Lisa Thielmeier v. Kenneth Thielmeier

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NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-0707-MR

LISA THIELMEIER APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 17-CI-500023

KENNETH THIELMEIER APPELLEE

OPINION
AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.

THOMPSON, L., JUDGE: Lisa Thielmeier appeals from orders of the Jefferson

Circuit Court involving the allocation of marital property, maintenance, and

attorney fees in a divorce proceeding. Appellant argues that the trial court erred in

its valuation and allocation of a marital business. Appellant also claims that the

trial court erred in the allocation of a retirement account, erred in its decision not to
award her additional attorney fees, and erred in calculating her award of

maintenance. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant and Kenneth Thielmeier were married on July 19, 1985.

They have been separated since 2016, but Appellee did not leave the marital

residence until April of 2017. They have six children, one of whom is still a

minor. The parties agreed to joint custody of the minor child and Appellant is the

primary residential parent. At the time of the orders which are being appealed,

Appellant and Appellee were both 57 years old.

Appellee is an anesthesiologist who is employed by, and a part owner

of, Anesthesiology Consultants Enterprises, Inc. (hereinafter referred to as ACE).

Appellee and Dr. Patrick Shanahan founded ACE in 2008 and each owned 50% of

the business. Over the years, other physicians were brought into the practice and

allowed to become part owners. When this happened, Appellee and Dr.

Shanahan’s ownership percentage would decrease. At the time of the parties’

separation, Appellee owned 26% of ACE. Dr. Shanahan retired in 2018 and he

was bought out by the remaining partners pursuant to the terms of the partnership

agreement. When Dr. Shanahan retired, Appellee’s shares increased to 35.14%.

Appellant is not employed outside the home, but she has a bachelor’s

degree in elementary education and a master’s degree in guidance counseling.

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Appellant was a teacher prior to the birth of the parties’ children; however, once

the first child was born, Appellant became a stay-at-home mother and cared for the

children.

The parties agreed to most issues regarding the division of marital

assets. The only issues the trial court ruled upon, and which are relevant to this

appeal, were: the valuation and allocation of Appellee’s interest in ACE; the

allocation of Appellee’s ACE retirement account; the amount of attorney fees to

award Appellant; and the amount of maintenance to award Appellant.

Multiple witnesses testified regarding the valuation of ACE. Ryan

Nunnelly, ACE’s business manager, testified that he had been with ACE since its

inception. Mr. Nunnelly is not employed by ACE, but provides contracted

management services through an independent company. Mr. Nunnelly testified

that the partnership agreement sets forth a buyout provision for an owner’s interest

in the business. The provision indicates that the buyout amount is 93% of the net

collectible accounts receivable. That amount is then paid to the leaving partner in

proportion to the ownership interest of said partner. Mr. Nunnelly testified that

when Dr. Shanahan left ACE in June of 2018, he owned 26% of the company,

which is the same amount Appellee owned prior to the parties’ separation. Dr.

Shanahan received $209,721 for his share of ACE.

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 The trial court also appointed Blue and Company, LLC to determine

the value of ACE. Blue and Company is an accounting, tax, and consulting firm.

Rob Kester testified for Blue and Company. Mr. Kester is a certified public

accountant, is accredited in business valuation, and is certified in financial

forensics. Mr. Kester testified regarding the different methods of valuing a

business and which method he ultimately chose to use. Mr. Kester testified that

Appellee’s 26% interest in ACE would be worth $133,120.

Appellant also hired her own valuation expert, Roman Basi. Mr. Basi

is an attorney and certified public accountant with the Center for Financial, Legal,

and Tax Planning, Inc. Mr. Basi testified as to his method of determining the value

of ACE, and it was his opinion that Appellee’s interest in ACE was $1,350,456.

Appellee also testified as to his belief in the value of his share of

ACE. He believed his share of ACE should be valued according to the buyout

provision in the partnership agreement.

The trial court stated that it found Mr. Kester’s testimony about the

method of calculating the value of ACE most persuasive, but relied on Appellee’s

testimony that the value should be based on the partnership agreement. The trial

court valued Appellee’s 26% interest in ACE at $209,721. The trial court also held

that the 9.14% share increase which occurred after the parties separated would be

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awarded solely to Appellee. Appellant was awarded $104,860.50 for her share of

ACE.

As for the ACE retirement account, Appellee requested that the

account be divided equally between the parties as of May 1, 2017, which was

shortly after he left the marital residence. He requested that he receive 100% of

the contributions to the account after May 1, 2017. The trial court agreed with

Appellee’s request and awarded Appellant one half of the account as of May 1,

2017.

The trial court also considered Appellant’s request for attorney fees.

Both parties submitted affidavits regarding attorney fees. At the time of the

hearing on these issues, Appellant owed $23,673.37 to her attorney. She had also

borrowed $17,500 from her brother to pay for expert witnesses. Appellant

requested that Appellee be required to pay the remainder she owed to her attorney

and to repay the money she borrowed from her brother. Throughout litigation,

Appellee spent $47,108 for his attorney and advanced $33,074 to Appellant’s

attorney. In addition, Appellee paid $16,630 to Blue and Company and $3,100 to

Linda Jones, an expert appointed by the court to evaluate Appellee’s ability to

work and earn an income. The trial court ultimately declined to award Appellant

additional attorney fees.

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 Finally, the trial court considered the issue of maintenance. The court

took into consideration Appellant’s degrees, teaching license, age, and the fact that

she has not worked outside the home since 1990. Ms. Jones, the vocation

evaluator appointed by the court, testified that Appellant could obtain immediate

employment as a substitute teacher or teacher’s aide. Ms. Jones also testified that

if Appellant took some undergraduate courses to refresh her teaching skills, she

could obtain full-time employment as a teacher.

The court also considered the health of the parties’ minor child. The

child has a condition called Moyamoya disease which has required hospitalizations

and surgeries. The child frequently misses school because of the condition and has

regular appointments with doctors and therapists. Appellant does not believe she

can work full time because she is the primary caretaker of the child and must be

available at a moment’s notice. The court found it was unrealistic for Appellant to

work a full-time teaching job due to the child’s condition.

Appellant and Appellee provided the court with a list of monthly

expenses. Appellant requested maintenance in the amount of $20,225.17 per

month. The trial court considered Appellant’s request, but found it excessive. The

court rejected some of Appellant’s monthly expenses for various reasons. For

example, the court rejected $1,591 of Appellant’s monthly expenses because they

went toward the expenses of the adult children. The court awarded Appellant

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$12,500 per month in maintenance. The award was for a duration of eight years.

After eight years, Appellant would be eligible for retirement and could then gain

access to the retirement benefits she was awarded.

Appellant then filed motions for more specific findings and to alter,

amend, or vacate the court’s order. The trial court entered an order indicating it

believed it set forth sufficient findings of fact to support its decision. The court

also denied the motion to alter, amend, or vacate. This appeal followed.

ANALYSIS

We will first address Appellant’s argument regarding the valuation

and allocation of ACE.

[Kentucky Revised Statutes (KRS)] 403.190,
which governs the distribution of marital property,
mandates that the trial court divide marital property in
“just proportions.” The statute lists the factors the trial
court is required to consider in dividing marital property:
each spouse’s contribution to the acquisition of marital
property; the value of the property set apart to each
spouse; the duration of the marriage; and the economic
circumstances of each spouse at the time of the division.

Muir v. Muir, 406 S.W.3d 31, 35 (Ky. App. 2013) (citation omitted).

Stallings v. Stallings, 606 S.W.2d 163 (Ky. 1980),
permits the family court to consider the joint efforts of
the parties in determining the “just proportions” division.
“Just proportions” does not mean that the property must
be equally divided, but only that a consideration of the
factors in KRS 403.190 has been made.

Id. at 36.

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 It has long been recognized that the reviewing court
cannot disturb the findings of the trial court unless those
findings are clearly erroneous. How property is divided
is well within the sound discretion of the trial
court. Without an abuse of discretion, the reviewing
court should uphold the trial court’s division of property.
A family court has broad discretion with respect to
testimony presented, and may choose to believe or
disbelieve any part of it. It is also entitled to make its
own decisions regarding the demeanor and truthfulness
of witnesses, and a reviewing court is not permitted to
substitute its judgment for that of the family court unless
its findings are clearly erroneous.

Id. at 34 (citations omitted). Here, we must first examine the court’s findings

regarding the valuation of ACE under the clearly erroneous standard of review.

Then, we must determine if the court abused its discretion in the way it allocated

ACE. “The task of the appellate court is to determine whether the trial court’s

approach reasonably approximated the net value of the partnership interest.” Clark

v. Clark, 782 S.W.2d 56, 59 (Ky. App. 1990) (citation omitted).

As to the value of ACE, Appellant argues that the valuation used by

the trial court was a “gross undervaluation.” We believe the court was not clearly

erroneous in valuing Appellee’s 26% share in ACE at $209,721. The trial court

heard testimony from three experts and Appellee regarding the value of ACE. The

trial court found the court-appointed expert’s testimony was the most reliable;

however, the court chose to value ACE pursuant to Appellee’s testimony that the

business should be valued based on the partnership agreement. This choice

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increased the value of ACE by over $76,000 and increased Appellant’s share of the

business by over $38,000. The trial court heard multiple witnesses testify about

the value of ACE and the court’s decision was a reasonable approximation of the

value of the business. This valuation was thoroughly discussed by the trial court

and we find no error.

As to Appellant’s share of ACE, we also find no error. The trial court

considered ACE to be marital property, but only awarded Appellant half of the

26% share Appellee had upon separation. Appellant argues that she should have

been awarded half of the 35.14% share Appellee had upon the entry of the divorce

decree.

Appellee argued before the trial court that Appellant should only be

allocated a portion of those assets acquired before the date of separation in April of

2017. Appellee relied on KRS 403.190(1)(a) in making this argument. KRS

403.190(1)(a) states that the court should consider the “[c]ontribution of each

spouse to acquisition of the marital property, including contribution of a spouse as

homemaker[.]” Appellee claimed that since he moved out of the marital residence

in April of 2017, Appellant did not contribute to the 2018 increase in his shares of

ACE. The trial court agreed.

We find no abuse of discretion with the trial court’s decision to only

allocate to Appellant a pre-separation portion of ACE. The court considered the

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factors in KRS 403.190(1) and found KRS 403.190(1)(a) relevant.1 This Court has

found similar allocations appropriate. See Shively v. Shively, 233 S.W.3d 738 (Ky.

App. 2007); Folk v. Folk, No. 2009-CA-000255-MR, 2012 WL 327852 (Ky. App.

Feb. 3, 2012); and Story v. Story, No. 2008-CA-001301-MR, 2009 WL 3486667

(Ky. App. Oct. 30, 2009).

We now move on to Appellee’s ACE retirement account. As

previously stated, Appellee requested that the value of the account be divided

equally until after he left the marital house. Appellee argued that from that point

forward, he should be allocated 100% of the value of the account because

Appellant was no longer contributing to the marital unit or contributing to the

increase in the account’s value. He again cited to KRS 403.190(1)(a). The court

agreed to this allocation; however, Appellant believes this was an abuse of

discretion because any increase in the account’s value prior to the decree was

marital property.

Again, we find no error. The court considered the KRS 403.190(1)

factors when deciding what a just allocation of this account would be. The court

determined that Appellant was no longer contributing to the increase in the

1
While the trial court did not specifically cite to KRS 403.190 in the section of the order
discussing the allocation of ACE, it did cite to the statute earlier in the order when discussing the
division of marital property in general.

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retirement account’s value after Appellee left the marital home. We cannot say

this was an unreasonable conclusion.

Next, we will consider Appellant’s argument regarding attorney fees.

KRS 403.220 states:

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 award of attorney fees is reviewed for abuse of discretion. Smith

v. McGill, 556 S.W.3d 552, 556 (Ky. 2018). Appellant claims that it was an abuse

of discretion in not requiring Appellee to pay for her attorney fees. She argues that

Appellee’s salary affords him a surplus of income each month, but she is

unemployed and will be forced to take out a loan to pay her attorney. We find no

abuse of discretion as to the award of attorney fees. The trial court considered the

fact that Appellee had already advanced over $30,000 to Appellant’s attorney and

had paid over $19,000 for court-appointed experts. The court also considered how

much Appellant paid for her own experts and the amount she borrowed from her

brother. The court decided each person should be responsible for his or her

remaining attorney fees and that Appellee should not be required to pay for

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Appellant’s experts. While Appellee may have more financial resources than

Appellant, he has already expended a significant amount toward Appellant’s

attorney fees. We cannot say that the court’s refusal to award additional attorney

fees was unreasonable.

Appellant’s final argument on appeal concerns the maintenance

award. The trial court awarded Appellant $12,500 per month in maintenance for a

period of eight years. Appellant argues that the amount of the award and the

duration are abuses of discretion.

KRS 403.200(1) provides that a court may grant
maintenance only if it finds the spouse seeking it “[l]acks
sufficient property, including marital property
apportioned to him, to provide for his reasonable needs”
and “[i]s unable to support himself through appropriate
employment[.]” “While 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). See also Brenzel v.
Brenzel, 244 S.W.3d 121, 126 (Ky. App. 2008) (“An
award of maintenance and the amount are within the
discretion of the trial court.”). “The test for abuse of
discretion is whether the trial judge’s decision was
arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Sexton v. Sexton, 125 S.W.3d [258,
272 (Ky. 2004)], citing Commonwealth v. English, 993
S.W.2d 941, 945 (Ky. 1999).

If an award of maintenance is found to be
appropriate pursuant to KRS 403.200(1), a court must
then consider all relevant factors in determining the
amount and duration of maintenance pursuant to KRS

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 403.200(2). These factors include the spouse’s financial
resources, the time needed to obtain sufficient education
or training, the standard of living during the marriage, the
duration of the marriage, the age and condition of the
spouse seeking maintenance, as well as the ability of the
paying spouse to meet his needs. Similarly, “the amount
and duration of maintenance is within the sound
discretion of the trial court.” Weldon v. Weldon, 957
S.W.2d 283, 285 (Ky. App. 1997).

McVicker v. McVicker, 461 S.W.3d 404, 420-21 (Ky. App. 2015).

We find no error with the court’s maintenance award. The trial court

considered the maintenance factors listed in KRS 403.200(1) and (2). The court

considered the age of the parties and their employment history. The court believed

that, based on Appellant’s lack of current work experience and the ailment of the

minor child, it would be unreasonable to require Appellant to obtain a full-time

job. The court did believe she could obtain part-time employment and imputed an

income to her of $1,500 per month. The court also considered and discussed the

parties’ monthly expenses and Appellee’s ability to pay maintenance and meet his

own expenses.

The court ultimately held that Appellant was entitled to maintenance

based on her reasonable monthly expenses.2 The court believed that Appellee

could obtain a part-time job to supplement her income. The court awarded

2
As stated previously, the trial court deducted some expenses from her monthly budget due to
the court’s belief they were unnecessary.

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Appellant $12,500 per month in maintenance. We do not believe this amount was

an abuse of discretion. The court considered the required statutory factors,

Appellant’s ability to supplement her income with a part-time job, and the

significant amount of marital property she will retain after the divorce.

As for the duration, the court awarded maintenance for a period of

eight years. The court held that after eight years, Appellant would reach retirement

age and would be able to access the money she received from the marital

retirement accounts. The court also found that this duration was appropriate based

on the length of the marriage and Appellee’s support of Appellant during their

separation. We find no abuse of discretion as to the duration of the maintenance

award.

CONCLUSION

Based on the foregoing, we affirm the judgment of the trial court and

affirm all aspects of the orders being appealed.

DIXON, JUDGE, CONCURS.

CALDWELL, JUDGE, DISSENTS IN PART AND FILES
SEPARATE OPINION.

CALDWELL, JUDGE, DISSENTING IN PART: I must, in part,

respectfully dissent. I do not disagree with the standard of review as set out by the

majority that the family court’s finding of fact cannot be set aside unless they are

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clearly erroneous. However, I disagree that the conclusion reached by the family

court in applying some of those facts was not an abuse of discretion; it was.

We consider whether the factual findings are supported by substantial

evidence, whether the correct law was applied, and whether the family court

abused its discretion–keeping in mind the family court’s unique opportunity to

weigh the evidence and assess the credibility of witnesses:

Since the family court is in the best position to evaluate
the testimony and to weigh the evidence, an appellate
court should not substitute its own opinion for that of the
family court. If the findings of fact are supported by
substantial evidence and if the correct law is applied, a
family court’s ultimate decision regarding custody will
not be disturbed, absent an abuse of discretion. Abuse of
discretion implies that the family court’s decision is
unreasonable or unfair. Thus, in reviewing the decision
of the family court, the test is not whether the appellate
court would have decided it differently, but whether the
findings of the family court are clearly erroneous,
whether it applied the correct law, or whether it abused
its discretion.

Coffman v. Rankin, 260 S.W.3d 767, 770 (Ky. 2008). While the issues before us

are not regarding custody, the standard is the same. In applying the law herein, the

family court abused its discretion.

“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). The Oxford English

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Dictionary’s definition of “arbitrary” is, “Based on random choice or personal

whim, rather than any reason or system.” https://www.lexico.com/en/definition/

arbitrary (last visited Sept. 9, 2021). Black’s Law Dictionary, in reference to a

judicial decision, defines “arbitrary” as, “founded on prejudice or preference rather

than reason or fact.” Arbitrary, BLACK’S LAW DICTIONARY (11th ed. 2019). For a

trial court’s decision to not appear arbitrary, it must be supported by the facts and

the law. And the facts and law supporting the decision must be made clear in its

decision.

Particular to this action, the facts as found by the trial court and

supported by substantial evidence, do not support an allocation of marital assets

being based on the date the Appellee decided to move out of the marital home.

Stallings v. Stallings, 606 S.W.2d 163 (Ky. 1980), is still good law and its holding

is that absent a decree of legal separation or dissolution, assets acquired by the

parties are marital, even if acquired after one of the parties leaves the marital

home.

[I]n distributing the marital property the trial court shall
consider factors in KRS 403.190(1)(a) through (d). One
of these factors is the “contribution of each spouse to
acquisition of the marital property, including contribution
of a spouse as homemaker.” In this respect, the concept
of “joint or team effort” will apply to the property in
issue because it is marital property.

It should be noted, however, that the “contribution
of a spouse as a homemaker” does not necessarily cease

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 when the other spouse leaves, especially when minor
children remain with the homemaker-spouse. Although
she may no longer be providing services directly to her
spouse, she may be assisting him by caring for his
children, thus continuing to enhance to some degree his
ability to earn a living.

Id. at 164.

KRS 403.190(1)(a)-(d) sets out what the family court is to consider

when allocating marital assets, including specifically contribution of a spouse as

homemaker. In the case sub judice, the family court, while stating it had

considered the factors in KRS 403.190(1)(a)-(d), then proceeded to divide the

marital assets as of the date the Appellee vacated the marital home, giving him

100% of the assets acquired thereafter. Stating that the family court has considered

the factors, without a showing of its analysis and the bases for its conclusion, is

simply not enough. This is particularly true when the outcome of the family

court’s ruling is in direct opposition to its own finding of fact.

One of the family court’s findings of fact as to homemaking duties

was that the parties have a minor child with significant medical needs. His needs

are in fact so significant that the Appellant is unable to work outside the home.

This is the finding of the family court. Therefore, while Appellee works, and

enjoys the fruit of his labor, he is only able to do so because someone else, the

Appellant, provides the necessary care and home for his child. Yet, the family

court awarded 100% of the assets accumulated from his employment after he

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moved out of the marital home, as if the Appellant did not contribute anything.

This is unreasonable, unfair, arbitrary, and unsupported by the facts or sound legal

principles; it is an abuse of discretion.

Further, the trial court’s reliance on the unpublished opinion in Story

v. Story, No. 2008-CA-001301-MR, 2009 WL 348666 (Ky. App. Oct. 30, 2009), is

misplaced. This Court held in Story that while the trial court did not necessarily

make ideal factual findings with respect to the factors set forth in KRS 403.190, it

did set forth that those factors were considered, and the record provided no reason

to believe otherwise. In the case sub judice, the record, and the family court’s own

finding of fact as to the needs of the parties’ child and the role Appellant played in

ensuring those needs were met, clearly show that the family court could not have

considered Appellant’s contribution as a homemaker as required by KRS

403.190(1)(a).

Further, there is a sufficient number of published opinions that can be

referenced where marital assets were not equally divided to support a proposition

that equitable division does not equate to equal division. However, in each of

those, there were sufficient facts as found and provided by the trial court to

demonstrate why the unequal division was still equitable; something that is missing

in the family court’s opinion in the present action. See Shively v. Shively, 233

S.W.3d 738 (Ky. App. 2007); Russell v. Russell, 878 S.W.2d 24 (Ky. App. 1994).

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I would reverse the family court and award an equal division of the value of ACE

and the ACE retirement account as of the date of the decree of dissolution.

Further, I agree with Appellant that it is arbitrary and unfair that

Appellee was able to use marital funds to pay all of his attorney fees and legal

expenses of the divorce action while Appellant is relegated to having to borrow

funds and use post-divorce assets awarded to her to pay her fees and expenses.

Again, while the family court is entitled to deference on its findings of fact, how

those facts are applied to the law is reviewed for an abuse of discretion. Like the

allocation of the marital assets of ACE and the ACE retirement fund, the family

court again provides no analysis of how its ultimate ruling was determined by the

facts. Additionally, Appellee, with regard to attorney fees as well as the division

of the marital assets, filed appropriate post-trial motions seeking any additional

findings from the family court to support its rulings, which the family court

declined to provide.

Regarding the remainder of the arguments raised by Appellant, the

family court sufficiently provided facts and analysis to support its decisions

regarding the valuation of ACE, its determination of an appropriate award of

maintenance, and its division of marital debt. I would agree with the majority

opinion herein as to those issues.

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BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:

John H. Helmers, Jr. Melanie Straw-Boone
Louisville, Kentucky Peter J. Catalano
Louisville, Kentucky

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