RENDERED: APRIL 26, 2024; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0425-MR

BRIAN D. MICHAEL APPELLANT 

v. 

APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE TIFFANY YAHR, JUDGE

ACTION NO. 09-CI-03487

SYBIL F. MICHAEL APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: THOMPSON, CHIEF JUDGE; EASTON AND GOODWINE, 

JUDGES.

GOODWINE, JUDGE: Brian Michael appeals from an order of the Fayette 

Family Court that enforced the parties’ separation agreement, executed in 2009, 

related to the disposition of the marital home. We affirm.

BACKGROUND

Brian and Sybil were divorced in 2009. The parties entered into a 

separation agreement, drafted by Sybil’s counsel, which was incorporated into the 
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decree of dissolution.1 Brian was unrepresented during the divorce proceedings. 

The specific details of the agreement are discussed in greater detail below, but 

briefly, Brian was to convey his interest in the marital home to Sybil, who was to 

then pay Brian $20,000.00. However, after entry of the decree, Brian continued to 

live in the marital home. He paid $300.00 per month to Sybil. Sybil contends this 

was for rent; Brian argues he was contributing to the mortgage as co-owner of the 

home. Brian made various improvements and updates to the home over the years. 

The record before us shows that there were also tenants living on the property who 

paid rent to Sybil and contacted her for any maintenance issues. Sybil also paid 

several years of delinquent property taxes after the divorce and continued to pay 

the property taxes each year. 

Brian did not convey the property to Sybil and Sybil did not press the 

issue. However, in 2019 (i.e., ten years after entry of the decree), she sent a text 

message to Brian to let him know she had $20,000.00 for him and that her attorney 

had papers for him to sign.2 Upon his refusal to accept the money and sign any 

paperwork, Sybil filed a motion to enforce the settlement agreement in the family 

court. Brian obtained counsel and filed a response motion, requesting the family 

court to set aside the settlement agreement because, he argued, it had become 

1 The parties had no minor children.

2 This was presumably the quit claim deed to the property, but the record before us is unclear.
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unconscionable in the ten years since the parties signed it. The family court heard 

arguments and the parties submitted memoranda, but for reasons that are unclear 

from the record before us, an order was never entered and neither party filed 

anything else with the family court at the time. 

In 2023, Sybil re-noticed her motion to enforce the separation 

agreement and Brian again filed a response motion to set the agreement aside. 

Brian was still living in the home, as he had been since 2009. The record before us 

indicates the mortgage was paid off in 2012, and that Brian had stopped paying 

Sybil $300.00 per month in 2019. The parties again submitted memoranda and the 

family court decided the issue without a hearing. It ruled that Brian had not 

overcome the mandates of Kentucky Rules of Civil Procedure (CR) 60.02 to 

reopen the decree and denied his motion. It further ruled that the plain language of 

the separation agreement required Brian to convey the property to Sybil before 

Sybil was required to pay him $20,000.00. The family court ordered the Master 

Commissioner to convey Brian’s interest in the marital home to Sybil. This appeal 

followed.

STANDARD OF REVIEW

 A trial court’s ruling about CR 60.02 is reviewed for an abuse of 

discretion. Lawson v. Lawson, 290 S.W.3d 691, 693 (Ky. App. 2009). An abuse 

of discretion is defined as a decision that is “arbitrary, unreasonable, unfair, or 
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unsupported by legal principles.” Id. at 694 (citation omitted). However, “[t]he 

construction and interpretation of a contract is a matter of law and is reviewed

under the de novo standard.” Burch v. Thomas, 677 S.W.3d 827, 830 (Ky. App. 

2023) (citation omitted).

ANALYSIS

 Brian makes numerous arguments on appeal that are all equitable in 

nature. For example, he points to improvements and maintenance he has put into 

the home since 2009, for a reason that the agreement has since become 

unconscionable. Brian also points to Sybil’s lack of action over the years. 

However, in order for the family court to consider Brian’s arguments, he first had 

to meet his burden for reopening the final judgment under CR 60.02. 

 We begin by looking to Kentucky Revised Statute (KRS) 403.250(1) 

which provides, 

[e]xcept as otherwise provided in subsection (6) of KRS 

403.180, the provisions of any decree respecting 

maintenance may be modified only upon a showing of 

changed circumstances so substantial and continuing as 

to make the terms unconscionable. The provisions as to 

property disposition may not be revoked or modified, 

unless the court finds the existence of conditions that 

justify the reopening of a judgment under the laws of 

this state. 

(Emphasis added.)
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 “[C]onditions that justify the reopening of a judgment under the laws 

of this state” refers to CR 60.02. See, e.g., Burke v. Sexton, 814 S.W.2d 290, 291 

(Ky. App. 1991). CR 60.02 provides,

[o]n motion a court may, upon such terms as are just, 

relieve a party or his legal representative from its final 

judgment, order, or proceeding upon the following 

grounds: (a) mistake, inadvertence, surprise or excusable 

neglect; (b) newly discovered evidence which by due 

diligence could not have been discovered in time to move 

for a new trial under Rule 59.02; (c) perjury or falsified 

evidence; (d) fraud affecting the proceedings, other than 

perjury or falsified evidence; (e) the judgment is void, or 

has been satisfied, released, or discharged, or a prior 

judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the 

judgment should have prospective application; or (f) any 

other reason of an extraordinary nature justifying relief. 

The motion shall be made within a reasonable time, and 

on grounds (a), (b), and (c) not more than one year after 

the judgment, order, or proceeding was entered or taken.

A motion under this rule does not affect the finality of a 

judgment or suspend its operation.

 The family court found that Brian failed to assert any reason under CR 

60.02 for it to set aside the decree of dissolution. This implicitly included “any 

other reason of an extraordinary nature” provided in CR 60.02(f). Brian asserts 

that there has been a change in circumstances since 2009, which has rendered the 
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separation agreement unconscionable under the “catch all” provision of CR 

60.02(f). We disagree.3 

 “As an appellate court, we are constrained from overturning the 

findings of the trial judge unless they are clearly erroneous.” McMurry v.

McMurry, 957 S.W.2d 731, 733 (Ky. App. 1997) (internal quotation marks, 

citation, and brackets omitted). See also CR 52.01. KRS 403.250(1) provides 

clear guidance for modification of property disposition, including that the family 

court must find “the existence of conditions that justify the reopening of a 

judgment under the laws of this state.” The family court found those conditions 

lacking. It did not abuse its discretion.

 KRS 403.180(5) provides, in relevant part, that the “[t]erms of the 

[separation] agreement set forth in the decree are enforceable by all remedies 

available for enforcement of a judgment, including contempt, and are enforceable

as contract terms.” (Emphasis added.) The relevant terms of the parties’

separation agreement are as follows:

3 Brian cites various cases that fail to directly address CR 60.02. See, e.g., Rupley v. Rupley, 776 

S.W.2d 849, 852 (Ky. App. 1989), which is distinguishable. Rupley addressed whether the 

separation agreement incorporated into the decree was unconscionable. However, it was 

appealed immediately following entry of the decree of dissolution. On appeal were questions 

concerning the value of a corporation as marital property and whether the husband had made 

misrepresentations to the wife about said value during settlement negotiations. The issue was 

not whether the decree should have been reopened under CR 60.02. 
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9. [Brian] agrees to convey to [Sybil] and waive any 

claim to the following: The house and lot at 940 Idlewild 

Court, Lexington, Kentucky[.]

. . . .

12. [Sybil] shall pay [Brian] $20,000.00 within 60 days 

of [Brian] conveying his interest in 940 Idlewild Court to 

[Sybil].

. . . .

14. If [Sybil] cannot obtain a loan within 60 days, 

[Sybil] shall pay [Brian] the $20,000.00 within 60 days 

of obtaining the loan.

 Brian argues the separation agreement placed no requirement on him 

to act first to convey the marital home to Sybil. Indeed, he argues that the reason 

the home was not conveyed is that Sybil was unable to secure the necessary funds. 

We agree with the family court that Sybil’s ability to secure the funds is irrelevant

at this point because the unambiguous terms of the contract require that Brian first 

convey the property to Sybil. “Convey” is a verb that requires a person (i.e.,

Brian) “[t]o transfer or deliver (something, such as a right or property) to another, 

esp. by deed or other writing; esp., to perform an act that is intended to create one 

or more property interests, regardless of whether the act is actually effective to 

create those interests.” Convey, BLACK’S LAW DICTIONARY (11th ed. 2019)

(emphasis added). Brian failed to convey his interest in the home to Sybil. 

Although Sybil waited ten years to enforce the terms of the separation agreement, 
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she was nevertheless within the fifteen-year statute of limitations imposed by KRS 

413.090(2). Even if we ignore CR 60.02, Brian failed to allege any change in 

circumstances that have made the terms of the separation agreement 

unconscionable. He states the change in circumstances is that Sybil, as drafter of 

the agreement, placed no affirmative duty on Brian to act. This is refuted by the 

plain language of the agreement.

 Because the separation agreement is a contract, it is not subject to 

principles of equity in its interpretation. Bailey v. Bailey, 231 S.W.3d 793, 796 

(Ky. App. 2007). Brian makes numerous equitable arguments regarding why the

separation agreement should not be enforced, including laches, unjust enrichment, 

and equitable estoppel. These equitable arguments are “unavailable when the 

terms of an express contract control.” Superior Steel, Inc. v. Ascent at Roebling’s

Bridge, LLC, 540 S.W.3d 770, 778 (Ky. 2017) (citations omitted). Here, the terms 

of the contract are clear and unambiguous: Brian was to act first to convey his 

interest in the home to Sybil, which he did not do.4 

 Finally, Brian argues he was entitled to an evidentiary hearing. We 

note that the order on appeal states that the parties “agreed to submit this matter on 

the record[.]” This is neither refuted nor confirmed by the record before us. When 

4 Brian also argues that he is entitled to interest. Because we are affirming the family court’s 

interpretation of the settlement agreement as a contract, we decline to address this argument.
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Sybil filed her initial motion for enforcement of the separation agreement in 2019, 

the family court conducted a hearing and instructed the parties to submit relevant 

caselaw to support their arguments. The parties did so, but the family court never 

entered an order. Sybil filed her renewed motion for enforcement of the separation 

agreement on February 10, 2023, and noticed it to be heard by the family court on 

February 24, 2023.5 Brian filed a response motion and requested an evidentiary 

hearing. Sybil filed a reply. Sybil’s motion was re-noticed for March 3, 2023; 

however, if the family court heard the motion, the hearing does not appear in the 

record before us. As a result, it is unknown if the parties agreed to submit the case 

to the court at a hearing or if the family court was referring to the original motion 

filed in 2019. “We must presume that the missing parts of the record support the 

findings of the trial court.” Brannock v. Brannock, 598 S.W.3d 91, 95 (Ky. App. 

2019) (citation omitted). After the trial court entered its order, Brian filed a motion 

to alter, amend, or vacate, which was heard by the family court on April 7, 2023. 

The family court reiterated that this was a matter of contract interpretation and that 

opening the entire case back up for an evidentiary hearing on equitable issues was 

inappropriate. For the reasons stated supra, we agree. 

5 There was a new presiding judge in the family court in 2023.
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CONCLUSION

 For the reasons stated herein, we affirm the order of the Fayette 

Family Court.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Jason Rapp

Lexington, Kentucky

BRIEF FOR APPELLEE:

Della C. Cummings

Lexington, Kentucky