Opinion
NO. 2014-CA-000574-MR
05-27-2016
LARAE TAYLOR APPELLANT v. ADRIAN TAYLOR; AND JANET L. HUMPHREY APPELLEES
BRIEFS FOR APPELLANT: David N. Zorin Lexington, Kentucky BRIEF FOR APPELLEE Adrian Taylor: Janet L. Humphrey Nicholasville, Kentucky BRIEF FOR APPELLEE Janet L. Humphrey: Joshua S. Tucker Nicholasville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. MICHAEL
ACTION NO. 10-CI-00374 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON, AND D. LAMBERT, JUDGES. DIXON, JUDGE: Larae Taylor appeals a post-decree order and judgment of the Jessamine Circuit Court ordering her to pay attorney's fees to Adrian Taylor's attorney, Janet L. Humphrey. We affirm.
Larae and Adrian were divorced pursuant to a decree entered by the Jessamine Circuit Court on March 30, 2010. The decree incorporated the terms of the parties' separation agreement, which provided, in relevant part:
3. REAL PROPERTY: The Wife shall be awarded all right, title and interest in the real property located at 309 Keene Way, Nicholasville, Kentucky, subject to the debt thereon. Wife shall remove Husband's name from said obligation and parties execute a Quit Claim Deed following the entry of Decree.
. . .
5. DEBTS: Wife shall assume, indemnify and hold Husband completely harmless from the mortgage in the approximate amount of one hundred thirty thousand ($130,000.00) dollars and shall re-finance as already outlined hereinabove.
. . .
9. DEFAULT: The parties agree that in the event either party defaults in or breaches any of his or her respective obligations and duties as contained in this agreement, then the defaulting or breaching party shall be responsible for and pay to the injured party, in addition to such other damages as any court may award, all of his or her attorney's fees, court costs, and other related expenses incurred to enforce the provisions contained herein against the defaulting party.
In October 2012, Adrian filed a motion to enforce the settlement agreement, asserting that Larae had not removed his name from the mortgage loan on the marital residence. After numerous delays, the court held an evidentiary hearing on January 21, 2014. Adrian testified that he received foreclosure paperwork from PNC Bank regarding the marital home in August 2012. Adrian contacted the bank and learned he was still an obligor on the mortgage because Larae had not refinanced the loan in her sole name. During his testimony, Adrian introduced an invoice from Ms. Humphrey showing he had incurred $2,083.50 in attorney's fees since October 2012, attempting to enforce the settlement agreement. In her testimony, Larae admitted that she had not refinanced the mortgage; consequently, Adrian's name remained on the original mortgage note.
The court rendered findings of fact, which stated, in pertinent part:
3. The parties appeared numerous times before the Court to discuss the alleged breach of the Agreement, wherein the Respondent has represented multiple versions of events, eventually culminating in her assertion that she had signed a new mortgage. The Respondent did not produce any documentation in support of this refinance but through her counsel, asserted all the documents were signed and filed, inexplicably, in Ohio.
4. At a hearing to determine if the Petitioner was entitled to recoup his attorney fees for the purported breach or default of the Agreement, the Respondent conceded that no efforts to refinance the property were made until August 2012, when the property became the subject matter of a foreclosure action.
. . .
Given the foregoing, the Court concludes the Respondent has defaulted on the parties' Separation Agreement, which was signed into effect in March 2010. Pursuant to the Agreement, the Petitioner is awarded his attorney fees in the amount of $2,083.50, as proven by an invoice and testimony of the Petitioner.
The court's order also included a judgment making the award of attorney's fees payable to Ms. Humphrey. The court denied Larae's post-judgment motion to alter, amend, or vacate the order, and this appeal followed.
For the first time on appeal, Larae characterizes the award of attorney's fees as a sanction for contempt, and she asserts that portions of the court's findings were incorrect. After careful review of the record, we conclude these arguments were not preserved for appellate review.
First, Larae failed to include a statement of preservation for any of her appellate arguments. CR 76.12(4)(c)(v) requires ". . . at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." In her brief, Larae provided only a general citation to the video-recorded hearing at the outset of the "Argument" section; thereafter, Larae asserted three distinct arguments without any reference to how those arguments were preserved for appellate review. Further, our review of the record indicates that these arguments were not presented to the trial court. "The function of the Court of Appeals is to review possible errors made by the trial court, but if the trial court had no opportunity to rule on the question, there is no alleged error for this court to review." Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985). We decline to address Larae's unpreserved claims, as she "cannot feed one can of worms to the trial judge and another to the appellate court." Triplett v. Triplett, 414 S.W.3d 11, 15-16 (Ky. App. 2013).
Pursuant to KRS 403.180(1), the parties to a dissolution proceeding are free to enter into a separation agreement. "Terms of the agreement set forth in the decree . . . are enforceable as contract terms." KRS 403.180(5). "Absent an ambiguity in the contract, the parties' intentions must be discerned from the four corners of the instrument without resort to extrinsic evidence." Cantrell Supply, Inc. v. Liberty Mutual Ins. Co., 94 S.W.3d 381, 385 (Ky. App. 2002).
In the case at bar, the separation agreement clearly provided that Larae was obligated to remove Adrian from the mortgage. The agreement also clearly provided that, in the event of a breach, the defaulting party was obligated to pay the attorney's fees incurred by the party seeking enforcement of the agreement. The trial court's conclusion that Larae breached her obligation by failing to remove Adrian from the mortgage was supported by substantial evidence, including Larae's own admission that she had failed to refinance the loan. In light of Larae's breach, she was obligated to pay Adrian's attorney's fees, as provided in paragraph nine of the separation agreement. After carefully reviewing the record, we find no error in the court's determination.
For the reasons stated herein, we affirm the judgment of the Jessamine Circuit Court.
ALL CONCUR. BRIEFS FOR APPELLANT: David N. Zorin
Lexington, Kentucky BRIEF FOR APPELLEE
Adrian Taylor: Janet L. Humphrey
Nicholasville, Kentucky BRIEF FOR APPELLEE
Janet L. Humphrey: Joshua S. Tucker
Nicholasville, Kentucky