FROM JEFFERSON CIRCUIT COURT HONORABLE A. CHRISTINE WARD,
JUDGE ACTION NO. 12-CI-503266
FOR APPELLANT: William D. Tingley Louisville, Kentucky
FOR APPELLEE: Elizabeth M. Howell Louisville, Kentucky
BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES.
LAMBERT, J., JUDGE.
Kimberlin Miranda appeals from separate orders entered by the
Jefferson Circuit Court, namely, an order denying Lisa's
motion to force the sale of the parties' marital
residence (Appeal No. 2015-CA-001483), and an order denying
Lisa's motion for a hearing on visitation with the
parties' children (Appeal No. 2016-CA-001291). We affirm
in Appeal No. 2015-CA-001483 and vacate and remand in Appeal
and Francisco Savio Miranda (Franky) were married from 2001
until 2015. They are the parents of three children, now ages
13, 8, and 4 years old. Lisa filed the petition for
dissolution of marriage in 2012, but the final decree was not
entered until three years later. The children were removed by
the Cabinet for Health and Family Services from Lisa's
custody in July 2013. Lisa's mother accepted emergency
custody at that time, and the children were later placed in
foster care until Franky was granted temporary custody of
them. Franky's mother assists in his care of the
facts of the first appeal concern the marital residence. In
the parties' settlement agreement, Franky received
possession of the parties' home. The agreement called for
Franky to pay Lisa $15, 000.00 after he obtained refinancing
for the house. Franky had 90 days in which to do that. At the
expiration of those 90 days, Lisa filed a motion to compel
production of documents regarding Franky's ability to
refinance the home.
Jefferson Circuit Court held a hearing on the matter and, in
an order dated June 18, 2015, granted Franky an additional 30
days in which to obtain appropriate refinancing. After
Franky's extended deadline expired, Lisa asked the
circuit court to compel the sale. Another hearing was held on
July 6, 2016, after which the court took the matter under
submission and granted Franky's counsel 10 days to file
Franky was notified by his bank that a lien had been placed
upon the subject property in December 2014 after a default
judgment had been entered against Lisa by Capitol One for
monies owed in the amount of $1, 366.48. It was Franky's
position that the lien explained his frustrated attempts to
secure refinancing. Franky sought to have Lisa satisfy the
lien and obtain its release so that refinancing could move
forward and he could close on the house. Lisa initially
ignored the circuit court's order pertaining to the lien,
insisting that the house be sold, but she subsequently paid
off the lien and signed the authorization for release of the
payoff documentation. Franky was able to obtain refinancing,
although it took another trip to court to get the Master
Commissioner to execute a quitclaim deed (again because Lisa
would not cooperate). Franky paid Lisa on September 8, 2015,
and she accepted it. On September 25, 2015, Lisa filed a
notice of appeal from the order denying her motion to compel
the home's sale.
argues that the circuit court erred in denying her motion to
compel the sale of the home. She maintains that the
settlement agreement should have been enforced as written and
that the circuit court abused its discretion in its
interpretation of the agreement and in granting Franky
additional time to comply with the terms. We disagree.
standard of review is well settled on this issue: "The
terms of a settlement agreement set forth in a decree of
dissolution of marriage are enforceable as contract terms.
[Kentucky Revised Statutes] 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)."
Money v. Money, 297 S.W.3d 69, 71 (Ky. App. 2009).
We review questions of law de novo. Western Ky.
Coca- Cola Bottling Co., Inc. v. Revenue Cabinet, 80
S.W.3d 787, 790 (Ky. App. 2001). However, findings of fact
will "not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the [family]
court to judge the credibility of the witnesses." CR
52.01; Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky.
App. 2002). A family court operating as finder of fact has
extremely broad discretion with respect to testimony
presented, and may choose to believe or disbelieve any part
of it. A family court is entitled to make its own decisions
regarding the demeanor and truthfulness of witnesses, and a
reviewing court is not permitted to substitute its judgment
for that of the family court, unless its findings are clearly
erroneous. "A factual finding is not clearly erroneous
if it is supported by substantial evidence."
Sherfey, supra (footnote omitted).
Substantial evidence has been conclusively defined by
Kentucky courts as that which, when taken alone or in light
of all the evidence, has sufficient probative value to induce
conviction in the mind of a reasonable person.
Owens-Corning Fiberglas Corp. v. Golightly, 976
S.W.2d 409, 414 (Ky. 1998); Janakakis-Kostun v.
Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999) (citing
Kentucky State Racing Commission v. Fuller, 481
S.W.2d 298, 308 (Ky.1972)).
Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App.
2007). "Thus, we review the agreement anew, giving no
deference to the trial court." McMullin v.
McMullin, 338 S.W.3d ...