Gilbert v. Gilbert, 2024 WL 1472047 (Ky.App., April 5, 2024).

Opinion 2024 Kentucky Marital_Property Asset_Protection 2024GilbertDivorceProperty

Gilbert v. Gilbert, 2024 WL 1472047 (Ky.App., April 5, 2024).

Unpublished opinion. See KY ST RAP Rule 41 before citing.


Court of Appeals of Kentucky.








NO. 2022-CA-0012-MR, NO. 2022-CA-0450-MR




ACTION NO. 18-CI-02993



ACTION NO. 18-CI-02993

Attorneys and Law Firms

BRIEFS FOR APPELLANT/ CROSS-APPELLEE: W. Steven Middleton Frankfort, Kentucky

BRIEF FOR APPELLEE/ CROSS-APPELLANT: Martha A. Rosenberg Lexington, Kentucky




PAGE_1 These appeals arise from the Fayette Circuit Court's orders disposing of marital property and denying further hearings on maintenance and visitation. After careful review of the briefs, record, and law, we affirm both appeals.


Morgan and John Webster Gilbert were married on December 29, 2013, and their daughter was born in June 2014. Morgan filed the underlying dissolution action in August 2018, and a status quo order requiring John to continue to pay her credit card during the pendency of the proceedings was entered.

The final hearing was held in February 2019. Therein, Morgan stipulated to John retaining sole custody of their daughter and, contingent on her compliance with the ordered drug testing, agreed to one-hour of visitation a week supervised by GreenHouse 17. Additionally, Morgan expressly made no claim for permanent maintenance. The primary issue submitted to the court was the disposition of the marital residence. The parties agreed that John owned the property prior to their marriage and that, shortly thereafter, he deeded it to Morgan. Morgan testified John gifted the property to her. Disputing this, John explained that, because he was in "a high-risk specialty and sometimes neurosurgeons get sued beyond malpractice limits and lose everything," for "asset protection" he conveyed the title to Morgan with the understanding that she would return it if they separated.

Prior to entry of a final order, litigation continued, and several motions were filed regarding Morgan's timesharing with her daughter and the amount of "maintenance"1 she received from John. The last of these motions came before the court during an October 2020 motion hour. After hearing arguments, the court suspended Morgan's timesharing and reduced John's financial obligation. The court memorialized these oral rulings in its findings of facts, conclusions of law, and decree of dissolution entered on December 30, 2020. Also in that order, the court rejected Morgan's claim that the house was a gift and awarded it to John as his nonmarital property. Morgan sought to alter, amend, or vacate the order, arguing that the court had erred in awarding John the residence, had failed to address several property matters, and had denied her a meaningful opportunity to be heard on the issues of timesharing and maintenance.


As we will discuss in more detail later, the parties routinely reference Morgan's maintenance award, but no such order was ever entered. Prior to the final judgment, the only order setting temporary support was the status quo order entered October 2, 2018.

On March 24, 2021, the court granted Morgan's request for an additional hearing on timesharing and maintenance and amended the final judgment to award her the residence. The court explained that, given John's credible testimony he deeded Morgan the residence to prevent its forfeiture to a potential judgment creditor, it was persuaded that its prior property order was contrary to the former Court of Appeals' holding in Justice v. Justice, 310 Ky. 34, 219 S.W.2d 964 (1949), that courts of justice should never enforce a contract made for fraudulent purposes. John then filed his own motion to alter, amend, or vacate the amended order.

PAGE_2 On April 8, 2022, the court reversed its determination that further hearings on visitation and maintenance were required and, stating that it had reviewed the testimony anew, reaffirmed its award of the house to Morgan "as gifted by" John. These appeals followed. We will introduce additional facts as they become relevant to the individual claims raised.


On appeal, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Barber v. Bradley, 505 S.W.3d 749, 754 (Ky. 2016) (quoting Kentucky Rule of Civil Procedure (CR) 52.01). If the court's findings of fact "are supported by substantial evidence, then the appellate court's role is confined to determining whether those facts support the trial judge's legal conclusion. However, while deferential to the lower court's factual findings, appellate review of legal determinations and conclusions from a bench trial is de novo." Id. (internal quotation marks and citations omitted).


Disposition of the marital residence:

We begin with John's claim that the court erred in its disposition of the marital residence. Two alternative grounds support the court's decision to award Morgan the property, as a gift or, even accepting John's claim that his intent was asset protection, as a matter of equity per Justice. We begin our analysis with the latter.

John argues that the court misinterpreted Justice in that, if the court concluded the transfer was fraudulent, the remedy was to set the conveyance aside. Alternatively, he contends a "more current and appropriate" statement of the law is found in Digenis v. Young, No. 2014-CA-001086-MR, 2017 WL 3328119 (Ky. App. Aug. 4, 2017) (unpublished), wherein the "appellate court relied on [the] Restatement (Second) of Trusts § 442 (1959)[.]" Lastly, John states that this case is distinguishable from Justice. As we conclude that John's claims are not supported by the authorities on which he relies, we disagree.

In Justice, the husband brought an action to be restored title to property he purchased while married that had been transferred to the wife solely in her name prior to their eventual divorce. 219 S.W.2d at 964. The wife averred that, at the time of the conveyance, the husband was being threatened with a civil suit, and the husband did not deny the allegation. Id. at 965. Affirming the judgment quieting title in her favor, the Court explained, "notwithstanding the statutory provisions requiring that the property rights of the parties upon the granting of a divorce should be restored, such restoration could not and would not be enforced if the party had, during the marriage relation, conveyed the property to [their spouse] for fraudulent or immoral purposes." Id. at 965-66. Thus, the holding of Justice is directly contrary to the remedy espoused by John, and the court did not misinterpret the law.

Further, we disagree with John that the holding in Digenis offers any respite since his claim that the Court therein relied on Section 442 of the Restatement (Second) of Trusts is not supported by a plain reading of the case. The husband in Digenis, like John, testified repeatedly that he had titled nonmarital property acquired during the marriage in his spouse's name as a means of asset protection. 2017 WL 3328119, at PAGE_6. In footnote 10, the sole reference to the Restatement, the Court commented that the husband's argument for the restoration of the property accorded therewith. Id. at PAGE_6. However, in its analysis, the Court expressly rejected the husband's position as contrary to Kentucky law and, citing Justice, the Court affirmed the circuit court's refusal to award him the disputed property. Id. at PAGE_6-7. The Court explained, "[a] person who conveys property ... to avoid the reach of creditors is generally at his grantee's mercy as to whether he will ever get his property back; the 'clean hands' maxim bars either party to the conveyance from obtaining affirmative judicial relief to enforce the arrangement." Id at PAGE_7. Ergo, the court did not err in refusing to apply the Restatement.

PAGE_3 Finally, John contends that the facts of this case are distinguishable from Justice because he does not presently have an outstanding creditor. Again, this argument is not supported by the case law. In Justice the Court stated, "from all the evidence in the case, the majority of the court is convinced that the property was [deeded to the] wife because of [the husband's] fear that suits might be brought against him by one or the other of the women who [ ] were making threats against him." 219 S.W.2d at 965. There is no indication that the husband was actually sued; hence, John's claim of distinction is without merit. Accordingly, we find no error, and we need not consider the court's alternative conclusion that Morgan established that the property was a gift.2


Even if we were inclined to review whether the residence was gifted to Morgan, a fact-intensive inquiry, John's brief contains wholly insufficient citations to the record to support reversal. A litigant is required to provide "ample references to the specific location in the record supporting each of the statements" made in their statement of the case and "pertinent to each issue" in the argument section of their brief. Kentucky Rule of Appellate Procedure (RAP) 32(A)(3)-(4). Here, John included only sparse citations in his statement of the case, and those references that are provided to the video record are not formatted properly as they fail to identify the date of the proceeding referenced and make no attempt to provide a pinpoint citation. RAP 31(E)(4). Additionally, the citations routinely do not support the facts asserted. As we have often noted, "[i]t is not the job of the appellate courts to scour the record in support of an appellant or cross-appellant's arguments." Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011) (citing Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006) and Phelps v. Louisville Water Co., 103 S.W.3d 46, 53 (Ky. 2003)).

Remainder of the Opinion is omitted for brevity.


PAGE_6 For the foregoing reasons, the orders of the Fayette Circuit Court are affirmed.