RENDERED: AUGUST 18, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1493-MR

MICHAEL TODD KEENE APPELLANT 

v. 

APPEAL FROM JEFFERSON FAMILY COURT

HONORABLE DERWIN L. WEBB, JUDGE

ACTION NO. 20-CI-502330

JENNIFER KEENE APPELLEE 

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: COMBS, DIXON, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: This appeal arises from a dissolution action in which 

Michael Todd Keene seeks review of the Jefferson Family Court’s division of 

marital property. We vacate and remand.

Michael and Jennifer Keene were married on June 27, 1994, in 

Jefferson County, Kentucky. The parties separated in February 2020, and Michael 

filed a petition to dissolve the marriage on October 2, 2020. At that time, he was 

46 years old and worked as a representative for United Auto Workers with Ford 
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Motor Company, and Jennifer was 43 years old and worked as a medical assistant 

with Norton Healthcare. Michael sought an equitable division of marital property 

and debts, and he indicated that he may claim non-marital property. Jennifer filed 

a response and a counter petition to dissolve the marriage, seeking an equitable 

division of marital property and debts, the restoration of her non-marital property, 

temporary and permanent maintenance, and payment of her costs including 

attorney fees. 

In November 2020, Jennifer moved the court to enter a status quo

order and for exclusive possession of the marital residence, where she had been 

living since the separation, so that she would have privacy and security. Jennifer 

also indicated that Michael had removed $6,000.00 from their checking account. 

The family court granted the motions later that month. In the status quo order, the 

court ordered Michael to pay for the parties’ mortgage, health insurance, car 

insurance, and water bill. The court ordered Jennifer to pay her car payment, the 

gas and electric, cable, and internet bills, for the home security system, and for 

trash pick-up. Michael sought a case management date to discuss the issues and 

the return of $20,000.00 Jennifer had removed from their joint account. 

The parties filed their respective pre-trial compliance, and Michael 

tendered proposed findings of fact and conclusions of law. Michael moved to 

strike Jennifer’s untimely filed proposed findings, noting that she had failed to 
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comply with other pre-trial deadlines. In response, Jennifer blamed unreliable 

internet access for filing the proposed findings a day late. 

The family court held a trial on July 16 and 21, 2021,1and on 

September 8, 2021, it entered an order in which it dissolved the marriage and ruled

on the pending issues. The court assigned non-marital property, and it split the 

marital property (including the marital residence, vehicles, retirement accounts, 

three bonus/profit sharing payments, and personal property) and debts. It also 

addressed issues as to the withdrawal of funds from bank accounts, attorney fees, 

and the award of maintenance (the court awarded Jennifer $1,500.00 per month for 

three years). 

Michael moved the court to make additional findings pursuant to 

Kentucky Rules of Civil Procedure (CR) 52, to alter, amend, or vacate the order 

pursuant to CR 59, and to reschedule the October 6, 2021, contempt hearing until 

45 days after the final order. He also attached profit sharing information as 

ordered by the court, noting that there were only two payments, not three. Michael 

sought changes related to the value of the marital residence, the offset of the value 

of the vehicles from the value of the marital residence, offsets with his retirement 

plan, the amount of maintenance he was ordered to pay, and the attorney fee 

1 The certified record does not include a recording of the trial.
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award. Jennifer also moved the court to alter, amend, or vacate the order pursuant 

to CR 59.05. This was related to the amount and duration of maintenance.

On November 10, 2021, the family court ruled on the pending postjudgment motions. It denied Michael’s motion to strike Jennifer’s proposed 

findings, noting that it had not signed either party’s proposed findings; denied his 

motion to base the value of the marital residence on his father’s testimony, even 

though he is a licensed real estate agent, as he was not a disinterested party; and 

declined to change its maintenance award. The court also declined to change the 

way it calculated the division of the marital property on an individual/line-item 

basis as “the overall distribution of assets is equitable. Changing a portion of the 

distribution would upset the overall balance contemplated by the Court.” This 

appeal now follows.

On appeal, Michael seeks review of the family court’s division of 

marital property. Jennifer contends that the court did not abuse its discretion in the 

division of the assets.

CR 52.01 provides the general framework for the 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 
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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 “only if those findings are clearly erroneous.”). The Asente Court 

defined substantial evidence as:

“[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. (footnotes omitted). “The trial court’s conclusions of law are reviewed de 

novo. . . . Decisions concerning the division of marital property are also within the 

sound discretion of the trial court, and will not be disturbed except for an abuse of 

that discretion.” Stipp v. St. Charles, 291 S.W.3d 720, 723 (Ky. App. 2009) (citing 

Gosney v. Glenn, 163 S.W.3d 894, 98-99 (Ky. App. 2005), and Neidlinger v. 

Neidlinger, 52 S.W.3d 513 (Ky. 2001)). With these standards in mind, we shall 

address the issues Michael raises in his appeal.
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For his first argument, Michael contends that the family court erred in 

dividing the parties’ marital property due to a mathematical error with respect to 

the division of the values of the equity in the marital residence and the marital 

vehicles. Kentucky Revised Statutes (KRS) 403.190(1) provides that the court

must “divide the marital property . . . in just proportions considering all relevant 

factors[,]” including each spouse’s contribution to its acquisition, the value of nonmarital property assigned to each spouse, the duration of the marriage, and the 

economic circumstances of each spouse when the division becomes effective. We 

review a family court’s division of marital assets for abuse of discretion. Young v. 

Young, 314 S.W.3d 306, 308 (Ky. App. 2010). 

In its findings, the court determined that the marital residence had a 

value of $192,500.00, that there was $152,500.00 in equity, and that each party 

was entitled to half of the equity, or $76,250.00. The court awarded the 2019 Ford 

Explorer to Jennifer and the remaining three vehicles to Michael. These three 

vehicles had a value of $23,500.00, which the court ordered would offset his 

interest in the marital residence. The court did not find it necessary for either party 

to offset funds each had retained from a joint bank account ($20,000.00 that 

Jennifer withdrew) or a tax refund (Michael retained approximately $7,000.00). 

As to Michael’s TESPHE2account, that account contained $149,378.98, and 

2 Tax-Efficient Savings Plan for Hourly Employees.
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divided equally, each party would receive $74,689.00. “However, after dividing 

the vehicles, [Michael] is still owed $52,750.00 in equity in the marital residence. 

As such, he shall retain all but $21,939.00 of his TESPHE account. [Jennifer] shall 

be entitled to that amount as her share.” In addition, Jennifer was awarded half of 

the marital portion of Michael’s Ford pension. 

On this issue, Michael argues that the total value of the vehicles he 

was retaining ($23,500.00) should be offset from the total value of the marital 

residence, rather than just half of it. The court determined that Michael was owed 

$52,750.00 in equity in the marital residence, calculated as follows: $76,250.00 

(Michael’s one-half interest in the marital residence) minus $23,500.00 (the total 

value of the vehicles Michael retained) equals $52,750.00. Michael asserts that the 

correct calculation the court should have used was to subtract the total value of the 

remaining vehicles (half was Michael’s portion) from the total equity in the house 

($152,500.00), meaning that he was owed $64,500.00 in equity for the marital 

residence, creating a difference of $11,750.00. This proposed calculation, Michael 

argues, would permit each party to be awarded one-half of these marital assets, 

which is what the family court intended based on the overall decree. The family 

court declined to change this calculation when it ruled on Michael’s post-decree 

motion, stating that the overall distribution of the assets was equitable and that the 

balance would be upset if a portion of the distribution were to be changed.
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We agree with Michael that the family court’s calculation was not in 

keeping with its references to an equal division of the marital property. The court 

should have used either the total value of the equity and vehicles, or half of these 

values, to determine Michael’s half of those two categories of marital property, and 

then calculate his portion with an offset of the value of the three vehicles he was 

retaining. The total amount of the equity in the marital residence and the vehicles 

is $176,000.00, meaning that the parties’ portions should have been $88,000.00. 

Because Michael was retaining all of the vehicles, which had a value of 

$23,500.00, that amount would be offset from his portion. Therefore, he should 

have been apportioned $64,500.00, not $52,750.00. The court declined to revisit 

its calculation based upon Michael’s post-decree motion, and we hold that this 

constitutes an abuse of discretion, especially in light of a lack of findings to 

support an unequal division, and the portions of the orders dividing the marital 

assets must be vacated.

Next, Michael contends that the family court failed to consider the tax 

consequences of its division of his TESPHE account. The court based the division 

of the account on its flawed calculation of the vehicles and equity in the marital 

residence, and it therefore must be vacated. However, we shall review this 

argument to offer any direction necessary on remand. 
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Michael cites to Atkisson v. Atkisson, 298 S.W.3d 858 (Ky. App. 

2009), in support of his argument that the family court erred when it offset post-tax 

assets with his pre-tax retirement assets. While he was left with more of the 

TESPHE account, he stated that he would incur taxes in order to liquidate the 

account before he would be able to use this share of the marital estate or pay 

amounts to Jennifer or her attorney as ordered. This, he argues, would disrupt the 

intended equal division of marital property. 

In Atkisson, this Court stated:

In his second appeal, James contends that Kathleen 

filed the writs of garnishment and judgment lien before 

the compliance dates in the trial court’s judgment had 

passed. As a result of this premature filing, James states 

that he incurred substantial penalties and interest as a 

result of the garnishment against his Allstate pension 

account. James maintains that these expenses should 

come out of Kathleen’s share of the marital property 

since they were incurred as a result of her actions.

. . . .

But while Kathleen was within her rights to file the 

writs, we question the trial court’s decision to allow 

Kathleen to garnish the tax-deferred accounts. Because 

the trial court allowed the garnishment against these 

accounts, James states that he incurred 10% penalties for 

early withdrawal, plus additional taxes and fees. James 

contends that these penalties should be assessed against 

Kathleen’s share of the marital estate.

In the absence of a statutory exemption, taxdeferred accounts are subject to garnishment and 

judgment liens like any other account. However, the trial 
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court should consider the tax consequences of its division 

of marital property. See Broida v. Broida, 388 S.W.2d 

617, 621 (Ky. 1965); and Owens v. Owens, 672 S.W.2d 

67, 69 (Ky. App. 1984). Otherwise, the payor spouse’s 

share of the marital estate might be consumed by the 

taxes incurred to liquidate sufficient assets for the payee 

spouse’s share.

In this case, the trial court recognized that James 

would incur substantial penalties and taxes by allowing 

the garnishments; but the court concluded that James 

could have avoided these consequences by paying the 

judgments within the time frames provided in the 

judgments. Under the specific circumstances of this 

case, we disagree.

The trial court faulted James for his failure to 

submit a [Qualified Domestic Relations Order] QDRO by 

the February 25 deadline set out in the amended 

judgment. Although James failed to meet this deadline, it 

is clear from the record that James and his counsel made 

a good faith effort to do so. James submitted a QDRO to 

Kathleen’s counsel, who responded that a QDRO would 

not be necessary.

We agree with the trial court that James’s 

submission of the QDRO to the [sic] Kathleen’s counsel 

did not comply with the mandate set out in the judgment. 

However, the trial court made no effort to determine 

whether James had other accounts which could be 

garnished without incurring such drastic tax 

consequences. Furthermore, the trial court could have 

imposed additional attorney fees and costs for the delay. 

Additionally, of course, the amounts bear interest at the 

post-judgment rate from December 20, 2007.

By upholding the garnishment writs against the 

tax-deferred accounts, the trial court subjected James to a 

penalty which was far in excess of his breach. The 

garnishment writ converts a deferred distribution of 
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marital assets into a present-value distribution. The 

penalties and taxes imposed on James fundamentally 

alter the underlying allocation of marital assets. 

Consequently, we find that the trial court’s decision to 

uphold the writs amounted to an abuse of its discretion.

Since the trial court upheld the garnishment writs, 

James has presumably already incurred the penalties and 

taxes as a result of the early withdrawals. We agree with 

James that these additional expenses should be assessed, 

at least in part, against Kathleen’s portion of the marital 

estate. However, we also agree with the trial court that 

James bears some, if not substantial, responsibility for 

these penalties since he did not fully comply with the 

trial court’s orders. Therefore, we will remand this 

matter to the trial court for a determination of the amount 

of penalties and taxes incurred as a result of the 

garnishment and an appropriate allocation of this amount 

between the parties.

Atkisson, 298 S.W.3d at 865, 867-68.

Jennifer argues that Atkisson has no application to this case, and we 

agree. In that case, there were actual taxes, penalties, and interest that the husband 

had to pay due to the garnishment. Here, the court’s award did not require Michael 

to liquidate any of his assets and, therefore, he had not incurred any tax 

consequences. The court ordered the account to be divided pursuant to a QDRO in 

order to prevent the imposition of taxes, penalties, or interest. 

However, on remand, while the family court is not required to 

consider the tax consequences of offsetting post-tax assets from pre-tax assets, it 
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may do so if it decides that would be an appropriate consideration when it 

redivides the marital property.

Finally, Michael argues that the family court erred in including profit 

sharing bonuses in the marital estate that no longer existed at the time of the trial. 

He bases this argument on two reasons. First, he argues this part of the award 

arose from Jennifer’s untimely filed proposed findings that the court improperly 

permitted her to submit, which argument we reject. And second, that he had used 

these funds to pay for marital expenses and should not have to owe Jennifer any of 

the amount when the court declined to make Jennifer do the same thing with 

respect to the $20,000.00 she withdrew. Jennifer, on the other hand, states that 

during the trial, Michael admitted that he had received two profit sharing bonuses 

during the marriage, but after they had separated. He claimed at trial that he had 

used these funds for bills, but the family court found that he had been living with 

his parents, incurring virtually no expenses. Jennifer also argues that Michael 

failed to preserve this argument for our review, which we also reject.

As to the merits of the argument, we disagree with Jennifer’s assertion 

that the family court’s reference to Michael having virtually no expenses is in 

relation to what he spent the bonus money on. Rather, that reference by the family 

court is in the section of the order ruling on permanent maintenance. And we 

recognize that pursuant to the status quo order, Michael was required to pay the 
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parties’ mortgage, health and car insurance, and water bill. Because we are 

vacating the division of the marital assets, the court may revisit the division of the 

profit sharing bonuses on remand if it so chooses.

For the foregoing reasons, the orders of the Jefferson Family Court 

related to the division of marital property are vacated, and this case is remanded for 

further proceedings in accordance with this Opinion.

COMBS, JUDGE, CONCURS.

DIXON, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE 

OPINION.

BRIEFS FOR APPELLANT:

Justin R. Key

Jeffersonville, Indiana

BRIEF FOR APPELLEE:

Mary Rives Chauvin

Louisville, Kentucky