Division of Marital Property, Ford v. Perkins, Digest, Ky Supreme Court

Ford v. Perkins, 2011-SC-000330-DG

Published:   Affirming in Part, Vacating in Part, and Remanding   

County:  Jefferson

 SC granted Ex-Husband’s motion for discretionary review regarding the appropriate distribution of his IRA account, which Ex-Husband no longer disputed was marital property.   

 FACTS:

Husband and his employer began contributions to a 401(k) plan in 1992.  Husband and Wife married in December 1998.  Wife spent most of marriage as a homemaker.  Husband’s and his employers’ contributions to the plan continued until January 2001 when Husband resigned; he subsequently rolled the 401(K) over to an IRA.  Husband and Wife separated in November 2007 and divorced in December 2008.  All matters of support and property division were agreed upon except for the division of Husband’s IRA.  At the hearing on this issue, Husband only submitted records of contributions made after the marriage, from August 2000 through January 2001, as both his and his former employers’ other records had been destroyed in a flood.  He submitted no records regarding the value of the account on the date of marriage, but he did submit the values when the 401(k) was rolled over to an IRA, in May 2001.  Husband argued to the trial court that the contributions from records submitted to the trial court should be extrapolated to establish the amount that was contributed during the marriage and that the remainder should be his nonmarital property.  FC found that the entire account was marital as Husband failed to meet the burden of proof as the proponent of a nonmarital property interest.  FC then found that the account should be divided equally between the parties as of the date of decree.  Husband appealed this ruling to CA, which affirmed FC’s finding that the account was marital property; however, CA determined that because Wife presented no proof that she made any direct or indirect contribution to the account, an equal division of the account was not supported by the record; CA remanded to FC with instructions to award Husband 100% of IRA. 

Ex-Wife moved SC for discretionary review, asking 1.  Whether FC’s finding that parties were married when an asset was acquired is sufficient to support equal division of the asset under Gaskill v. Robbins; and 2.  Whether, on appeal, CA may make a different award of the division of marital property without applying KRS 403.190 factors. 

 

ANALYSIS:

1. Whether FC’s finding that parties were married when an asset was acquired is sufficient to support equal division of the asset under Gaskill v. Robbins:

 SC found that this premise boils down to requiring FC’s presumption that both parties to a marriage contribute to assets acquired during the marriage.  SC disagreed.  KRS 403.190 requires FC to consider the contribution of each spouse to acquisition of the asset (including homemaker duties); value of the property set aside to each spouse; duration of the marriage; and economic circumstances of each spouse when the division is to become effective.  SC noted that Gaskill emphasized many intangible contributions to acquisition of an asset that FC must consider in its property division determination, but the language does not purport to create a presumption. 

        2.    Whether, on appeal, CA may make a different award of the division of marital property without applying KRS 403.190 factors:

SC agreed with Ex-Wife, noting that FC committed same error as FC when it failed to consider all factors of KRS 403.190 when it awarded 100% of IRA to Husband.  CA based its decision on evidence of contribution, but did not consider the other three factors.  FC’s findings of fact were insufficient, and CA should have remanded for further proceedings. 

Reversed and Remanded for to FC for additional fact-finding regarding KRS 403.190 factors.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates