RENDERED: AUGUST 6, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-1287-MR
CHARLES ROBERT RUSSELBURG APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JULIA H. GORDON, JUDGE ACTION NO. 15-CI-00089
LISA DAWN RUSSELBURG (NOW BABB) APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: Charles Robert Russelburg appeals from an order of the
Daviess Family Court entered on September 24, 2020. The family court denied
Charles’s motion to recover attorney’s fees from his former spouse, Lisa Dawn
Russelburg (now Babb), pursuant to the terms of the parties’ property settlement agreement. Having considered the record and the arguments on appeal, we reverse
and remand.
As part of the dissolution of their marriage, the Russelburgs executed
a property settlement agreement. Signed by the parties on December 8, 2015, the
agreement contained the following provisions:
5.2 Retirement and Pension Accounts
5.2.1 Charles has a vested interest in a military pension or retirement. The Parties agree that such retirement is Charles’ non-marital property, all such interest having been earned prior to the marriage of the Parties. The Parties further agree that Charles does not have any other type of retirement.
5.2.2 Lisa and Charles agree that any life insurance, retirement, pension, deferred compensation, and/or 401K savings accounts or annuity program in Lisa’s name are marital property. Lisa has disclosed the existence of two such accounts, a Kentucky state pension and a Kentucky deferred compensation account as a consequence of her employment during the marriage, and all of which are marital property (“Retirement Accounts”). Lisa’s Retirement Accounts shall be divided equally between the parties, 50/50, based upon the values of the Retirement Accounts as of the date of entry of a Decree of Dissolution of marriage. Thereafter, neither Party shall continue to be a beneficiary under an insurance policy payable on the death of the other, regardless of the beneficiary designation made in the policy, unless such designation is made after the Decree of Dissolution.
5.2.3. Charles’ counsel shall prepare the Qualified Domestic Relations Order (“QDRO”) required to divide the Retirement Accounts and to establish a separate (divided) account in Charles’ name only, for his interest
-2- and division as described in the preceding paragraph. The QDRO shall be reviewed by counsel for the Parties before being submitted for review to the administrators of the Retirement Accounts for acceptance, before being submitted to the Court for entry.
(Emphasis added.)
The property settlement agreement was filed of record on December
14, 2015. The family court specifically found that the agreement was not
unconscionable, and it was incorporated into the decree of dissolution entered that
date.
On November 2, 2016, Charles filed a motion to enforce the
settlement agreement. He contended that Lisa was resisting efforts to divide her
retirement accounts in accordance with the provisions of the agreement.
Following a hearing conducted on January 17, 2017, the family court ordered that
the retirement accounts be divided equally based on the values as of the date of the
decree of dissolution. The family court rejected Lisa’s argument that section 5.2.2
of the property settlement agreement divided only a portion and not the entirety of
her retirement accounts. It found that the agreement was not ambiguous or
unconscionable and that Lisa had had an adequate opportunity to review the
agreement before she executed it. Lisa did not appeal from that order.
On February 20, 2017, Lisa filed a motion for relief from the court’s
-3- decree pursuant to the provisions of CR1 60.02(a), alleging mistake, inadvertence,
surprise, or excusable neglect and of CR 60.02(b), alleging that there was newly
discovered evidence that could not have been earlier discovered. She also
requested relief under the provisions of CR 60.01, claiming that the purported
division of the “nonmarital” portion of her retirement benefits had been an
“oversight” by the parties and counsel.
On September 6, 2017, the family court denied the motion because it
had not been filed within one year of the entry of the decree of dissolution as
required by the provisions of CR 60.02(a) and (b). It concluded that the provisions
of CR 60.01 afford relief only where an error is made by the clerk or other judicial
or ministerial officer. Lisa filed an appeal with this Court.
While her appeal was pending, Lisa filed a motion pursuant to the
provisions of CR 60.02(f), the catch-all provision of CR 60.02, which provides that
the trial court may grant relief from a judgment for “any other reason of an
extraordinary nature[.]” A motion pursuant to that provision must be brought
within a reasonable time. Through our order entered April 2, 2018, we granted
Lisa’s motion to hold the appeal in abeyance. On May 14, 2018, the family court
denied Lisa’s motion for relief pursuant to the provisions of CR 60.02(f). The
matter returned to our active docket.
1 Kentucky Rules of Civil Procedure.
-4- Following our review, we affirmed the orders of the family court. We
agreed that Lisa could not be granted relief under the provisions of CR 60.02(a) or
(b) because her motion had been filed out of time. We agreed that she could not be
afforded relief under the provisions of CR 60.01 because that rule is limited to
clerical errors.
Finally, we agreed that relief under the provisions of CR 60.02(f) was
unavailable because no “extraordinary” circumstances existed to warrant it. In our
analysis, we observed that the property settlement agreement expressly
characterized the entirety of the retirement accounts in Lisa’s name as “marital
property.” Because the paragraph immediately preceding Section 5.2.2 of the
agreement had characterized Charles’s military retirement account as nonmarital,
we were persuaded that the parties’ use of the term “marital property” in Section
5.2.2 was clear and unambiguous. We concluded that the provision expressly
provided that the full value of the retirement accounts in Lisa’s name were to be
divided equally between the parties. Our opinion affirming the family court’s
orders was rendered on March 6, 2020. On May 21, 2020, a QDRO was tendered
to the court. The QDRO provided that $21,645.76 was to be paid to Charles from
Lisa’s pension plan.
On June 4, 2020, Charles filed a motion to recover from Lisa the
attorney’s fees that he had incurred in his effort to enforce the provisions of the
-5- property settlement agreement and to defend the subsequent appeal. To the
motion, he attached counsel’s invoices. Charles sought to be reimbursed in the
amount of $8,481.41 pursuant to the terms of the property settlement agreement,
which had been incorporated into the court’s decree. The agreement provided as
follows:
20 MISCELLANEOUS PROVISIONS:
* * * * *
20.9 Breach and Attorney Fees. In the event of a breach of this Agreement, the Party committing the breach shall be obligated to pay the reasonable and necessary costs, including reasonable attorney’s fees, incurred by the non-breaching party to enforce or protect his or her rights hereunder. The amount of such reasonable costs and the legal fees shall be determined by the Court having jurisdiction over the matter.
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RENDERED: AUGUST 6, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2020-CA-1287-MR
CHARLES ROBERT RUSSELBURG APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JULIA H. GORDON, JUDGE ACTION NO. 15-CI-00089
LISA DAWN RUSSELBURG (NOW BABB) APPELLEE
OPINION REVERSING AND REMANDING
** ** ** ** **
BEFORE: COMBS, KRAMER, AND L. THOMPSON, JUDGES.
COMBS, JUDGE: Charles Robert Russelburg appeals from an order of the
Daviess Family Court entered on September 24, 2020. The family court denied
Charles’s motion to recover attorney’s fees from his former spouse, Lisa Dawn
Russelburg (now Babb), pursuant to the terms of the parties’ property settlement agreement. Having considered the record and the arguments on appeal, we reverse
and remand.
As part of the dissolution of their marriage, the Russelburgs executed
a property settlement agreement. Signed by the parties on December 8, 2015, the
agreement contained the following provisions:
5.2 Retirement and Pension Accounts
5.2.1 Charles has a vested interest in a military pension or retirement. The Parties agree that such retirement is Charles’ non-marital property, all such interest having been earned prior to the marriage of the Parties. The Parties further agree that Charles does not have any other type of retirement.
5.2.2 Lisa and Charles agree that any life insurance, retirement, pension, deferred compensation, and/or 401K savings accounts or annuity program in Lisa’s name are marital property. Lisa has disclosed the existence of two such accounts, a Kentucky state pension and a Kentucky deferred compensation account as a consequence of her employment during the marriage, and all of which are marital property (“Retirement Accounts”). Lisa’s Retirement Accounts shall be divided equally between the parties, 50/50, based upon the values of the Retirement Accounts as of the date of entry of a Decree of Dissolution of marriage. Thereafter, neither Party shall continue to be a beneficiary under an insurance policy payable on the death of the other, regardless of the beneficiary designation made in the policy, unless such designation is made after the Decree of Dissolution.
5.2.3. Charles’ counsel shall prepare the Qualified Domestic Relations Order (“QDRO”) required to divide the Retirement Accounts and to establish a separate (divided) account in Charles’ name only, for his interest
-2- and division as described in the preceding paragraph. The QDRO shall be reviewed by counsel for the Parties before being submitted for review to the administrators of the Retirement Accounts for acceptance, before being submitted to the Court for entry.
(Emphasis added.)
The property settlement agreement was filed of record on December
14, 2015. The family court specifically found that the agreement was not
unconscionable, and it was incorporated into the decree of dissolution entered that
date.
On November 2, 2016, Charles filed a motion to enforce the
settlement agreement. He contended that Lisa was resisting efforts to divide her
retirement accounts in accordance with the provisions of the agreement.
Following a hearing conducted on January 17, 2017, the family court ordered that
the retirement accounts be divided equally based on the values as of the date of the
decree of dissolution. The family court rejected Lisa’s argument that section 5.2.2
of the property settlement agreement divided only a portion and not the entirety of
her retirement accounts. It found that the agreement was not ambiguous or
unconscionable and that Lisa had had an adequate opportunity to review the
agreement before she executed it. Lisa did not appeal from that order.
On February 20, 2017, Lisa filed a motion for relief from the court’s
-3- decree pursuant to the provisions of CR1 60.02(a), alleging mistake, inadvertence,
surprise, or excusable neglect and of CR 60.02(b), alleging that there was newly
discovered evidence that could not have been earlier discovered. She also
requested relief under the provisions of CR 60.01, claiming that the purported
division of the “nonmarital” portion of her retirement benefits had been an
“oversight” by the parties and counsel.
On September 6, 2017, the family court denied the motion because it
had not been filed within one year of the entry of the decree of dissolution as
required by the provisions of CR 60.02(a) and (b). It concluded that the provisions
of CR 60.01 afford relief only where an error is made by the clerk or other judicial
or ministerial officer. Lisa filed an appeal with this Court.
While her appeal was pending, Lisa filed a motion pursuant to the
provisions of CR 60.02(f), the catch-all provision of CR 60.02, which provides that
the trial court may grant relief from a judgment for “any other reason of an
extraordinary nature[.]” A motion pursuant to that provision must be brought
within a reasonable time. Through our order entered April 2, 2018, we granted
Lisa’s motion to hold the appeal in abeyance. On May 14, 2018, the family court
denied Lisa’s motion for relief pursuant to the provisions of CR 60.02(f). The
matter returned to our active docket.
1 Kentucky Rules of Civil Procedure.
-4- Following our review, we affirmed the orders of the family court. We
agreed that Lisa could not be granted relief under the provisions of CR 60.02(a) or
(b) because her motion had been filed out of time. We agreed that she could not be
afforded relief under the provisions of CR 60.01 because that rule is limited to
clerical errors.
Finally, we agreed that relief under the provisions of CR 60.02(f) was
unavailable because no “extraordinary” circumstances existed to warrant it. In our
analysis, we observed that the property settlement agreement expressly
characterized the entirety of the retirement accounts in Lisa’s name as “marital
property.” Because the paragraph immediately preceding Section 5.2.2 of the
agreement had characterized Charles’s military retirement account as nonmarital,
we were persuaded that the parties’ use of the term “marital property” in Section
5.2.2 was clear and unambiguous. We concluded that the provision expressly
provided that the full value of the retirement accounts in Lisa’s name were to be
divided equally between the parties. Our opinion affirming the family court’s
orders was rendered on March 6, 2020. On May 21, 2020, a QDRO was tendered
to the court. The QDRO provided that $21,645.76 was to be paid to Charles from
Lisa’s pension plan.
On June 4, 2020, Charles filed a motion to recover from Lisa the
attorney’s fees that he had incurred in his effort to enforce the provisions of the
-5- property settlement agreement and to defend the subsequent appeal. To the
motion, he attached counsel’s invoices. Charles sought to be reimbursed in the
amount of $8,481.41 pursuant to the terms of the property settlement agreement,
which had been incorporated into the court’s decree. The agreement provided as
follows:
20 MISCELLANEOUS PROVISIONS:
* * * * *
20.9 Breach and Attorney Fees. In the event of a breach of this Agreement, the Party committing the breach shall be obligated to pay the reasonable and necessary costs, including reasonable attorney’s fees, incurred by the non-breaching party to enforce or protect his or her rights hereunder. The amount of such reasonable costs and the legal fees shall be determined by the Court having jurisdiction over the matter.
Following a hearing conducted on July 27, 2020, the family court
denied Charles’s motion. The family court concluded that Lisa had not breached
the terms of the parties’ property settlement agreement and that as a result, Charles
was not entitled to attorney’s fees pursuant to the agreement. This appeal
followed.
On appeal, Charles argues that the family court erred as a matter of
law by failing to order Lisa to pay the attorney’s fees that he incurred in order to
enforce his rights under the terms of the parties’ agreement. Charles contends that
-6- he is entitled -- by contract -- to recover the fees and that it is not a matter of
discretion for the family court. We agree.
A marital property settlement agreement is interpreted according to
the same principles that govern the construction of other contracts. Wagner v.
Wagner, 563 S.W.3d 99 (Ky. App. 2018). The parties’ settlement agreement
expressly provides that either party is entitled to recover the attorney’s fees and
costs incurred in an effort to enforce or protect his rights under the agreement.
After a settlement agreement has been incorporated into a decree of dissolution of
marriage, it “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.”
KRS2 403.250(1). As we concluded in Lisa’s 2017 appeal of this matter, “the
property settlement agreement unambiguously states that any pension plans in
Lisa’s name are marital property to be divided between the parties.”
Lisa plainly failed and refused to divide equally the amount of her
retirement benefits with Charles. She was aware of the obligation to do so. Her
deposition testimony confirms that she was also aware that she would be held
responsible for attorney’s fees incurred by Charles both to enforce and to protect
his rights under the terms of the agreement.
In light of the provisions of the parties’ contractual agreement, we must
2 Kentucky Revised Statutes.
-7- reverse the family court’s denial of the motion for attorney’s fees. We remand this
case to the family court for entry of an appropriate order after it calculates
reasonable attorney’s fees and necessary costs incurred by Charles in his effort to
enforce and protect his rights to his share of the retirement benefits and the
payment of his fees.
The order of the Daviess Family Court is REVERSED and
REMANDED.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Frank A. Brancato David M. Taylor Owensboro, Kentucky Owensboro, Kentucky
-8-