Delene Ann Gilkerson v. Charles Randall Gilkerson ( 2023 )

RENDERED: JUNE 2, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0270-MR
DELENE ANN GILKERSON APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
v. HONORABLE ROBERT W. MCGINNIS, JUDGE
ACTION NO. 18-CI-00152
CHARLES RANDALL GILKERSON
AND HON. PAULA RICHARDSON
BARBER APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, EASTON, AND JONES, JUDGES.
JONES, JUDGE: This is an appeal from a decree of dissolution entered by the
Rowan Circuit Court. The appellant, Delene Gilkerson (“Delene”), contends the
circuit court erred by: (1) enforcing an oral settlement agreement she made in
open court with her now ex-husband, appellee Charles Randall Gilkerson
(“Randy”), regarding their division of marital assets; (2) declining to require
Randy to pay her attorney’s fees; and (3) requiring her to pay $2,500 of Randy’s
attorney’s fees as a contempt sanction. The specifics of her contentions are
addressed in turn below. In sum, her arguments lack merit. Hence, we affirm.
I. ENFORCEMENT OF THE ORAL SETTLEMENT AGREEMENT
A. Overview
Delene and Randy married on February 14, 2005. They had no
children together. In June 2018, following a requisite period of separation, each
petitioned the Rowan Circuit Court to dissolve their marriage and equitably divide
their marital estate. On September 11, 2019, following a period of discovery and
motion practice, the circuit court held a hearing wherein the parties, after being
duly sworn, outlined the particulars of an agreement they had made regarding the
division of their marital property. Because it is pertinent to many of the issues
presented in this matter, we set forth the relevant substance of what was stated at
that hearing:
RANDY’S COUNSEL: Is it your understanding that we
have come to a settlement agreement as far as the
division of the assets?
RANDY: Yes.
RANDY’S COUNSEL: Okay. I’m going to read that
into the record, Randy, and I may ask you a couple
questions about that.
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RANDY: Okay.
COURT: Okay, before you do that, Ms. Gilkerson, do
you agree with the testimony he’s given so far?
DELENE: Yes.
...
COURT: Okay. And listen carefully to what’s stated as
the agreement to make sure you agree with it, okay?
DELENE: Okay.
COURT: Go ahead.
RANDY’S COUNSEL: Is it your understanding that as a
division of the marital estate, that Delene Gilkerson will
receive, or has already in her possession some of these
assets: $50,000 from the joint bank account?
RANDY: Yes.
RANDY’S COUNSEL: And that’s the Whitaker Bank?
RANDY: Yes.
RANDY’S COUNSEL: The, she will receive the
property that we’re calling the East Point property?
RANDY: Eastwood.
RANDY’S COUNSEL: Eastwood, thank you, at a value
of $110,000?
RANDY: Yes.
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RANDY’S COUNSEL: That she will receive her
retirement that’s invested with Pantera [sic1] that has a
current value of $48,800?
RANDY: Yes.
RANDY’S COUNSEL: That she has already received
$150,000 from the joint Whitaker Bank account?
RANDY: Yes.
RANDY’S COUNSEL: That in addition she will receive
the household goods and furnishings that are at the
Country Club, 375 Country Club address at a value of
$25,000?
RANDY: Yes.
RANDY’S COUNSEL: That she will receive the
Country Club residence at a value of $329,000?
RANDY: Yes.
RANDY’S COUNSEL: That she has up to a period of
one year to do either one of two things, Randy. She has
to sell the property, or if she decides she wants to retain it
she has to pay you the sum of $126,000?
RANDY: Yes.
RANDY’S COUNSEL: And you have agreed not to
charge her any interest on that $126,000?
RANDY: Yes.
RANDY’S COUNSEL: In addition, she would receive a
condominium at Saint James Court, valued at $110,000,
1
The parties agree that Delene’s retirement was invested with an entity named “Pentegra,” not
“Pantera.”
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and she agrees that you would have two weeks from the
date of the decree to remove your personal items from
that condominium?
RANDY: Yes.
RANDY’S COUNSEL: That she would also receive the
property located on Whitaker Street at a value of
$126,000?
RANDY: Yes.
RANDY’S COUNSEL: That she’s receiving assets in
the amount of $948,000?
RANDY: Yes.
RANDY’S COUNSEL: And the flipside of that is, every
other asset that you have, that you all have accumulated
together, becomes your asset as the division of the
marital estate? These things would be restored to you.
You have two separate bank accounts at US Bank,
Randy?
RANDY: Yes.
RANDY’S COUNSEL: And those would be restored as
your separate property, correct?
RANDY: Yes.
RANDY’S COUNSEL: And Delene has two separate
bank accounts at Whitaker Bank?
RANDY: Yes.
RANDY’S COUNSEL: She also has a certificate of
deposit in the amount of $8,700. Those three accounts
would all be restored to her as her separate assets. Is that
your understanding also?
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RANDY: Yes.
RANDY’S COUNSEL: And that you all have agreed to
divide the vehicles, and you all have agreed that is an
equal division. In other words, Delene receives, can you
tell the court the assets that she receives as far as
vehicles?
RANDY: She receives a 2012 Cadillac and a 2005
Mercedes.
RANDY’S COUNSEL: Okay. And all the other
vehicles would become your property with the exception
of the vehicle that you all both agreed was going to be
the property of her daughter?
RANDY: Yes.
...
RANDY’S COUNSEL: And then if, like I said, any
other asset would become yours?
RANDY: Yes.
RANDY’S COUNSEL: That’s your understanding. Um,
and let’s just run through those to make sure that we’re
on the same page, okay Randy?
RANDY: Okay.
RANDY’S COUNSEL: That you would receive a TD
bank account, that’s the Florida bank account. You
would receive all of the Charles Schwab bank account.
You would receive all of the Merrill Lynch account,
which actually is your retirement account, part of which
was marital, part of which was nonmarital, but you’re
gonna receive all of that.
RANDY: Yes.
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RANDY’S COUNSEL: You would receive the proceeds
from the sale of 1184 McBrayer, and those proceeds are
$90,013.96, that are sitting in the Richardson, Barber,
and Williamson escrow. And you would receive the
McBrayer, the other McBrayer property, which we
valued at $162,000. And you would receive the
condominium at Titusville, Florida, at 2124 King’s
Cross, that’s valued at $130,000. And you would also
receive the household goods and furnishings at the
Florida condominium.
RANDY: Yes.
RANDY’S COUNSEL: Is that correct, Randy?
RANDY: Yes.
RANDY’S COUNSEL: Is there anything that I’ve
omitted –
RANDY: No, I don’t –
RANDY’S COUNSEL: That you can think of?
RANDY: I don’t think so.
RANDY’S COUNSEL: And based upon your
agreement, do you believe that this is a just division of
the marital estate?
RANDY: Yes.
RANDY’S COUNSEL: Okay. And you are agreeable to
that?
RANDY: Yes.
RANDY’S COUNSEL: You are agreeable to execute
whatever documents are necessary to convey title to Ms.
Gilkerson?
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RANDY: Yes.
RANDY’S COUNSEL: For the assets she is to receive?
RANDY: Yes.
The parties also stated they would file a joint tax return, and that if
there were any liability or refund, it would go to Randy; and that Delene’s daughter
would receive a grand piano. The hearing then proceeded in relevant part as
follows:
COURT: Okay. Does that complete everything?
RANDY: Yes.
COURT: Okay. And Ms. Gilkerson, do you agree with
everything your husband, or actually, your husband’s
attorney just stated –
DELENE: Yes.
COURT: As far as property settlement?
DELENE: Yes.
COURT: Okay. And you believe that’s fair to both of
you?
DELENE: Yes.
COURT: Okay. I’ll find it to be so. The separation
agreement, once it comes in, assuming it parrots what we
just heard, will be approved, and the final decree will be
entered at that time. So as soon as you all get this in,
we’ll process it quickly.
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RANDY’S COUNSEL: So am I understanding the court
that it would not entertain, the court would not entertain
the entry of a decree of dissolution of the parties’
marriage today if I provide one?
DELENE’S COUNSEL: If you can get it done.
RANDY’S COUNSEL: If I can provide one without –
COURT: No. Everything has to be resolved.
RANDY’S COUNSEL: Okay.
COURT: I won’t split it.
DELENE’S COUNSEL: Do what now? Sorry. I didn’t
hear.
RANDY’S COUNSEL: He’s basically saying he won’t
allow us to enter the decree –
DELENE’S COUNSEL: So everything until –
COURT: Until we’ve got the separation agreement
executed.
DELENE’S COUNSEL: – separation agreement signed?
Okay.
RANDY’S COUNSEL: Okay.
COURT: I allowed that to be done one time,
thirty[-]some years ago, and it blew up.
Randy filed a transcript of the September 11, 2019 hearing with the
circuit court’s record without objection, and his counsel drafted a proposed
dissolution decree that incorporated the property settlement agreement the parties
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had described to the circuit court. However, when presented with Randy’s
proposed decree, Delene refused to approve it. Notwithstanding, Randy moved the
circuit court to approve the parties’ agreement that was made on the record, and to
incorporate it into the final dissolution decree; and the circuit court ultimately did
so.
B. Issues
Delene refused to give her approval of Randy’s proposed decree for
two overarching reasons – reasons the circuit court rejected, and which she now
reasserts before this Court as primary focuses of her appeal. In her view: (1) she
and Randy never effectively formed a property settlement agreement at the
September 11, 2019 hearing; and (2) even if such an agreement had been
effectively formed, it was nevertheless unenforceable because it was
unconscionable. As this matter was resolved through a bench trial, we note at the
onset that factual findings of the trial court are reviewed under the clearly
erroneous standard of Kentucky Rule of Civil Procedure (“CR”) 52.01, but the trial
court’s legal conclusions are reviewed de novo as an issue of law. Smith v. Smith,
235 S.W.3d 1, 6-7 (Ky. App. 2006).
1. Whether the circuit court erred in determining Delene and
Randy formed a property settlement agreement
“[T]he issue of contract formation . . . is a question of law to be
reviewed de novo, where, as here, the relevant facts are undisputed.” Baumann
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Paper Co., Inc. v. Holland, 554 S.W.3d 845, 848 (Ky. 2018), as modified on denial
of reh’g (Sep. 27, 2018). “The fundamental elements of a valid contract are offer
and acceptance, full and complete terms, and consideration. For the terms to be
considered complete they must be definite and certain and must set forth the
promises of performance to be rendered by each party.” Energy Home, Div. of
Southern Energy Homes, Inc. v. Peay, 406 S.W.3d 828, 834 (Ky. 2013) (internal
quotation marks and citations omitted).
In support of her assertion that she and Randy never effectively
formed a property settlement agreement, Darlene’s argument, as set forth in her
appellate brief, is as follows:
On September 11, 2019, the trial court refused to enter a
Decree of Dissolution until everything was “resolved” as
a separation agreement had not been “executed.” (9-11-
19 TR at 11:58:53-11:59:11 and 11:59:17-19).
Additionally, at the December 10, 2020 hearing, the trial
court noted that there was an “oral agreement” that was
read into the record, which was never reduced to writing.
In noting that oral agreements that are read into the
record, estates like Delene’s and Randy’s is atypical, the
trial court denied enforcement of the agreement, stating
that this, “kicks us right back to square one.” (12-10-20
TR at 11:01:46-11:02:55). Further, the court stated that
the date of the final hearing shall be the date of the
valuation of the assets. (12-10-20 TR at 11:04:00-10).
Admittedly, the trial court entered an order, setting a
hearing, “in order to make a determination on whether
the agreement was unconscionable.” See January 15,
2020 Order, ROA at 436-437.
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Notwithstanding the trial court’s January 15, 2020 Order,
it does appear that the trial court initially, and
subsequently, treated the matter as if there was no
finalized and formalized agreement. The trial court
specifically noted that it would not enter a Decree of
Dissolution until the agreement had been executed and
followed this up by stating that the agreement had never
been reduced to writing. Given the nature of Delene and
Randy’s estate, this analysis is logical. Finally, as the
trial court was going to base its ultimate analysis on
values as of the date of a final hearing, it cannot be said
that an agreement existed as the values would be
necessarily significantly different than those on
September 11, 2019. For all of these reasons, it is
evident that no agreement existed between the parties.
Delene is effectively arguing that no property settlement agreement
was effectively formed because: (1) at the September 11, 2019 hearing, the circuit
court directed the parties to execute a written agreement, which the parties failed to
do; (2) after the September 11, 2019 hearing, the circuit court “treated the matter as
if there was no finalized and formalized agreement” and “denied enforcement”;
and (3) the parties never agreed that the value of the assets contemplated in their
agreement would be the value of those assets as of the date of the circuit court’s
final hearing in this matter, April 29, 2021.
As to the first and second points of Delene’s argument, we disagree.
The legal requirement for parties to form and execute a “written” property
settlement agreement in this context derives from Kentucky Revised Statute
(“KRS”) 403.180(1) and is satisfied where an oral agreement is stated on the
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record in the presence of the judge or transcribed by a court reporter and made part
of the record. Calloway v. Calloway, 707 S.W.2d 789, 791 (Ky. App. 1986).
Here, the circuit court indicated at the September 11, 2019 hearing that it would
not incorporate any agreement made by the parties into its decree unless the
agreement was in writing and signed by the parties. At no point, however, did the
circuit court hold that the parties failed to form an agreement; nor, as evidenced by
its final judgment, did it treat this matter as if there was no finalized and
formalized agreement. Indeed, the circuit court ultimately set aside its
interlocutory directive for the parties to formally memorialize their agreement in
written form, and instead recognized what transpired at the September 11, 2019
hearing as the effective formation of a finalized and formalized property settlement
agreement. Interlocutory orders are subject to revision; and, if the parties
effectively formed a contract during the September 11, 2019 hearing, it was the
circuit court’s prerogative to set aside its interlocutory directive requiring the
parties to execute a separate, written agreement.
This leads to Delene’s third point. She takes issue with the fact that
the parties’ agreement, as stated on the record at the September 11, 2019 hearing,
did not provide that the parties’ assets would be valued as of the date of the circuit
court’s final hearing in this matter, i.e., April 29, 2021. Considering this perceived
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deficiency, Delene appears to be asserting that a material term was missing from
the parties’ stated agreement.
We disagree. Delene and Randy stated on the record that they were
aware of what their marital assets were; that their agreement contemplated all their
assets and that nothing had been omitted; and further, they exchanged promises
regarding how their marital assets would be divided. The essentials of a contract
(offer, acceptance, and consideration) were accordingly present, and the assets
contemplated in their agreement were reasonably ascertainable. As for the
valuation of the parties’ marital assets and the date from which it was determined,
Delene is correct that it was relevant, but it was relevant to an issue other than
contract formation. After Delene moved to set the agreement aside, the
proceedings were governed by KRS 403.180(2), which provides:
In a proceeding for dissolution of marriage or for legal
separation, the terms of the separation agreement, except
those providing for the custody, support, and visitation of
children, are binding upon the court unless it finds, after
considering the economic circumstances of the parties
and any other relevant evidence produced by the parties,
on their own motion or on request of the court, that the
separation agreement is unconscionable.
(Emphasis added.)
The doctrine of unconscionability would apply, for example, if there
was a substantial change in the parties’ circumstances or the value of their assets
between when the parties effectuated their agreement and when their divorce was
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granted, rendering their agreement manifestly unfair or unreasonable. See Mays v.
Mays, 541 S.W.3d 516 (Ky. App. 2018). “Unconscionability” does not, however,
indicate whether a contract was formed; it is merely a basis for declaring an
already-formed contract voidable – that is, legally enforceable unless it is voided at
the other party’s option – rather than void ab initio. See 8 WILLISTON ON
CONTRACTS § 18:1 (4th ed.). In sum, we find no error in the circuit court’s
determination that the parties formed a property settlement agreement.
Apart from that, the circuit court properly assessed the conscionability
of the parties’ agreement based upon the evidence the parties adduced at the April
29, 2021 final hearing. The applicable statute, KRS 403.180(2), required the
circuit court to consider the conscionability of the parties’ agreement prior to
incorporating it into its decree. This inquiry necessarily encompassed an
assessment – viewed at the time of dissolution – of whether the agreement was
oppressive or manifestly unfair, or of whether either party’s position had suffered
in a manner which was beyond the contemplation of the parties when they entered
the agreement. See Blue v. Blue, 60 S.W.3d 585, 591 (Ky. App. 2001); Gentry v.
Gentry, 798 S.W.2d 928, 936 (Ky. 1990); Peterson v. Peterson, 583 S.W.2d 707,
711 (Ky. App. 1979). The evidence adduced at the April 29, 2021 final hearing
related to the parties’ respective economic circumstances and thus the
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conscionability of the parties’ agreement as of that date, which was shortly before
the circuit court dissolved their marriage on May 4, 2021.2
2. Whether the circuit court erred in determining the parties’
agreement was not unconscionable
As Delene somewhat indicated in her argument set forth above, on
December 10, 2020, the circuit court initially heard Delene’s motion to set aside
her agreement with Randy based on unconscionability, but concluded on that date
that there had been insufficient evidence presented regarding the actual values of
the parties’ real estate and financial accounts described in their agreement to
enable it to properly consider “the economic circumstances of the parties” per KRS
403.180(2), and thus properly adjudicate her motion. The circuit court accordingly
directed the parties to take additional discovery in that regard, and later resolved
the conscionability issue by comparing what the parties had agreed to on
September 11, 2019, with the value of their assets and respective contributions as
proven at the April 29, 2021 hearing.
Essentially, the circuit court assessed the fairness of the parties’
agreement by contrasting it with what the parties hypothetically would have
received had there been no agreement; and it determined that the agreement gave
Delene a better bargain than what she otherwise would have received under a “just
2
The circuit court’s May 4, 2021 order dissolved the parties’ marriage, but reserved all other
issues, including division of property. See Putnam v. Fanning, 495 S.W.2d 175 (Ky. 1973);
accord Goldman v. Eichenholz, 851 S.W.2d 463, 465 (Ky. 1993).
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distribution” of property pursuant to KRS 403.190 – specifically, about 40% of the
marital assets, as opposed to 25% to 33%.3 In its exhaustive order to that effect,
entered August 30, 2021, the circuit court reviewed the parties’ evidence and made
the following relevant findings of fact and conclusions of law:
FINDINGS OF FACT
...
11. The parties stipulated to all real estate values other
than the Whitaker Street house. The value of 375
Country Club Drive is $435,000.00, Eastwood Heights
property is $120,000.00; McBrayer property is
$218,000.00, St. James Court condo is $150,000.00,
2124 Kings Cross, Titusville condo is $175,000.00.
Petitioner stipulated that Joe Curd is an expert real estate
appraiser, whose testimony of $135,000.00 value for the
Whitaker Street house was not rebutted. The parties
stipulated that $90,013.96 of the net proceeds from the
sale of 1184 McBrayer Road is in Richardson Barber &
Williamson’s escrow account. The parties further
testified that on September 11, 2019, the Petitioner
received the 375 Country Club Drive property, the
Eastwood Heights property, the St. James Court condo
property, and the Whitaker Street property. The parties
testified that on September 11, 2019, the Respondent
received the $90,013.96 of net proceeds from the sale of
1184 McBrayer Road, the remaining McBrayer Road
property, and the 2124 Kings Cross, Titusville condo.
12. The parties relied upon the record herein, the
pleadings, the prior hearings, the depositions of the
parties, the testimony of Ira Kilburn, and submitted
exhibits to support their contentions.
3
The circuit court made this specific “percentages” statement in a February 10, 2022 order
overruling Delene’s post-judgment motion to alter, amend, or vacate.
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13. The Court heard the live testimony of numerous
witnesses, financial expert Joel Lane, CPA, real estate
expert Joe Curd, and the parties, and has again reviewed
the written agreement of the parties contained in the
hearing transcript.
14. The Petitioner had a Pentegra retirement account
through her employer Whitaker Bank on the date of the
marriage, with a value of $20,544.46. The Petitioner and
her employer made contributions of $4,136.22 during the
period of the marriage. The total contributions were
$24,680.68. The value of the Pentegra account on April
22, 2021 was $59,605.39. The increase in value during
the period of the marriage was $39,060.73. Based upon
the tax information and the documents provided by the
Petitioner, 17% of the gain, $5,937.20, is marital. The
total marital portion of the Petitioner’s retirement with
contributions during the period of the marriage and the
growth of same is $10,073.42. The parties agreed that
the Petitioner’s retirement account was assigned to her,
and the Court finds $49,531.97 as her separate
nonmarital property and $10,073.42 as marital property.
15. The Respondent had an IRA with Morgan Stanley at
the time of the marriage. The Petitioner has now
stipulated that the amount of $216,392.00 is
Respondent’s separate nonmarital property. The
Respondent and financial expert Joel Lane testified that
Respondent had an IRA with Morgan Stanley with said
amount at the time of the marriage, that was transferred
to Merrill Lynch when the Respondent’s broker moved to
Merrill Lynch. CPA Lane testified that the retirement
account was not closed but was transferred as there was
no tax evidence of a closure of the account in the year of
transfer. The records and CPA Lane documented that at
the time of the first marital contribution in September
2005 the value of the account was $224,443.97, that the
contributions made during the period of the marriage
were $323,200.00, that 41% of the retirement account
was Respondent’s separate property and 59% of the
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retirement account was marital property with
contributions during the period of the marriage and the
growth of same. The value of the account on March 31,
2021 was $833,647.17, of which $341,795.34 the Court
finds is Respondent’s separate property and is assigned to
the Respondent, and the Court finds $491,851.83 is
marital property and as the parties agreed, it is assigned
to the Respondent.
16. The Respondent had a Charles Schwab account
ending in #22 that had a value of $41,964.61 on the date
the parties married based upon monthly statements. On
September 11, 2019, the parties agreed that the
Respondent would receive the account. At the April
2021 hearing the Respondent testified that the balance
had never been below that amount and claimed same as
his separate nonmarital property. He made no claim for
the income earned on this amount during the period of
the marriage. The Respondent also traced, through
documents and the expert testimony of Joel Lane, CPA,
his separate nonmarital funds into the Schwab account
ending in #22. The Respondent owned a Morgan Stanley
investment account ending in #01 with a value of
$77,295.60 when the couple married. When
Respondent’s broker moved from Morgan Stanley to
Merrill Lynch the account balance of $100,393.17 was
transferred to Merrill Lynch account ending in #88. The
Merrill Lynch Account was closed on April 27, 2012,
and the balance of $71,038.38 was transferred into the
Whitaker Bank Account ending in #32. On May 14,
2012, the balance was sent to the Charles Schwab
Account ending in #22, and on May 18, 2012, the AT&T
stock was purchased at a price of $33,658.95. The
AT&T stock is still owned, and the value of the stock is
$52,768.80.
17. The Court finds that the Respondent’s initial account
values of $41,964.61 plus the current value of the AT&T
stock of $52,758.80 is the Respondent’s separate
nonmarital property. The parties stipulated the Schwab
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account value of $515,763.67. The balance of
$421,040.26 in the Schwab account after assignment of
the Respondent’s separate property is marital, and the
parties assigned to the Respondent.
18. Petitioner’s September 11, 2019, agreement included
the Whitaker Street house as marital property and was
assigned to her. She now claims the house on Whitaker
Street, Morehead, KY, as her nonmarital property. She
owned same prior to the marriage. The Respondent
provided documents that established he paid off the
mortgage in the amount of $79,397.45 on the home prior
to the parties’ marriage. The Petitioner claimed that the
Respondent made a gift of same. The Respondent denied
that he intended to make a gift of the property. He
claimed this asset as his separate nonmarital property.
The parties both testified that the house was used as
rental property during the period of the marriage, that
improvements were made on same during the marriage,
and the tax returns supported this. During the pendency
of the action the parties agreed to list this property and
sell same per an agreed order. The Respondent claimed
that it was a joint venture to acquire real estate and the
Court so finds that it was same, and the Court finds that it
is marital property with a value of $135,000.00 based
upon the unrebutted testimony of Real Estate Appraiser
Joe Curd.
19. The parties agreed they had a joint checking account
at Whitaker Bank Acct. ending in #32, in the amount of
$305,000.00. On September 11, 2019, it was agreed that
the Petitioner received $200,000.00 and that the
Respondent received $80,000.00 and the balance was
used for marital bills. The records showed the Petitioner
withdrew $150,000.00 in June 2018 and continued to
spend the remaining balance for her benefit, including the
payment of her credit card bills. The Respondent by
Court order received $80,000.00 of this account during
the pendency of the action. The Petitioner did not rebut
the Respondent’s documents, the Petitioner’s credit card
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records or the joint bank account records, which
established that she had received the benefit of
$210,808.17 of the $305,000.00. The Respondent
established that he received the $80,000.00 and the
benefit of $14,191.83 from the joint account by either
checks paid or charges for his benefit made by the
Petitioner on her credit card. The court finds that the
Petitioner received $210,808.17 from the joint account
and the Respondent received $94,191.83 from the joint
account.
20. The parties had a rental account at Whitaker Bank
ending in #25, and even though it was assigned to the
Respondent per the September 2019 agreement, the
Petitioner testified she closed that account upon the
advice of her counsel on the day of the hearing. Her
Counsel Ira Kilburn testified that he did not advise her to
do so. She received $3,844.18 from that account. This is
assigned to the Petitioner as a marital asset.
21. The parties agreed that the Respondent was assigned
the TD Bank account he closed in the amount of
$1,627.00.
22. In the September 11, 2019, agreement the parties
informed the Court that they had agreed that the bank
accounts had been received as an equal exchange. The
Court finds based upon the records that the parties
produced they received same as follows: Petitioner
received Whitaker Account ending in #41 of $33,929.00,
Whitaker Account ending in #47 of $38,392, Whitaker
Bank CD of $8,875.00; and the Respondent received US
Bank account ending in #53 of $65,947.27, and US Bank
account ending in #13 of $2,124.32. The Court finds that
agreement was in just proportions and was fair. The
Respondent provided records and testimony that any
remaining balance in the account ending in #13 were his
Social Security benefits and the $80,000.00 marital funds
he received from the Whitaker Bank joint account ending
in #32 per this Court’s prior order.
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23. In the September 11, 2019, agreement the parties
informed the Court that they had agreed that the vehicles
were traded out to be an even exchange of marital
property. At the April 20, 2021, hearing, the Petitioner
did not present any evidence regarding same, and has
requested that they be sold. The Respondent testified he
valued same, based upon the Petitioner’s discovery
responses and requested the exchange and values as
follows: 2012 Cadillac SRX-$17,000.00; 2010 Cadillac
SRX $6,500.00; 2005 Mercedes CLK 320 $7,000.00, all
to the Petitioner. Based upon the Petitioner’s
interrogatory responses the Respondent would receive a
2005 Toyota Highlander-$7,500.00; a 2012 Lincoln
MKZ Sedan-$13,000.00, a 2005 Ford van-$2,400.00
assigned to the Respondent. Any remaining equipment
or vehicles were owned by corporations, not the parties.
The parties agreed that the Petitioner’s daughter would
receive the 2010 Cadillac SRX. The Court finds this to
be reasonable and assigns same at the stated values.
24. In the September 11, 2019, agreement the Petitioner
received the 375 Country Club Drive house at a value of
$329,000.00 and the parties agreed that they valued the
Respondent’s nonmarital interest in same at $126,000.00.
The Petitioner was to pay the Respondent this amount
when the property was sold or within one year from
September 11, 2019, whichever occurred first. The
parties agreed that the Respondent would have a first lien
on 375 Country Club Drive to secure the payment of the
amount. On April 20, 2021, the parties stipulated that the
property at 375 Country Club Drive was valued at
$435,000.00. The Petitioner provided no evidence to
rebut that the Respondent’s corporation owned the real
estate upon which the house was constructed prior to the
marriage. There was no mortgage. The Petitioner’s
appraiser, Norma Mullins, valued the real estate at
$69,200.00. The Respondent established through bank
records that he had partially constructed the home prior
to the couple’s marriage, and thereafter contributed his
separate funds into a construction account and he
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produced documents to support this in the amount of
$121,154.83. The Respondent was able to trace the
amount from his separate funds. The Respondent
actually has a separate interest in same in the amount of
$190,354.83, not the $126,000.00 that the parties agreed
upon on September 11, 2019. The Petitioner received a
windfall of $64,354.83, and the Respondent lost the
benefit of same. The actual remainder of the
$435,000.00 value is marital in the amount of
$244,645.17. The Petitioner received the property at
$203,000.00. However, the Respondent agreed to same.
The Petitioner shall pay the Respondent the sum of
$126,000.00 within one year from September 11, 2019,
or when it is sold whichever occurs first. The
Respondent has a first lien on the 375 Country Club
house and lot, Morehead, Kentucky to secure payment of
the amount of Respondent’s separate property.
25. The parties agreed on September 11, 2019, they had
household goods and furnishings in Country Club Drive,
Morehead, KY and Kings Cross in Titusville, FL. Per
their agreement, the Petitioner received the furnishings at
375 Country Club at a value of $25,000.00, and the
Respondent received the furnishings at Titusville at a
value of $5,000,00. At the April 29, 2021, hearing the
Respondent testified unrebutted that the furniture at
Country Club Drive was purchased new, and the
furniture at Titusville was purchased used at consignment
stores. He valued the Country Club Drive furniture at
$25,000.00 after restoration of the items the Petitioner
claimed as separate property. He testified that he would
sell the household goods and furnishings at Titusville for
$5,000. The Court finds the marital household goods and
furnishings at Country Club Drive assigned to the
Petitioner were correctly valued at $25,000. The
household goods and furnishings assigned to the
Respondent were correctly valued at $5,000. In addition,
the parties purchased a grand piano with marital funds.
The parties agreed that the piano is the property of
Elisabeth Riddle. At the April 29, 2021, hearing the
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Petitioner submitted a list of some household goods and
the Respondent stipulated to those few items as being the
Petitioner’s nonmarital household goods and furnishings.
The Court so finds those few items to be the Petitioner’s
nonmarital household goods as stipulated.
26. On September 11, 2019, the parties agreed that the
Respondent would receive the 2.5% ownership in Cherry
Blossom Golf Club, LLC whatever the value was. In the
April 2021 hearing the Respondent presented corporate
records of a purchase price of $30,000.00 in 2008, with
steady decline in value to tax records reflecting 0 value in
2016. The Court finds that it was reasonable that the
parties assigned no value to same, and it is again assigned
to the Respondent.
27. On September 11, 2019, the parties agreed that the
Respondent owned businesses prior to the marriage and
assigned no value to any of them as marital property.
The Petitioner now alleges that there is a marital
component of those assets. The Respondent provided
records which established the Respondent owned 50% of
the stock in Sheltowee Trail Country Club, Inc., when he
married the Petitioner. At the time of the marriage, it
was an active golf course which closed during the
marriage. The Petitioner alleged that she had contributed
to the running of the property, but the Respondent
testified that at the time of the marriage it was an active
golf course; that it had to close due to losses; then it was
an event venue which the owners could not make
successful; and subsequently rented same to Terry Fitzer,
the owner of Reno’s Restaurant, who was not able to
make it profitable. Thus, its assets continue to be a bank
account and the same real estate which was owned by the
corporation prior to marriage with no mortgage
indebtedness. The total corporate assets on January 31,
2005, were $396,891.27 and in 2019 the total assets were
$166,721.00. The corporate tax returns documented the
values. The Petitioner introduced bank records for a
corporate bank account and the court finds that the
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account is an asset of the corporation, not a marital asset.
The Petitioner offered no documentary evidence to
substantiate her claim that the value of the corporation
was increased due to her efforts during the marriage. The
Court finds no marital asset in the corporation. The 50%
stock ownership is assigned to the Respondent as his
separate nonmarital property.
28. The Respondent also presented records which prove
he owned 50% of the stock in Producer Services
Corporation when he married the Petitioner. The
corporate records show total assets of $897,792.85 on
January 31, 2005, and $407,684.00 on December 31,
2019. The Court finds no increase in the value of the
corporation during the period of the marriage. The
Petitioner introduced bank records for a corporate bank
account and the court finds that the account is an asset of
the corporation. The Court finds that the 50% stock
ownership is the Respondent’s separate nonmarital asset
and assigns it to him.
29. The Respondent also presented bank records and
public records which show he had a failed business DBA
Chamber Distributing; that the bank account remains,
and was used to pay bills, and distribute funds to and for
the benefit of the Petitioner’s daughter. The Respondent
provided bank records and Schwab statements that
showed the Petitioner continued to transfer funds from
the Schwab account to this bank account for the benefit
of her daughter after the parties separated, and after the
Court entered a Status Quo order in June 2018. The
value of same is $200.00. This is a marital asset that was
received by the Respondent.
30. The Petitioner now alleges that there were other
businesses owned by the Respondent but offered no
documentation of same or values of same. The
[Respondent] provided public records from the Kentucky
Secretary of State which showed he had owned an
interest in various businesses during the period of the
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marriage which had all been dissolved. The Court
assigns no value to any other businesses.
31. The Petitioner now alleges that there was a Raymond
James account, but offered no documents to support this
allegation. The Court finds that there is no Raymond
James account.
32. The Court finds that the Kentucky Farm Bureau
check in the amount of $15,025.15 for a water damage
claim to the Country Club residence disclosed by the
Petitioner after the September 11, 2019 hearing, is a
marital asset and shall be assigned 40% to the Petitioner
and 60% to the Respondent.
33. The Respondent testified that the Petitioner’s
daughter took a trip to Europe at a cost of $6,316.65 after
the parties separated which was charged on the
Respondent’s credit card. The September 11, 2019,
agreement did not require the Petitioner to repay same.
The Court finds that this is the Petitioner’s sole debt, and
Respondent did not assert a request for payment of same
by the September 11, 2019, agreement.
34. The Court has held the Respondent’s motions to hold
the Petitioner in contempt until the final hearing. The
Court finds that the Petitioner’s taking of joint bank
accounts after the September 11, 2019, hearing was
contemptuous as they were not assigned to her, and her
attorney at the time, Ira Kilburn, testified that he did not
advise her to do so. The Court finds that an award of an
attorney’s fee to the Respondent in the amount of
$2,500.00 for the Petitioner’s contemptuous actions of
closing two Whitaker Bank accounts she agreed were to
be assigned to the Respondent on September 11, 2019, is
reasonable, and payment shall be made within thirty (30)
days of this decree.
35. The Petitioner requested payment of any attorney’s
fee of $20,000.00. The court finds she has more than
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sufficient financial resources to pay her own attorney’s
fees.
36. The Court finds that based upon the parties’
testimony, both live and by deposition, the exhibits
introduced at the April 29, 2021 hearing and the record
herein, the Petitioner was assigned substantial assets in
the parties’ September 11, 2019, agreement, that the
parties were married for a period of thirteen years prior to
separation, and that there were no children born of the
marriage. The court further finds that the parties had a
housekeeper during the marriage, that the parties spent
marital funds to make the basement of the Country Club
Drive house habitable for the Petitioner’s ailing parents,
and that the parties spent considerable marital funds for
the benefit of the education, care, living expenses, and
vehicle for the Petitioner’s daughter. Even though the
Petitioner was receiving child support to support her
minor daughter the Respondent supported the daughter
during the period of the marriage. The Petitioner’s
daughter took a trip to Europe and charged same on the
Respondent’s separate credit card in the amount of
$6,316.65 after the parties were separated. The parties
allowed the Petitioner’s son to live in one of the rental
properties rent-free for a period of time and the parties
purchased a house for the Petitioner’s brother to live in.
The Respondent was the person responsible for dealing
with the brother who suffered with psychological
problems.
37. The Petitioner will qualify for social security benefits
from the Respondent’s account based upon duration of
the marriage. The Respondent worked the entire
marriage prior to his retirement in 2017, earning in
excess of 95.5676% of the income (based upon Joel
Lane, CPA’s testimony unrebutted). The Respondent
came into the marriage with substantial assets, while the
Petitioner had few assets at the time of the marriage.
Some of the assets have increased since the parties’
agreement. Based upon the assigned assets that the
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parties agreed were separate nonmarital property, the
actual values of the assets included in the marital estate
which the parties agreed were the marital assets, the
values as stipulated to by the parties, the assignment of
marital assets to the Petitioner totals 40% and the
assignment of marital assets to the Respondent totals
60%.
38. The Court finds that all assets assigned to the parties
per their September 11, 2019 agreement and any
appreciation thereon should be that party’s asset.
After considering the foregoing, the circuit court incorporated the
parties’ September 11, 2019 agreement into its final decree. Notably, in its
conclusions of law, it held:
At the time of the final hearing, the value of the marital
estate was $2,676,393.12. The parties’ agreement
provides that the Petitioner is entitled to 40% of the
marital estate ($1,074,931.83) and the Respondent is
entitled to 60% of the marital estate ($1,601,461.29).
The court concludes such division is a just proportional
division of the marital estate per KRS 403.190, and finds
that the parties’ agreement is not unconscionable.
We now proceed to the several “unconscionability” arguments Delene
advances on appeal. First, Delene argues her division of property with Randy did
not appropriately conform to KRS 403.190. She emphasizes that she “asked for an
equal distribution of the marital estate,” and that her agreement with Randy should
be set aside on unconscionability grounds because, in her view, she “received far
less than the equitable share entitled to her under KRS § 403.190.” She also
disagrees with how, or the extent to which, the circuit court “divided” some of the
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assets discussed in its order as “marital” or “separate” property – particularly the
Whitaker Street property, the Country Club property, the AT&T stock, the
Pentegra account, the two Whitaker bank accounts, and CD that originated with
her parents.4
In making these arguments, Delene misunderstands the purpose and
function of a property settlement agreement in this context. If the parties did not
have such an agreement, KRS 403.190 would have applied, requiring the circuit
court to determine the just division of their marital estate. But the parties did have
such an agreement. And where there is such an agreement, and it is valid, the
parties define for themselves their marital and non-marital property and debts; they
may bargain away their respective marital and nonmarital property rights; and their
agreement is binding upon the court:
[A] husband and wife in Kentucky may define by
agreement their rights in each other’s property, regardless
of any rights which would otherwise have been excluded
or conferred by KRS 403.190. Such agreements,
provided they are otherwise valid contracts, are entitled
to enforcement upon dissolution of the marriage.
Gentry, 798 S.W.2d at 934.
4
To be sure, Delene initially offered these arguments in the section of her brief entitled, “as
there was no agreement, the trial court’s classification, valuation and division of the assets was in
error.” However, she subsequently reincorporated them in the section of her brief entitled,
“assuming, arguendo, there was an agreement it was unconscionable.”
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Here, the circuit court did not divide the parties’ marital assets; it
assigned those assets – or assets traceable to them – consistently with the parties’
bargain. Furthermore, “[a] mere discrepancy in the amounts received by each
party under a settlement agreement is not enough to render the agreement
unconscionable.” Money v. Money, 297 S.W.3d 69, 73 (Ky. App. 2009) (citation
omitted).
Second, Delene argues the agreement is “unconscionable” because
“[u]pon leaving the courtroom [on September 11, 2019] Delene realized mistakes
had been made.” Elaborating upon these “mistakes” in her brief, she asserts that
during the September 11, 2019 hearing, “she did not know the actual values as to
any of the properties”; she “did not remember any discovery related to the amounts
of the Charles Schwab account or the Merrill Lynch account”; and:
[S]he very clearly stated [at the April 29, 2022 hearing]
that she did not understand the economic ramifications of
the agreement as she did not believe the Whitaker Street
property had any reason to be included in the marital side
of the ledger. She also agreed to take all properties with
no income to support them, despite her and Randy having
to use thousands of dollars per month to do so, according
to her testimony.
Randy was able to keep the entirety of the significant
cash-related assets. Delene would deplete whatever cash
she had just maintaining the properties, even if used as
rentals, making what she received of substantially less
value. If she were to sell the properties, she would
obviously receive substantially less of the value
attributed them after real estate commissions and taxes
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were paid. Given the improper inclusion of non-marital
property, the lack of information she had at the time and
the greatly reduced true value of what she received, the
agreement was certainly unconscionable, making the trial
court’s determination that it was not, clearly erroneous as
she agreed to something that was several hundreds of
thousands of dollars detrimental to her.
Taking these “mistakes” in turn, we begin with Delene’s related
assertions that the agreement was unconscionable because, prior to assenting to it,
she did not know or remember the values of the assets it contemplated or
appreciate its economic ramifications.
Conspicuously missing from these assertions is any indication that
Delene’s ignorance was attributable to anyone other than herself or her counsel; or
that she was otherwise deprived of a full and fair opportunity to review the
specifics of what effectively became her written agreement with Randy before she
chose to accept it in open court. Accordingly, these assertions are not indicative of
reversible error. Under Kentucky law, the general rule regarding contractual
enforceability is, “absent fraud in the inducement, a written agreement duly
executed by the party to be held, who had an opportunity to read it, will be
enforced according to its terms.” Schnuerle v. Insight Comm. Co., L.P., 376
S.W.3d 561, 575 (Ky. 2012) (citation omitted). Likewise, “Neglect, mistake or
bad advice of counsel is not an unavoidable casualty warranting the granting of a
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new trial.” Saint Paul-Mercury Indemnity Co. v. Robertson, 313 Ky. 239, 230
S.W.2d 436, 439 (1950) (citations omitted).
Next is Delene’s assertion that “she did not believe the Whitaker
Street property had any reason to be included in the marital side of the ledger.” If
Delene entertained this belief prior to September 11, 2019, then the agreement she
made with Randy on September 11, 2019, effectively waived any argument
consistent with that belief. Gentry, 798 S.W.2d at 934. On the other hand, if
Delene is asserting she entered the agreement due a “mistake” in believing the
Whitaker Street Property was properly classified as a marital asset rather than her
separate property, the “mistake” can only be considered her own unilateral mistake
of law. One party’s mistake of law – defined as an “erroneous conclusion
respecting the legal effect of known facts” – “will not affect the enforceability of
an agreement[,]” unless “induced by fraud, undue influence or abuse of
confidence[,]” none of which is alleged here. Sadler v. Carpenter, 251 S.W.2d
840, 842 (Ky. 1952) (citation omitted).
Lastly, Delene asserts the agreement was unconscionable because it
mostly assigned real property to her, whereas Randy received more of the liquid
assets. This appears to be a complaint that she is dissatisfied with her bargain. We
add, however, that her dissatisfaction may have been lessened if she had rented out
the properties assigned to her. Nothing prevented Delene from doing so; and
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according to Delene’s expert appraiser, Alma Mullins, each of the three rental
properties Delene was assigned had a fair rental value between $1,000 and $1,200
per month. Nevertheless, according to Delene’s testimony, she took no action in
that regard between September 11, 2019 and the April 29, 2021 hearing.
In any event, the doctrine of unconscionability “is directed against
one-sided, oppressive and unfairly surprising contracts” rather than “against the
consequences per se of uneven bargaining power or even a simple old-fashioned
bad bargain.” Schnuerle, 376 S.W.3d at 575 (citation omitted). Accordingly, the
operative inquiry when evaluating whether a contractual agreement is
unconscionable involves a consideration of factors such as each party’s bargaining
power, conspicuousness and comprehensibility of contractual terms and language,
oppressiveness of the terms, and the presence or absence of a meaningful choice.
See Peay, 406 S.W.3d at 835. Here, Delene fails to address most of those factors.
Specifically, she does not argue that she and Randy had less-than-equal bargaining
power. She does not argue the terms and language of their agreement were
difficult to understand, or not comprehensive. Nor does she argue the agreement
was unfairly surprising, or that she lacked a meaningful choice in the matter.
Furthermore, she was aptly represented by the counsel of her choice at all relevant
times.
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We review the circuit court’s unconscionability determination under
the abuse of discretion standard. “The test for abuse of discretion is whether the
trial judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound
legal principles.” Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575,
581 (Ky. 2000) (citing Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999)). Here, we have noted that the circuit court resolved the conscionability
issue by comparing what the parties had agreed to on September 11, 2019, with the
value of their assets and respective contributions as proven on April 29, 2021; and
in doing so, it considered “the economic circumstances of the parties and any other
relevant evidence produced by the parties” consistently with KRS 403.180(2), and
effectively determined the agreement was not oppressive or otherwise
unconscionable.
In sum, the circuit court observed that the parties’ agreed-upon marital
estate had a value of roughly $2.7 million. Delene brought few assets to the
marital estate; generated little to no marital income during the approximate thirteen
years of the parties’ marriage, despite apparently having the ability to work; and
had no children with Randy to care for. On the other hand, Randy provided the
vast majority of the parties’ assets and income; and he substantially provided for
not only Delene, but also several members of Delene’s family. Taken objectively,
we cannot say that the parties’ agreement, which entitled Delene to over $1 million
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of the agreed-upon marital assets, was “one which no man in his senses, not under
delusion, would make, on the one hand, and which no fair and honest man would
accept, on the other,” and thus “unconscionable.” Schnuerle, 376 S.W.3d at 575
(citation omitted). Having reviewed the record, the circuit court’s findings and
assessments of the evidence are not clearly erroneous, nor did the circuit court
otherwise abuse its discretion in finding the parties’ agreement conscionable. CR
52.01.
II. DELENE’S ATTORNEY’S FEES
Delene asserts the circuit court erred in denying her motion to have
Randy pay her attorney’s fees. Her argument, in relevant part, is as follows:
In the present matter, Randy’s expert testified that their
respective income disparity during marriage was
approximately 96% to 4% in Randy’s favor. Almost the
entirety of the value of what Delene was awarded was
real property, leaving her some cash but limited
continuing liquidity. She has not worked since 2006.
Randy received all of the accounts from which the parties
had been living for years.
We disagree. Pursuant to KRS 403.220, an award of attorney’s fees
in this context is not mandatory. “Generally, the only factor that a court is required
to consider when awarding attorney’s fees is the financial resources of the parties.”
Bailey v. Bailey, 399 S.W.3d 797, 803 (Ky. App. 2013) (citation omitted).
However, even when a disparity in financial resources exists, an award or denial of
the payment of fees “is within the discretion of the court depending on the
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circumstances of each particular case.” Batson v. Clark, 980 S.W.2d 566, 577 (Ky.
App. 1998) (quoting Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754,
755 (Ky. App. 1984)).
In its dispositive order, the circuit court considered the financial
resources of the parties and explained that it denied Delene’s motion “based upon
her receipt of substantial financial resources.” And, while Delene takes issue with
the liquidity of what she received, she does not contest that $1,074,931.83 – her
share of the marital estate – qualified as substantial financial resources.
Additionally, while Delene may not have worked “since 2006,” she does not
explain what prevented her, or continues to prevent her, from doing so. We
perceive no abuse of the circuit court’s broad discretion in this respect.
III. CONTEMPT
The final subject of Delene’s appeal was touched upon in paragraphs
20 and 34 of the findings of fact in the circuit court’s order, set forth above. On
June 13, 2018, shortly after the parties initiated the underlying proceedings, the
circuit court entered a “status quo” order that provided in relevant part:
Except as shall be necessary to pay reasonable living
expenses, neither party shall sell, encumber, gift,
bequeath or in any manner transfer, convey or dissipate
any property, cash, stocks or other assets currently in
their possession or control of another person, company,
legal entity or family member without an order of the
Court or an agreed order signed by both parties or their
attorneys.
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Following the September 11, 2019 hearing, Randy moved the circuit
court to hold Delene in contempt of the status quo order. In sum, he noted Delene
had agreed during the hearing that he was to receive their two joint accounts at
Whitaker Bank ending in #325 and #25; and he alleged that immediately after the
hearing, and despite her agreement, Delene had closed the accounts and pocketed
the remaining proceeds. When deposed about this matter on October 6, 2020,
Delene admitted doing so, but added she had done so upon the advice of her then-
counsel, Hon. Ira Kilburn.
The circuit court held a hearing about this issue on December 10,
2020. There, as indicated in the circuit court’s order, and subject to Delene’s
cross-examination, Kilburn testified he had given Delene no such advice, and that
he would never have directed any client to defy a court order. Afterward, the
circuit court informed the parties that it would rule on Randy’s contempt motion as
part of its final disposition of their dissolution. And, as stated, it did so. After
considering the evidence presented, it held Delene in contempt and ordered her to
pay $2,500 of Randy’s attorney’s fees as a sanction.
Now on appeal, Delene’s sole argument is that the circuit court
violated her due process rights by depriving her of a jury trial regarding her
5
While not relevant to our analysis, we note that between Paragraphs 20 and 34 of the circuit
court’s final decree, the circuit court indicated Delene closed Whitaker Bank accounts, but
specifically references only the account that ended in #25.
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contempt.6 As to how she preserved this issue for appeal, she states: “See Motion
to Vacate, ROA at 1786-1796.”
With that said, there are two problems. First, what she filed – i.e., a
post-judgment motion to vacate pursuant to CR 59.05 – is not a device for raising
or preserving issues that could and should have been raised prior to a final
judgment. Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky. App. 1997) (citation and
footnote omitted). Clearly, Delene understood well in advance of the circuit
court’s final judgment that the circuit court, rather than a jury, was going to decide
Randy’s contempt motion.
Second, and contrary to what Delene has represented to this Court, her
CR 59.05 motion did not take issue with her lack of a jury trial for contempt. To
the extent it broached the subject of contempt at all, her motion instead set forth
the following two unrelated issues, which she has never pressed in this appeal:
1. This Court decided to hold Petitioner in contempt.
The Court found in its Conclusions of Law “the
Petitioner is in contempt by violating the parties’ written
agreement by closing two bank accounts assigned to the
Respondent”. See paragraph 10 on page 16 of the
August 30, 2021, Order. No written agreement exists in
the within action.
6
The award of attorney’s fees to Randy was authorized by KRS 403.220 regardless of any
contempt finding. A contempt sanction of attorney’s fees does not equate with a fine of more
than $500 for which a right to jury trial exists under Miller v. Vettiner, 481 S.W.2d 32 (Ky. App.
1972). See Kentucky Retirement Systems v. Foster, 338 S.W.3d 788 (Ky. App. 2010).
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2. A party cannot be held in contempt of a written
agreement but only in contempt for violation of a written
order of the Court and the Court has failed to state what
order Petitioner allegedly violated. The Petitioner was
ordered to pay [a] $2,500 attorney fee to Respondent
because of the supposed contempt but without there
having been an order violated the Court is without
jurisdiction to issue an attorney fee award under a
contempt citation. The Court should amend its Order to
state with specificity what order was violated and
whether same was done knowingly, intentionally,
voluntarily, or it should vacate that portion of the Order
finding her in contempt and awarding an attorney fee
based on same.
In short, Delene’s argument that she was entitled to a jury trial for
contempt is an argument she has posed, for the first time, to this Court. We will
not address it because Delene has not requested palpable error review of this
argument;7 and in any event, “[o]ur jurisprudence will not permit an appellant to
feed one kettle of fish to the trial judge and another to the appellate court.” Owens
v. Commonwealth, 512 S.W.3d 1, 15 (Ky. App. 2017) (citations omitted).
Assuming Delene had any right to a jury trial below, her failure to properly assert
it was an effective waiver.
7
Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate
court will not engage in palpable error review “unless such a request is made and briefed by the
appellant.” Jenkins v. Commonwealth, 607 S.W.3d 601, 613 (Ky. 2020) (quoting Shepherd v.
Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008)).
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IV. CONCLUSION
We have reviewed each of Delene’s appellate arguments. Having
deemed them lacking in merit, we therefore affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE CHARLES
RANDALL GILKERSON:
Jason Rapp
Lexington, Kentucky Paula Richardson Barber
Morehead, Kentucky
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