Opinion
NO. 2011-CA-000302-MR
09-14-2012
LORETTA SIZEMORE APPELLAN v. RANDALL J. SIZEMORE APPELLEE
BRIEF FOR APPELLANT: William R. Adkins Williamstown, Kentucky BRIEF FOR APPELLEE: Edward G. Drennen Florence, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 09-CI-01027
OPINION
REVERSING AND REMANDING
BEFORE: COMBS, DIXON AND VANMETER, JUDGES. VANMETER, JUDGE: Loretta Sizemore appeals from the January 11, 2011, order of the Boone Family Court which distributed Randall Sizemore's pension plan to Randall based upon an oral agreement between the parties. For the following reasons, we reverse and remand.
Randall and Loretta Sizemore were married on July 27, 2002, and were divorced on April 15, 2010, by decree of dissolution. In that decree, the family court reserved ruling on the issue of division of the parties' marital assets and debts. The parties entered into a partial separation agreement ("Agreement") on January 10, 2011, which divided the property between them with the exception of a pension plan in Randall's name, provided by his employer, Duke Energy. At a hearing on the division of marital property, Randall testified that he and Loretta had an oral agreement whereby she would allow him to retain the pension plan as his sole property. Loretta denied entering into the oral agreement. The family court held the oral agreement controlled and distributed the pension plan to Randall. This appeal followed.
On appeal, Loretta claims that the family court erred by distributing the pension plan to Randall based on his testimony that the parties had an oral agreement to allow him to keep the entire pension plan. We agree.
The law is well established that the construction and interpretation of a contract is a question of law. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky.App. 1998) (citing Morganfield Nat'l Bank v. Damien Elder & Sons, 836 S.W.2d 893 (Ky. 1992)). Questions of law are reviewed de novo. Id. (citation omitted).
KRS 403.190(1) provides that the trial court shall divide all marital property in just proportions after considering relevant factors. Marital property may be exempt from such division by valid agreement of the parties. KRS 403.190(2)(d). Any agreement must be in writing and signed by the parties to be effective. Carter v. Carter, 656 S.W.2d 257, 258 (Ky.App. 1983). See also KRS 403.180(1) (stating that parties may enter into a written agreement that contains provisions for disposition of property).
Kentucky Revised Statutes.
Here, the Agreement stated, "[t]he parties have not reached an agreement as to the Husband's retirement/stocks/401k plan as well as banked vacation pay with Duke Energy." Randall testified that the parties orally agreed that he would retain his pension plan; however, since the law is clear that any agreement as to the disposition of marital property must be in writing, an oral contract of this nature is unenforceable. The family court erred by relying on the oral agreement to divide the marital property. As a result, we reverse the portion of the order distributing the pension plan to Randall, and remand this case for proceedings to determine whether the pension plan is marital or non-marital property, or both, and then distribute it in accordance with KRS 403.190.
The Boone Family Court order is reversed and remanded for proceedings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT: William R. Adkins
Williamstown, Kentucky
BRIEF FOR APPELLEE: Edward G. Drennen
Florence, Kentucky