FAMILY LAW – Marital property & tracing, attorneys fees: Rearden v. Rearden (COA 10/2/2009)

Rearden v. Rearden
2006-CA-002362 10/02/09 2009 WL 3231237
Opinion by Judge Nickell; Judge Lambert and Senior Judge Henry concurred.

The Court affirmed in part, reversed in part and remanded a judgment of the family court classifying various items as marital property and denying an award of attorneys’ fees in a dissolution action. The Court first held that the family court abused its discretion in classifying a down-payment on the marital home as marital property when appellant clearly proved that he transferred the funds from his personal money market account prior to the marriage. The fact that the closing on the home occurred after the wedding did not matter. However, the Court held that appellant failed to trace back to his private non-marital bank account a refund received from the down payment and therefore, that amount was properly classified as marital property. The Court next held that the family court did not abuse its discretion in classifying as marital property three items of personalty purchased with appellant’s personal credit card during the marriage. Appellant failed to sufficiently overcome the presumption that the items were marital property by proving they were purchased with non-marital funds. The Court next held that the family court did not err in finding that appellee was entitled to a share of appellant’s military retirement benefits, even though the marriage lasted only two months of appellant’s military enlistment. However, the Court held that the trial court abused its discretion in transforming the monthly award to a present-day lump sum payment without explaining how the court determined that the amount was a reasonable calculation of appellee’s expected future interest. The Court finally held that the family court did not err in denying appellant’s request for attorneys’ fees after the court found appellee to be in contempt of court on more than one occasion. KR 403.220 did not authorize a trial court to consider fault, willful disobedience, or anything beyond the financial positions of the parties.