RENDERED: APRIL 30, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2017-CA-1691-MR

JULIA LEIGH LIVERS APPELLANT 

v. 

APPEAL FROM MARION CIRCUIT COURT

HONORABLE SAMUEL TODD SPALDING, JUDGE

ACTION NO. 15-CI-00118 

BYRON RANDALL LIVERS APPELLEE 

AND NO. 2017-CA-1721-MR

BYRON RANDALL LIVERS CROSS-APPELLANT 

v. 

CROSS-APPEAL FROM MARION CIRCUIT COURT

HONORABLE SAMUEL TODD SPALDING, JUDGE

ACTION NO. 15-CI-00118 

JULIA LEIGH LIVERS CROSS-APPELLEE 
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OPINION

AFFIRMING

**   **  **

BEFORE: JONES, LAMBERT, AND K. THOMPSON, JUDGES.

LAMBERT, JUDGE: Julia Leigh Livers appeals from the August 25, 2017, order 

of the Marion Circuit Court, arguing that the circuit court erred in its division and 

valuation of marital property and its holding that Julia was not entitled to 

attorney’s fees. Byron Randall Livers cross-appeals from the same order, arguing 

that the circuit court erred in its valuation of the non-marital interest of Julia’s 

retirement account. After careful consideration, we affirm on appeal and crossappeal.

The parties were married in 2004. They share one son, born in 2007.1 

They separated in 2014, and Byron filed for dissolution of marriage on April 23 of 

the following year. Several hearings were held between then and the final hearing, 

held on July 27, 2017. The circuit court entered its order of dissolution on July 31, 

2017, and its findings of fact and order on August 25, 2017.

2

 Both parties filed 

motions to alter, amend, or vacate pursuant to Kentucky Rule of Civil Procedure 

 

1

 Byron has two children (a son and a daughter) from his previous marriage. His first wife is 

deceased.

2

 After Julia complained that she did not timely receive the August 25, 2017, order, the circuit 

court entered an order decreeing it, nunc pro tunc, to be entered on September 7, 2017.
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(CR) 59.05. The circuit court order ruling on the motions was entered on 

September 22, 2017, after which the appeal and cross-appeal were filed.

3

 

We begin by stating the standard of reviewing an order allocating 

property and resolving other issues between parties dissolving their marriage. CR 

52.01 provides the general framework for the circuit 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 

“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 

 

3

 This matter was held in abeyance from May 31 to November 11, 2018.
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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)).

KRS4 403.190 provides for the assignment and division of property and provides in 

relevant part as follows:

(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:

 

4

 Kentucky Revised Statutes.
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(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[.]”

Julia first asserts that the circuit court abused its discretion in failing 

to require Byron to trace the funds in his children’s bank accounts to prove that the 

increase in value was nonmarital. We disagree with this contention. Byron 

testified that the children’s bank accounts were funded with social security 

payments received as benefits from the death of his first wife. Julia offered no 

evidence to rebut this testimony. We can find no error in the circuit court’s 

allocation of this property, including the growth during the marriage between 
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Byron and Julia, as belonging to Byron’s children from his first marriage. CR 

52.01; McVicker, 461 S.W.3d at 415.

Julia likewise insists that the circuit court erred in failing to assign an 

increase to the value of the parties’ home. Julia concedes that Byron owned the 

home, free of debt, prior to her marriage to him, and that the home itself was thus 

nonmarital. She maintains, though, that the property increased significantly in 

value during the marriage and that she was denied the opportunity to have the 

property appraised to prove this assertion. 

Again, we find no error. The parties had been separated since 2014 

and were litigating the division of assets for nearly three years when the final 

hearing was held. Julia had ample time to gather the information she needed to 

meet her burden of proving her theory of the home’s current market value. Simply 

speaking to realtors (none of whom was called to testify) and doing internet 

research was not sufficient evidence to convince the circuit court of Julia’s asserted 

value. As the circuit court stated, Julia “did not produce any expert testimony 

concerning the value of this residence and admitted she has never bought or sold a 

home previously.” 

The circuit court found that there was a $5,000.00 increase in the 

value of the residence. It included the increase in value in Byron’s list of assets 

received and was used in the circuit court’s calculation of equalizing the 
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allocations to each party. These findings are supported by substantial evidence, 

and we decline to disturb them. Asente, 110 S.W.3d at 354.

The unimproved property (42 acres, purchased by the parties for 

$76,000.00) and the Wyndham timeshare (purchased for $41,000.00, with 

$14,000.00 still owed at time of dissolution) were ordered sold by the circuit court, 

with the net proceeds to be divided equally. We see no error in that decision. Id.

We will not address the circuit court’s findings regarding Byron’s 

businesses other than to say that, once again, there was substantial evidence of 

record to support the circuit court’s decision and, thus, we affirm it. Id.

Julia next argues that the circuit court erred in denying her an award 

for attorney’s fees. In this vein, Julia states that the circuit court erred in its 

interpretation of KRS 403.220 (“Costs of action and attorney’s fees”). This 

statute’s wording indicates that the award is within the circuit court’s discretion: 

The court from time to time after considering the 

financial resources of both parties may order a party to 

pay a reasonable amount for the cost to the other party of 

maintaining or defending any proceeding under this 

chapter and for attorney’s fees, including sums for legal 

services rendered and costs incurred prior to the 

commencement of the proceeding or after entry of 

judgment. The court may order that the amount be paid 

directly to the attorney, who may enforce the order in his 

name.

(Emphasis added.) We therefore review the decision of whether to award 

attorney’s fees for abuse of the circuit court’s discretion. Andrews v. Andrews, 611 
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S.W.3d 271, 275 (Ky. App. 2020) (citations omitted). “[W]e find no abuse of 

discretion in the [circuit] court’s decision not to award [Julia] any fees or costs 

based upon her argument that there was a disparity of financial resources.” 

Herbener v. Herbener, 587 S.W.3d 343, 355 (Ky. App. 2019). 

Julia lastly argues that the circuit judge should have disqualified 

himself “when Byron’s prior counsel was employed as his law clerk.” KRS 

26A.020 requires Julia to have filed “with the circuit clerk [her] affidavit that the 

judge will not afford [her] a fair and impartial trial[.]” The record contains no such 

affidavit. Furthermore, the circuit court sought an advisory opinion from the 

Judicial Ethics Commission in which the JEC stated that no conflict would be 

deemed to have occurred if Byron’s former counsel did not have access to the 

parties’ files or any of the discussions pertaining to this case during the course of 

his employment with the circuit court. Julia points to nothing in the record which 

indicates that anything other than strict adherence to this advisory opinion has 

taken place. “We find no error in the circuit court’s refusal to recuse in this 

matter.” Wilson v. Askew, 568 S.W.3d 375, 384 (Ky. App. 2019).

We next turn to Byron’s sole argument on cross-appeal, namely, that 

the circuit court erred in its valuation of Julia’s nonmarital interest in her 

retirement account. Specifically, Byron is asserting that the increase in value, 

during the marriage, of Julia’s retirement account should have been apportioned as 
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marital property and divided accordingly. The circuit court did apportion a marital 

contribution of $12,976.90. It then factored in that amount toward the growth in 

the account and assigned a marital value of $27,252.38. 

This increase in value was included in Julia’s list of assets received 

and was used in the circuit court’s calculation of equalizing the allocations to each 

party. This finding is supported by substantial evidence, and we decline to disturb 

it. Asente, 110 S.W.3d at 354.

The judgment of the Marion Circuit Court is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT/

CROSS-APPELLEE:

Dawn L. McCauley

Lebanon, Kentucky

BRIEF FOR APPELLEE/

CROSS-APPELLANT:

Joseph R. Stewart

Lebanon, Kentucky