Family Law

Money v. Money, ____S.W.3d____ (Ky. App. 2009)

Ex-Husband appealed from TC?s order assigning him additional marital debt subsequent to a marital settlement agreement (?MSA?), arguing that MSA was ambiguous and that TC erred by assigning him additional debt, which he alleged was unknown at the time of MSA. On cross-appeal, Ex-Wife argued that MSA was unconscionable.

FACTS:

After parties attended mediation with counsel, MSA was entered and incorporated into the decree of dissolution.  MSA provided that Ex-Wife would receive several investment accounts worth over $100K but would assume indebtedness on real estate and balances owed on two credit cards; Ex-Husband was to pay ?all other indebtedness.?  It was later determined that there existed a margin loan account with a negative cash balance of $58,469.52, and this

debt was not reflected in MSA. This margin loan account was placed in Ex-Wife?s name as she received the asset securing the debt.  Ex-Wife filed three motions: (1) to transfer the margin

loan account to Gary?s name; (2) to find MSA unconscionable; and (3) to alter, amend, or vacate the judgment. TC granted the motion to transfer the margin loan account. It denied the other two motions, specifically finding the motion to alter, amend or vacate untimely.

ANALYSIS:

Ex-Husband argued that MSA is ambiguous regarding the assignment of the margin loan account and must be interpreted against Ex-Wife because her counsel drafted it.

CA found provision that Ex-Husband was to pay ?all other indebtedness? unambiguous and that Ex-Husband must pay it per terms of MSA.

Ex-Husband next contended that, per CR 59.02 and 59.05, Ex-Wife?s motion to assign the margin loan account to him was untimely because it occurred more than 10 days after the decree of dissolution was entered. CA disagreed, finding that motion was filed to request enforcement of the terms of the agreement as written and therefore there was no time limit on TC?s jurisdiction to do so. On cross-appeal, Ex-Wife argued that MSA was unconscionable because the proportion of the property division is manifestly unfair.  While noting that

An MSA initially approved by TC may be later modified if the party challenging MSA can demonstrate that it has become unconscionable because of changed circumstances, CA found that Ex-Wife did not allege a change of circumstances that rendered the agreement unconscionable and that a mere discrepancy in the amounts received by each party under a settlement agreement is not enough to render the agreement unconscionable. TC affirmed.

Digested by Michelle Eisenmenger Mapes, Diana L. Skaggs + Associates