Opinion
NO. 2017-CA-000682-MR NO. 2017-CA-000690-MR
12-21-2018
BETTY PATRICIA GREEN APPELLANT/CROSS-APPELLEE v. ALAN WAYNE MOBERLY APPELLEE/CROSS-APPELLANT
BRIEF FOR APPELLANT/CROSS-APPELLEE: J. Ross Stinetorf Lexington, Kentucky BRIEF FOR APPELLEE/CROSS-APPELLANT: Catherine Ann Monzingo Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LUCINDA CRONIN MASTERTON, JUDGE
ACTION NO. 12-CI-03447 OPINION
AFFIRMING IN PART AND REVERSING IN PART AND REMANDING
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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES. CLAYTON, CHIEF JUDGE: Betty Green appeals, and Alan Moberly cross-appeals, from the Fayette County Court's order dissolving the parties' marriage, awarding marital and non-marital property to the parties, dividing debt, and requiring maintenance payments by Alan to Betty. With regard to Betty's appeal, Appeal No. 2017-CA-000682-MR, we affirm. With regard to Alan's cross-appeal, Appeal No. 2017-CA-000690-MR, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
BACKGROUND
The parties were married in 1983 and after living separate and apart for four years, Betty filed a petition for dissolution of marriage in 2012. After a two-day trial, the trial court entered findings of fact, conclusions of law and a decree of dissolution on March 2, 2017. On March 10, 2017, Betty filed a motion to alter, amend or vacate, which the trial court denied. Betty filed a notice of appeal from that order and Alan filed a notice of cross-appeal.
The real property at issue in these appeals pertains to two family farm properties gifted to Alan before the parties' marriage and one residence purchased by Alan before the parties' marriage.
a. The Richmond Road and Whites Lane Properties
In 1974, Alan's parents conveyed to Alan and his sister each a one-quarter interest in a farm located on Richmond Road ("Richmond Road Property"). After the area began to develop, the family made the decision to sell the Richmond Road Property. In order to obtain a higher price, Alan and Betty's business, Kexco, LLC, performed some of the work, such as installing sewer and water services, lighting, roads, and curbs at the Richmond Road Property.
Thereafter, the Moberlys divided the Richmond Road Property into two parcels. One parcel was sold outright in 2004, while the other parcel was converted in an Internal Revenue Code (IRC) §1031 exchange for two properties located on Whites Lane ("Whites Lane Properties"). Alan retained a one-quarter interest in the Whites Lanes Properties. Upon the deaths of Alan's parents, Alan subsequently obtained their interests in the Whites Lane Properties.
Betty asserted a marital interest in the Whites Lane Properties based on the work performed on the Richmond Road Property by the couple's jointly-owned business. She further asserted a marital interest based on her own efforts, testifying that she had attended meetings with the city regarding zoning issues and met with lawyers regarding contracts and development. Finally, Betty argued that the parties' joint efforts to improve the Richmond Road Property, and therefore any increase in value therefrom, were transferred into the Whites Lane Properties through the IRC § 1031 exchange and were marital property. Betty provided no figures as to the fair market value of the Richmond Road Property at the time of the parties' marriage or the fair market value of the Whites Lane Properties at the time of the dissolution of the parties' marriage.
Another property at issue in these appeals involves a property on Tates Creek Road ("Tates Creek Property"), in which Alan's parents gifted Alan and his sister each a one-quarter interest in 1975. Both Alan and Betty acknowledged that there were no improvements made to the Tates Creek Property before or during the parties' marriage. The parties did not receive any income off the farm and did not pay any expenses for the farm, although Alan did help his father on the farm harvesting tobacco and hay. Betty again maintained that a portion of any increase in value of the Tates Creek Property was marital in nature because she allowed Alan to work on a non-marital property to the exclusion of performing work that would benefit the marriage. Again, Betty provided no figures as to the fair market value of the Tates Creek Property at the time of the parties' marriage or the fair market value of the Tates Creek Property at the time of the dissolution of the parties' marriage.
The trial court found that, before considering Betty's argument that the joint efforts of the parties had converted a portion of Alan's non-marital interests into marital property, the Court needed proof that the properties had actually increased in value. However no evidence regarding value or an increase in value was given. Therefore, the trial court found the Whites Lane Properties and the Tates Creek Property to be non-marital and assigned Alan all of the interest in the properties.
b. The Kentucky Avenue Property
The other property at issue in these appeals is located on Kentucky Avenue ("Kentucky Avenue Property"), which was purchased by Alan in 1979 for $54,500.00. The terms of the contract required a $20,500.00 down payment, monthly payments of $311.02 for ten years, and a balloon payment due after ten years.
The parties acknowledged that Alan paid the $20,500.00 down payment prior to the marriage. Moreover, Alan alone paid the monthly payments of $311.02 for three years and five months prior to the marriage. All other monthly payments after the parties' marriage came from the parties' joint account, resulting in a total equity gain of $2,213.00 until the remaining balance was due. The balance of $31,787.54 was paid off in May 1990. Alan testified that his mother gave him $31,700.00 to pay off the home, while Betty testified that she withdrew $18,000.00 from her non-marital retirement to help pay off the home.
Beginning in 1994, the parties opened a home equity line of credit, using the Kentucky Avenue Property as collateral. The line of credit was used for marital expenses, including those expenses related to the parties' marital excavation business. The parties continued to reside in the home until Betty moved in July 2008, with Alan moving to his parents' house a few years later.
In May 2015, the bank foreclosed on the property and scheduled it to be sold. Betty's sister, Suzanne Green, loaned Betty money to pay the debt owed to the bank in the amount of $49,632.33. At the trial, Betty testified that she believed the Kentucky Avenue property was worth $125,000.00, but neither party obtained an appraisal of the home.
In his proposed findings, Alan asked the trial court to restore him to the $20,500.00 down payment he made prior to the marriage, to thirty-four percent of the $2,213.00 (or $752.42) of the equity from the pre-marital monthly payments on the note, and to the $31,700.00 land contract payoff on the home that he claimed as a non-marital gift from this mother, and then to equally divide the remaining equity between Alan and Betty.
The court found that Alan had not met his burden of proof regarding any non-marital interests in the Kentucky Avenue Property, concluding that there was no clear and convincing proof about the source of the payoff funds of $31,787.54, which might have been a gift from Alan's mother or might have been from Betty's retirement funds, or a combination of both. Significantly, the trial court found that the character of the property became marital after the parties continued to use the property as collateral for marital expenses, all of which were repaid from marital funds. As a result, the trial court found that the Kentucky Avenue Property was marital property and awarded Betty a one hundred percent interest in the Kentucky Avenue Property, subject to the liens and debts associated therewith.
Neither party introduced expert testimony concerning the value of the Kentucky Avenue Property. Betty testified that she thought it was worth $125,000.00, and the trial court noted that the Fayette County Property Valuation Administrator (PVA) listed the fair cash value of the property as $135,000.00 in its findings of fact. The trial court used Betty's testimony as to the value of the Kentucky Avenue Property to determine the property's equity, noting that the condition of the house had deteriorated substantially after Alan moved from the house. The trial court subtracted the remaining liens and debts from the $125,000.00 value, resulting in an equity award to Betty of $48,525.99.
Additionally, the trial court made further findings concerning the division of debt and maintenance that are at issue in these appeals, as hereafter discussed.
c. Maintenance
The trial court ordered Alan to pay Betty $474.50 per month as maintenance. In its award of maintenance, the trial court found that Betty was a 66-year old woman employed at her highest current level given her age, health and education. Further, the court found that Betty earned $1,083.00 per month from her employment and $990.00 in social security payments each month. Betty provided evidence that her reasonable monthly expenses were $2,547.50, resulting in a shortfall each month of $474.50.
The trial court further found that over the past few years Alan's parents had been paying his expenses for taking care of them, that Alan did not have any health issues that would prevent him from being fully employed, and that he had skills operating heavy equipment and farming. Additionally, the trial court found that Alan had substantial non-marital property. Therefore, the trial court found that Betty had met the burden of showing that she was entitled to an award of maintenance from Alan of $474.50 per month.
d. Division of Debt to Suzanne Green
An additional issue before the trial court was the division of a debt incurred by Betty to her sister Suzanne. At the first time during trial, Suzanne testified that she had loaned Betty $81,060.43 for living expenses since 2008 by way of Betty withdrawing money from an account Suzanne funded for Betty's use. Betty had not asserted a loan from Suzanne in either her final verified disclosure statement or her updated disclosure statement presented at trial. Further, Betty did not submit any documents establishing the alleged loan, and Alan's name was not on the account from which Betty withdrew funds.
With no explanation, the trial court assigned the entire debt to Betty. In its order overruling Betty's motion to alter, amend or vacate, the trial court stated that, although the debt was "technically" a marital debt, the court felt that Betty should be assigned the entire debt because it was poorly documented.
ISSUES
In her appeal, Betty claims that (1) the joint efforts of the parties in developing the Richmond Road Property, which was subsequently exchanged for the Whites Lane Properties, increased the value of Alan's non-marital interest in those properties and that the increase should be considered marital property, (2) the value of Alan's non-marital interest in the Tates Creek Property was increased because of Alan's work on the Tates Creek Property to the exclusion of performing work that would benefit the marriage, and therefore such increase should be considered marital property, and (3) the loan from Suzanne to Betty was a marital debt that was not divided in just proportion. In his cross-appeals Alan claims that (1) the trial court's failure to restore him to any of his non-marital interest in the Kentucky Avenue Property was error because he had an undisputed non-marital contribution, (2) the trial court erred in allowing Betty to provide the valuation of the Kentucky Avenue Property and (3) the trial court's award of maintenance to Betty was erroneous.
ANALYSIS
a. Determination of Marital and Non-Marital Property
When the division of property is at issue, the classification of that property by the trial court as marital or non-marital is a threshold task. Sexton v. Sexton, 125 S.W.3d 258, 264-65 (Ky. 2004). Kentucky Revised Statute (KRS) 403.190(1) instructs the trial court to first classify each item of property as marital or non-marital, and then assign each spouse the non-marital property belonging to such spouse. Snodgrass v. Snodgrass, 297 S.W.3d 878, 887 (Ky. App. 2009).
All property acquired during the marriage is presumed to be marital property unless shown to fall under one of the exceptions contained in KRS 403.190(2). Sexton, 125 S.W.3d at 266. KRS 403.190(2) classifies non-marital property as:
(a) Property 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;Of course, "[a]n item of property will often consist of both nonmarital and marital components, and when this occurs, a trial court must determine the parties' separate nonmarital and marital shares or interests in the property on the basis of the evidence before the court." Travis v. Travis, 59 S.W.3d 904, 909 (Ky. 2001). When the value of a party's non-marital property has increased during the marriage, it is the burden of that party to prove that the appreciation is non-marital. Id. at 910.
(b) Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(c) Property acquired by a spouse after a decree of legal separation;
(d) Property excluded by valid agreement of the parties; and
(e) The increase in value of property acquired before the marriage to the extent that such increase did not result from the efforts of the parties during marriage.
A trial court's determination of whether a particular item of property is non-marital or marital is subject, on appeal, to "a two-tiered scrutiny." Smith v. Smith, 235 S.W.3d 1, 6 (Ky. App. 2006). A trial court's factual findings are reviewed for clear error. Id. See also Kentucky Rules of Civil Procedure (CR) 52.01. A finding of fact not supported by substantial evidence, or evidence "sufficient to induce conviction in the mind of a reasonable person[,]" is deemed clearly erroneous. Rearden v. Rearden, 296 S.W.3d 438, 441 (Ky. App. 2009). We grant a trial court's factual findings appropriate deference, as the trial judge is in the best position to judge the credibility of the witnesses and to weigh evidence. CR 52.01. We review the trial court's ultimate legal conclusions classifying items as marital or non-marital de novo. Smith, 235 S.W.3d at 6.
With these standards in mind, we first address the parties' claims of error regarding the specific real properties at issue in these appeals.
(1) Richmond Road/Whites Lane Properties & Tates Creek Property
The parties acknowledged that Alan received his interests in the Richmond Road Property and the Tates Creek Property prior to the parties' marriage. Property acquired prior to the date of marriage is a non-marital asset. KRS 403.190. Moreover, the parties acknowledged that Alan's interest in the Whites Lane Properties was obtained from an IRC § 1031 exchange for the Richmond Road Property. Property acquired during a marriage in exchange for property acquired before the marriage is still a non-marital asset. KRS 403.190(2)(b).
At issue in this situation is whether there was an increase in the value of the properties during the marriage resulting from the efforts of the parties during the marriage, which would presumptively be a marital asset to divide. KRS 403.190(2)(e); see also Goderwis v. Goderwis, 780 S.W.2d 39, 40 (Ky. 1989) (if the value of an interest in non-marital property increases during the marriage of the parties because of the joint efforts of the parties, then the amount of such increase is a marital asset to be equitably divided by the trial court). As stated in Jones v. Jones, 245 S.W.3d 815, 819 (Ky. App. 2008):
To properly calculate the increase in value attributed to marital improvements upon property acquired before marriage, the court must subtract the fair market value of the property at the time of dissolution without marital improvements from the fair market value of the property at the time of dissolution with marital improvements. The difference between such fair market values yields the increase in value attributed to marital improvements upon the property.(Internal citations omitted).
In the case sub judice, the trial court found that no evidence was provided concerning an increase in the value of the Richmond Road Property/Whites Lane Properties or the Tates Creek Property during the marriage, and that the court needed specific proof that the properties actually increased in value in order to determine whether there was any asset to categorize as marital or non-marital.
Betty argues that the documents establishing the value the Moberly family received from the IRC § 1031 tax exchange of the Richmond Road Property for the Whites Lane Properties are sufficient to determine an increase in value for the applicable properties. We disagree. The documents offered by Betty only establish the parcels' fair market value as of the date of those transactions, not the change in value from the date of the marriage to the dissolution of the marriage. If no evidence of an increase in the value of non-marital property is provided, there was no property interest for the trial court to characterize as marital or non-marital.
Moreover, while Travis stands for the proposition that it is the burden of the party arguing that any appreciation in value is non-marital, the party claiming an interest in a specific property or asset has the burden of proving the existence of such a property or asset. That burden was not met. Therefore, we affirm the trial court's decision to restore Alan to his non-marital interests in the Whites Lane Properties and the Tates Creek Property.
(2) Kentucky Avenue Property
In his cross-appeal, Alan argues that the trial court should have restored Alan to his non-marital interest in the Kentucky Avenue Property because he made a pre-marital down payment of $20,500.00 on the Kentucky Avenue Property, made pre-marital monthly payments, and used money gifted to him by his mother to make the final balloon payment of $31,787.54. Instead of assigning any non-marital interest in the Kentucky Avenue Property to Alan, the trial court found that using the parties' use of the home as collateral for subsequent indebtedness, including a home equity line of credit, including the parties' use of marital funds to re-pay such indebtedness in excess of the original price, converted the entire property to marital property.
Kentucky courts use the source of funds method for determining the character of property. Travis, 59 S.W. 3d at 909. Unlike other jurisdictions, Kentucky courts have refused to apply the doctrine of transmutation, which occurs when separate property is treated in such a manner as to evidence an intention that it converts to marital property. Sexton, 125 S.W.3d at 270. (Footnote omitted.) Although a trial court holds discretion in the division of marital property, "the classification of property as nonmarital and assignment of such nonmarital property to its owner is not open to the court's discretion." Jones, 245 S.W.3d at 817-18. Moreover, the use of property for collateral does not extinguish a party's non-marital interest. See Atkisson v. Atkisson, 298 S.W.3d 858, 863 (Ky. App. 2009) (wife was restored to her non-marital contribution, although considerably reduced due to the level of debt on the property).
Despite the uncontroverted evidence that Alan had contributed non-marital funds toward the purchase of the Kentucky Avenue Property in the form of the $20,500.00 down payment and the monthly payments on the land contract prior to marriage, the trial court awarded the entirety of the property, and all the equity, to Betty. The trial court appeared to use the doctrine of transmutation as its reasoning, explaining that "the character of the property became marital after the parties continued to use the property as collateral for marital expenses, all of which were repaid from marital funds in excess of the original purchase price." This decision goes against previous decisions declining to follow the doctrine of transmutation.
We find this situation to be almost identical to the one in Rearden, where the husband made a down payment prior to the wedding on a home that subsequently became the marital home. Rearden, 296 S.W.3d at 441-42. A panel of this Court found that the trial court erred in classifying the entire property as marital, as the husband's down payment was "an identifiable portion of the home's purchase price and it was made prior to the wedding." Id. at 442. In this case, because the trial court found that Alan had made non-marital contributions to the purchase of the Kentucky Avenue Property, the court was required to award him such non-marital interest in the property. Id. See also Fehr v. Fehr, 284 S.W.3d 149, 158 (Ky. App. 2009) ("[P]arties are then awarded their nonmarital interests without deference to other considerations. The court has no discretion to divide nonmarital property but only to restore the property to the contributing party.").
We further note that the trial court erred when it did not trace the source of the funds of the $31,787.54 balloon payment. The record indicates that either a large portion of that payment was made from Betty's non-marital retirement funds or from a non-marital gift from Alan's mother. Either way, the trial court must determine the extent to which the balloon payment was made with non-marital funds. Therefore, we reverse and remand for further proceedings consistent with this opinion on this issue.
b. Valuation of Kentucky Avenue Property
Alan further argues that the trial court improperly determined the value of the home based on Betty's testimony. A trial court's finding with respect to the value of a marital asset may not be disturbed unless clearly erroneous. Purdom v. Purdom, 498 S.W.2d 131, 133 (Ky. 1973). Clear error cannot be found when the trial court's valuation of marital property is within the range of estimates provided by competent testimony. Roberts v. Roberts, 587 S.W.2d 281, 283 (Ky. App. 1979). A party to a dissolution proceeding can provide competent testimony regarding the value of the parties' real property if he or she provides "some qualifications for giving an opinion[.]" Id. If the parties' evidence is "grossly insufficient" regarding the value of the property at issue, "the trial court should either order this proof to be obtained, appoint his own experts to furnish this value, at the cost of the parties, or direct that the property be sold." Jones, 245 S.W.3d at 820 (quoting Robinson v. Robinson, 569 S.W.2d 178, 180 (Ky. App. 1978), overruled on other grounds by Brandenburg v. Brandenburg, 617 S.W.2d 871, 873 (Ky. App. 1981)).
Here, the evidence on the value of the property was not grossly insufficient. Although Betty was not necessarily qualified to testify as to the value of the home, the trial court also found that the PVA established the fair cash value at $135,000.00, and that there was evidence that the condition of the home had significantly deteriorated. In his brief, Alan claims that the PVA value is $185,000.00, but offers no concrete evidence that this is the case other than vague testimony from Betty's sister Suzanne that she remembered a conversation that the PVA value was $180,000.00. As stated in Turley v. Turley, 562 S.W.2d 665, 667 (Ky. App. 1978), "[c]ertainly, we cannot say that the value assigned was [incorrect or] excessive when the complaining party offered no evidence ...." Therefore, the trial court's conclusion that the home was worth $125,000.00 was not clearly erroneous.
c. Division of Debt
Betty further claims that the marital debt of the parties was not divided in just proportions pursuant to KRS 403.190(1). Here, the trial court found that the loan from Suzanne to Betty in the amount of $81,060.43 may "technically" be a marital debt, but due to the poor documentation the court assigned responsibility of such debt to Betty. Issues pertaining to the assignment of debts incurred during the marriage are reviewed under an abuse of discretion standard. Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001), overruled on other grounds by Smith v. McGill, 556 S.W.3d 552, 2018 WL 4627259 (Ky. 2018).
Unlike marital property, the Kentucky Supreme Court has noted that "there is no statutory authority for assigning debts" in a dissolution action, "[n]or is there a statutory presumption as to whether debts incurred during the marriage are marital or nonmarital in nature." Id. Further, there is no presumption that debts must be divided equally or in the same proportion as the marital property. Id. Rather, debts acquired during the marriage "are traditionally assigned on the basis of such factors as receipt of benefits and extent of participation, whether the debt was incurred to purchase assets designated as marital property, and whether the debt was necessary to provide for the maintenance and support of the family." Id. (internal citations omitted).
Here, we cannot say that the trial court's decision to assign the entire debt to Betty was arbitrary or an abuse of discretion due to the lack of documentation and the evidence of Alan's general lack of participation in or receipt of benefits from the loan. This situation is similar to the one in Smith, where a husband pointed to nothing specific in the record to show that his wife was ever obligated to repay an amount, such as a promissory note signifying such obligation, and no facts were produced showing that the wife was aware of the extent or nature of the loan. Smith, 235 S.W.3d at 15. A panel of this Court found that the trial court did not abuse its discretion in finding that only the husband was required to pay the loan. Id. Therefore, we affirm the trial court's decision to assign the entirety of the loan to Betty.
d. Maintenance
Alan argues that the trial court's decision to award Betty maintenance was clearly erroneous and an abuse of discretion. As stated in Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003), "[w]hile the award of maintenance comes within the sound discretion of the trial court, a reviewing court will not uphold the award if it finds the trial court abused its discretion or based its decision on findings of fact that are clearly erroneous." An appellate court is not permitted to "substitute its own judgment for that of the trial court on the weight of the evidence, where the trial court's decision is supported by substantial evidence." Combs v. Combs, 787 S.W.2d 260 (Ky. 1990).
The determination of maintenance is governed by KRS 403.200(1)(a)-(b), which provides:
[T]he court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(b) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
Here, the trial court found that, since Betty had re-entered the job market after being a stay-at-home parent for fourteen years, and given her age, health and education, that she was currently fully employed at her highest level. Moreover, Betty introduced evidence, and the trial court found, that her reasonable expenses were $2,547.50 and her income was $2,073.00, thus leaving a shortfall of $474.50. Therefore, the trial court found that Betty was unable to support herself through appropriate employment. Moreover, in this case, although Betty was restored to her interest in her current home, and she will presumably have some equity in the Kentucky Avenue Property, Betty's real estate interests are not sufficient to maintain her, and she will have to depend on her monthly income to a significant degree to sustain her. Therefore, Betty met the threshold requirements for maintenance under KRS 403.200(1).
Once a spouse meets the threshold for maintenance under KRS 403.200(1), the trial court is directed to order maintenance:
[I]n such amounts and for such periods of time as the court deems just, after considering all relevant factors including:KRS 403.200(2). While KRS 403.200 seeks to enable the spouse receiving maintenance to support him or herself in the current workforce, "'in situations where the marriage was long term, the dependent spouse is near retirement age, the discrepancy in incomes is great, or the prospects for self-sufficiency appears dismal,' our courts have declined to follow that policy and have instead awarded maintenance for a longer period or in greater amounts." Powell, 107 S.W.3d at 224 (quoting Clark v. Clark, 782 S.W.2d 56, 61 (Ky. App. 1990)).
(a) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, and the physical and emotional condition of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
In this case, the trial court considered Alan's living expenses before determining his maintenance obligation, including the fact that his parents paid his expenses for living with them and taking care of them. The trial court also took into account Alan's substantial non-marital assets, as well as the fact that the couple had been married for 33 years. Accordingly, the trial court did not abuse its discretion in ordering a reasonable maintenance award for Betty.
CONCLUSION
For the foregoing reasons, in Betty's appeal, No. 2017-CA-000682-MR, we affirm and in Alan's cross-appeal, No. 2017-CA-000690-MR, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT/CROSS-
APPELLEE: J. Ross Stinetorf
Lexington, Kentucky BRIEF FOR APPELLEE/CROSS-
APPELLANT: Catherine Ann Monzingo
Lexington, Kentucky