Bailey v. Bailey, ___S.W. 3d ___(Ky. App. 2007)

Bailey v. Bailey, ___S.W. 3d ___(Ky. App. 2007)

Wife filed an action against Husband seeking to enforce their Separation Agreement which required him to pay for their children’s health and dental insurance and for the parties to split any remaining amounts owed. Also, she sought monetary damages resulting from Husband’s failure to transfer the marital residence to her as required by the Separation Agreement. Finally, she sought reimbursement for half of the funeral expenses incurred due to the death of one of their children.
On appeal, Wife argued that TC erred when it applied principles of equity in its interpretation of enforcing the separation agreement rather than enforcing it as a contract. CA held that TC should have enforced the agreement as contract terms. CA reasoned that the separation agreement was found by the original TC not to be unconscionable. Therefore, the agreement could not be modified unless shown to be unconscionable and there was no such showing. Additionally, by statute the terms of the agreement are enforceable as contract terms.

With regard to the medical bills, CA held that TC erred in its findings that Wife did not present adequate evidence that husband failed to maintain health insurance on the children. Additionally, CA found TC erred in finding that Wife had not provided husband with sufficient notice of the amounts he owed. Wife introduced evidence that the children had received medical treatment and the bills were submitted to Husband’s insurance. However, the bills were not paid because the coverage was not active at the time the treatment was rendered. Also, Wife produced bills showing that she carried health insurance on the children. CA opined that TC’s finding that Wife did not present sufficient evidence to prove her claim that Husband failed to maintain health insurance on the children was clearly erroneous. Furthermore, TC’s holding that it would be inequitable to award Wife damages for past medical bills was in error. Again, CA stated that it was improper to apply principles of equity in interpreting the parties Separation Agreement.

Next, CA addressed the requirement, set forth in the Settlement Agreement, that Husband transfer his interest in the marital residence to Wife. The Settlement Agreement required Husband to sign a quitclaim deed within 10 days of entry of the Decree, which he failed to do. Wife’s employer offered her an opportunity to relocate. As part of the relocation plan, Wife’s employer would pay some of the expenses of selling her home. Husband signed the quitclaim deed in time for the closing on the home. However, this was four years after he was supposed to deed his interest to Wife. Wife claimed this failure cost her a substantial amount of money. TC found that Wife was not entitled to reimbursement because Husband signed the deed in time for the home to be sold and in time for Wife to qualify for reimbursement from her employer. CA held yet again, that the Settlement Agreement was a contract and it was clearly erroneous for TC to find that Husband did not breach the Agreement. CA remanded for a hearing to determine if Husband’s breach of the contract caused Wife to incur economic damages.

Finally, CA held TC’s dismissal of Wife’s claim for half of the funeral expenses was clearly erroneous. The parties signed a contract with the funeral home agreeing that they would each pay half of the funeral expenses. Wife’s family initially paid the funeral home and then wife repaid her family. She argued that Husband had never paid his portion of the expenses. TC dismissed Wife’s claim opining that Husband correctly raised the defense of res judicata. CA reasoned that because res judicata is an affirmative defense it can be waived if not properly asserted. CA found that there was nothing in the record showing Husband raised the affirmative defense of res judicata. Therefore, TC’s holding was clearly erroneous.
Digested by Linda Dixon Bullock, Diana L. Skaggs + Associates.

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