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Normandin v. Normandin

Court of Appeals of Kentucky

June 1, 2018



          BRIEFS FOR APPELLANT: Louis P. Winner Sarah M. Tate Louisville, Kentucky.

          BRIEF FOR APPELLEE: James L. Theiss James Daniel Theiss LaGrange, Kentucky.



          NICKELL, JUDGE.

         Laura R. Normandin (Laura) appeals from an order entered by the Oldham Circuit Court, Family Division, on February 2, 2016, denying in part and granting in part Laura's motions regarding calculation of maintenance and child support, division of marital property, and award of attorney's fees. She also appeals from the court's subsequent denial entered March 21, 2016, of her motions to alter, amend, or vacate and for additional findings of fact. After careful consideration, for the reasons set forth below, we affirm.


         The events of this case stem from Laura's dissolution of marriage action against the appellee, Scott W. Normandin (Scott). The parties were married in Madison County, Virginia, on January 25, 2004. The marriage resulted in the birth of four minor children. Laura filed for dissolution in November 2013. After Laura filed for divorce, the parties contemplated reconciliation for several months before proceeding to two failed mediations and ultimately going to trial on January 6, 2016. The trial court issued its findings of fact and conclusions of law on February 2, 2016.

         While the parties lived in Washington, D.C., Laura worked as a commercial real estate manager until 2005. Since then, Laura has primarily been a stay-at-home mother and homemaker. She had no substantial source of income outside of marital funds until she received an inheritance from the probate of her father's estate while these divorce proceedings were ongoing. She has received at least $350, 000 in assets from her father's estate so far and is expected to receive an additional $100, 000 from the estate's disposition of real property.

         Throughout most of the marriage, Scott was the sole income earner. He has worked for his current employer, Humana, since 2008. At the time of the divorce trial, he earned a base salary of $226, 096 per year as Chief Security Officer. He also earned bonuses and incentive-based income, including restricted stock units (RSUs). RSUs are earned at Humana's discretion based on prior years' performance, are subject to other restrictions, and are not available until all the restrictions lapse or occur as required under a three-year vesting schedule. For example, if Scott is no longer employed by Humana on the date of vesting, all the remaining RSUs would be forfeited.

         Scott admitted he anticipated receiving proceeds worth approximately $220, 000 when more of the RSUs were expected to vest eighteen days after the conclusion of the trial. However, he testified Humana is merging with another large health insurance company, making Scott's job outlook uncertain because he may lose his position at any time due to restructuring.

         In addition to Scott's other employment benefits, he also has a 401k retirement savings account. The total value of the account at the time of the trial was $499, 879. This account consists of funds derived both while working for Humana and his previous employers. Scott rolled his retirement funds from his premarital employment into his Humana account in 2009, and he claimed $77, 000 as the present nonmarital value of the account.

         The parties own an unimproved piece of real property located in Dubois, Wyoming, which they purchased prior to their marriage. Laura claims she paid the initial down payment on the property when they purchased it. Scott testified he reimbursed Laura for the down payment thereafter. Neither party provided documentation to support their testimonies.

         In its February 2, 2016, order, [1] the trial court found all proceeds from Scott's unvested RSUs were nonmarital property and did not include them in his income when calculating maintenance or child support. It designated the Wyoming property as marital, divided its value equally, and awarded possession to Scott. The trial court awarded Laura $1, 500 per month for forty-eight months in maintenance after considering the nonmarital inheritance she received, her portion of the marital property awarded, her ability to become employed, and her other financial resources. It also awarded $2, 199.60 per month for child support. Finally, after considering Laura's use of $18, 000 of marital funds to pay some of her attorney's fees, the trial court denied her request for additional reimbursement for them.

         After the trial court's February order was issued, both parties filed motions to alter, amend, or vacate and motions for additional findings of fact. This resulted in a second order issued on March 21, 2016.[2] Between the two orders in this case, the trial court successfully disposed of much of the marital estate, including: distributing the ownership and debt associated with several vehicles; assigning the parties' personal property; dividing the equity in the marital home, which was put up for sale; and apportioning the parties' bank accounts, credit cards, and other debts. However, many of the parties' motions were denied in the March order. This appeal followed.


         The standard of review for determinations of maintenance and child support is an abuse of discretion. Stipp v. St. Charles, 291 S.W.3d 720, 727 (Ky. App. 2009) (reviewing maintenance); Downing v. Downing, 45 S.W.3d 449, 454 (Ky. App. 2001) (regarding child support). The same standard applies to the award of attorney's fees because the determination is purely within the court's discretion. Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999) (citations omitted). An appellate court will not disturb the holdings or substitute its own judgment when the evidence supports the trial court's decision and it did not abuse its discretion when deciding a case. Combs v. Combs, 787 S.W.2d 260, 262 (Ky. 1990).

         In Smith v. Smith, 235 S.W.3d 1, 6 (Ky. App. 2006), this Court established a two-tiered standard of review for the division of marital property. Id. Under the first tier of the standard, conclusions of law are reviewed de novo. Id. The trial court must apply a statutory standard when classifying property as marital or nonmarital, which is a conclusion of law. Holman v. Holman, 84 S.W.3d 903, 905 (Ky. 2002). When applying this standard, the rebuttable presumption under Kentucky law is property acquired during a marriage will be classified as marital and the presumption must be rebutted by clear and convincing evidence. KRS[3]403.190(3). The clear and convincing standard requires the evidence substantially support the trial court's findings of fact. Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016). In the second tier of review, we defer to the trial court's findings of fact regarding the division of property and do not disturb those findings on appeal unless the court abuses its discretion. Id.

         KRS 403.190(2) defines marital property as any property acquired after the marriage begins (and its increase in value outside of any efforts of the parties during the marriage), which is not affected by one of the exceptions listed in the statute. Any property acquired after the marriage begins is presumed to be marital property unless the party who claims it as nonmarital can overcome the presumption. KRS 403.190(3). The burden of proof required is clear and convincing evidence. Barber, 505 S.W.3d at 755. The standard method of proving an asset is nonmarital is by a method of documentation called tracing. Sexton v. Sexton, 125 S.W.3d 258, 266 (Ky. 2004). However, as the trial court observed, the clear and convincing standard is not so rigid ...

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