Robert Grumblatt v. Deborah Grumblatt

RENDERED: JANUARY 15, 2021; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2016-CA-1854-MR

ROBERT GRUMBLATT APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DEBORAH DEWEESE, JUDGE
ACTION NO. 15-CI-502339

DEBORAH GRUMBLATT APPELLEE

AND
NO. 2016-CA-1932-MR

DEBORAH GRUMBLATT CROSS-APPELLANT

CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DEBORAH DEWEESE, JUDGE
ACTION NO. 15-CI-502339

ROBERT GRUMBLATT CROSS-APPELLEE
 AND
NO. 2018-CA-0800-MR

DEBORAH ("DEBBY") GRUMBLATT APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DEBORAH DEWEESE, JUDGE
ACTION NO. 15-CI-502339

ROBERT GRUMBLATT APPELLEE

OPINION
AFFIRMING IN PART, VACATING IN PART, AND REMANDING

** ** ** ** **

BEFORE: CLAYTON, CHIEF JUDGE; GOODWINE AND KRAMER,
JUDGES.

GOODWINE, JUDGE: Robert Grumblatt (“Robert”) appeals from a post-

dissolution order of the Jefferson Family Court. He argues the family court erred

in determining two accounts and several tax debts were entirely marital property.

Deborah Grumblatt (“Deborah”) cross-appeals. After careful review, we affirm in

part, vacate in part, and remand.

BACKGROUND

Robert and Deborah were married on February 10, 2001, in New

Orleans, Louisiana. They separated on June 23, 2016. On August 30, 2016, the

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family court held a trial on issues of property distribution. The family court

entered a limited decree of dissolution on September 13, 2016. The court ruled on

property division issues in an order entered November 7, 2016, but reserved ruling

on division of Robert’s State Farm pension and whether to award Robert

maintenance. The family court designated the November 2016 order as final and

appealable under CR1 54.01, so Robert appealed the judgment. On March 14,

2017, the family court entered an order denying Deborah’s motion to alter, amend,

or vacate the November 2016 order and denying her request for attorney’s fees.

The family court held a hearing on July 12, 2017, on the remaining issues of

dividing Robert’s pension and awarding maintenance for Robert. On April 27,

2018, the family court entered an order dividing the pension and awarding Robert

maintenance. Deborah timely appealed this order on May 23, 2018.2

In the November 2016 order, the family court ruled on three issues

that are the subject of Robert’s appeal. First, the family court reviewed the

evidence submitted at trial and determined Robert’s Ameriprise account was

entirely marital because Robert “was fully capable of providing adequate

documentation to properly support his non-marital argument and simply failed to

1
Kentucky Rules of Civil Procedure.
2
Deborah’s 2018-CA-0800-MR appeal was consolidated with her 2016-CA-1854-MR cross-
appeal. We note that Deborah failed to attach the April 27, 2018 order as required by CR
76.12(4)(c)(vii).

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do so.” Record (“R.”) at 243. Second, the family court determined Robert’s

VOYA annuity was entirely marital. Robert claimed the annuity was funded by an

inheritance from his father. However, the only evidence Robert provided was his

testimony and a single-page transaction history, indicating the issue date for the

annuity was May 11, 2009. Robert also tried to submit a 1996 letter from the

executor of his father’s estate (his brother) as proof the money was inherited. The

family court determined the letter was hearsay and did not admit it into evidence.

Third, the family court determined tax debts from the 2004, 2009, 2011, and 2012

tax years were entirely marital even though the parties filed their taxes separately

and the tax debts were all in Deborah’s name. The family court reasoned that all

the debts “were accrued during the course of the marriage.” R. at 245.

On appeal of the November 7, 2016 order, Robert argues the family

court erred in determining that the following were entirely marital assets and debts:

(1) the Ameriprise account in his name; (2) the VOYA annuity in his name; and (3)

the tax debts in Deborah’s name. For her cross-appeal, Deborah argues the family

court erred by: (1) reserving its ruling on Robert’s State Farm pension and his

request for maintenance; (2) requesting additional evidence; (3) shifting the burden

of proof of the classification of the pension asset to both parties, rather than Robert

alone; and (4) failing to award her attorney’s fees.

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 For her direct appeal of the April 27, 2018 order, Deborah argues the

family court erred by (1) not assigning Robert’s pension as entirely marital; (2) not

allocating the marital portion of the pension 50/50; and (3) awarding Robert

maintenance. Facts pertinent to both appeals and Deborah’s cross-appeal are

further developed below.

STANDARD OF REVIEW

We may only set aside findings of fact if they are clearly

erroneous. We must ask whether those findings are supported by substantial

evidence. “‘[S]ubstantial evidence’ is ‘[e]vidence that a reasonable mind would

accept as adequate to support a conclusion’ and evidence that, when ‘taken alone or

in the light of all the evidence, . . . has sufficient probative value to induce

conviction in the minds of reasonable men.’” Moore v. Asente, 110 S.W.3d 336,

354 (Ky. 2003) (citations omitted). Even if we might have reached a different

finding, “‘due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses’ because judging the credibility of witnesses and

weighing evidence are tasks within the exclusive province of the trial court.” Id.

(citations omitted). Furthermore, “[o]n appellate review of a trial court’s ruling

regarding the classification of marital property, we review de novo because the trial

court’s classification of property as marital or non-marital is based on its

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application of KRS[3] 403.190; thus, it is a question of law.” Heskett v. Heskett,

245 S.W.3d 222, 226 (Ky. App. 2008) (citing Holman v. Holman, 84 S.W.3d 903,

905 (Ky. 2002)).

ANALYSIS

1. ROBERT’S APPEAL – 2016-CA-1854-MR

Under KRS 403.190, property is characterized and divided using a

three-step process: “(1) the trial court first characterizes each item of property as

marital or nonmarital; (2) the trial court then assigns each party’s nonmarital

property to that party; and (3) finally, the trial court equitably divides the marital

property between the parties.” Sexton v. Sexton, 125 S.W.3d 258, 265 (Ky. 2004)

(quoting Travis v. Travis, 59 S.W.3d 904, 909 (Ky. 2001)). When an item of

property consists “of both nonmarital and marital components, . . . 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.” Id. In doing so, the

trial court applies the “source of funds rule” to characterize property “i.e., whether

it is marital, nonmarital, or both, is determined by the source of the funds used to

acquire the property.” Id.

In applying the source of funds rule, trial courts engage in “tracing,”

which involves:

3
Kentucky Revised Statutes.

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 “[t]he process of tracking property’s ownership or
characteristics from the time of its origin to the present.”
In the context of tracing nonmarital property, “[w]hen the
original property claimed to be nonmarital is no longer
owned, the nonmarital claimant must trace the previously
owned property into a presently owned specific asset.”
The concept of tracing is judicially created and arises
from KRS 403.190(3)’s presumption that all property
acquired after the marriage is marital property unless
shown to come within one of KRS 403.190(2)’s
exceptions. A party claiming that property, or an interest
therein, acquired during the marriage is nonmarital bears
the burden of proof.

Id. (footnotes omitted).

First, we address whether the family court properly characterized the

Ameriprise account as entirely marital property. The family court determined the

Ameriprise account was entirely marital property because Robert failed to provide

adequate evidence for the family court to trace the funds to nonmarital sources.

Robert argues, under Smith v. Smith, 503 S.W.3d 178 (Ky. App. 2016), that his

testimony and one document demonstrated that a portion of the funds in the

Ameriprise account existed before the marriage. In addition to his own testimony,

Robert introduced a State Farm 401(k) Savings Plan summary of account showing

the account value as of February 2001. Robert asserted the State Farm 401(k) was

rolled into the Ameriprise account upon his retirement.

The family court disagreed with Robert’s argument based on the

following findings:

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 [Deborah’s] own evidence shows that the first quarter of
the Ameriprise account was Q1 of 2014. However, . . .
the RiverSource Variable Annuity was actually the
primary asset in [Robert’s] Ameriprise account.
According to [Robert’s] 2015 tax returns, he first
acquired the RiverSource Variable Annuity on June 25,
2012. Given that the date of acquisition provides the
initial calculation of basis, this June 25, 2012 date
seriously undermines [Robert’s] attempts to trace the
non-marital component of his State Farm 401(k) through
to his Ameriprise account. [Robert’s] own State Farm
401(k) statements show that he held that asset until 2013.
Nor does he explain how the $303,357.07 taken from his
401(k) became the more-than $400,000 in his Ameriprise
Account. Further, [Robert] was fully capable of
providing adequate documentation to properly support
his non-marital argument and simply failed to do so.
Although [Robert] claims he provided an uninterrupted
timeline accounting for the location of the State Farm
401(k) funds, his timeline has holes in it, and the
unanswered questions are simply too numerous to find
that he has met his burden. The Court finds that
[Robert’s] entire Ameriprise account is marital. It shall
be divided equally between the parties.

R. at 244.

Robert argues the Smith case supports his contention that his

testimony alone was sufficient evidence to prove a portion of the Ameriprise

account was nonmarital. In Smith, Mark argued Amy failed to establish her

nonmarital claim on the equity in the marital residence. 503 S.W.3d at 182. Amy

and her mother testified she received a “$25,000 CD as a gift from her

grandmother,” but presented no documentation to establish this. Id. at 183-84.

“Mark also testified that the funds from the CD were used to make the down

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payment on the . . . residence[.]” Id. at 184. This Court held “[s]ubstantial

evidence in the record supports the family court’s findings on this issue[,]”

rejecting Mark’s argument. Id.

Robert argues that, in Smith, testimony alone, even without

documentary evidence, was sufficient to trace an asset to a nonmarital source. As

pointed out by Deborah, the trial court in Smith did not need documentation of the

existence of the CD because the opposing party acknowledged its existence and

confirmed it was the source of the funds used for the down payment on the marital

residence. Here, Deborah did not agree the source of any funds in the Ameriprise

account was nonmarital. The family court concluded it was unable to trace the

source of funds in the Ameriprise account based on the evidence Robert presented.

We agree with the family court that although some portion of the Ameriprise

account was nonmarital, Robert failed to meet his burden of proving it. As such,

based on the evidence presented, the family court properly characterized the

entirety of the Ameriprise account as marital property under KRS 403.190.

Second, we address whether the family court properly characterized

the entire VOYA annuity as marital property. Robert claimed he funded the

annuity with nonmarital funds inherited from his father. To prove his claim, he

presented the family court with a 1996 letter from the executor of his father’s

estate, Robert’s brother. Deborah objected to the introduction of the letter, arguing

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it was hearsay and says nothing about an annuity. Robert’s brother was dead and

could not be called to testify. Robert did not counter Deborah’s hearsay objection,

nor offer any exceptions to the hearsay rule. Robert did not disclose the VOYA

annuity in his mandatory case disclosure but instead waited to disclose it until his

deposition on August 10, 2016. The first time Robert raised a claim that the

VOYA annuity was his nonmarital property was in a response filed the day before

trial. As such, Deborah objected to Robert’s claim that the VOYA annuity was his

nonmarital property.

The family court made the following findings of fact regarding the

characterization of the VOYA annuity:

[Robert] has a VOYA Annuity which he failed to
disclose until his deposition on August 10, 2016. He
received $431.13 a month from this annuity. The Court
is troubled by the lack of disclosure on the part of
[Robert]. His testimony was the sole evidence proffered
to show the non-marital character of the asset. [Robert]
claims it was started with funds inherited from his father
prior to the marriage, but the chief piece of non-
testimonial evidence before the Court is a single-page
transaction history, . . . which indicates the issue date for
the annuity was May 11, 2009. The Court cannot trace
the source of the funds for this annuity from the evidence
before it. The Court finds that [Robert’s] VOYA
Annuity is marital. It shall be equally divided between
the parties.

R. at 244.

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 Robert’s argument on appeal centers around the hearsay issue and

argues characterization of the annuity as entirely marital constitutes a sanction for

his untimely disclosure. However, we need not address these arguments. The

analysis of the characterization of the VOYA annuity is nearly identical to that of

the Ameriprise account. Even if the 1996 letter had been admitted to prove Robert

inherited funds from his father, the mere fact that Robert inherited money was

insufficient for the family court to trace the funds from when he received them to

the current VOYA annuity. Furthermore, a single transaction sheet showing the

VOYA annuity was issued during the marriage, in 2009, was insufficient to trace

the funds to Robert’s inheritance. Deborah disputed that the source of the funds

was nonmarital. We agree with the family court that Robert failed to meet his

burden of proving the nonmarital source of the funds for the VOYA annuity. As

such, the family court properly characterized the entire VOYA annuity as marital

property.

Third, we address whether the family court properly characterized the

tax debts in Deborah’s name as marital debts. “It is vital to understand that

unlike marital property, there is no presumption that a debt incurred during a

marriage is marital or nonmarital in nature.” Smith v. Smith, 235 S.W.3d 1, 15

(Ky. App. 2006) (citing Neidlinger v. Neidlinger, 52 S.W.3d 513, 522 (Ky.

2001), overruled by on other grounds Smith v. McGill, 556 S.W.3d 552 (Ky.

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2018)). Instead, “debts are generally ‘assigned on the basis of such factors as

receipt of benefits and extent of participation[.]’ Finally, there is no presumption

that debts must be divided equally or in the same proportion as the marital

property.” Id. (footnotes omitted). “[T]he burden of proof that the debt is marital

is upon the party that incurred it.” Allison v. Allison, 246 S.W.3d 898, 907 (Ky.

App. 2008) (citation omitted).

The family court made the following findings in characterizing the tax

debts as marital debts:

The parties have tax debts relating to the 2004, 2009,
2011, and 2012 tax years, all in [Deborah’s] name,
totaling $15,627.21. Although the parties were in the
habit of filing individual tax returns, the debts were all
accrued during the course of the marriage. The parties
shall divide the tax debt equally, and each shall be
responsible for $7,813.61 of the debt.

R. at 245.

Robert argues due to the lack of presumption, and scant evidence from

Deborah, she did not demonstrate that the tax debts were marital. Deborah makes

no mention of the lack of presumption that debts are marital. Instead, she argues

the family court’s finding that the debts accrued during the marriage was not

clearly erroneous. In its findings, the family court merely stated that because the

debts were accrued during the marriage, the debts were marital and divided them

equally.

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 Based on these findings, we are unconvinced that the family court

applied the above case law in determining the tax debts were marital. Although we

cannot disturb the family court’s factual finding that the debts accrued during the

marriage, we disagree, based on our de novo review, that the debts are marital

merely because they accrued during the marriage. Thus, we vacate that portion of

the November 7, 2016 order and remand for further findings. On remand, the

family court should reexamine whether Deborah met her burden of proving the tax

debts were marital by applying the following factors: “receipt of benefits and

extent of participation” and the more extensive list of factors in Neidlinger, 52

S.W.3d at 523.

2. DEBORAH’S CROSS-APPEAL OF THE NOVEMBER 7, 2016 AND
MARCH 14, 2017 ORDERS – 2016-CA-1854-MR; AND HER DIRECT
APPEAL OF THE APRIL 27, 2018 ORDER - 2018-CA-0800-MR.

For her cross-appeal, Deborah argues the family court erred by (1)

reserving its ruling on Robert’s State Farm pension and his request for

maintenance; (2) requesting additional evidence; (3) shifting the burden of proof of

the classification of the pension asset to both parties; and (4) failing to award her

attorney’s fees.

For her direct appeal, Deborah argues the family court erred by (1)

assigning a portion of Robert’s State Farm pension as nonmarital; (2) awarding

Robert more than fifty percent of the marital portion of Robert’s State Farm

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pension; and (3) awarding Robert maintenance. Deborah’s arguments are almost

entirely conclusory, unsupported, and confusing, but for the sake of being

thorough, we address each one.

First, we address Deborah’s arguments regarding the family court’s

division of Robert’s State Farm pension. Deborah’s arguments on this issue are

lengthy. She begins by arguing the family court abused its discretion in reserving

the issue of dividing Robert’s State Farm pension after he failed to present clear

and convincing evidence at trial. Deborah argues the family court incorrectly

determined she bore an equal responsibility for calculating the marital share of the

pension. She then makes novel arguments regarding the doctrine of res judicata,

which have no applicability to the facts of this case. In sum, Deborah takes issue

with how the family court reached its decision in dividing the pension but only

summarily argues the family court’s division was not equitable and failed to

consider all factors under KRS 403.190.

In its November 7, 2016 order, the family court determined the parties

failed to submit sufficient evidence for the court to trace the marital and nonmarital

components of Robert’s State Farm pension and reserved the issue. In its March

14, 2017 order denying Deborah’s motion to alter, amend, or vacate the November

7, 2016 order, the family court determined the character of the pension was partly

nonmarital and partly marital, so both parties bore the burden to prove the

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nonmarital portion of the asset. The family court held a hearing on July 12, 2017,

regarding the division of the pension and heard testimony from both parties,

Deborah’s expert witness, and reviewed written findings from Robert’s expert

witness who was not present at the hearing.

On April 27, 2018, the family court entered an order dividing the State

Farm pension and awarding Robert maintenance. Based on the evidence

presented, the family court found, as of the date of the parties’ marriage in 2001,

Robert earned an annual pension of $28,127.15. “The annual benefit after the

October 7, 2003 Qualified Domestic Relations Order from Robert’s previous

divorce was $6,174.70.” R. at 601. As of the date of the order, Robert received

$74,328.00 per year or $6,194.00 per month.

The family court found $68,153.30 of Robert’s $74,328.00 annual

State Farm pension benefit was marital. The family court determined that of the

$6,194 monthly benefit, $514.56 is Robert’s nonmarital property and $5,679.44.00

is marital property that the family court divided.

The family court applied the factors under KRS 403.190(1) in

dividing the marital portion of the State Farm pension:

(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;

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 (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.

The family court found both parties worked full time during the

marriage and contributed to the overall marital corpus. The parties were married

for fifteen years. The family court determined the key factor in deciding what

constitutes a just division of the pension is the value of the property set apart to

each spouse.

Robert argued he was awarded $306,132.30 in assets during the

divorce and Deborah was awarded $717,867.50. Robert noted $385,000.00 of

Deborah’s assets came from her nonmarital inheritance. Deborah spent her

inheritance on the purchase of her home, a car for her daughter, her daughter’s

wedding, and her daughter’s education expenses. The family court was not

concerned with Deborah’s choice to spend her inheritance and instead concentrated

its analysis on the value of property each party received in the dissolution action.

The family court also examined the parties’ monthly income and

assets awarded to each party earlier in the divorce proceedings. The family court

determined Deborah’s monthly income was $10,715.83, which included a credit of

$917.00 per month from her own State Farm pension she deferred. The family

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court determined Robert’s monthly income was $8,136.50 and noted Deborah’s

monthly income exceeds Robert’s by $2,579.33.

Based on the economic circumstances of the parties, the family court

found an equal division of the pension would not be a just result. Deborah had

more income than Robert and received twice as much property. As such, the

family court determined Deborah would receive $1,500.00 per month of Robert’s

State Farm pension.

Nowhere in Deborah’s argument does she address the actual

characterization of the nonmarital and marital portions of the State Farm pension.

Instead, she makes numerous, confusing arguments regarding the family court’s

process of characterizing the pension. As we will demonstrate, Deborah’s

arguments reveal that the family court properly characterized the nonmarital and

marital portions of the State Farm pension.

Deborah’s first argument regarding division of the pension is that the

family court should have ruled on the issue following the trial instead of reserving

it. She argues Robert failed to meet his burden at trial, and the family court should

not have allowed Robert to present more evidence following the trial. She asserts,

under CR 59.01(g), that a “new trial” was not warranted because there was no

newly discovered evidence to be presented at a subsequent hearing.

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 Conversely, Robert argues CR 54.02(1) authorizes the issuance of

split judgments as occurred in this case, and such judgments are “subject to

revision at any time before the entry of judgment adjudicating all the claims and

the rights and liabilities of all the parties.” We agree with Robert’s contention that

it is within the family court’s discretion to reserve issues that need additional

evidence and to split judgments.

In support of her argument that the family court should not have

reserved division of the State Farm pension, Deborah also argues the family court

incorrectly determined she equally bore the burden of calculating the marital share.

In its order denying Deborah’s motion to alter, amend, or vacate, the family court

determined Deborah and Robert equally bore the burden of establishing the marital

and nonmarital portions of the pension. Deborah argued the entire pension should

be considered marital because Robert failed to prove the calculation of the

nonmarital portion at trial.

At trial, Robert proved a portion of his State Farm pension was

nonmarital, as it was clear he held the pension before the parties’ marriage. “There

is no question that twenty-two years of [Robert’s] pension interest is non-marital,

less whatever portion was lost to him in his 1998 dissolution proceedings.” R. at

293. In arguing the entire pension was marital because Robert failed to prove the

exact amount of nonmarital funds in his pension, Deborah essentially argued she

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should receive appreciation on Robert’s nonmarital portion of his pension. We

agree with the family court that this was an issue of characterization of the pension

and not tracing the source of the funds. As such, we agree that Deborah and

Robert each bore then the burden of proving the marital and nonmarital portions of

the pension, and the family court properly reserved the issue.

Deborah argues the doctrine of res judicata barred the family court

from unequally dividing Robert’s State Farm pension.

The doctrine of res judicata is formed by two subparts: 1)
claim preclusion and 2) issue preclusion. Claim
preclusion bars a party from re-litigating a previously
adjudicated cause of action and entirely bars a new
lawsuit on the same cause of action. Issue preclusion
bars the parties from relitigating any issue actually
litigated and finally decided in an earlier action.

Yeoman v. Commonwealth, Health Policy Bd., 983 S.W.2d 459, 464-65 (Ky. 1998)

(citations omitted). Issue preclusion requires that the issues be identical. Id. at

465.

Deborah argues that because the family court divided equally all

property addressed at trial, claim preclusion requires equal division of the pension.

For claim preclusion to bar litigation of division of the pension, three “elements

must be present. First, there must be identity of the parties. Second, there must be

identity of the causes of action. Third, the action must have been resolved on the

merits.” Id. (citations omitted).

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 Neither issue preclusion nor claim preclusion applies in this instance.

In her brief, Deborah states, “[i]t is clear from the November 2016, [findings of

fact and conclusions of law], that the Court equalized the division of the marital

property, 50-50, while reserving the division of the pension.” Appellee’s Response

and Cross-Appellant Brief at 13-14. The family court clearly reserved ruling on

the pension because it recognized that it did not have enough information to

calculate the marital and nonmartial portions of the pension. The family court’s

decision to split equally the other items of marital property did not preclude the

court from dividing the pension differently.

Deborah’s final argument regarding division of the pension is that the

family court failed to explain its calculation or provide additional findings of fact

to explain its departure from the calculations and findings made in the November

2016 order. Deborah presented no real argument on the merits demonstrating the

family court’s division of the pension was legally incorrect. Although Deborah “is

obviously dissatisfied with the trial court’s decision, threadbare recitals of the

elements of a legal theory, supported by mere conclusory statements, form an

insufficient basis upon which this Court can grant relief.” Jones v. Livesay, 551

S.W.3d 47, 52 (Ky. App. 2018). Deborah advances nothing of substance in

support of her contention that the family court incorrectly calculated the division of

the pension. We will not scour the record to construct Deborah’s argument, “nor

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will we venture to find support for [her] underdeveloped arguments.” Prescott v.

Commonwealth, 572 S.W.3d 913, 924 (Ky. App. 2019) (citation omitted). As

such, we conclude the family court did not abuse its discretion in reserving the

division of the pension and was not barred by res judicata from dividing the

pension unequally.

Second, Deborah raises another res judicata argument that has little

basis in the family court’s 2018 order. She argues res judicata barred the family

court from considering assets that did not exist at the time of the original trial in

determining the equitable division of the pension and awarding Robert

maintenance. Here, she argues the family court improperly made a finding of

dissipation in the 2018 order, so it was estopped from attributing additional assets

to her at the July 2017 hearing.

Based on this argument, we assume Deborah references the portion of

the family court’s 2018 order that compares the value of property each party

received pursuant to the divorce. Deborah testified that she spent her $385,000.00

inheritance to purchase her home and to pay for her daughter’s car, wedding, and

education expenses. The family court reasoned that it was unconcerned with how

she chose to spend the money and only considered how much was apportioned to

each party upon dissolution.

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 The family court made no finding of dissipation or marital

misconduct. Instead, it considered the total value of the property each spouse

received in the divorce proceedings without regard for how much of the property

remained at the time of the July 2017 hearing on division of the pension and

maintenance. Again, Deborah fails to demonstrate how res judicata applies in this

instance, and her argument is unsupported by any relevant law. As such, we

decline to address this conclusory argument further. Jones, 551 S.W.3d 47;

Prescott, 572 S.W.3d 913.

Third, Deborah argues the family court erred in awarding Robert

maintenance. The family court awarded Robert $1,500.00 per month of

maintenance for 36 months, which is the same monthly amount Deborah is to

receive from Robert’s pension. Under KRS 403.200, a family court may award

maintenance under the following circumstances:

(1) In a proceeding for dissolution of marriage or legal
separation, or a proceeding for maintenance following
dissolution of a marriage by a court which lacked
personal jurisdiction over the absent spouse, the 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

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 make it appropriate that the custodian not be
required to seek employment outside the
home.

The family court must consider all relevant factors, including the following:

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.

KRS 403.200(2).

The family court found the standard of living during the marriage was

high, and there would be a significant disparity in the parties’ ability to maintain

that standard without some maintenance. The family court found the parties’

fifteen-year marriage was long enough for it to consider spousal support. The

family court found Robert was past retirement age, and Deborah had significant

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ability to meet her own needs while contributing to Robert’s maintenance. The

family court also reasoned that, “at his age, reemployment at anything comparable

to his previous position will be difficult.” R. at 603-04. Based on these findings,

the family court concluded maintenance was appropriate because Robert lacked

“sufficient property to provide for his reasonable needs and [was] unable to

support himself through appropriate employment.” R. at 604.

Deborah takes issue with the family court’s calculation of Robert’s

monthly income and expenses. She argues the family court should have applied

Robert’s expenses at the time of the original trial instead of the expenses he

submitted at the subsequent hearing. Deborah also argues the family court should

have imputed Robert’s State Farm salary to him because he voluntarily retired.

Robert retired at the age of 62, which is the age of eligibility for Social Security

retirement. Deborah cites no case law in support of her arguments regarding the

calculation of Robert’s income and expenses. She also cites no support for her

argument that Robert’s employment income should be imputed to him because he

is able to work but chose to retire. Because her argument is unsupported and

conclusory, we decline to address it further. Jones, 551 S.W.3d 47; Prescott, 572

S.W.3d 913.

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 Finally, Deborah argues the family court erred in denying her request

for attorney’s fees. KRS 403.220 allows the award of attorney’s fees in dissolution

actions under certain circumstances:

The court from time to time after considering the
financial resources of both parties may order a party to
pay a reasonable amount for the cost to the other party of
maintaining or defending any proceeding under this
chapter and for attorney’s fees, including sums for legal
services rendered and costs incurred prior to the
commencement of the proceeding or after entry of
judgment. The court may order that the amount be paid
directly to the attorney, who may enforce the order in his
name.

The family court determined the financial disparity between the parties guided his

denial of Deborah’s request for attorney’s fees. The family court cited Neidlinger,

52 S.W.3d at 518, in support of this finding, but after the family court’s ruling on

this issue, Smith, 556 S.W.3d 552, overruled Neidlinger on this exact issue. In

Smith, the Supreme Court of Kentucky held the plain language of KRS 403.220

“requires only that the trial court consider the financial resources of the parties

before awarding attorney’s fees—not that a financial disparity exist.” Smith, 556

S.W.3d at 555.

The family court considered Deborah’s stipulated nonmarital

resources, the equal division of nearly all the parties’ significant marital assets, and

Deborah’s greater monthly income. Clearly, there was a disparity in the parties’

financial resources. Under the Neidlinger standard, which was applicable at the

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time the order was entered, Deborah was not entitled to attorney’s fees. The

family court’s finding also meets the standard in Smith because it had the

discretion to consider financial disparity in considering the financial resources of

the parties. Id. at 556.

In addition to considering the financial resources of the parties,

Deborah asked the family court to consider Robert’s obstructive tactics during the

litigation and award her attorney’s fees. Gentry v. Gentry, 798 S.W.2d 928, 937-

38 (Ky. 1990) (holding that obstructive tactics and conduct can justify an award of

attorney’s fees). See also Smith, 556 S.W.3d at 554. Robert responded by arguing

that Deborah also engaged in obstructive tactics.

In response to Deborah’s request for attorney’s fees based on Robert’s

obstructive tactics during litigation, the family court erroneously held “[s]uch a

finding would be contrary to law.” R. at 295. Gentry and Smith hold otherwise.

Therefore, we vacate and remand the family court’s finding that Deborah was not

entitled to attorney’s fees. We instruct the family court to consider the parties’

obstructive tactics, if any, during the litigation, in addition to their financial

resources, and determine whether Deborah is entitled to an award of attorney’s

fees.

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 CONCLUSION

In conclusion, regarding Robert’s arguments on appeal, we affirm the

family court’s characterization of the Ameriprise account and VOYA annuity as

marital property. We vacate the family court’s finding that the tax debts in

Deborah’s name were marital and remand with instructions to apply the above

discussed factors in reexamining the characterization of those debts. Regarding

Deborah’s arguments on cross-appeal, we vacate the family court’s finding that she

was not entitled to attorney’s fees and remand with instructions to reexamine this

issue as set forth above. Regarding her direct appeal, we affirm the family court’s

rulings regarding Robert’s State Farm pension and maintenance.

ALL CONCUR.

BRIEFS FOR APPELLANT/ BRIEFS FOR APPELLEE/
CROSS-APPELLEE: CROSS-APPELLANT:

F. Todd Lewis Allen McKee Dodd
Louisville, Kentucky Kyle Louis Schickel
Louisville, Kentucky

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