APPEAL FROM OLDHAM FAMILY COURT HONORABLE TIMOTHY E. FEELEY, JUDGE ACTION NO. 10-CI-01260
BRIEF FOR APPELLANT: Steven J. Kriegshaber Louisville, Kentucky
BRIEF FOR APPELLEE: Scott E. Karem Louisville, Kentucky
REPLY BRIEF FOR APPELLANT: Steven J. Kriegshaber Lauren Meschler Louisville, Kentucky
BEFORE: LAMBERT, MOORE, AND VANMETER, JUDGES.
OPINION REVERSING AND REMANDING
Michelle Mattingly (formerly Fidanza) has appealed from the portion of the Oldham Family Court's findings of fact, conclusions of law, and final decree designating a portion of the UBS financial accounts belonging to her and her former husband, John Francis Fidanza III, as non-marital, as well as from the family court's order denying her motion to alter, amend, or vacate that order. We have carefully considered the record and the parties' arguments, and we agree with Michelle that the family court failed to make sufficient findings of fact to support its decision. Therefore, we reverse the family court's judgment and remand for further proceedings.
Michelle and John were married on May 26, 1989, in New York, and four children were born of the marriage. They separated in November 2010. John filed a petition to dissolve the marriage on December 17, 2010, and requested that the court restore all non-marital property to the parties, equitably divide the marital property and debt, and award him sole custody of their two minor children. John lived in Louisiana and was employed as the Director of Behavioral Health for Southeast Community Health Systems, while Michelle continued to live in Prospect, Kentucky, and worked part-time for her catering business. In her answer, Michelle requested sole custody of the minor children. In his financial disclosure, John claimed in excess of $126, 700.00 in cash that he had inherited from his father as non-marital property. During the marriage, the parties had several accounts through UBS Financial Services, Inc. (collectively, "UBS Accounts"), including a joint cash management account ("joint CMA") and John's two Individual Retirement Account ("IRA") accounts.
By order entered January 7, 2011, the family court permitted each party to receive $20, 000.00 from the joint CMA, noting that each party was to pay his or her own living expenses from these funds and that $5, 000.00 of each $20, 000.00 disbursement was to go to the parties' attorney fees. Later that month, the court entered an order providing that the parties would share joint custody of the minor children. John would provide the primary residence for their son, and Michelle would provide the primary residence for their daughter. In March, the court ordered John to pay Michelle $1, 800.00 per month in pendente lite maintenance beginning April 1, 2011. On May 11, 2011, Michelle requested another advancement from the joint CMA in the amount of $15, 000.00; $10, 000.00 was to pay for marital debt and $5, 000.00 for attorney fees. The court permitted her to have $4, 000.00. By order entered June 15, 2011, the court permitted Michelle to have a final allocation of $6, 000.00 from the joint CMA.
The court held a case management conference in June 2011, and by order entered June 16, 2011, the family court entered a limited decree of dissolution dissolving the parties' marriage and reserving all other issues. The same day, the family court entered a separate order related to the matters discussed at the case management conference and scheduled a final trial on all unresolved issues for later that year. The court later permitted the costs of their daughter's private school tuition for her senior year, which was in excess of $10, 000.00, to be paid out of the joint CMA.
The court held a trial on October 5, 2011, and one of the witnesses to testify was David Friedman, the parties' financial advisor at UBS Corporate Financial Services. He had been the parties' advisor since June 24, 2004, when the accounts were opened. Mr. Friedman testified that the parties had four accounts: the joint CMA, which had a balance of $65, 034.80 at the end of August 2011, and $53, 181.49 at the end of September; John's traditional IRA, which had a current balance of $105, 641.00; John's simple IRA, which had a current balance of $65, 171.95; and Michelle's IRA, which had a current balance of $422.00. There had not been any contributions into either of John's IRAs since 2007. In January 2008, the balance in the joint CMA had been $315, 354.52. Mr. Friedman testified that between $117, 000.00 and $118, 000.00 had been deposited in the joint CMA in May 2007; that amount represented funds that had been transferred from John's father's IRA to him as an inheritance. As of April 30, 2007, prior to the deposit of the inherited funds, the joint CMA had a balance of $242, 844.00. The only other significant deposit into that account was a $37, 465.00 deposit in August 2007. When asked about how the account dwindled to its current balance of approximately $60, 000.00, Mr. Friedman stated that there had been significant withdrawals on a regular basis from 2008 to the current date and that the account had been affected negatively by the drop in the stock market in 2008. Mr. Friedman and John discussed the deposit of the approximate $118, 000.00 into the joint CMA; Mr. Friedman had not recommended depositing that into the joint account, but had suggested that it should be kept in a separate account in John's name as it was inherited money. John directed that it be deposited into the joint CMA.
Following the trial, Michelle filed her proposed findings of fact and conclusions of law. Related to the UBS Accounts, Michelle set forth the evidence and testimony introduced at trial. She argued that John had not established his claims of a non-marital interest in any of the UBS Accounts, that the assets in the IRAs did not include any co-mingled funds, and requested that all four accounts be deemed marital and divided between the parties.
In his post-trial memorandum, John addressed the three separate UBS Accounts; namely, the joint CMA and his two IRAs. Collectively, he stated that the three accounts totaled $248, 508.74 as of August 31, 2011. He requested that the amount of his inheritance, $117, 873.12, be restored to him as non-marital property because he had demonstrated that the UBS Accounts had never fallen below the amount transferred into them as a result of his inheritance. He argued that he did not have to trace these funds with mathematical certainty. He also argued that the court should credit him from the marital portion of the UBS Accounts to equalize payments given to Michelle and other amounts paid for her.
On February 15, 2012, the family court entered its findings of fact, conclusions of law, and final decree, in which it ruled on the remaining contested issues, including child support, health and life insurance, real property, personal property, automobiles, taxes, debt, maintenance (John was ordered to pay Michelle $2, 500.00 per month for 36 months, then $1, 500.00 per month for an additional 24 months), and attorney fees (John was ...