Tammy R. Cole v. Mark A. Cole ( 2023 )

RENDERED: SEPTEMBER 15, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1222-MR
TAMMY R. COLE APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
v. HONORABLE KIMBERLY BLAIR WALSON, JUDGE
ACTION NO. 17-CI-50059
MARK A. COLE APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CETRULO, DIXON, AND MCNEILL, JUDGES.
DIXON, JUDGE: Tammy Cole appeals from an order of the Madison Circuit
Court entered on September 19, 2022, requiring her to return two pieces of artwork
to Mark Cole, reimburse Mark his purported value of the art, or retain an appraiser
of Mark’s choosing and pay the value of the artwork, as well as the cost of the
appraisal. After careful review of the briefs, record, and law, we affirm.
BACKGROUND FACTS AND PROCEDURAL HISTORY
The parties were married on December 15, 1999. Tammy filed a
petition for dissolution of marriage on February 3, 2017. The parties reached a
temporary agreement, which included exclusive occupancy of the marital residence
by Tammy. Soon thereafter each of the parties filed a Verified Disclosure
Statement (VFD); both VFDs indicated that the parties owned 38 pieces of equine
art located at the marital residence and valued at $114,630.00.
Eventually, the parties were able to reach a partial Mediation
Agreement (“the agreement”), which was approved by the court on June 17, 2019.
Pursuant to the “Marital Personal Property” section of the agreement, “artwork”
was listed under the husband’s column. The circuit court entered a decree of
dissolution on August 19, 2019, incorporating the agreement, as well as an
addendum read into the record. The portion of the decree awarding personal
property to Mark included the exact list first proposed in the agreement, including
“artwork,” as well as a term from the addendum which specifically identified seven
additional pieces of artwork. The decree also included a standard provision that
“[t]he parties have previously divided their remaining personal property and each
party shall be awarded all items currently in their possession.”
On September 18, 2020, Mark filed a motion for return of personal
property and for contempt, claiming there were a few additional items of personal
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property that were inadvertently omitted from his initial property list but included
under the terms of the decree. The omitted property included the two pieces of
artwork – oil paintings by James L. Crowe, “Keeneland Turf & Hedge” and “Mare
in Field” (“the Crowe paintings”) – which are at issue in this appeal. During the
hearing, Tammy denied having possession of the Crowe paintings or knowing their
whereabouts.
Mark filed a second motion for return of personal property and for
contempt on March 19, 2021. Mark’s motion included pictures of the Crowe
paintings hanging in the marital residence sometime before the separation and an
invoice, originally attached to his VFD, which showed the purchase of a few pieces
of artwork, in addition to the 38 insured pieces, including Keeneland Turf &
Hedge. At the hearing, Mark testified that he realized the two Crowe paintings
were not delivered with the rest of the artwork in the winter of 2019 when he was
reviewing some old photographs of the marital residence. He waited to file his
first motion due to the COVID-19 pandemic and the resolution of other pending
matters.
Mark argued a bailment of the Crowe paintings existed, as Tammy
had constructive possession by virtue of having exclusive occupancy of the marital
residence. He estimated the value of the Crowe paintings to be $15,000.00, using
the invoice which indicated he purchased Keeneland Turf & Hedge for $7,500.00.
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In response, Tammy produced a more recent photograph, taken three months
before the parties’ separation, that showed one of the Crowe paintings had been
moved after Mark’s photographs were taken. She also stated that Mark repeatedly
entered the marital residence without her knowledge, maintained control of the
residence’s security system, and removed some furnishings and equine art prior to
entry of the decree.
On appeal, Tammy argues that the circuit court erred when it
interpreted the term “artwork,” as listed in the decree, to include the Crowe
paintings, and that there was insufficient evidence to support the court’s ruling.1
STANDARD OF REVIEW
A property settlement agreement, or mediation agreement as
incorporated into a decree of dissolution, is a contract and, therefore, governed by
contract law. See Wagner v. Wagner, 563 S.W.3d 99, 103 (Ky. App. 2018)
(citations omitted); KRS2 403.180(5). “The interpretation of a contract is a matter
of law and is reviewed by the Court de novo.” McMullin v. McMullin, 338 S.W.3d
315, 320 (Ky. App. 2011). The parties’ intentions are to be discerned from the
1
Tammy argues that there was no finding of contempt or dissipation. However, these issues are
not presently before us. The circuit court has reserved the contempt issue pending this appeal,
and a finding of dissipation is not germane to the enforcement of the decree, nor has Mark
asserted dissipation below. A circuit court must first be given the opportunity to rule before an
issue can be considered on appeal. Baker v. Weinberg, 266 S.W.3d 827, 835 (Ky. App. 2008).
2
Kentucky Revised Statutes.
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four corners of the contract, but when a contract is ambiguous, a court may
consider other factors, including parol evidence and the conduct of the parties.
Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 385 (Ky. App.
2002); see also Money v. Money, 297 S.W.3d 69, 72 (Ky. App. 2009).
The circuit court’s findings of fact shall not be disturbed unless they
are clearly erroneous, or unsupported by substantial evidence. CR3 52.01; Moore
v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The circuit court is in the best position
to weigh conflicting evidence and testimony, and it is not for this Court to supplant
a different conclusion when faced with the same evidence. See Truman v. Lillard,
404 S.W.3d 863, 868-69 (Ky. App. 2012).
LEGAL ANALYSIS
Tammy contends that the term “artwork” should only be interpreted to
mean the 38 paintings as identified in the VFDs of the parties because Mark
omitted the Crowe paintings from his previous property lists, and they were not
specifically mentioned in either the agreement or the addendum to the decree of
dissolution. Furthermore, even if they were in her possession, she asserts that the
provision of the decree which awarded each party all property currently in their
possession would have awarded the Crowe paintings to her. Mark, on the other
hand, argues that the term unambiguously means any and all artwork.
3
Kentucky Rules of Civil Procedure.
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By the plain reading of the agreement itself, “artwork” as used in the
“Marital Personal Property” section of the agreement encompasses the two
contested Crowe paintings. However, the inclusion of the addendum begs the
question of why the specific pieces of additional artwork were identified through
this supplemental contract provision if “artwork” meant “all artwork” as posited by
Mark. Given this ambiguity, we shall consider parol evidence presented in the
underlying case and the conduct of the parties.
The VFDs of both parties only mention and value the 38 pieces of
insured artwork. However, in addition to the insurance document which identifies
and values the 38 pieces, Mark also attached the invoice for Keeneland Turf &
Hedge, and five other paintings not included in the list of 38. At a minimum,
Tammy was put on notice that Mark was claiming an interest in more artwork than
the 38 pieces that were insured.4
The parties’ course of conduct also supports Mark’s claim that the
term “artwork” means all artwork in the marital residence. Mark continually
claimed the artwork as nonmarital, and Tammy admitted that Mark was the
collector of equine art with which he often decorated the marital residence.
4
We note that several of the 38 insured pieces were also oil paintings by James Crowe.
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Tammy also exhibited an extreme reluctance to return the 38 pieces of insured
artwork, even though it was undisputed that they belonged to Mark.
Considering the circumstances, we conclude that the intention of the
parties was for the addendum to merely be a collateral term used to help effectuate
the already existing agreement. See Frear v. P.T.A. Indus., Inc., 103 S.W.3d 99,
106 (Ky. 2003). Therefore, we agree with the circuit court and interpret “artwork”
to include the Crowe paintings.
We next turn to whether sufficient and substantial evidence existed to
support the circuit court’s conclusion that Tammy was in constructive possession
of the paintings.
In the instant case, the photographs depicting the Crowe paintings in
the marital residence prior to the parties’ separation, the invoice showing the
purchase of one of the paintings, the fact that Tammy had exclusive occupancy of
the marital residence after the separation, and the fact the Crowe paintings were
not found to be in Mark’s possession, were sufficient for the circuit court to
conclude that Tammy was in constructive possession and control of the Crowe
paintings. Tammy countered with only one photograph indicating that one
painting had been moved prior to the parties’ separation, and the tenuous
accusation that Mark could have removed the artwork previously. We also find it
compelling, as did the circuit court, that Mark was denied any meaningful
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opportunity to take an accounting of any property in the marital residence after the
parties’ separation. While it would have been unreasonably burdensome to expect
Tammy to have cataloged every piece of property in the marital residence,
expecting Mark to have done so completely from memory and with only limited
access to the marital residence is untenable.
Regarding the value of the Crowe paintings, the invoice supports the
assertion that Keeneland Turf & Hedge is valued at $7,500.00 but makes no
mention of Mare in Field. Mark estimates its value to be equitable with Keeneland
Turf & Hedge because it is a similar work of the same artist. It was within the
circuit court’s discretion to accept Mark’s testimony, considering that Tammy
provided no evidence and merely speculated that Mark may have inflated the
value. Additionally, the court’s order afforded Tammy the opportunity to secure
an appraisal of the Crowe paintings, albeit by an appraiser of Mark’s choosing at
her own expense.
The circuit court’s order was based on its interpretation of the term
“artwork” and the evidence presented, which we conclude was substantial. See
Young v. Young, 314 S.W.3d 306, 310 (Ky. App. 2010). While the parties
presented contrary evidence and testimony, the circuit court found Mark’s more
compelling than Tammy’s and entered an order enforcing the terms of the parties’
decree of dissolution. KRS 403.180(5); see also Bailey v. Bailey, 231 S.W.3d 793,
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797 (Ky. App. 2007). Accordingly, we find the circuit court’s findings of fact
were not clearly erroneous.
CONCLUSION
For the foregoing reasons, the judgment of the Madison Circuit Court
is AFFIRMED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Sean M. Pierson James W. Baechtold
Richmond, Kentucky Richmond, Kentucky
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