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RENDERED: JUNE 26, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2008-CA-000928-MR MISAE JONES APPELLANT

v.

APPEAL FROM MARSHALL FAMILY COURT HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE ACTION NO. 07-CI-00248

JOHNNY LYNN JONES

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: ACREE AND MOORE, JUDGES; KNOPF,1 SENIOR JUDGE. ACREE, JUDGE: Misae Jones (Misae) and Johnny Jones (Johnny) were married for roughly fifteen years and have no children. Misae was born and raised in Japan where she had a ninth grade education. During their marriage, Misae worked as a tour guide and bartender while in Japan and as a bartender when she and Johnny

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Senior Judge William L. Knopf sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statute (KRS) 21.580.

lived in Virginia. Since 2002, when they moved to Kentucky, Misae has served as a homemaker and cleaned two homes on occasion. Johnny, who retired from the United States Navy in 2002, has been a mail carrier for the United States Postal Service since 2004, where he earns $2,484 per month. In May 2007, Misae and Johnny separated, and a dissolution of marriage action was filed in June 2007. They were divorced by decree on February 7, 2008. At the trial court level, Misae was awarded marital property consisting of 20% of Johnny's military pension, 50% of a Thrift Savings Plan, 37.5% of a fixed annuity with Lincoln Financial Group, and a motorcycle; non-marital property consisting of a $100,000 certificate of deposit (CD), a 2003 Honda ATV, a 2008 Toyota Camry, $25,000 proceeds from the sale of a Mercedes; half of her attorney fees ($4,950); and none of the marital debt. Misae also sought rehabilitative maintenance from Johnny, but that claim was denied. The trial court found that Misae did not lack sufficient property to provide for her reasonable needs, and insufficient evidence was presented that she could not gain employment. The trial court also awarded Misae the amount due on loan by Johnny to his brother that was taken out of Misae's non-marital CD's interest ($4,300) and marital funds ($1,300). The trial court did not grant a money judgment against Johnny for the amount because no dissipation of assets was found. Instead, the trial court ordered that Misae was entitled to 100% of the alleged debt due to her -2-

from her CD and 50% of that debt due from the marital funds. Since Johnny's brother was not a party to the action, the trial court did not enter a money judgment against him, but instead instructed Misae that she may make a separate civil claim for the money. Johnny was awarded marital property consisting of a 2005 Ford F250 ($19,760) and a 1996 Ford Fairlane ($15,000); non-marital property consisting of the proceeds of a Paducah, Kentucky rental home ($450 per month); none of his attorney fees; and $169,500 in marital debt. On appeal, Misae challenges the trial court holdings denying her maintenance, classifying the Paducah, Kentucky rental home as Johnny's nonmarital property, and finding no dissipation of assets. MAINTENANCE The first issue on appeal is whether the trial court correctly denied Misea's request for rehabilitative maintenance. The trial court has sound discretion in the award of maintenance; therefore, a reviewing court will only overturn the decision if the trial court abused its discretion, or its findings of fact were clearly erroneous. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003); Perrine v. Christine, 833 S.W.2d, 825, 826 (Ky. 1992). In order to receive maintenance, the court must apply KRS 403.200 to determine: (1) whether maintenance should be granted and, if so; (2) what amount should be granted. Pursuant to KRS 403.200(1), a court can only grant maintenance if the seeking spouse both: -3-

(a) Lacks sufficient property . . . to provide for his reasonable needs; and (b) Is unable to support himself through appropriate employment. Both sections of the statute must be complied with in order for maintenance to be granted. Atwood v. Atwood, 643 S.W.2d 263, 265 (Ky.App. 1982). In the case at bar, the trial court did not abuse its discretion when it found that Misae did not meet these two requisites for maintenance. Regarding the first requirement, Misae received her non-marital $100,000 CD, a large portion of the marital property, and none of the marital debt. The trial court did not impose a duty upon Misae to invest all, or nearly all, of her money in the market to provide for her reasonable needs. Id. Instead, the trial court properly considered Misae's financial status in its entirety, and appropriately determined, as the finder of fact, that she had sufficient property to provide for her reasonable needs. Even if it was found that the trial court was clearly erroneous in its application of the first requirement to Misae, her claim for maintenance fails the second requisite. The purpose of the maintenance statute is to enable the unemployable spouse to acquire the skills necessary to support herself in the current workforce. Powell, 107 S.W.3d at 224. Misae only has a ninth grade education, but she maintained employment as a bartender and tour guide prior to moving to Kentucky. Misae testified as to her desire to become a nail technician; however, that does not pertain to the requirement in KRS 403.200(1)(b). Multiple

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witnesses testified as to Misae's ability to communicate competently in English, which further illustrates that she may be able to obtain appropriate employment. Based upon those facts, the trial court acted within its discretion when it found insufficient evidence was presented to illustrate that, prior to her hepatitis diagnosis, Misae failed to engage in a good faith effort to gain employment; therefore, the trial court acted within its discretion when it found that Misae failed to prove that she was unable to support herself through appropriate employment. Since the trial court's findings of fact were not clearly erroneous regarding the application of KRS 403.200(1), Misae was correctly denied maintenance. Since Misae failed to meet the requirements for maintenance, any errors that the trial court committed regarding Johnny's ability to pay maintenance, such as the correct calculation of his monthly expenses, are harmless. RENTAL HOME The second issue on appeal is whether the trial court correctly classified a rental home in Paducah, Kentucky as a gift to Johnny from his mother; thereby making the property non-marital. Whether property is considered a gift for purposes of a divorce proceeding is a factual issue subject to the clearly erroneous standard of review. Hunter v. Hunter, 127 S.W.3d 656, 660 (Ky.App. 2003). Property acquired after marriage is presumed to be marital property. KRS 403.190(3). However, one way that presumption can be overcome is by a showing that the property was acquired as a gift. KRS 403.190(2).

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In the case at bar, Johnny and his mother testified, and presented bank statements to support their testimony, claiming the rental home was a gift; whereas Misae presented the deed to the home, which included a statement of consideration to show the home was not a gift. The trial court is not bound by how the property is titled when determining if the property is marital or non-marital. KRS 403.190(3). The trial court is not limited to the four corners of the document in determining whether the property was a gift. Several factors, the most important of which is the intent of the purported donor, must be considered. Hunter, 127 S.W.3d at 660; Clark v. Clark, 782 S.W.2d 56, 63 (Ky.App. 1990). Substantial evidence, in the form of Johnny's and his mother's testimonies and various bank statements, supports the finding that Johnny's mother intended to give the property to him as a gift. Therefore, we hold that the trial court was not clearly erroneous in the classification of the rental home as non-marital property.

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DISSIPATION OF ASSETS The final issue on appeal is whether the trial court correctly denied Misae's claim of dissipation against Johnny for a loan made to his brother. The clearly erroneous standard of review applies to the trial court's decision regarding dissipation of assets. Bratcher v. Bratcher, 26 S.W.3d 797, 800 (Ky.App. 2000). Dissipation occurs when "marital property is expended: (1) during a period when there is a separation or dissolution impending; and (2) where there is a clear showing of intent to deprive one's spouse of her proportionate share of the marital property." Brosick v. Brosick, 974 S.W.2d 498, 500 (Ky.App. 1998). The party claiming the dissipation bears the initial burden of proof to show that the dissipation occurred during separation or an impending dissolution. Bratcher, 26 S.W.3d at 799. Once that initial burden is met, the dissipator bears the burden of showing that the money was spent for an appropriate marital purpose. Brosick, 974 S.W.2d at 502. In the present case, Misae presented checks from January 2007 written by Johnny to his brother; however, the couple did not separate until May 2007. Therefore, in order to establish a prima facie case of dissipation, Misae must show that separation or dissolution was impending during that time. Id. at 500. Misae did not present any evidence that there was an impending separation or dissolution in January 2007. Since Misae did not meet her burden to establish a prima facie case, the trial court was not clearly erroneous in holding that no dissipation took place. Id. at 502. Therefore, if Misae wishes to recover any -7-

amount due to her from the loan, she must file a separate civil action against Johnny's brother. CONCLUSION In summary, the trial court did not abuse its discretion in denying Misae maintenance, classifying the Paducah, Kentucky rental home as Johnny's non-marital property, and finding no dissipation of assets. For the foregoing reasons, we affirm the opinion and order of the Marshall Family Court. KNOPF, SENIOR JUDGE, CONCURS. MOORE, JUDGE, CONCURS IN RESULT ONLY.

BRIEFS FOR APPELLANT: Tiffany Gabehart Poindexter Paducah, Kentucky

BRIEF FOR APPELLEE: Robert L. Prince Benton, Kentucky

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