MONEY (GARY EUGENE) VS. MONEY (RENEE)
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RENDERED: OCTOBER 16, 2009; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-001750-MR
AND
NO. 2007-CA-001810-MR
GARY EUGENE MONEY
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM TAYLOR CIRCUIT COURT
HONORABLE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 05-CI-00093
RENEE MONEY
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE AND CLAYTON, JUDGES; HARRIS,1 SENIOR JUDGE.
HARRIS, SENIOR JUDGE: Gary Eugene Money2 appeals from an order
assigning him additional marital debt subsequent to a settlement agreement. Gary
1
Senior Judge William R. Harris sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes
(KRS) 21.580.
2
We refer to the parties by their given names for the sake of clarity and with no disrespect
intended.
argues that the settlement agreement is ambiguous and that the trial court erred by
assigning him additional debt, which he alleges was unknown at the time of the
settlement agreement. On cross-appeal, Renee Money argues that the settlement
agreement was unconscionable.
Gary and Renee were married in Taylor County, Kentucky, in 1974.
In 2005, Renee filed a petition for dissolution of their marriage. The parties, each
represented by counsel, mediated the outstanding issues in the divorce action. The
settlement agreement was approved and incorporated into the decree of dissolution
of marriage, which the Taylor Circuit Court entered on June 19, 2006.
Under subsection (1)(f) of the settlement agreement, Renee received
four Ameriprise accounts with the following balances: (1) IRA Money Market
Fund, $150.00; (2) Joint Mutual Funds, $84,640.00; (3) her IRA Mutual Fund,
$9,135.00; and (4) Joint Security Account, $104,723.00. Renee agreed to assume
and pay the mortgage indebtedness owed on the four-plex apartment and the
balances owed on two credit cards pursuant to subsection (3) of the agreement.
Gary agreed to assume and pay “all other indebtedness” pursuant to subsection (4)
of the agreement.
After the divorce became final, Ameriprise began to allocate the
financial accounts to the parties. In conjunction with the Ameriprise accounts,
there was a margin loan account with a negative cash balance of $58,469.52. This
debt was not reflected in the settlement agreement. Ameriprise placed the margin
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loan account in Renee’s name because it believed that the indebtedness followed
the account that Renee received.
Subsequently, Renee filed three motions: (1) to transfer the margin
loan account to Gary’s name; (2) to find the settlement agreement unconscionable;
and (3) to alter, amend, or vacate the judgment. Following a hearing, the trial court
granted the motion to transfer the margin loan account. It denied the motion to
find the settlement agreement unconscionable, and denied the motion to alter,
amend, or vacate as untimely. The appeal and cross-appeal followed.
Gary argues that the settlement agreement is ambiguous regarding the
assignment of the margin loan account and must be interpreted against Renee
because her counsel drafted the agreement.
The terms of a settlement agreement set forth in a decree of
dissolution of marriage are enforceable as contract terms. KRS 403.180(5). The
construction and interpretation of a contract is a matter of law and is reviewed
under the de novo standard. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App.
1998).
As stated above in the recitation of the facts, the debt assigned to
Renee was specifically set forth in the agreement. The margin loan account was
not mentioned specifically in the agreement. However, subsection (4) of the
agreement provided that Gary “shall assume and pay all other indebtedness.”
(Emphasis added). We find that this provision is unambiguous and means exactly
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what it says. The margin loan account is simply other indebtedness and must be
paid by Gary under the terms of the settlement agreement.
Next, Gary argues that the trial court erred by assigning him the
margin loan account because the debt was unknown at the time the parties entered
into the settlement agreement, therefore, the parties could not have intended for the
debt to be included in the agreement.
We have determined that the settlement agreement is unambiguous
regarding the assignment of debt. “Absent an ambiguity in the contract, the parties'
intentions must be discerned from the four corners of the instrument without resort
to extrinsic evidence.” Cantrell Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d
381, 385 (Ky. App. 2002). “The fact that one party may have intended different
results, however, is insufficient to construe a contract at variance with its plain and
unambiguous terms.” Id.
The settlement agreement explicitly stated the amounts that Renee
was to receive from the Ameriprise accounts. The margin loan account was not
listed. The debts Renee assumed were specifically listed in the agreement. Gary
agreed to assume and pay all other indebtedness. “All other indebtedness” means
all other indebtedness. The trial court did not err by assigning the margin loan
account to Gary.
Finally, Gary cites Kentucky Rules of Civil Procedure (CR) 59.02 and
CR 59.05 for the proposition that Renee’s motion to assign the margin loan
account to him was untimely because it occurred more than 10 days after the
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decree of dissolution was entered. We disagree. The motion, which the trial court
granted, was not to alter, amend, or vacate the provisions of the decree. Rather, it
was filed to request enforcement of the terms of the agreement as written. The
jurisdiction to enforce judgments remains in the trial court. Penrod v. Penrod, 489
S.W.2d 524, 527-28 (Ky. 1972).
On cross-appeal, Renee argues that the settlement agreement is
unconscionable because the proportion of the property division is manifestly
unfair.
KRS 403.180(4) requires trial courts to consider the conscionability of
a settlement agreement prior to incorporating it into the decree of dissolution.
Settlement agreements may be set aside on the ground of unconscionability if the
trial court determines that the terms are manifestly unfair or unreasonable.
McGowan v. McGowan, 663 S.W.2d 219, 222 (Ky. App. 1983). Agreements may
also be set aside if they are the result of fraud, undue influence, or overreaching.
Id. If the settlement agreement is initially approved by the trial court, it may
nevertheless be later modified if the party challenging the agreement can
demonstrate that the agreement has become unconscionable because of changed
circumstances. Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007).
The trial court approved the agreement and incorporated it by
reference into the decree of dissolution. Both parties were represented by counsel
throughout all stages of negotiation. In fact, Renee’s own counsel drafted the
settlement agreement. Renee’s motions were filed by successor counsel after her
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original counsel was allowed to withdraw. In Renee’s brief, she complains that the
settlement agreement is lopsided. However, she fails to note her entitlement to the
household furnishings, appliances, and antiques and her share of the 2005 income
tax refunds. More importantly, Renee has not alleged a change of circumstances
that has rendered the agreement unconscionable. The record reflects that she
willingly entered into the agreement and was represented by competent counsel
throughout the proceedings. A mere discrepancy in the amounts received by each
party under a settlement agreement is not enough to render the agreement
unconscionable. Peterson v. Peterson, 583 S.W.2d 707, 712 (Ky. App. 1979).
Based upon our review of the record, we cannot conclude that the trial court
abused its discretion by finding the settlement agreement conscionable.
Accordingly, we affirm the order of the trial court in its entirety.
ALL CONCUR.
BRIEFS FOR APPELLANT/
CROSS-APPELLEE:
BRIEFS AND ORAL ARGUMENT
FOR APPELLEE/CROSSAPPELLANT:
Elmer J. George
Lebanon, Kentucky
Susan Hanrahan McCain
Springfield, Kentucky
ORAL ARGUMENT FOR
APPELLANT/CROSS-APPELLEE:
Dallas E. George
Lebanon, Kentucky
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