DUPONT (TED GEORGE) VS. DUPONT (VIRGINIA MAE)Annotate this Case
RENDERED: NOVEMBER 21, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
TED GEORGE DUPONT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE D. MICHAEL FOELLGER, JUDGE
ACTION NO. 00-CI-00992
VIRGINIA MAE DUPONT
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BEFORE: CAPERTON AND MOORE, JUDGES; GUIDUGLI,1 SENIOR
CAPERTON, JUDGE: This is an appeal from a September 18, 2006, judgment of
the Campbell Family Circuit Court, whereby the court ordered the division of the
parties’ Fifth Third Bank stock in accordance with their partial property settlement
agreement which had been incorporated into the decree of dissolution of marriage.
Senior Judge Daniel T. Guidugli sitting as Special Judge by Assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Revised Statutes (KRS) 21. 580.
The parties, Ted Dupont and Virginia Dupont, now disagree as to
what is an equitable division of an asset due to a delay of several years in
transferring the asset, in the form of stocks, pursuant to the agreement which was
incorporated into their divorce decree. The trial court ordered that the agreement,
along with a subsequent mediation agreement, was to be enforced as the parties
had agreed, despite the alleged inequity that might occur due to a delay in transfer.
It is from this order that Ted appeals.
Ted argues that due to the delay in transferring the stock, a decline in
stock price has occurred and, thus, to award Virginia one-half of the prior value
would give her a share greater than one-half of the asset at its current value which
was not contemplated by the party’s property settlement agreement. Virginia
argues that the trial court did not err when it required Ted to pay one-half of the
account balance of the Fifth Third stock account as of the date of dissolution of
marriage in accordance with the terms of the property settlement agreement. After
a thorough review, we affirm the Campbell Family Circuit Court.
The petition for dissolution of the parties’ marriage was filed on
August 28, 2000. On January 7, 2002, the parties entered into a partial property
settlement agreement, which was then incorporated into the decree of dissolution
of marriage entered on January 18, 2002, as the court found that the property
settlement agreement was not unconscionable. Within the property settlement
agreement, the parties agreed to divide equally the Fifth Third Bank stock account
using the account balances as of the date of the parties’ marriage, August 5, 1984,
to the date of decree of dissolution.2 It was further agreed that the parties would
cooperate with one another to divide these accounts. Thereafter, Ted failed to
transfer the stock to Virginia. Virginia filed a motion to compel and for contempt.3
The court referred the parties to mediation.
On May 10, 2004, the mediation agreement was signed by the parties.
In this agreement it was determined that the Fifth Third stock had a value of
$266,871.84 and that Virginia was entitled to $133,435.92, an amount equal to
one-half, pursuant to the decree of dissolution. Ted was to immediately sign any
documents necessary to transfer the funds to Virginia. Ted again failed to transfer
the stock and Virginia renewed her motion to compel. In response, on May 30,
2006, Ted argued that it would be unconscionable to divide the Fifth Third account
based on a monetary sum as the account balance fluctuated daily and that the dollar
amount presented at the mediation was illustrative only, thus the figure should not
be used in calculating Virginia’s share.4 The trial court disagreed and ordered Ted
to pay Virginia $200,209.28,5 the amount agreed upon by the parties at the
Decree of Dissolution entered January 18, 2002.
Ted argues that both parties are at fault for the lack of a successful transfer of stock. Ted offers
no factual support for this argument.
Further, in Ted’s October 20, 2006 motion to reconsider, he argued that the stock split should
not be in a dollar amount but instead should be in equal shares.
The $200,209.28 was a combined dollar amount of all the investments, including the Fifth
Third Bank stock of $133,435.92, in the mediation agreement. As all other assets excluding the
Fifth Third Bank stock have been transferred, the only remaining amount in contest is
Ted argues generally that the monetary figure ordered by the trial
court represents a windfall to Virginia due to a decline in the stock price,6 and
specifically argues that the trial court erroneously relied upon an unenforceable
mediation agreement because: the mediation agreement was patently vague,
ambiguous, and internally inconsistent; the trial court’s judgment was also vague,
ambiguous, and inconsistent; a hearing to present extrinsic evidence should have
been held since the contract language was ambiguous; there was a mutual mistake
of the parties at the mediation; and the parties failed to have a meeting of the minds
in regard to the mediation agreement. Ted’s last argument is that the trial court
violated the provisions of KRS 403.190 because the property division was
The multiple arguments presented by Ted essentially amount to two
issues presented to this Court: one, did the trial court improperly determine that the
property settlement agreement and the mediation agreement embodied an
enforceable agreement between the parties; and two, whether the distribution of
assets was unconscionable.
We first address whether the property settlement agreement and the
mediation agreement constitute an enforceable agreement between the parties, and
thus we look to the fundamentals of contract interpretation. The interpretation of a
contract is a question of law. Baker v. Coombs, 219 S.W.3d 204 (Ky.App.2007).
This includes the question of whether an ambiguity exists. First Commonwealth
Ted argues the agreements envisioned an equal division of the assets and that the specific
amount awarded to Virginia is much greater than a current equal division.
Bank of Prestonsburg v. West, 55 S.W.3d 829 (Ky.App.2000). Therefore, we
review the trial court’s decision de novo. Baker at 207. In interpreting the
contract, the parties' intentions are discerned from the four corners of the document
itself. Absent ambiguity, extrinsic evidence should not be considered and a court
will interpret the contract terms by assigning language its ordinary meaning and
without resort to extrinsic evidence. Id. See also Hoheimer v. Hoheimer, 30
S.W.3d 176 (Ky.2000).
In determining whether an ambiguity exists, a court must determine
whether the contract provision may be interpreted in more than one way.
Transport Ins. Co. v. Ford, 886 S.W.2d 901 (Ky.App.1994). As set forth in
Central Bank & Trust Co. v. Kincaid, 617 S.W.2d 32 (Ky.1981), an ambiguous
contract is one in which there is more than one different, yet reasonable,
A review of the parties’ settlement agreement and mediation
agreement makes it clear that the date of dissolution was to be used to determine
the value of the stock to be divided. The trial court correctly interpreted the
agreement in this respect. There is no other reasonable interpretation of the plain
language of the property settlement agreement establishing that the “parties shall
equally divide the [Fifth Third Bank Stock] account using account balances as of
the date of the parties’ marriage, August 5, 1984, to the date of decree of
Further, the mediation agreement explicitly sets forth the agreement of
the parties as to the dollar amounts of the accounts, and as to Virginia’s entitlement
to $133,435.92 pursuant to the parties’ decree. There was no ambiguity in the
property settlement agreement or in the mediation agreement.7 Therefore, no
extrinsic evidence would have been introducible by the parties to alter the meaning
of the agreements, thereby obviating the need for a hearing to introduce such
We next address Ted’s argument that the mediation agreement is
unenforceable due to mutual mistake. Ted argues that the parties clearly intended
to divide the assets equally as evidenced by the agreements and that the mediation
agreement dollar amounts were illustrative only.
In order for a contract to be construed contrary to its terms, the party
claiming mistake must establish three elements:
First, it must show that the mistake was mutual, not
unilateral. Second, [t]he mutual mistake must be proven
beyond a reasonable controversy by clear and convincing
evidence. Third, it must be shown that the parties had
actually agreed upon terms different from those
expressed in the written instrument.
Abney v. Nationwide Mut. Ins. Co., 215 S.W.3d 699, 704 (Ky.2006) (internal
citations omitted). It is simply not enough that one party intended a different result
We likewise do not find internal inconsistency or vagueness in the mediation agreement signed
by both parties, the property settlement agreement signed by both parties, nor the decree of
dissolution of marriage entered by the trial court. We do not interpret the term “account
balance” to be anything other than that stated in the mediation agreement, i.e., a dollar amount.
which appears to be the case sub judice.8 See Cantrell Supply, Inc. v. Liberty Mut.
Ins. Co., 94 S.W.3d 381 (Ky.App.2002).
There is nothing in the record to indicate a mutual mistake of the
parties. The property settlement agreement clearly lists the point in time at which
the assets were to be equally divided. The mediation agreement lists the assets in
conformance with the property settlement agreement. Further, the parties agreed at
the mediation that Virginia was owed the specified dollar amount. Ted offers no
evidence of mutual mistake and thus the contract is not voidable.9 Absent
ambiguity, the contract terms are strictly enforced. Given that trial court properly
construed the agreements, there was no error.
In order for Ted to be relieved of the duties imposed upon him by the agreements, he would
need to set out the grounds for mutual mistake that necessitate reformation of the contract.
Having failed to do so, the court properly strictly construed the contract pursuant to the terms
contained within the writings and not based on Ted’s sole interpretation. Indeed, as we have
It has long been the law in Kentucky that where the parties put
their agreement in writing, all prior negotiations and agreements
are merged in the instrument, and each is bound by its terms unless
his signature is obtained by fraud or the contract be reformed on
the grounds of fraud or mutual mistake, or the contract is illegal.
Hopkinsville Motor Company v. Massie, 228 Ky. 569, 15 S.W.2d
423, 424 (1929); Childers & Venters, Inc. v. Soward, Ky., 460
S.W.2d 343 (1970).
Jones v. White Sulphur Springs Farm, Inc., 605 S.W.2d 38, 42 (Ky.App.1980.)
Ted’s argument that there was no meeting of the minds concerning the mediation agreement
likewise fails as it is a mere parroting of the mutual mistake argument, based on the alleged
intentions of the parties. There is no indication in the record that “[t]he facts or circumstances ...
[failed to show the] making of the contract; that is, the meeting of the minds” did not occur either
at the mediation agreement or the property settlement agreement. Harlan Public Service Co. v.
Eastern Const. Co., 71 S.W.2d 24, 29 (Ky.1934). In contrast the record supports a finding that
there was a meeting of the minds exhibited by the two agreements.
We now address the argument that the division of assets was
unconscionable. The property settlement agreement was signed by the parties,
found by the trial court to be conscionable, and incorporated into the decree of
dissolution of marriage, entered of record on January 18, 2002.
KRS 403.190 requires the trial court to divide the marital property in
just proportions given the statutory factors outlined in section (1), which does not
require an equal split of martial assets. Brosick v. Brosick, 974 S.W.2d 498
(Ky.App. 1998). In so doing, a trial court has wide discretion in dividing marital
property; we may not disturb the trial court's rulings on property-division issues
absent an abuse of discretion. Smith v. Smith, 235 S.W.3d 1 (Ky.App.2006).
The court has wide discretion in dividing the assets of the parties in an
equitable manner. In that the time for filing an appeal challenging the agreement
as unconscionable has long since past, 10 we assume that Ted challenges the
division of assets as unconscionable due to the passage of time. Thus, we shall
treat the “unconscionable” argument as one concerning the belated enforcement of
The property settlement agreement set forth the particular assets,
defined the dates to be used by the parties in calculating the valued thereof, and
awarded each party one-half. Subsequently, the parties entered into a mediation
agreement which not only assigned values to many of the parties assets, including
CR 73.02 requires appeals to be taken within 30 days. As the decree of dissolution of marriage
which incorporated the property settlement agreement was entered on January 7, 2002, the 30
day window has clearly lapsed.
the stock in question, but set forth the exact dollar amount each party should
receive. Ted now argues that the stock account in question cannot be divided
based upon the agreed date because it continually fluctuates, has decreased
significantly since the agreed date, and thus would award Virginia a windfall,
which was contrary to the parties’ intentions.11
If we follow Ted’s argument to its logical conclusion, then the stock
account value is forever changing, one-half is forever elusive, and it could never be
equitably divided using a dollar amount. Contrary to Ted’s argument, the
equitable way to divide an asset that fluctuates daily would be to pick a point in
time where it would be easy to ascertain the value and assign each party an
equitable percentage thereof. Such was the case here.
The inequity of which Ted complains arose when Ted failed to
relinquish control over the stock in accordance with the agreement and allowed
years to pass without transfer. While the mediation agreement was executed after
the property settlement agreement, it did set forth a specific dollar amount each
party was to receive and imposed upon Ted the duty to effect the transfer of the
”funds”.12 Ted cannot profit from the delay he allowed to continue.
See also the motion to reconsider, where Ted urges the trial court to divide the account in equal
shares, without setting forth specific values. As previously addressed, we do not agree with Ted
that the property settlement agreement or the mediation agreement should be interpreted in terms
of division of shares based on the plain language of the agreements. If Ted had desired the stock
to be divided by number of shares, then the property settlement agreement should have so
The reference to “funds” in the mediation agreement is the term used to refer to the dollar
amount that was to be transferred by Ted to Virginia “as soon as possible”.
There is no evidence within the record that Virginia failed to help
effectuate the transfer of the stock. As between the two parties, Ted was
responsible for the transfer of the stock and now must bear the consequences of
failing to transfer it. See Bevins v. J.A. Coates & Sons, 978, 96 S.W. 585, 587
(Ky.1906) (when one of two innocent parties must suffer because of a mistake, if it
has resulted from the negligence of one of them, he must bear the consequences);
and Deposit Bank of Georgetown v. Second Nat. Bank, 10 Ky.L.Rptr. 350
(Ky.1888) (the maxim that where one of two innocent parties must suffer he who
has been the occasion of the loss must bear it). Therefore, any “inequity”
occasioned by Ted’s failure to transfer falls upon him.
Accordingly, in light of the reasoning set forth above, there was no
error committed by the trial court, nor abuse of discretion, in awarding Virginia a
set dollar amount based on the account balance as of the date of dissolution. Based
on the foregoing analysis, we find no error and hereby affirm the judgment of the
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Holly A. Daugherty
Dean A. Pisacano