “[t]o the extent that 

the award can be prorated to the remaining years of life expectancy following the 

dissolution of the marriage, it is nonmarital.” Id. 

The same rule does not apply to awards for pain and suffering because 

such awards are “in no sense the replacement of earnings that otherwise would 

have accrued during the marriage.” Id. at 245. “As a matter of fairness it does not 

seem right that upon the dissolution of the marriage one of the parties should be 

rewarded because the other party had the misfortune to suffer painful injuries as a 

result of an accident [or tort].” Id. “[A]s to pain and suffering resulting from an 

injury sustained during the marriage, the injured party has simply exchanged 
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property acquired before the marriage, i.e., good health, free from pain, for the 

money received as compensation for the loss.” Id. As such, the pain and suffering 

award should be treated as nonmarital property pursuant to KRS 403.190(2)(b). Id. 

While Weakley added significant clarification to the law surrounding 

the classification of personal injury awards, the Court did not address “the proper 

procedure for the allocation between marital and nonmarital property of a personal 

injury award for an injury sustained during the marriage where the settlement or 

judgment does not indicate what portion of the award applies to earning capacity 

and what portion is allocated to pain and suffering.” Id. In the present case, we 

are presented with the very situation contemplated, but left unresolved, in Weakley, 

where it is unclear from the face of the settlement documents what portion of a 

settlement is for personal injury and what portion, if any, is for lost wages or 

impairment of earning capacity.

While the Weakley Court did not adopt a test for trial courts to follow 

where the settlement was silent, we reject that it intended all proceeds from a silent 

settlement to be classified as marital property. Otherwise, we can see no reason for 

the Court to have referred to “the proper procedure” to be used in such cases. In 

subsequent unpublished cases, we have held that the burden is on the spouse 

receiving the settlement to prove it is nonmarital and that he may do so by 

presenting additional evidence to the trial court as occurred in this case. Holbrook 
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v. Holbrook, No. 2003-CA-002725-MR, 2005 WL 497229, at *3 (Ky. App. Mar. 4, 

2005). The trial court’s ultimate findings on the issue then must be reviewed by 

this Court under the “clearly erroneous” standard. Reichle v. Reichle, 719 S.W.2d 

442, 444 (Ky. 1986); CR3 52.01.

Contrary to Anita’s assertions otherwise, we do not believe the trial 

court placed the initial burden on her to prove the settlement was marital property. 

Instead, we conclude that the language in the trial court’s order was meant as an 

affirmation that Jimmy had produced sufficient evidence based on the testimony of 

Attorney Poppe that the settlement proceeds were intended to compensate Jimmy 

for his pain and suffering for having undergone the unnecessary medical 

procedures, and that Anita had failed to present any contradictory evidence. 

Attorney Poppe testified that Jimmy did not apply for Phase 2 funds and that the 

Phase 1 funds were meant to provide compensation to Jimmy for the injuries he 

suffered for having undergone the unnecessary medical procedures. This was 

sufficient evidence from which the trial court was able to find that the proceeds 

Jimmy received were in the nature of pain and suffering compensation. Having 

done so, the trial court properly categorized them as nonmarital property. 

3 Kentucky Rules of Civil Procedure.
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IV. CONCLUSION

For the foregoing reasons, we affirm the order of the Carter Circuit 

Court.

ALL CONCUR.

BRIEF FOR APPELLANT:

Justin Criswell

Grayson, Kentucky

BRIEF FOR APPELLEE:

Will J. Matthews

Grayson, Kentucky