RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0194-MR
EDWARD COLEMAN APPELLANT
APPEAL FROM POWELL FAMILY COURT v. HONORABLE JENIFFER B. NEICE, SPECIAL JUDGE ACTION NO. 21-CI-00002
MICHELLE COLEMAN APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Edward Coleman appeals the Powell Family Court’s
October 5, 2023, findings of fact, conclusions of law, and decree of dissolution in
so far as it resolves the parties’ real property. After careful review of the briefs,
record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
As part of the parties’ dissolution proceedings, the court held a final
hearing on May 10, 2023. At the outset, Edward’s counsel informed the court that
the parties had stipulated or agreed to list three properties, namely, 500, 885, and
1098 Echo Hollow Road, for sale but that they still wanted to conduct a hearing on
the issue of nonmarital contributions to those properties.
Edward noted that a deed had not been recorded for the 885 Echo
Hollow property, and Michelle confirmed that this was because there was a dispute
about whether her adult children had contributed funds for its purchase. The court
expressed reservations as to disposing of the property because the adult children
were not parties to the dissolution action. Michelle conceded that the court raised a
valid concern and expressed her agreement to reserve disposition on 885 Echo
Hollow and to only have the court order the sale of the other two properties.
Edward disagreed, however, asserting that Michelle and the adult children were
merely trying to thwart his marital interest and that the adult children had no
genuine interest in the property. The court stated that it was willing to accept the
stipulation as to what the parties would like to have happen, but that it was not
willing to accept it as an agreement without fleshing out whether there was a
legitimate third-party claim to the property. The parties thereafter presented
-2- testimony about their claimed interest in the properties; we need not discuss the
specifics for this appeal.
On October 5, 2023, the court entered a final order resolving the
parties’ real property claims. The 1098 Echo Hollow Road property was awarded
to Michelle after the court found that she had purchased the property with
nonmarital funds and that the property’s value increased due to general economic
conditions, less $50,000.00, which the appraiser attributed to a pole barn
constructed using marital funds. Edward was awarded $25,000.00, representing
his share of the marital interest. The 500 Echo Hollow Road property was also
awarded to Michelle, the court having found that she purchased the property with
nonmarital funds and that it had not increased in value. Concluding that the 885
Echo Hollow Road property was “not properly before” it, the court declined to rule
on its disposition.
Edward then filed a barebones motion to alter, amend, or vacate,
pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. In his subsequent
memorandum in support, Edward argued for the first time that the court should
have awarded a “chose in action” related to the parties’ marital and nonmarital
interest in the 885 Echo Hollow Road property, so that the parties could then
-3- litigate with the title owner in a separate action. The court summarily denied the
motion via a January 18, 2024, order, and this timely appeal followed.1
STANDARD OF REVIEW
Because Edward raises only issues of law, our review is de novo.
Smith v. McCoy, 635 S.W.3d 811, 814 (Ky. 2021) (citing S. Fin. Life Ins. Co. v.
Combs, 413 S.W.3d 921, 926 (Ky. 2013)).
ANALYSIS
Edward’s first claim is that the court erred in failing to divide or to
otherwise award a chose in action related to the 885 Echo Hollow Road property.
In making this argument, Edward has not contested the court’s determination that it
did not have the authority to dispose of this real property due to competing claims
of title by third parties not involved in the dissolution proceedings. Instead,
Edward reasserts his claim that the court was then obligated to treat the parties’
interest in the property as a chose in action – a personal property right – and to
dispose of it in the usual method mandated by Kentucky Revised Statutes (KRS)
403.190.
1 Edward designated the January 18, 2024, order in his notice of appeal; however, orders denying CR 59.05 are not appealable. Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019). Applying the rule of substantial compliance, we will review the final order entered October 25, 2023.
-4- Michelle argues that the court did not err, because a chose in action
leaves unaddressed the overarching issue of whether the parties had any interest in
the property. We agree with Michelle, albeit on different grounds, that the court
did not err.
Black’s defines and discusses the term “chose in action” as follows: chose in action. (17c) 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. . . . 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit. – Also termed thing in action. BLACK’S LAW DICTIONARY (9th ed. 2009).
“Chose, or, thing in action is, when a man hath cause, or may bring an action for some duty due to him; as an action of debt . . . and because they are things whereof a man is not possessed, but for recovery of them is driven to his action, they are called things in action.” Termes de la Ley 85 (1st Am. ed. 1812).
Wehr Constructors, Inc. v. Assurance Co. of Am., 384 S.W.3d 680, 685 n.7 (Ky.
2012).
These definitions make plain that a chose in action, a personal
property right in and of itself, relates to actions to recover personal property or
enforce rights to personal property, not real property. The caselaw cited by the
parties also pertains exclusively to private property interests. In Wehr, the issue
was whether an anti-assignment clause in a liability insurance contract prevented
-5- the insured from assigning its compensation rights after a loss had occurred, and in
Grasch v. Grasch, 536 S.W.3d 191 (Ky. 2017), the Court considered whether
contingent fee agreements executed by the husband, who was an attorney, were
marital property to be distributed upon dissolution. In both cases, the Court found
that a chose in action existed, a right to recover insurance proceeds or to pursue a
client’s legal claims and receive a portion of any monetary award.
This case, however, is distinguishable. Although Edward attempts to
draw an equivalency because a legal action will be required to resolve ownership
of the property and for him to ultimately receive any proceeds through an eventual
sale of the property, we disagree. The necessary action is one for real estate, not
for an obligation owed on a debt. To summarize, although a chose in action is
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RENDERED: JULY 11, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0194-MR
EDWARD COLEMAN APPELLANT
APPEAL FROM POWELL FAMILY COURT v. HONORABLE JENIFFER B. NEICE, SPECIAL JUDGE ACTION NO. 21-CI-00002
MICHELLE COLEMAN APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, MCNEILL, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Edward Coleman appeals the Powell Family Court’s
October 5, 2023, findings of fact, conclusions of law, and decree of dissolution in
so far as it resolves the parties’ real property. After careful review of the briefs,
record, and law, we affirm. BACKGROUND FACTS AND PROCEDURAL HISTORY
As part of the parties’ dissolution proceedings, the court held a final
hearing on May 10, 2023. At the outset, Edward’s counsel informed the court that
the parties had stipulated or agreed to list three properties, namely, 500, 885, and
1098 Echo Hollow Road, for sale but that they still wanted to conduct a hearing on
the issue of nonmarital contributions to those properties.
Edward noted that a deed had not been recorded for the 885 Echo
Hollow property, and Michelle confirmed that this was because there was a dispute
about whether her adult children had contributed funds for its purchase. The court
expressed reservations as to disposing of the property because the adult children
were not parties to the dissolution action. Michelle conceded that the court raised a
valid concern and expressed her agreement to reserve disposition on 885 Echo
Hollow and to only have the court order the sale of the other two properties.
Edward disagreed, however, asserting that Michelle and the adult children were
merely trying to thwart his marital interest and that the adult children had no
genuine interest in the property. The court stated that it was willing to accept the
stipulation as to what the parties would like to have happen, but that it was not
willing to accept it as an agreement without fleshing out whether there was a
legitimate third-party claim to the property. The parties thereafter presented
-2- testimony about their claimed interest in the properties; we need not discuss the
specifics for this appeal.
On October 5, 2023, the court entered a final order resolving the
parties’ real property claims. The 1098 Echo Hollow Road property was awarded
to Michelle after the court found that she had purchased the property with
nonmarital funds and that the property’s value increased due to general economic
conditions, less $50,000.00, which the appraiser attributed to a pole barn
constructed using marital funds. Edward was awarded $25,000.00, representing
his share of the marital interest. The 500 Echo Hollow Road property was also
awarded to Michelle, the court having found that she purchased the property with
nonmarital funds and that it had not increased in value. Concluding that the 885
Echo Hollow Road property was “not properly before” it, the court declined to rule
on its disposition.
Edward then filed a barebones motion to alter, amend, or vacate,
pursuant to Kentucky Rules of Civil Procedure (CR) 59.05. In his subsequent
memorandum in support, Edward argued for the first time that the court should
have awarded a “chose in action” related to the parties’ marital and nonmarital
interest in the 885 Echo Hollow Road property, so that the parties could then
-3- litigate with the title owner in a separate action. The court summarily denied the
motion via a January 18, 2024, order, and this timely appeal followed.1
STANDARD OF REVIEW
Because Edward raises only issues of law, our review is de novo.
Smith v. McCoy, 635 S.W.3d 811, 814 (Ky. 2021) (citing S. Fin. Life Ins. Co. v.
Combs, 413 S.W.3d 921, 926 (Ky. 2013)).
ANALYSIS
Edward’s first claim is that the court erred in failing to divide or to
otherwise award a chose in action related to the 885 Echo Hollow Road property.
In making this argument, Edward has not contested the court’s determination that it
did not have the authority to dispose of this real property due to competing claims
of title by third parties not involved in the dissolution proceedings. Instead,
Edward reasserts his claim that the court was then obligated to treat the parties’
interest in the property as a chose in action – a personal property right – and to
dispose of it in the usual method mandated by Kentucky Revised Statutes (KRS)
403.190.
1 Edward designated the January 18, 2024, order in his notice of appeal; however, orders denying CR 59.05 are not appealable. Ford v. Ford, 578 S.W.3d 356, 366 (Ky. App. 2019). Applying the rule of substantial compliance, we will review the final order entered October 25, 2023.
-4- Michelle argues that the court did not err, because a chose in action
leaves unaddressed the overarching issue of whether the parties had any interest in
the property. We agree with Michelle, albeit on different grounds, that the court
did not err.
Black’s defines and discusses the term “chose in action” as follows: chose in action. (17c) 1. A proprietary right in personam, such as a debt owed by another person, a share in a joint-stock company, or a claim for damages in tort. . . . 2. The right to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person possesses, the owner being able to regain possession through a lawsuit. – Also termed thing in action. BLACK’S LAW DICTIONARY (9th ed. 2009).
“Chose, or, thing in action is, when a man hath cause, or may bring an action for some duty due to him; as an action of debt . . . and because they are things whereof a man is not possessed, but for recovery of them is driven to his action, they are called things in action.” Termes de la Ley 85 (1st Am. ed. 1812).
Wehr Constructors, Inc. v. Assurance Co. of Am., 384 S.W.3d 680, 685 n.7 (Ky.
2012).
These definitions make plain that a chose in action, a personal
property right in and of itself, relates to actions to recover personal property or
enforce rights to personal property, not real property. The caselaw cited by the
parties also pertains exclusively to private property interests. In Wehr, the issue
was whether an anti-assignment clause in a liability insurance contract prevented
-5- the insured from assigning its compensation rights after a loss had occurred, and in
Grasch v. Grasch, 536 S.W.3d 191 (Ky. 2017), the Court considered whether
contingent fee agreements executed by the husband, who was an attorney, were
marital property to be distributed upon dissolution. In both cases, the Court found
that a chose in action existed, a right to recover insurance proceeds or to pursue a
client’s legal claims and receive a portion of any monetary award.
This case, however, is distinguishable. Although Edward attempts to
draw an equivalency because a legal action will be required to resolve ownership
of the property and for him to ultimately receive any proceeds through an eventual
sale of the property, we disagree. The necessary action is one for real estate, not
for an obligation owed on a debt. To summarize, although a chose in action is
divisible in a dissolution proceeding, no chose in action exists in this case. For
these reasons, we find no error.
Next, Edward argues that the court committed reversible error by
failing to honor the parties’ stipulations that the 500 and 1098 Echo Hollow Road
properties would be sold to resolve their valuations. He maintains that the court
was obligated to accept the stipulations unless it concluded that the parties’
agreement was unconscionable, citing KRS 403.180(2), or that it had been
obtained through fraud, duress, or misrepresentation of material facts, or that a
change in circumstances since its execution rendered it unfair and unreasonable,
-6- citing Blue v. Blue, 60 S.W.3d 585 (Ky. App. 2001), and Ford v. Ford, 578 S.W.3d
356 (Ky. App. 2019).
KRS 403.180(1)-(2) provide that: “[t]o promote amicable settlement
of disputes between parties to a marriage attendant upon their separation or the
dissolution of their marriage, the parties may enter into a written separation
agreement” and that, with an exception not applicable herein, the terms are binding
on the court unless it finds the agreement unconscionable. (Emphasis added.)
Edward concedes that the agreement he seeks to enforce was not reduced to
writing. Because Edward has failed to establish a valid written agreement as
provided by statute, the court was not required to adhere to its terms, regardless of
whether the terms were conscionable, the agreement was knowing and voluntary,
or there had been no change in circumstances. See Bratcher v. Bratcher, 26
S.W.3d 797, 799 (Ky. App. 2000) (wherein the Court held that an oral agreement
regarding disposition of property that was made in contemplation of the dissolution
of marriage was not valid).
For similar reasons, we reject Edward’s next claim that the court’s
failure to accept the parties’ oral stipulations erroneously infringed on their right to
contract. Again, as acknowledge by Edward, KRS 403.180 dictates how parties, in
contemplation of the dissolution of their marriage or separation, may resolve their
disputes. The statute expressly requires a written agreement, and this requirement
-7- has not been met. Merely using the more generic term of a contract does not
change this analysis.
Finally, Edward argues that the court should have adhered to the
parties’ agreement and distributed the land based on market values instead of
simply following the values assigned by the appraiser. He asserts that
Brandenburg v. Brandenburg, 617 S.W.2d 871, 872 (Ky. App. 1981), bound the
family court’s hands as, he argues, the Brandenburg Court recognized that the
value of the marital property “is determined at the time of distribution which can
be when property is sold.”2 Edward then asserts that the family court determined
that he “was owed a portion of the sale due to [a] barn being constructed[,]”
although no sale was ordered by the court, and that the appraisal value should have
been only a benchmark as to his portion, not the definitive sum.3
Frankly, this argument is convoluted. What is clear, however, is that
the claim turns on the family court’s being required, by virtue of the parties’
stipulations, to order the sale of the property. As we have concluded that the court
2 The relevant portion of Brandenburg actually states “Equity . . . is defined as the equity in the property at the time of distribution. This may be either at the date of the decree of dissolution, or, if the property has been sold prior thereto and the proceeds may be properly traced, then the date of the sale shall be the time at which the equity is computed.” 617 S.W.2d at 872. 3 Edward also did not identify what property he is referencing, but from the facts we presume he refers to the disposition of the 1098 Echo Hollow Road property.
-8- was not required to adopt the parties’ stipulations, we need not address this claim
any further.
CONCLUSION
For the foregoing reasons, the judgment of the Powell Family Court is
AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Dodd D. Dixon Matthew I. Boggs Winchester, Kentucky Lexington, Kentucky
-9-