STELLA FAYE DOUGLAS v. SAMMY DOUGLAS
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RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000035-MR
STELLA FAYE DOUGLAS
APPELLANT
APPEAL FROM ROWAN CIRCUIT COURT
HONORABLE WILLIAM MAINS, JUDGE
ACTION NO. 95-CI-00182
v.
SAMMY DOUGLAS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
GUIDUGLI, JUDGE.
This is an appeal by Stella Faye Douglas
(Douglas) from an order of the Rowan Circuit Court entered
December 1, 1997, adopting the October 22, 1997, report and
recommendations of the Domestic Relations Commissioner (DRC)
regarding distribution of the parties’ property pursuant to their
separation agreement.
We affirm.
The parties were divorced on October 24, 1995, by
decree of dissolution, which incorporated the parties’ prior
separation agreement (Agreement) entered August 30, 1995, and was
drafted by appellant’s attorney.
Under paragraph seven of the
Agreement the appellee was to receive the parties’ marital
residence along with 12 other enumerated items including the
woodworking and shop tools.
Under paragraph eight of the
Agreement, Douglas was to receive all of her personal belongings
and effects, the 1992 Toyota and “all antiques in the marital
home.”
Thereafter, a dispute arose between the parties
regarding which items constituted antiques that Douglas could
remove from the marital residence.
With the parties unable to
resolve this issue, Douglas filed a motion in the Rowan Circuit
Court for an order directing the appellee to comply with the
terms of the Agreement.
As part of her motion, Douglas attached
a list of 28 items she claimed she was entitled to because they
were antiques.
Hearings were held before the DRC on October 7,
1996, and on July 18, 1997, regarding the antiques issue.
The DRC made recommendations to the trial court on
October 22, 1997, indicating that certain items on Douglas’ list,
specifically the chandelier and old school light, while antiques,
were fixtures of the house and therefore the property of the
appellee under the terms of the Agreement.
The DRC also
recommended to the trial court that appellee receive the tobacco
cutter, a two handled saw and anvil pursuant to paragraph seven
of the Agreement designating that the appellee receive the
woodworking and shop tools.
The DRC further recommended that
appellee receive an oak picture frame and black plaster frame,
contrary to Douglas’ testimony that these items were antiques,
because they were gifts from the appellee’s family and thus nonmarital property.
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Further at the July 18, 1997, hearing, the DRC
recommended that various items be allocated to the appellant.
These items were omitted from the DRC’s October 22, 1997,
recommendations by mistake.
Douglas also claims that the
appellee is in possession of some Beatles and old 45 records that
she owned prior to the marriage, which constitute her non-marital
property.
items.
Appellee claims he is not in possession of these
Both parties filed timely exceptions and objections to
the DRC recommendations.
However, the trial court adopted the
report and recommendations on December 1, 1997, with only one
small change that does not effect this appeal.
The trial court is vested with broad discretion in
domestic matters and this Court will not interfere with its
decisions unless that discretion is abused.
Sommerville, Ky., 339 S.W.2d 940 (1960).
Sommerville v.
A separation agreement
is a mere contract between spouses for all intents and purposes.
“Questions relating to the construction, operation and effect of
separation agreements between a husband and wife are governed, in
general, by the rules and provisions applicable to the case of
other contracts generally.”
Richey v. Richey, Ky., 389 S.W.2d
914 (1965) (citing 17A Am.Jur., § 904, Page 92).
It is important
to note that it was Douglas’ attorney who drafted the ambiguous
Agreement that is at the center of this controversy.
It is a
tenant of contract law that contracts are construed more strongly
against the drafting party.
Bays v. Mahan, Ky., 362 S.W.2d 732
(1962); Wiggins v. Schuber Realty & Inv. Co., Ky. App., 854
S.W.2d 794 (1993).
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In the present case the Agreement stated only that
Douglas was to receive “all antiques in the marital home.”
The
Agreement did not define “antique” nor did it list the items that
Douglas should receive, although it was possible for Douglas to
have listed these items in the Agreement as evidenced by the list
of 28 “antiques” she attached to her motion.
In construing the
Agreement more strongly against Douglas, we cannot say that the
trial court abused its discretion by awarding the appellee the
chandelier and old school house light according to the law of
fixtures.
An item is considered a fixture when it is annexed to
the realty, used
for the purpose to which it is attached and
intended to remain with the realty.
S.W.2d 547 (1956).
Tarter v. Turpin, KY., 291
The Agreement allocated the realty to which
the chandelier and old school house light were affixed to the
appellee.
Therefore, the appellee is entitled to these items.
Furthermore, we cannot say that the trial court abused
its discretion in awarding the appellee the tobacco cutter, two
handled saw and anvil pursuant to paragraph seven of the
Agreement designating that the appellee would receive the
woodworking and shop tools.
While these items are certainly
woodworking or shop tools, there is no credible evidence in the
record that these items are also antiques.
Finally, we will not
reverse the trial court’s order allocating the picture frames and
Beatles and old 45 records to the appellee as there is no
credible evidence in the record to support such action.
The
trial court did not abuse its discretion in the distribution of
these items to appellee.
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It appears that both parties agree that the old brass
key collection, walnut floor lamp, mirror matching the oak
dresser, gold table lamp, brass bed warmer and pole light, were
mistakenly omitted from the DRC’s report and recommendations to
the trial court.
In fact, appellee has admitted such in his
brief and offered to return those items to Douglas.
We feel
Douglas should accept the appellee’s offer to return these items
or seek additional relief from the trial court regarding same.
For the foregoing reasons, the decision of the trial
court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kaye L. Leighton
Mt. Sterling, KY
George M. Hogg
Olive Hill, KY
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