RENDERED: OCTOBER 30, 2020; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-0873-MR

TERRY CHARLES MARSHALL APPELLANT

APPEAL FROM MAGOFFIN CIRCUIT COURT

v. HONORABLE DWIGHT S. MARSHALL, JUDGE

ACTION NO. 12-CI-00109

PEGGY LOUVENIA MARSHALL APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: CALDWELL, JONES, AND KRAMER, JUDGES.

JONES, JUDGE: The Appellant, Terry Charles Marshall (“Terry”), appeals from

the Magoffin Circuit Court’s order denying his motion for miscellaneous relief 

regarding certain personal property and furnishings the Appellee, Peggy Louvenia 

Marshall (“Peggy”), requested pursuant to the parties’ Separation and Property 

Settlement Agreement as incorporated by reference into the circuit court’s final 
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decree of dissolution. Having reviewed the record and being otherwise sufficiently 

advised, we affirm. 

I. BACKGROUND

Terry and Peggy were married on August 6, 1977, in Mingo County, 

West Virginia. During their lengthy marriage, the parties acquired a substantial 

amount of real and personal property, including two fully furnished homes of 

considerable size. The larger home is located at 1150 Delong Lane, Lexington, 

Kentucky (“Delong property”). The other home is located at 425 Kentucky Street, 

Salyersville, Kentucky (“Kentucky Street property”). 

In April of 2012, Terry petitioned for dissolution of the parties’ 

marriage. After years of highly contentious litigation, and with both parties 

represented by counsel, the parties entered into a Separation and Property 

Settlement Agreement (“Agreement”). Both parties signed the Agreement. The 

Agreement was found to not be unconscionable by the circuit court and was 

incorporated by reference into the circuit court’s final decree of dissolution entered 

on September 12, 2018.

Pursuant to Paragraph 7 of the Agreement, Terry was awarded both 

homes.1 Paragraph 8 of the Agreement, which addresses division of the parties’ 

 

1 Peggy’s release of her interest in the Delong property was contingent on her receipt of a 

$5,500,000.00 payment from Terry. 
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personal property and belongings, including the furniture and related items in the

parties’ two homes, is at the heart of this appeal. It states:

8. PERSONAL PROPERTY. The parties are each 

awarded his or her personal belongings, including but not 

limited to clothing, jewelry, luggage, memorabilia, and 

hand bags. [Terry] currently has possession of [Peggy’s] 

clothing and personal belongings maintained at the 

Kentucky Avenue property and said items shall be 

delivered to [Peggy] at the address directed by her within 

30 days of entry of this Agreement, pursuant to the terms 

set forth by this Court by Order entered July 17, 2015. 

Husband has remaining clothing and personal items at 

the Delong Lane property and he shall be awarded those 

items. [Peggy] shall be entitled to retrieve any remaining 

clothing or personal items from the Kentucky Avenue 

property within 30 days of entry of this Agreement. The 

parties agree to cooperate in scheduling an agreed upon 

time to retrieve their various items. 

Wife shall be entitled to choose furnishings, household 

goods, and accessories from 1150 Delong Lane, 

Lexington, Kentucky and 425 Kentucky Street, 

Salyersville, Kentucky to furnish her new residence. 

These items shall include but not be limited to the 

rooster chest, Kitchen Aid mixer, dishes, cookbooks, 

bedroom furniture, secretary desk, sofas, tables, chairs, 

lamps, and various accessories. Wife shall provide a list 

of the items she will remove and provide same to 

Husband’s counsel within 10 days from the date of this 

Agreement. Any items remaining will be the sole 

property of husband.

(Emphasis added.)
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Pursuant to Paragraph 8 of the parties’ Agreement, on or about 

September 17, 2018, Peggy provided Terry a six-page, itemized list of furnishings 

and accessories that she wanted to remove from the two residences. The list was 

divided into two sections, one for the Delong property and one for the Kentucky 

Street property. The sections were further broken down by the specific item(s) and 

the rooms where those items were located. 

With respect to the Delong property, Peggy identified items from the:

(1) upstairs storage room; (2) downstairs master; (3) family room; (4) pantry; (5) 

upstairs master; (6) bar; (7) downstairs bedroom; (8) first-floor living room; (9) 

billiards room; (10) lower-level media room; (11) dining hallway; (12) entrance 

hall; (13) office; (14) third upstairs bedroom; (15) area near the garage; (16) 

kitchen dining area; (17) front right upper hallway; (18) their son Terence’s 

bedroom; (19) connector hall to the ping-pong room; (20) patio; (21) powder 

room; (22) kitchen washroom; (23) top landing; and (24) room over the garage. 

The items included several pieces of large furniture, rugs, lamps, framed artwork, 

nine television sets, a treadmill, and numerous home décor items such as 

candlesticks, vases, and mirrors. With respect to the Kentucky Street property, 

Peggy identified items from the: (1) sunroom; (2) master bedroom; (3) formal 

sitting room; (4) side door entrance; (5) formal dining room; (6) pool house; (7) 

bedroom hallway; and (8) main entry. The items from these rooms included 
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miscellaneous jewelry, collectibles, china, and quilts as well as a few pieces of 

furniture (secretary desk, hall coat tree, and a television cabinet). 

Upon receipt of Peggy’s itemized list, Terry filed a motion with the 

circuit court seeking to compel Peggy to “provide a list of personal property that is 

consistent with the parties’ Agreement.” Terry asserted the list Peggy submitted 

was overinclusive and exceeded the scope of the parties’ intentions as expressed in 

Paragraph 8 of their Agreement. Terry maintained that emails exchanged between 

the parties’ counsel on August 8, 2018, demonstrate that Paragraph 8 was intended 

to allow Peggy to select a variety of items to furnish her new home, and did not 

entitle her to take whatever she desired from the two residences. Terry explained 

that as part of the negotiated agreement, it was understood and agreed between the 

parties that the items that Peggy was entitled to take would generally include: two 

bedroom suites, a couple of sofas, tables, and chairs, the stands in the foyer of the 

Delong property that hold the silk flowers, as well as a desk and a dresser from the 

Kentucky Street property. According to Terry, while the email exchanges 

contemplated that the specific property to be awarded to Peggy from the residences 

was supposed “to be identified on an exhibit in the settlement agreement,” this was 

not done because the purpose of Paragraph 8 was to allow Peggy to select 

furnishing appropriate for her new residence and, at the time the parties executed 

the Agreement, Peggy had not yet found a new residence for herself. 
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Peggy responded that the emails were part of the preliminary 

negotiations between the parties and should not be considered by the circuit court. 

She argued the Agreement was unambiguous insomuch as it was clear that Peggy 

was allowed to select whatever items she desired from the two residences to 

furnish her new residence so long as she provided Terry with an itemized list prior 

to removing the items. 

On January 17, 2019, the circuit court denied Terry’s motion. 

Therein, the circuit court found that “the listing of items provided by [Peggy] on 

September 17, 2018 . . . is consistent with the terms of the agreement, and 

therefore, [Peggy] is entitled to all items, as requested in her listing of personal 

property and furnishings.” Thereafter, Terry filed a motion to alter, amend, or 

vacate the order, or in the alternative for additional findings. The circuit court 

refused to alter its ultimate conclusion; however, as requested, it amended its prior 

order to include additional findings as follows:

“The Court having heard arguments from counsel 

regarding the review of extrinsic or parole evidence to 

support the Petitioner’s position that there is more than 

one interpretation of [the] agreement set forth in 

Paragraph 8 of the Separation and Property Settlement

Agreement, titled PERSONAL PROPERTY; this Court 

finds that there is only one reasonable interpretation of 

the language within said agreement. The Settlement 

Agreement states, “Wife shall be entitled to choose 

furnishings, household goods, and accessories from 1150 

Delong Lane, Lexington[,] Kentucky and 425 Kentucky 

Street, Salyersville[,] Kentucky to furnish her new 
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residence. These items shall include but not be limited to 

the rooster chest, Kitchen Aid mixer, dishes, cookbooks, 

bedroom furniture, secretary desk, sofas, tables, chairs, 

lamps, and various accessories. Wife shall provide a list 

of the items she will remove and provide same to 

Husband’s counsel within 10 days from the date of this 

Agreement. Any items remaining shall be the sole 

property of Husband.” Therefore, it is determined by this 

Court that the language in the agreement clearly does not 

restrain [Peggy] from her choices of furnishings, 

household goods and accessories as argued by [Terry]

and no extrinsic or parol evidence need be considered for 

the purposes of interpretation of the agreement pursuant 

to KRE

[2] 408.

Record (“R.”) at 338-39.

This appeal followed. 

II. STANDARD OF REVIEW

A property settlement agreement, as incorporated into a decree of 

dissolution of marriage, is a contract. See Wagner v. Wagner, 563 S.W.3d 99, 103 

(Ky. App. 2018); see also KRS3 403.180(5); Money v. Money, 297 S.W.3d 69, 71 

(Ky. App. 2009). “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). 

 

2 Kentucky Rules of Evidence.

3 Kentucky Revised Statutes.
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III. ANALYSIS

“The primary object in construing a contract or compromise 

settlement agreement is to effectuate the intentions of the parties.” Cantrell 

Supply, Inc. v. Liberty Mut. Ins. Co., 94 S.W.3d 381, 384 (Ky. App. 2002). Where 

a contract’s terms are plain, the court must assign to them their ordinary meaning 

and enforce the contract as written. See Bryan v. Massy-Ferguson, Inc., 413 

S.W.2d 891, 893 (Ky. 1966). “Any contract or agreement must be construed as a 

whole, giving effect to all parts and every word in it if possible.” City of Louisa v. 

Newland, 705 S.W.2d 916, 919 (Ky. 1986). If the terms of a contract are not 

ambiguous, the court may not resort to extrinsic or parol evidence. Frear v. P.T.A. 

Industries, Inc., 103 S.W.3d 99, 106 (Ky. 2003). 

Where a contract is ambiguous or silent on a vital 

matter, a court may consider parol and extrinsic evidence 

involving the circumstances surrounding execution of the 

contract, the subject matter of the contract, the objects to 

be accomplished, and the conduct of the parties. 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., 94 S.W.3d at 385 (citations omitted).

Thus, our first task is to determine whether Paragraph 8 of the parties’ 

Agreement is ambiguous. “A contract is ambiguous if a reasonable person would 

find it susceptible to different or inconsistent[, yet reasonable,] interpretations.” Id. 

To determine whether ambiguity exists, we look at the language in the contract. 
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“[A]n otherwise unambiguous contract does not become ambiguous when a party 

asserts—especially post hoc, and after detrimental reliance by another party—that 

the terms of the agreement fail to state what it intended.” Frear, 103 S.W.3d at 

107. 

Having reviewed the Agreement, we agree with the circuit court that it 

is not ambiguous. While the Agreement lists a few specific items of property, it is 

clear that Peggy was not limited to only these items. The Agreement listed three 

broad categories of items Peggy was allowed to select from the parties’ two 

residences: furnishings, household goods, and accessories. The only limitations 

the Agreement placed on Peggy was that items selected from these categories must 

be used by Peggy for the purpose of furnishing her new residence and that she had 

to provide Terry a listing of the items within a set amount of time. Any items not 

selected by Peggy for her new residence within that set period of time would 

automatically become Terry’s sole property. 

What the parties discussed prior to execution of the Agreement is of 

no consequence in the face of this clear and unambiguous language. Dotson v. 

Dotson, 523 S.W.3d 441, 444 (Ky. App. 2017). “It is presumed that the written 

agreement is final and complete and that all prior negotiations between the parties 

have either been abandoned or incorporated into the final written instrument.” 

New Life Cleaners v. Tuttle, 292 S.W.3d 318, 322 (Ky. App. 2009) (citation 
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omitted). Had Terry desired to limit Peggy’s choice to certain items, to a specific 

quantity of items, or to a set total value, he could have done so by including such 

terms in the Agreement. He did not do so. Instead, the Agreement unambiguously 

gave Peggy a specific period of time to select and list whatever items she desired 

from the two residences for the purpose of furnishing her new home. There is no 

other reasonable interpretation of the Agreement. Since the Agreement is not 

ambiguous on its face, the circuit court did not err in refusing to consider the email 

exchanges between the parties’ counsel to limit Peggy’s ability to select items from 

the residences. See Hoheimer v. Hoheimer, 30 S.W.3d 176, 178 (Ky. 2000).

IV. CONCLUSION 

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

is AFFIRMED. 

ALL CONCUR.

BRIEFS FOR APPELLANT:

David J. Guarnieri

Lexington, Kentucky 

BRIEF FOR APPELLEE:

Martha A. Rosenberg

Lexington, Kentucky