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Wagner v. Wagner

Court of Appeals of Kentucky

November 2, 2018

VALERIE P. WAGNER [1] APPELLANT/CROSS-APPELLEE
v.
KEVIN J. WAGNER APPELLEE/CROSS-APPELLANT

          APPEAL AND CROSS-APPEAL FROM JEFFERSON FAMILY COURT HONORABLE DOLLY W. BERRY, JUDGE ACTION NO. 03-CI-503352

          BRIEFS FOR APPELLANT/CROSS-APPELLEE: William D. Tingley Louisville, Kentucky

          BRIEF FOR APPELLEE/CROSS-APPELLANT: Thomas M. Denbow Louisville, Kentucky

          BEFORE: ACREE, D. LAMBERT AND THOMPSON, JUDGES.

          OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING

          THOMPSON, JUDGE.

         Valerie P. Wagner appeals from an order of the Jefferson Family Court denying her motion to hold Kevin J. Wagner in contempt for violation of a provision in the parties' property settlement agreement requiring Kevin to make the monthly mortgage payments on the marital residence and for failure to make property distribution equalization payments as required by the agreement. We conclude the settlement agreement is unambiguous as to when Kevin's obligation to pay the mortgage terminated and the family court erred when it denied Valerie's motion to hold Kevin in contempt. We affirm the family court's denial of Valerie's contempt motion as it relates to the property distribution equalization payments.

         Valerie and Kevin were married in 1985 and have two children, who were ages fifteen and ten when the parties divorced in 2008. The parties entered into a property settlement agreement that was incorporated into the divorce decree.

         Pursuant to the settlement agreement, each party agreed that in reaching the agreement they relied on the financial disclosures completed by each party. In those disclosures, it was stated that Valerie's monthly income was $3, 200 per month while Kevin's was $6, 000 per month. Kevin was to pay Valerie $150, 000 as a property settlement equalization payment resulting from Valerie's waiver of her interest in the parties' various businesses and assets. Kevin agreed to pay Valerie $50, 000 upon execution of the property settlement agreement and pay the remaining $100, 000 at the rate of $1, 340 per month commencing December 1, 2007. The property settlement agreement also provided that Valerie would have exclusive use and control of the marital home and that Kevin "shall make the mortgage payments thereon until such time as Valerie decides to sell the property." Upon the sale of the home, the net proceeds were to be divided between the parties. In the agreement, Valerie waived maintenance.

         In December 2008, the parties entered into an agreement wherein Kevin would quitclaim all his right, title and interest in the marital home for a credit of $75, 000 towards the remaining balance on the original $150, 000 equalization payment obligation and executed an acknowledgment of that agreement. Kevin executed a quitclaim deed to Valerie on December 4, 2008.

         Valerie first listed the marital home for sale in August 2011, but did not receive an offer for her asking price and the house did not sell. After Kevin stopped making the mortgage payments in June 2013, the home was foreclosed upon and sold through a short sale for $420, 000 on January 2, 2014.

         On February 19, 2014, Valerie filed a motion for contempt against Kevin for failing to pay the mortgage, failing to make the property distribution equalization payments and failing to pay child support payments in violation of the property settlement agreement.

         Valerie argued the phrase "until such time as Valerie decides to sell the property" means Kevin was required to pay the mortgage until she accepted an offer on the house or until the house actually sold. Kevin disagreed with that interpretation and argued that his obligation to make the mortgage payment ended when Valerie listed the house for sale in August 2011.

         The family court held a hearing on the contempt motion. Approximately seven minutes into the hearing, Valerie's counsel attempted to introduce evidence of the parties' income when the settlement agreement was reached as evidence that it could not have been the intent of the parties' that Valerie would pay the mortgage before the home sold because her income was below the monthly payment. The family court ruled that such evidence was irrelevant stating as follows:

The agreement says what it says. The agreement doesn't say . . . I'm just saying it is very simple. She works for the Commonwealth Attorney's Office. I mean whatever . . . the agreement says that he continues to make the mortgage payments thereon until such time as she ...

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