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NOT TO BE PUBLISHED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

**   **  **

BEFORE: CETRULO, DIXON, AND MCNEILL, 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 briefs, record, and law, we affirm. 
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BACKGROUND FACTS AND PROCEDURAL HISTORY

The parties were married on December 15, 1999. Tammy filed a 

petition for dissolution of marriage on February 3, 2017. The parties reached a 

temporary agreement, 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 Mediation

Agreement (“the agreement”), which was approved by the court on June 17, 2019. 

Pursuant to the “Marital Personal Property” section of the agreement, “artwork” 

was 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 included the exact list first proposed in the agreement, including 

“artwork,” as well as a term from the addendum which specifically identified seven 

additional pieces of artwork. The decree also included a standard provision that 

“[t]he parties have previously divided their remaining personal property and each 

party shall be awarded all items currently in their possession.” 

On September 18, 2020, Mark filed a motion for return of personal 

property and for contempt, claiming there were a few additional items of personal 
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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 included 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 their 

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, originally 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 realized the two Crowe paintings 

were not delivered with the rest of the artwork in the winter 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 argued 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 purchased Keeneland Turf & Hedge for $7,500.00. 
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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 that Mark repeatedly

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 erred when it 

interpreted the term “artwork,” as listed in the decree, to include the Crowe 

paintings, and that there was insufficient 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)

(citations omitted); KRS2 403.180(5). “The interpretation of a contract 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, these issues are 

not presently before us. The circuit court has reserved the contempt issue pending this appeal,

and a finding of dissipation is not germane to the enforcement of the decree, nor has Mark 

asserted dissipation below. A circuit court must first be given the opportunity to rule before an 

issue can be considered on appeal. Baker v. Weinberg, 266 S.W.3d 827, 835 (Ky. App. 2008). 

2 Kentucky Revised Statutes. 
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four corners of the contract, but when a contract is ambiguous, a court may 

consider 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 findings of fact shall not be disturbed unless they 

are clearly erroneous, or unsupported by substantial evidence. CR3 52.01; Moore 

v. Asente, 110 S.W.3d 336, 354 (Ky. 2003). The circuit court is in the best position 

to weigh conflicting 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 agreement or the addendum to the decree of 

dissolution. Furthermore, even if they were in her possession, she asserts that the

provision of the decree which awarded each party all property currently in their 

possession would have awarded the Crowe paintings to her. Mark, on the other 

hand, argues that the term unambiguously means any and all artwork. 

3 Kentucky Rules of Civil Procedure. 
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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 paintings. 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 shall 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, in addition to the insurance document which identifies 

and values the 38 pieces, Mark also attached the invoice 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 pieces that were insured.4 

The parties’ course of conduct also supports Mark’s claim that the 

term “artwork” means all artwork 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.
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Tammy 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 collateral term used 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 existed 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 paintings were 

not found to be in Mark’s possession, were sufficient for the circuit court to 

conclude that Tammy was in constructive possession and control of the Crowe 

paintings. Tammy countered with only one photograph indicating that one 

painting had been moved 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 
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opportunity to take an accounting of any property in the marital residence after the 

parties’ separation. While it would have been unreasonably 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 only limited 

access to the marital residence is untenable. 

Regarding the value of the Crowe paintings, the 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 to 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 speculated 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, 
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797 (Ky. App. 2007). Accordingly, we find the circuit court’s findings of fact 

were not clearly erroneous. 

CONCLUSION

For the foregoing reasons, the judgment of the Madison Circuit Court

is AFFIRMED.

ALL CONCUR.

BRIEF FOR APPELLANT:

Sean M. Pierson

Richmond, Kentucky 

BRIEF FOR APPELLEE:

James W. Baechtold

Richmond, Kentucky