Julia Leigh Livers v. Byron Randall Livers

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NOT TO BE PUBLISHED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
APPEAL FROM MARION CIRCUIT COURT
v. 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
CROSS-APPEAL FROM MARION CIRCUIT COURT
v. HONORABLE SAMUEL TODD SPALDING, JUDGE
ACTION NO. 15-CI-00118
JULIA LEIGH LIVERS CROSS-APPELLEE
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 cross-
appeal.
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/ BRIEF FOR APPELLEE/
CROSS-APPELLEE: CROSS-APPELLANT:
Dawn L. McCauley Joseph R. Stewart
Lebanon, Kentucky Lebanon, Kentucky
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