Dall v. Dall

• Court: Kentucky Court of Appeals
• Writing for the Court: JONES, A., JUDGE:
• Docket Number: 2024-CA-0003-MR
• Decision Date: 13 December 2024
• Citation: Dall v. Dall, 2024-CA-0003-MR (Ky. Ct. App. Dec 13, 2024)
• Parties: MARCIA ANN DALL APPELLANT v. ROGER WAYNE DALL; LOUIS P. WINNER; AND MICHELLE L. EISENMENGER APPELLEES

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MARCIA ANN DALL APPELLANT v. ROGER WAYNE DALL; LOUIS P. WINNER; AND MICHELLE L. EISENMENGER APPELLEES

No. 2024-CA-0003-MR

Court of Appeals of Kentucky

December 13, 2024

NOT TO BE PUBLISHED

APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE BRYAN D. GATEWOOD JUDGE ACTION NO. 20-CI-500458

BRIEFS FOR APPELLANT: Jonathan T. Salomon, E. Lee Veazey, John S Lueken

BRIEF FOR APPELLEE: Paul Hershberg, Michelle Eisenmenger, Louis P Winner.

BEFORE: CALDWELL, A. JONES, AND TAYLOR, JUDGES.

OPINION

JONES, A., JUDGE:

Marcia Dall appeals from the findings of fact, conclusions of law, and decree of dissolution entered by the Jefferson Family Court. After careful review, we affirm in part, reverse in part, and remand for proceedings consistent with this Opinion.

I. Factual and Procedural Background

Marcia and Roger Dall married in 1984. Marcia's career has always been in finance and/or accounting, and she began her career with General Electric ("GE") in Cincinnati, Ohio. Roger worked for a distillery in the Cincinnati area as a chemist, before later being promoted to an environmental health and safety supervisor. The parties' first child was born in 1990. Roger eventually left the distillery and accepted a similar position at Avon Products.

In 1993, Marcia received a promotion from GE and the family moved to Connecticut. Roger left his position at Avon but was able to secure employment in Connecticut. The parties' second child was born in 1994.

In 1995, Marcia was again promoted by GE and the family moved to the Chicago, Illinois area. Roger again left his employer but was able to find employment near Chicago. In 2000, Marcia was promoted to Vice President of GE Financial Assurance.

In 2002, Marcia accepted a position with Cigna Insurance, which would have required the family to move back to Connecticut. Roger's then-employer, Diageo, approved his transfer to Connecticut as well. However, GE did not want to lose Marcia and offered her another promotion. Marcia accepted GE's offer, and the family moved to Raleigh, North Carolina. Diageo did not have a presence in North Carolina, so Roger was again forced to resign from his employment. The parties agreed that Roger would not work once they moved to North Carolina, but offered differing testimony as to whether the arrangement was intended to be permanent or temporary. Regardless, Roger became a homemaker, while Marcia continued to focus on her career.

In 2008, Marcia left GE and accepted employment with Cigna Insurance, which required the family to move back to Connecticut. Just one year later, Marcia accepted the position of Chief Financial Officer ("CFO") at Erie Insurance and moved to Erie, Pennsylvania. Roger stayed behind in Connecticut temporarily so that the parties' youngest son could complete his freshman year of high school before moving to Pennsylvania.

In 2015, Marcia accepted the position of CFO at Churchill Downs, Inc. ("CDI") in Louisville, Kentucky, and the family moved to Kentucky. The parties separated on or about February 11, 2020, and Marcia filed for divorce on February 14, 2020. After several failed attempts at mediation, the family court conducted a two-day trial regarding division of marital property and Roger's claim for spousal maintenance. At the time of the final hearing, Marcia was fifty-nine years old, and Roger was sixty-five years old. He had not worked since 2002.

The parties acquired substantial assets and property over the course of the marriage. At the time of separation, the parties' marital estate was valued at approximately $11,000,000; at the time of the final hearing, it was valued at approximately $19,000,000. Marcia argued that all marital property and assets should be divided 60% to her and 40% to Roger because the estate was built entirely on her employment and earnings. Marcia also argued Roger was not entitled to any of the increase in value of the marital estate after the date of separation because he moved out of the home and was no longer contributing to the marital estate in any capacity. She also asserted that Roger was not entitled to spousal maintenance because, no matter how the family court divided the marital estate, Roger would have sufficient property and assets to meet his reasonable needs.

The family court disagreed. It divided the marital estate 50/50, including all of Marcia's earnings obtained post-separation. Roger was also awarded $15,000 per month in spousal maintenance until Marcia turns sixty-five years old or retires, whichever is later. Both parties filed motions to alter, amend, or vacate the family court's order. Although the family court entered a subsequent order making additional findings and clarifications, it did not substantively change its prior order. This appeal followed. Further facts will be developed as necessary.

II. Standard of Review

The assignment of marital property and debts incurred during the marriage are reviewed under an abuse of discretion standard. Neidlinger v. Neidlinger, 52 S.W.3d 513, 522 (Ky. 2001), overruled on other grounds by Smith v. McGill, 556 S.W.3d 552 (Ky. 2018). Similarly, "[a]n award of [attorney's] fees is reviewed by this court under an abuse of discretion standard." Allison v. Allison, 246 S.W.3d 898, 909 (Ky. App. 2008) (citation omitted). Finally, "[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." Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003) (citation omitted).

III. Analysis

Marcia makes numerous arguments on appeal. She asserts the family court erred because it: (1) wrongly presumed that KRS^[1] 403.190 requires equal division of marital property, including Marcia's earnings acquired post-separation; (2) did not do a proper analysis to determine which of Marcia's performance stock units ("PSUs"), awarded to Marcia as additional compensation from CDI, were marital versus nonmarital; (3) failed to account for an advance of funds awarded to Roger in the amount of $133,135.05 in calculating his share of the marital estate; (4) ordered Marcia to pay duplicative attorney's fees; and (5) awarded maintenance to Roger. We address each argument in turn.

A. Division of Marital Property

Marcia argues the family court erred by engaging in an analysis of KRS 403.190 that was based, in large part, on trying to decipher the legislative intent behind the statute. She also believes the family court erred in dividing the marital estate 50/50.

KRS 403.190 provides, in relevant part, that:

(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:

(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.

(2) For the purpose of this chapter, "marital property" means all property acquired by either spouse subsequent to the marriage except:

(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;

(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.

(3) All property acquired by either spouse after the marriage and before a decree of legal separation is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (2) of this section.

Pursuant to the statute, all property acquired after the date of marriage is considered marital property unless one of the exceptions listed in KRS 403.190(2) applies. Notably, KRS 403.190(2)(c) exempts only property acquired by one spouse after the date of a legal separation. See Stallings v. Stallings, 606 S.W.2d 163, 164 (Ky. 1980); see also KRS 403.140(2). The parties were never legally separated.

Careful review of the family court's order shows that it did enumerate and consider the factors in KRS 403.190(1)(a)-(d). This was a thirty-eight year marriage in which Roger gave up his own successful career so that Marcia could pursue hers including moving the family around the country numerous times from 1993 to 2015. Roger cared for the parties' children and maintained the family home. He also accompanied Marcia to work-related functions. As a result of...