Christy Rose Whitmore v. Eric Drew Whitmore

• Court: Court of Appeals of Kentucky
• Decided: March 10, 2022
• Docket: 2021 CA 000267
• Status: Unknown

Opinion

RENDERED: MARCH 11, 2022; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2021-CA-0267-MR

CHRISTY ROSE WHITMORE APPELLANT

APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 18-CI-00186

ERIC DREW WHITMORE APPELLEE

OPINION REVERSING AND REMANDING

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BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND JONES, JUDGES.

DIXON, JUDGE: Christy Rose Whitmore appeals the findings of fact,

conclusions of law, and judgment/order adopted by the Grayson Circuit Court on

February 4, 2021. After careful review of the briefs, the record, and the law, we

reverse and remand. BACKGROUND FACTS AND PROCEDURAL HISTORY

Christy and Eric Drew Whitmore were married in 1993. In June

2018, Eric petitioned for a dissolution of marriage and, as part of those

proceedings, claimed a nonmarital interest in land located at 137 Kim Lane.

Christy counterclaimed that the land was marital property with the exception of

$13,000, with interest, for which she sought reimbursement as her nonmarital

property.

The parties had entered a “Rental-Purchase Contract” regarding the

land with Eric’s parents, Fred and Mildred Whitmore (collectively “the

Whitmores”) in May 2002. Pursuant to the contract, Christy made a down

payment of $13,000, which she traced to proceeds from the sale of land she had

inherited, toward the $36,000 purchase price. The contract provided that the deed

would issue after final payment and that failure to fulfill the terms voided the

contract. The parties did not pay as required by the contract. In 2007, the parties

entered a new agreement for $20,000, which included the outstanding balance on

the land as well as a personal loan to Christy. After August 2009, the parties

stopped making payments, and the Whitmores claim an outstanding indebtedness

on the land of approximately $9,985.1 On April 25, 2018, in consideration of their

1 The Whitmores did not intervene in the dissolution.

-2- love and affection, the Whitmores deeded the land to Eric. Two months thereafter,

Eric initiated these proceedings.

The domestic relations commissioner (“DRC”) issued a report

concluding that the land was a nonmarital gift to Eric and that Christy was not

entitled to reimbursement. Over Christy’s objection, the court adopted the report,

and this appeal timely followed. Additional facts will be introduced as they

become relevant.

STANDARD OF REVIEW

The disposition of property in a dissolution of marriage action is

governed by KRS2 403.190 which instructs courts to assign to each party their own

nonmarital property and to divide marital property in just proportions. All property

acquired subsequent to marriage is presumed to be marital. Id. at (3). Relevant

exceptions to this presumption are where property was acquired as a gift or in

exchange for nonmarital property. Id. at (2)(a)-(b). A party claiming that property,

or an interest therein, acquired during the marriage is nonmarital bears the burden

of proving an exception by clear and convincing evidence. Barber v. Bradley, 505

S.W.3d 749, 755 (Ky. 2016). Clear and convincing evidence is “proof of a

probative and substantial nature carrying the weight of evidence sufficient to

2 Kentucky Revised Statutes.

-3- convince ordinarily prudent-minded people.” Id. (quoting Rowland v. Holt, 253

Ky. 718, 70 S.W.2d 5, 9 (Ky. 1934)).

On appeal, the court’s factual findings will not be disturbed unless

clearly erroneous, and due regard is given to the court’s credibility determinations.

CR3 52.01. “Findings of fact are not clearly erroneous if supported by substantial

evidence. Substantial evidence is that evidence which, when taken alone or in light

of all the evidence, has sufficient probative value to induce conviction in the minds

of reasonable people.” Weinberg v. Gharai, 338 S.W.3d 307, 312 (Ky. App. 2011)

(citing Kentucky State Racing Comm’n v. Fuller, 481 S.W.2d 298, 308 (Ky.

1972)). We review de novo the court’s application of law to the facts. Id. With

these standards in mind, we turn to Christy’s arguments on appeal.

ANALYSIS

For her only argument on appeal, Christy contends that the court erred

in determining that the land at issue was Eric’s nonmarital property as a result of

the Whitmores’ conveyance of it to him as a gift. In challenging this conclusion,

Christy does not contest that the Whitmores intended to gift the land to Eric; rather,

citing Sebastian v. Floyd, 585 S.W.2d 381 (Ky. 1979), she argues that the

Whitmores were precluded from making a valid absolute conveyance of the land

3 Kentucky Rules of Civil Procedure.

-4- by virtue of the “Rental-Purchase Contract,” which she characterizes as a land sale

contract. We agree with Christy that the court erred.

It is axiomatic that a deed cannot convey a greater interest than that

which is owned by the grantor. KRS 381.150 instructs that a deed purporting to

convey an estate greater than that owned by the grantor is limited in effect to only

that which the grantor can lawfully convey. See also York v. Perkins, 269 S.W.2d

242 (Ky. 1954). Further, where a land sale contract is used to finance the purchase

of property, “equitable title passes to the buyer when the contract is entered[, and

t]he seller holds nothing but the bare legal title, as security for the payment of the

purchase price.” Sebastian, 585 S.W.2d at 382. Accordingly, if the “Rental-

Purchase Contract” is a land sale contract, as a matter of law the parties’ interest in

the property was unaltered by the Whitmores’ attempt to make an absolute

conveyance, and consequently, Eric cannot show by clear and convincing evidence

that the property was in toto his nonmarital property.

Eric argues, without citation to any supportive evidence, that the order

should be affirmed because the contract was for rent, not purchase, of the land.

While this argument is less than convincing given the evidence, the court made no

finding as to the nature of the contract. Instead, the court concluded that the

contract had been voided by non-payment and that the parties had forfeited their

interest in the land. If, as seems clear from the evidence, the parties entered a land

-5- sale contract, the court’s conclusion is in direct contravention of the express

holding in Sebastian, 585 S.W.2d 381, and cannot serve as a basis to affirm.

Ultimately, without a determination as to the nature of the contract, the court’s

findings are insufficient to support its conclusion that the land was a nonmarital

gift, and we must reverse and remand. Furthermore, as the court’s resolution of

this issue is inextricably linked to Christy’s remaining claims on appeal, we

likewise reverse and remand on these claims as well.

CONCLUSION

Therefore, and for the forgoing reasons, the judgment and order of the

Grayson Circuit Court is REVERSED, and this matter is REMANDED for further

proceedings consistent with this Opinion.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Douglas E. Miller Phillip W. Smith Radcliff, Kentucky Leitchfield, Kentucky

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