RENDERED: SEPTEMBER 15, 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2022

- CA

- 1222

- MR
TAMMY R. COLE APPELLANT

v. APPEAL FROM MADISON CIRCUIT COURT

HONORABLE KIMBERLY BLAIR WALSON, JUDGE

ACTION NO. 17

- CI

- 50059

MARK A. COLE APPELLEE

OPINION AFFIRMING
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BEFORE : CETRULO, DIXON, AND M C NEILL , JUDGES. DIXON, JUDGE: Tammy Cole appeals from an order of the Madison Circuit
Court entered on September 19, 2022, requiring her to return two pieces of artwork to Mark Cole, reimburse Mark his purported value of the art, or retain an appraiser of Mark’s choosing and pay the value of the artwork , as well as the cost of the appraisal. After careful review of the brief s , record, and law, we affirm

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BACKGROUND FACTS AND PROCEDURAL HISTORY The parties were married on December 15, 1999. Ta mmy filed a petition for dissolution of m arriage on February 3, 2017

. The parties reached a temporary agree ment, which included exclusive occupancy of the marital residence by Tammy

. Soon thereafter each of the parties filed a Verified Disclosure
Statement (VFD); both VFDs indicated that the parties owned 38 pieces of equine

art located at the marital residence and valued at $114,630.00

.

Eventually, the parties were able to reach a partial M ediation Agreement (“the agreement”) , which was approved by the court on June 17, 2019.
Pursuant to the “Marital Personal Property” section of the agreement, “artwork”

wa s listed under the husband’s column. The circuit court entered a decree of dissolution on August 19, 2019, incorporating the agreement , as well as an
addendum read into the record. The portion of the decree awarding personal property to Mark include d the exact list first proposed in the agreement , including “artwork , ” as well as a term from the addendum which specifically identifie d seven additional pieces of artwork. The decree also i ncluded a standard provision that

“ [ t ] he parties have previously divided their remaining personal property and each part y shall be awarded all items currently in their possession

. ”

On September 18, 2020, Mark filed a motion for return of personal
proper ty and for contempt , claiming there were a few additional items of personal- 3

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property that were inadvertently omitted from his initial property list but included
under the terms of the decree. The omitted property includ ed the two pieces of
artwork

– oil paintings by James L. Crowe, “Keeneland Turf & Hedge” and “Mare
in Field ” (“the Crowe paintings”)

– which are at issue in this appeal. During the hearing, Tammy denied having possession of the Crowe paintings or knowing th eir
whereabouts.

Mark filed a second motion for return of personal property and for contempt on March 19, 2021

. Mark’s motion included pictures of the Crowe paintings hanging in the marital residence sometime before the separation and an
invoice , origi nally attached to his VFD , which showed the purchase of a few pieces
of artwork , in addition to the 38 insured pieces , including Keeneland Turf & Hedge. At the hearing, Mark testified that he realize d the two Crowe paintings

were not delivered with the re st of the artwork in the w inter of 2019 when he was reviewing some old photographs of the marital residence . He waited to file his
first motion due to the COVID

- 19 pandemic and the resolution of other pending

matters. Mark argue d a bailment of the Crowe paintings existed , as Tammy had constructive possession by virtue of having exclusive occupancy of the marital
residence. He estimated the value of the Crowe paintings to be $15,000.00, using the invoice which indicated he purchas ed Keeneland Turf & Hedge for $7,500.00.- 4

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In response, Tammy produced a more recent photograph, taken three months before the parties’ separation, that showed one of the Crowe paintings had been
moved after Mark’s photographs were taken . She also stated t hat Mark repeated ly
entered the marital residence without her knowledge , maintained control of the residence’s security system , and removed some furnishings and equine art prior to entry of the decree

.

On appeal, Tammy argues that the circuit court erre d when it interpreted the term “artwork , ” as listed in the decree, to include the Crowe paintings , and that there w as in sufficient evidence to support the court’s ruling. 1
STANDARD OF REVIEW A property settlement agreement , or mediation agreement as incorporated into a decree of dissolution , is a contract and, therefore, governed by
contract law. See Wagner v. Wagner , 563 S.W.3d 99, 103 (Ky. App. 2018) (cit ations omitted); KRS 2 403.180(5). “The interpretation of a contrac t is a matter of law and is reviewed by the Court de novo .” McMullin v. McMullin , 338 S.W.3d 315, 320 (Ky. App. 2011). The parties’ intentions are to be discerned from the

1 Tammy argues that there was no finding of contempt or dissipation . However, t hese issues are not presently before us. T he circuit court has reserved the contempt issue pending this appeal , and a finding of dissipation is not germane to the enforce ment of the decree , nor has Mark asserted dissipation below . A circuit court must first be given the opportunity to rule be for e an issue can be considered on appeal. Baker v. Weinberg , 266 S.W.3d 827, 835 (Ky. App. 2008).

2 Kentucky Revised Statutes.- 5

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four corners of the contract, but when a contract is ambiguous, a court may
consid er other factors, including parol evidence and the conduct of the parties. Cantrell Supply , Inc. v. Liberty Mut. Ins. Co. , 94 S.W.3d 381 , 385 (Ky. App. 2002) ; see also Money v

. Money , 297 S.W.3d 69, 72 (Ky. App. 2009).

The circuit court’s finding s of fact shall not be disturbed unless they are clearly erroneous , or un supported by substantial evidence. CR 3 52.01; Moore
v. Asente , 110 S.W.3d 336, 354 (Ky. 2003)

. The circuit court is in the best position to weigh conflictin g evidence and testimony , and it is not for this Court to supplant
a different conclusion when faced with the same evidence. See Truman v. Lillard , 404 S.W.3d 863, 868

- 69 (Ky. App. 2012). LEGAL ANALYSIS Tammy contends that the term “artwork” should only be interpreted to mean the 38 paintings as identified in the VFDs of the parties because Mark
omitted the Crowe paintings from his previous property lists, and they were not specifically mentioned in either the agreemen t or the addendum to the decree of
dissolution. Furthermore, even if they were in her possession, she a sserts that the provision of the decree which awarded each party all property currently in their possession would have awarded the Crowe paintings to he r. Mark, on the other hand, argues that the term unambiguously means any and all artwork.

3 Kentucky Rules of Civil Procedure.- 6

- By the plain reading of the agreement itself , “artwork” as used in the

“ Marital Personal Property” section of the agreement encompasses the two contested Crowe pa intings. However, the inclusion of the addendum begs the question of why the specific pieces of additional artwork were identified through
this supplemental contract provision if “artwork” meant “all artwork” as posited by
Mark . Given this ambiguity, we sha ll consider parol evidence presented in the underlying case and the conduct of the parties

.

The VFDs of both parties only mention and value the 38 pieces of
insured artwork. However, i n addition to the insurance document which identifies and values the 38 pieces, Mark also attached the invoi ce for Keeneland Turf & Hedge, and five other paintings not included in the list of 38

. At a minimum, Tammy was put on notice that Mark was claiming an interest in more artwork than the 38 piece s that were insured. 4

The parties ’ course of conduct also su pports Mark’s claim that the term “artwork” mean s al l a rtwork in the marital residence. Mark continually
claimed the artwork as nonmarital , and Tammy admitted that Mark was the collector of equine art with which he often decorated the marital residence

.

4 We note that several of the 38 insured pieces were also oil paintings by James Crowe.- 7

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Tamm y also exhibited an extreme reluctance to return the 38 pieces of insured artwork, even though it was undisputed that they belonged to Mark

.

Considering the circumstances, we conclude that the intention of the parties was for the addendum to merely be a c ollateral term us ed to help effectuate the already existing agreement

. See Frear v. P.T.A. Indus., Inc. , 103 S.W.3d 99, 106 (Ky. 2003)

. Therefore, we agree with the circuit court and interpret “artwork” to include the Crowe paintings.

We next turn to whether sufficient and substantial evidence exist ed to support the circuit court’s conclusion that Tammy was in constructive possession of the paintings.

In the instant case, the photographs depicting the Crowe paintings in the marital residence prior to the parties’ separation , the invoice showing the purchase of one of the paintings , the fact that Tammy had exclusive occupancy of the marital residence after the separation , and the fact the Crowe painting s were not found to be in Mark’s possession , w ere sufficient for the circuit court to conclude that Tammy was in constructive possession and control of the Crowe paintings. Tammy counter ed with only one photo graph indicat ing that one painting had been mov ed prior to the parties’ separation , and the tenuous accusation that Mark could have removed the artwork previously. We also find it compelling, as did the circuit court, that Mark was denied any meaningful- 8

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opportunity to take an accounting o f any propert y in the marital residence after the parties’ separation . While it would have been unreasonabl y burdensome to expect Tammy to have cataloged every piece of property in the marital residence , expecting Mark to have done so completely from memory and with o nly limited
access to the marital residence is untenable.

Regarding the value of the Crowe paintings, t he invoice supports the assertion that Keeneland Turf & Hedge is valued at $7,500.00 but makes no
mention of Mare in Field. Mark estimates its value t o be equitable with Keeneland Turf & Hedge because it is a similar work of the same artist. It was within the circuit court’s discretion to accept Mark’s testimony, considering that Tammy provided no evidence and merely speculat ed that Mark may have inflated the
value

. Additionally, the court’s order afforded Tammy the opportunity to secure

an appraisal of the Crowe paintings, albeit by an appraiser of Mark’s choosing at her own expense

.

The circuit court’s order was based on its interpretation of the term “artwork” and the evidence presented, which we conclude was substantial. See Young v. Young , 314 S.W.3d 306, 310 (Ky. App. 2010) . While the parties presented contrary evidence and testimony, the circuit court found Mark’s more compelling than Tammy’s and entered an order enforcing the terms of the parties ’
decree of dissolution

. KRS 403.180 (5); see also Bailey v. Bailey , 231 S.W.3d 793,- 9

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797 (Ky. App. 2007)

. Accordingly, we find the circuit court ’ s findings of fact

were not clearly erroneous.
C ONCLUSION

F or the for e going reasons, the judgment of the Madison Circuit C ourt is AFFIRMED

.

ALL CONCUR

.

BRIEF FOR APPELLANT:
Sean M. Pierson Richmond, Kentucky BRIEF FOR APPELLEE:
James W. Baechtold Richmond, Kentucky