Gilkerson v. Gilkerson

• Docket Number: 2022-CA-0270-MR
• Decision Date: 02 June 2023
• Parties: DELENE ANN GILKERSON APPELLANT v. CHARLES RANDALL GILKERSON AND HON. PAULA RICHARDSON BARBER APPELLEES
• Court: Kentucky Court of Appeals

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DELENE ANN GILKERSONAPPELLANT v. CHARLES RANDALL GILKERSON AND HON. PAULA RICHARDSON BARBERAPPELLEES

No. 2022-CA-0270-MR

Court of Appeals of Kentucky

June 2, 2023

NOT TO BE PUBLISHED

APPEAL FROM ROWAN CIRCUIT COURT HONORABLE ROBERT W. MCGINNIS, JUDGE ACTIONNO. 18-CI-00152

BRIEF FOR APPELLANT:

Jason Rapp

Lexington, Kentucky

BRIEF FOR APPELLEE CHARLES

RANDALL GILKERSON:

Paula Richardson Barber

Morehead, Kentucky

BEFORE: ACREE, EASTON, AND JONES, JUDGES.

OPINION

JONES, JUDGE

This is an appeal from a decree of dissolution entered by the Rowan Circuit Court.The appellant, Delene Gilkerson("Delene"), contends the circuit court erred by: (1) enforcing an oral settlement agreement she made in open court with her now ex-husband, appelleeCharles Randall Gilkerson("Randy"), regarding their division of marital assets; (2) declining to require Randy to pay her attorney's fees; and (3) requiring her to pay $2,500 of Randy's attorney's fees as a contempt sanction.The specifics of her contentions are addressed in turn below.In sum, her arguments lack merit.Hence, we affirm.

I.Enforcement of the Oral Settlement Agreement

A.Overview

Delene and Randy married on February 14, 2005.They had no children together.In June 2018, following a requisite period of separation, each petitioned the Rowan Circuit Court to dissolve their marriage and equitably divide their marital estate.On September 11, 2019, following a period of discovery and motion practice, the circuit court held a hearing wherein the parties, after being duly sworn, outlined the particulars of an agreement they had made regarding the division of their marital property.Because it is pertinent to many of the issues presented in this matter, we set forth the relevant substance of what was stated at that hearing:

RANDY'S COUNSEL: Is it your understanding that we have come to a settlement agreement as far as the division of the assets?

RANDY: Yes.

RANDY'S COUNSEL: Okay.I'm going to read that into the record, Randy, and I may ask you a couple questions about that.

RANDY: Okay.

COURT: Okay, before you do that, Ms. Gilkerson, do you agree with the testimony he's given so far?

DELENE: Yes. ...

COURT: Okay.And listen carefully to what's stated as the agreement to make sure you agree with it, okay?

DELENE: Okay.

COURT: Go ahead.

RANDY'S COUNSEL: Is it your understanding that as a division of the marital estate, that Delene Gilkerson will receive, or has already in her possession some of these assets: $50,000 from the joint bank account?

RANDY: Yes.

RANDY'S COUNSEL: And that's the Whitaker Bank?

RANDY: Yes.

RANDY'S COUNSEL: The, she will receive the property that we're calling the East Point property?

RANDY: Eastwood.

RANDY'S COUNSEL: Eastwood, thank you, at a value of $110,000?

RANDY: Yes.

RANDY'S COUNSEL: That she will receive her retirement that's invested with Pantera [sic^[1] that has a current value of $48,800?

RANDY: Yes.

RANDY'S COUNSEL: That she has already received $150,000 from the joint Whitaker Bank account?

RANDY: Yes.

RANDY'S COUNSEL: That in addition she will receive the household goods and furnishings that are at the Country Club, 375 Country Club address at a value of $25,000?

RANDY: Yes.

RANDY'S COUNSEL: That she will receive the Country Club residence at a value of $329,000?

RANDY: Yes.

RANDY'S COUNSEL: That she has up to a period of one year to do either one of two things, Randy.She has to sell the property, or if she decides she wants to retain it she has to pay you the sum of $126,000?

RANDY: Yes.

RANDY'S COUNSEL: And you have agreed not to charge her any interest on that $126,000?

RANDY: Yes.

RANDY'S COUNSEL: In addition, she would receive a condominium at Saint James Court, valued at $110,000, and she agrees that you would have two weeks from the date of the decree to remove your personal items from that condominium?

RANDY: Yes.

RANDY'S COUNSEL: That she would also receive the property located on Whitaker Street at a value of $126,000?

RANDY: Yes.

RANDY'S COUNSEL: That she's receiving assets in the amount of $948,000?

RANDY: Yes.

RANDY'S COUNSEL: And the flipside of that is, every other asset that you have, that you all have accumulated together, becomes your asset as the division of the marital estate?These things would be restored to you.You have two separate bank accounts at U.S. Bank, Randy?

RANDY: Yes.

RANDY'S COUNSEL: And those would be restored as your separate property, correct?

RANDY: Yes.

RANDY'S COUNSEL: And Delene has two separate bank accounts at Whitaker Bank?

RANDY: Yes.

RANDY'S COUNSEL: She also has a certificate of deposit in the amount of $8,700.Those three accounts would all be restored to her as her separate assets.Is that your understanding also?

RANDY: Yes.

RANDY'S COUNSEL: And that you all have agreed to divide the vehicles, and you all have agreed that is an equal division.In other words, Delene receives, can you tell the court the assets that she receives as far as vehicles?

RANDY: She receives a 2012 Cadillac and a 2005 Mercedes.

RANDY'S COUNSEL: Okay.And all the other vehicles would become your property with the exception of the vehicle that you all both agreed was going to be the property of her daughter?

RANDY: Yes.

...

RANDY'S COUNSEL: And then if, like I said, any other asset would become yours?

RANDY: Yes.

RANDY'S COUNSEL: That's your understanding.Um, and let's just run through those to make sure that we're on the same page, okay Randy?

RANDY: Okay.

RANDY'S COUNSEL: That you would receive a TD bank account, that's the Florida bank account.You would receive all of the Charles Schwab bank account.You would receive all of the Merrill Lynch account, which actually is your retirement account, part of which was marital, part of which was nonmarital, but you're gonna receive all of that.

RANDY: Yes.

RANDY'S COUNSEL: You would receive the proceeds from the sale of 1184 McBrayer, and those proceeds are $90,013.96, that are sitting in the Richardson, Barber, and Williamson escrow.And you would receive the McBrayer, the other McBrayer property, which we valued at $162,000.And you would receive the condominium at Titusville, Florida, at 2124 King's Cross, that's valued at $130,000.And you would also receive the household goods and furnishings at the Florida condominium.

RANDY: Yes.

RANDY'S COUNSEL: Is that correct, Randy?

RANDY: Yes.

RANDY'S COUNSEL: Is there anything that I've omitted -

RANDY: No, I don't -

RANDY'S COUNSEL: That you can think of?

RANDY: I don't think so.

RANDY'S COUNSEL: And based upon your agreement, do you believe that this is a just division of the marital estate?

RANDY: Yes.

RANDY'S COUNSEL: Okay.And you are agreeable to that?

RANDY: Yes.

RANDY'S COUNSEL: You are agreeable to execute whatever documents are necessary to convey title to Ms. Gilkerson?

RANDY: Yes.

RANDY'S COUNSEL: For the assets she is to receive?

RANDY: Yes.

The parties also stated they would file a joint tax return, and that if there were any liability or refund, it would go to Randy; and that Delene's daughter would receive a grand piano.The hearing then proceeded in relevant part as follows:

COURT: Okay.Does that complete everything?

RANDY: Yes.

COURT: Okay.And Ms. Gilkerson, do you agree with everything your husband, or actually, your husband's attorney just stated -

DELENE: Yes.

COURT: As far as property settlement?

DELENE: Yes.

COURT: Okay.And you believe that's fair to both of you?

DELENE: Yes.

COURT: Okay.I'll find it to be so.The separation agreement, once it comes in, assuming it parrots what we just heard, will be approved, and the final decree will be entered at that time.So as soon as you all get this in, we'll process it quickly.

RANDY'S COUNSEL: So am I understanding the court that it would not entertain, the court would not entertain the entry of a decree of dissolution of the parties' marriage today if I provide one?

DELENE'S COUNSEL: If you can get it done.

RANDY'S COUNSEL: If I can provide one without -

COURT: No.Everything has to be resolved.

RANDY'S COUNSEL: Okay.

COURT: I won't split it.

DELENE'S COUNSEL: Do what now?Sorry.I didn't hear.

RANDY'S COUNSEL: He's basically saying he won't allow us to enter the decree -

DELENE'S COUNSEL: So everything until -

COURT: Until we've got the separation agreement executed.

DELENE'S COUNSEL: - separation agreement signed?Okay.

RANDY'S COUNSEL: Okay.

COURT: I allowed that to be done one time, thirty[-]some years ago, and it blew up.

Randy filed a transcript of the September 11, 2019 hearing with the circuit court's record without objection, and his counsel drafted a proposed dissolution decree that incorporated the property settlement agreement the parties had described to the circuit court.However, when presented with Randy's proposed decree, Delene refused to approve it.Notwithstanding, Randy moved the circuit court to approve the parties' agreement that was made on the record, and to incorporate it into the final dissolution decree; and the circuit court ultimately did so.

B.Issues

Delene refused to give her approval of Randy's proposed decree for two overarching reasons - reasons the circuit court rejected, and which she now reasserts before this Court as primary focuses of her appeal.In her view: (1)she and Randy never effectively formed a property settlement agreement at the September 11, 2019 hearing; and (2) even if such an agreement had been effectively formed, it was nevertheless unenforceable because it was unconscionable.As this matter was resolved through a bench trial, we note at the onset that factual findings of the trial court are reviewed under the clearly erroneous standard of Kentucky Rule of Civil Procedure("CR") 52.01, but the trial court's legal...