RENDERED: MAY 6, 2022; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0587-MR
ANGELA MASON IN HER CAPACITY
AS EXECUTOR OF THE ESTATE OF
NORMA CATHERINE
MASON-STIKES, DECEASED APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 20-CI-006418
HOWARD L. STIKES, BOTH
INDIVIDUALLY AND IN HIS CAPACITY
AS ADMINISTRATOR OF THE
ESTATE OF WILLIAM T. STIKES, JR.,
DECEASED; MARY T. AUSTIN;
NORMA JEAN STIKES;
AND WILLIAM T. STIKES APPELLEES
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; CETRULO AND GOODWINE,
JUDGES.
CETRULO, JUDGE: Appellant Angela Mason (“Executor Angela”), in her
capacity as executor of the estate of her mother, Norma Catherine Mason-Stikes
(“Norma”), appeals the Jefferson Circuit Court opinion and order granting the
motion to dismiss for failure to state a claim of Appellee Howard Stikes
(“Administrator Howard”). Administrator Howard filed the motion both
individually and in his capacity as administrator of the estate of his father, William
T. Stikes, Jr. (“Decedent”).
I. FACTUAL AND PROCEDURAL HISTORY
Decedent and Norma were married in 1992 in Jefferson County,
Kentucky. The couple entered a post-nuptial marriage agreement on June 26,
2006, after concerns arose regarding Decedent’s gambling debt. A few weeks
later, on August 18, 2006, the couple amended the post-nuptial marriage agreement
(as amended, the “Marriage Agreement”) to clarify Norma’s interest in Decedent’s
Army disability, work pension, and social security, i.e., that she was entitled to
those benefits.
In 2011, Norma was diagnosed with Alzheimer’s dementia and her
health began to deteriorate. After a series of accidents and hospitalizations, Norma
and Decedent moved to an assisted-care facility in Virginia, where Norma’s family
lived. A few months after the move to Virginia, Decedent moved back to Jefferson
County alone, for reasons that are not established in the record. Despite the change
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in living arrangements, the couple never legally separated, and the marriage
remained intact under the law.
On October 31, 2019, Decedent passed away in Jefferson County.
Decedent’s son, Administrator Howard, incorrectly listed Decedent as “widowed”
on the death certificate and failed to list Norma as the surviving spouse. Due to
those errors, it is claimed that Norma did not receive the benefits and pension to
which she was entitled under the Marriage Agreement. Once Norma’s family
learned of the mistake, they asked Administrator Howard to amend the death
certificate to correctly state that Decedent was married, and the surviving spouse
was Norma. Administrator Howard initially refused to do so but ultimately
amended the death certificate to state Decedent was “married but separated” and
listed Norma as the surviving spouse.
In January 2020, Administrator Howard petitioned to open his father’s
estate and listed three accounts: L&N Credit Union $1,700; Minnesota Life
Annuity $80,000; and Prudential $70,000. Then, in June 2020, the Jefferson
County District Probate Court appointed Administrator Howard as administrator of
Decedent’s estate.
Two months later, in August 2020, Norma filed a written statement of
claim against Decedent’s estate claiming spousal survival benefits, per the
Marriage Agreement, including monthly payments of $954 for Army disability;
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$850 for work pension; and $1,161 for social security, all of which it is believed
were partially contained in the accounts opened for Decedent’s estate.
Unfortunately, Norma then passed away. Her daughter, Executor Angela, was
substituted as the party for the claim. A month later, Administrator Howard denied
the claim, and a month after that, Executor Angela filed a verified complaint with
the Jefferson Circuit Court.
In addition to the facts developed above, the verified complaint stated
that Executor Angela had received a letter from Minnesota Life acknowledging
that payments were being made to the L&N Federal Credit Union account and
requesting acknowledgment that Norma received her spousal survivorship benefits
payment from that account. The verified complaint further contended that Norma
had believed the Prudential account held a portion of Decedent’s work pension.
The verified complaint contained four counts: a request for declaratory judgment
that the marriage agreement was valid and should be enforced;1 a claim of fraud for
stating Decedent was widowed on the death certificate; a claim of wrongful
rejection of Executor Angela’s claim against Decedent’s estate; and a request for
declaratory judgment that certain assets claimed by Administrator Howard should
not be part of the probate estate.
1
The circuit court concluded that the Marriage Agreement was valid and should be enforced,
which Executor Angela does not appeal here, and consequently, we do not address.
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In response, Administrator Howard filed a motion to dismiss for
failure to state a claim and alleged Executor Angela’s appointment as executor of
Norma’s estate was void, so she was not permitted to bring the action.
Administrator Howard claimed that legal documents suggested Norma was a
resident of Virginia; therefore, her will could not be admitted to probate in
Kentucky. Consequently, he asserted, a Jefferson County probate judge could not
appoint an executor for Norma. Due to those alleged shortcomings, Administrator
Howard claimed that Executor Angela lacked standing to bring the claims against
Decedent’s estate. As a result, Administrator Howard alleged this matter was not
justiciable under the Kentucky Constitution and therefore lacking proper subject
matter jurisdiction.
Additionally, Administrator Howard alleged the claims were not
justiciable because there was no controversy; the only asset that he had collected at
that time was a partial reimbursement for Decedent’s funeral. Further, he claimed
that he intended to comply with the “Agreement of July 26, 2006”2 so, he argued,
Executor Angela’s claims were not yet ripe. As for Executor Angela’s fraud claim,
2
The circuit court opinion noted that Administrator Howard promised to comply with the
“Agreement of July 26, 2006,” but at the beginning of that opinion, the court clarified that the
July 26, 2006 agreement was amended by the August 18, 2006 letter and would thereinafter be
referred to jointly as the “Marriage Agreement.” Therefore, it is unclear whether Administrator
Howard intended to comply with the full, amended Marriage Agreement. Importantly, the assets
in question are outlined in the August 18, 2006 letter, by which it does not appear Administrator
Howard explicitly agreed to abide.
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Administrator Howard asserted that Kentucky courts did not recognize such action.
Further, he alleged the fraud claim was inadequately pleaded and there was no
evidence of injury. He later went even further to allege the fraud claim was
altogether waived because the Marriage Agreement contained a waiver of claims
related to the couple’s “Separate Property.” Finally, Administrator Howard argued
the fraud issue was moot because he filed an amendment to the death certificate.
The circuit court granted Administrator Howard’s motion to dismiss
in March 2021. The circuit court agreed with many of his arguments and
dismissed Executor Angela’s claims with prejudice. The circuit court also
confirmed the Marriage Agreement was valid and enforceable. Accordingly, the
court found Section 2 of the Marriage Agreement waived all future claims and
bound Norma, as well as her successors in interest (e.g., Executor Angela):
[Decedent] and [Norma] each hereby waive, release and
relinquish any and all claims and rights that either of
them may not have, or hereafter acquire, as surviving
spouse, heir of the other, or otherwise, in the Separate
Property[3] of the other, under the present or future laws
of Kentucky or any other competent jurisdiction[.]
3
Section 1 of the Marriage Agreement, titled “Separate Property of the Parties,” explained what
“Separate Property” entailed: Decedent and Norma
each exhibited to the other a schedule of his or her individual assets as of the date
of [the Marriage Agreement], and said schedules have been fully reviewed and
executed by [Decedent] and [Norma] and have been attached hereto and made a
part hereof as Exhibits A and B. These schedules identify substantially the
nature, extent and value of all of the independent and separate property owned by
each as of the date of [the Marriage Agreement], and each realizes, acknowledges
and accepts such values and the methods by which such values were obtained.
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...
. . . This Agreement will inure to the benefit of, and will
be binding upon, the estates, heirs, beneficiaries,
successors, assigns, legal representatives, executors and
administrators of [Decedent] and [Norma] and will be
governed by, and construed pursuant to, the laws of the
Commonwealth of Kentucky.
Marriage Agreement (emphasis added).
According to these provisions, the circuit court found Executor
Angela’s fraud claims were “barred on their face.” The circuit court further found
that because Administrator Howard filed an amendment for the death certificate,
the issue of fraud was moot. The circuit court explained that even if the issue was
not moot, Executor Angela could not establish the elements of fraud because there
was no injury and Norma did not rely upon any misrepresentation that resulted in
injury.
Next, the circuit court explained that according to its interpretation of
Kentucky statutes, probate can occur in the state where a debt is owed (as Executor
Angela alleges), but only when the testator had “no known place of residence.”
KRS4 394.140. If the residence is known, the court stated, the will must be
probated in the place of residence. The court then appeared to find that place of
residence was Virginia. Therefore, the circuit court concluded, Norma’s will
4
Kentucky Revised Statute.
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should have been submitted to probate in Virginia,5 and Executor Angela’s
appointment in Kentucky was void. As such, the court emphasized, Executor
Angela had no standing to pursue the action in the circuit court. Executor Angela
then filed a motion for reconsideration, which the circuit court denied.
Executor Angela appealed the order dismissing her claims and argued
the circuit court erred when it (1) found her appointment as executor was invalid;
(2) found her fraud claim was invalid; (3) found no justiciable controversy; (4)
found her claim for wrongful disallowance of the claim against Decedent’s estate
was invalid; and (5) failed to reconsider the dismissal, constituting an abuse of
discretion.
II. STANDARD OF REVIEW
A motion to dismiss should be granted only where “it
appears the pleading party would not be entitled to relief
under any set of facts which could be proved in support
of his claim.” Pari-Mutuel Clerks’ Union of Kentucky
[Local 541, SEIU, AFL-CIO] v. Kentucky Jockey Club,
551 S.W.2d 801 (Ky. 1977). When considering the
motion, the allegations contained in the pleading are to
be treated as true and must be construed in a light most
favorable to the pleading party. See Gall v. Scroggy, 725
S.W.2d 867 (Ky. App. 1987). The test is whether the
pleading sets forth any set of facts which – if proven –
would entitle the party to relief. If so, the pleading is
5
The circuit court referenced a Virginia statute (Va. Code Ann. § 64.2-443(West 2012)) that
states, “A will shall be offered for probate in the circuit court in the county or city wherein the
decedent has a known place of residence” and concluded that such language meant a will could
not be submitted elsewhere as well. We do not find such language to prohibit an executor from
also submitting the will for ancillary administration where property is located outside Virginia.
Denny v. Searles, 150 Va. 701, 733, 143 S.E. 484, 494 (1928).
-8-
sufficient to state a claim. See CR[6] 8.01. Since the trial
court is not required to make factual findings, the
determination is purely a matter of law. James v. Wilson,
95 S.W.3d 875, 884 (Ky. App. 2002). Consequently, we
review the decision of the trial court de novo. Revenue
Cabinet v. Hubbard, 37 S.W.3d 717, 718 (Ky. 2000).
Phillips v. Lexington-Fayette Urban County Government, 331 S.W.3d 629, 633
(Ky. App. 2010).
III. ANALYSIS
To determine whether it was proper for the circuit court to dismiss
Executor Angela’s claims, we must analyze the justiciability of Executor Angela’s
claims against Decedent’s estate and Executor Angela’s fraud claims against
Administrator Howard.
Administrator Howard argued in his motion to dismiss that Executor
Angela’s claims against Decedent’s estate were not justiciable because she did not
have standing and therefore the Jefferson Circuit Court did not have subject matter
jurisdiction.7 The circuit court at least partially relied upon that reasoning when it
granted the motion to dismiss. As an initial matter, this Court finds it worthwhile
to clarify the different forms of jurisdictional issues under Kentucky law.
6
Kentucky Rule of Civil Procedure.
7
Secondarily, he argued the claims were not justiciable because there was not an actual
controversy. We address that issue below.
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We begin our analysis by discussing why standing
and lack of subject-matter jurisdiction are not
synonymous. The key difference is that subject-matter
jurisdiction involves a court’s ability to hear a type of
case while standing involves a party’s ability to bring a
specific case. Our predecessor Court quoted, with
approval, an opinion of the New York Court of Appeals
that held that “subject matter does not mean ‘this case’
but ‘this kind of case.’” More recently, we reaffirmed
our adherence to the proposition that subject-matter
jurisdiction depends on whether a court has the ability to
hear “this kind of case,” instead of “this case.” As
previously mentioned, however, standing focuses more
narrowly on whether a particular party has the legally
cognizable ability to bring a particular suit. Although the
concepts bear some resemblance to each other, standing
is distinct from subject-matter jurisdiction.
Harrison v. Leach, 323 S.W.3d 702, 705-06 (Ky. 2010) (footnotes omitted).
Here, it does not appear that Administrator Howard is arguing that the
Jefferson Circuit Court does not have the authority to hear a claim regarding a
contested probate matter. The circuit court does have jurisdiction over that type of
case, i.e., it does have subject matter jurisdiction over contested probate matters.8
KRS 24A.120 (“District Court shall have exclusive jurisdiction in . . . [m]atters
involving probate, except matters contested in an adversary proceeding. Such
adversary proceedings shall be filed in Circuit Court in accordance with the
Kentucky Rules of Civil Procedure . . . .”); see also Fischer v. Jeffries, 697 S.W.2d
8
See also Daugherty v. Telek, 366 S.W.3d 463, 467 (Ky. 2012) (citation omitted) (“The court
has subject matter jurisdiction when the ‘kind of case’ identified in the pleadings is one which
the court has been empowered, by statute or constitutional provision, to adjudicate.”).
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159 (Ky. App. 1985). Instead, Administrator Howard appears to be conflating the
matters and concluding that because he believed Executor Angela did not have
standing then, by extension, the circuit court did not have subject matter
jurisdiction. Our caselaw does not allow such a conclusion on its own. His
argument in the standing context is better received.
Consequently, the issues before this Court regarding justiciability are
(1) whether Executor Angela had standing; and (2) whether there were facts in her
verified complaint constituting an actual controversy. We will address these issues
in turn.
Standing
First, Executor Angela claims she has standing because Kentucky law
allows a non-resident’s estate to be probated “where there is a debt or demand
owing to [her].” KRS 394.140. She further claims that Kentucky caselaw states
ancillary administration may be established prior to domiciliary administration
when it is implemented “to avoid loss or to prevent injustice, or to subserve some
substantial good.” Payne v. Payne, 239 Ky. 99, 105, 39 S.W.2d 205, 208 (1931).
Administrator Howard contends that because Executor Angela did not first submit
Norma’s estate for domiciliary administration in Virginia (allegedly where it
should take place), her ancillary appointment in Kentucky was void.
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Executor Angela explains that she has proper standing to bring these
claims because her appointment to executor was valid under KRS 394.140. That
statute, titled “Will probated in district court; venue[,]” states:
Wills shall be proved before, and admitted to record by,
the District Court of the testator’s residence (if such
residence was on a United States Army post, military
reservation or fort, it may be proved and admitted to
record in the District Court of any county adjacent
thereto); if he had no known place of residence in this
state, and land is devised, then in the county where the
land or part thereof lies; if no land is devised, then in the
county where he died, or where his estate or part thereof
is, or where there is a debt or demand owing to him.
KRS 394.140 (emphasis added).
Executor Angela relies on the emphasized language above, claiming
that because Norma (1) had no known place of residence in this state, (2) there was
no land devised, and (3) a debt was owed to her – i.e., spousal benefits, as outlined
in the Marriage Agreement – the estate was properly proved before a Kentucky
court. Executor Angela notes that Kentucky courts have recognized the propriety
of appointing an ancillary administrator to pursue a debt or demand owed to a non-
resident for over 100 years. See Hyatt v. James’s Adm’r, 71 Ky. 9, 10, 8 Bush 9,
11, 1871 WL 6581 (1871).
Kentucky’s highest court held that a district court “may appoint an
administrator for the estate of [a non-resident] decedent . . . if he left assets and
debts within the jurisdiction of the court.” Whisler v. Allen, 380 S.W.2d 70, 71
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(Ky. 1964) (citing KRS 395.030; KRS 394.140; Payne, 239 Ky. 99, 39 S.W.2d
205, and the collected cases therein). In Whisler, similar to here, the district court
appointed the executor as ancillary administrator of a decedent domiciled outside
of Kentucky. Id. at 70. The opposing party challenged the appointment and
claimed it was void, but the highest court in Kentucky disagreed, finding the
decedent left an estate in Kentucky (i.e., claims for damages), despite his residence
in another state, and therefore ancillary appointment was proper. Id. at 70-71.
While the emphasis in Whisler was to determine whether a claim for damages
resulting from a fatal auto accident “was sufficient estate on which to grant
administration[,]” the case provides a useful recitation of Kentucky’s ancillary
administration rules concerning “debts or demands.” Id. at 71.
Importantly, Administrator Howard does not argue that Norma’s
alleged Kentucky estate is not sufficient to constitute a “debt or demand.” Instead,
he argues KRS 394.140 does not permit Executor Angela’s appointment at all
because she is not a Kentucky resident. He believes the latter clauses of KRS
394.140 strictly refer to “venue” and are therefore inapplicable. Clearly, those
arguments are not based on Kentucky precedent, as multiple cases determined the
appropriateness of ancillary administration using KRS 394.140 (or its equivalent
predecessor), and permitted ancillary administration where, like here, the decedent
is domiciled outside of Kentucky. Id.; Bankemper v. Boone County Aviation, Inc.,
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435 S.W.2d 58 (Ky. 1968); Stell v. Williams’ Adm’r, 233 Ky. 441, 443, 26 S.W.2d
8, 10 (1930).
Kentucky caselaw and statutes do indicate that domiciliary
administration typically should be established prior to ancillary administration.
Payne, 239 Ky. at 104, 39 S.W.2d at 208 (“The primary proof of a will . . . should
be at the place where he had his domicile. . . . If he has property in other states or
countries, it may be necessary to prove the will, or to take out ancillary
administration there . . . without requiring the property to be followed into distant
jurisdictions, where difficulties might be encountered.”); see KRS 394.150 (“When
a will of a nonresident has been proved out of the state, an authenticated copy and
the certificate of probate may be offered for probate in this state.”).
However, Payne clarifies that ancillary administration may properly
take place prior to domiciliary administration “under peculiar circumstances
rendering that course necessary for the immediate protection of rights, or the
prevention of threatened loss, or the preservation of some interest.” Payne, 239
Ky. at 105, 39 S.W.2d at 208. Here, Executor Angela argues that she took action
in Jefferson County in order to protect the estate’s rights and prevent the loss of
estate assets. The verified complaint alleged that the accounts listed in the petition
to open Decedent’s estate included pension or other benefits to which Norma was
entitled. Executor Angela claims it was entirely possible that those accounts could
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be consumed during the estate administration process, which could render
Decedent’s estate unable to fulfill its obligations to Norma. Therefore, Executor
Angela claims her ancillary appointment was necessary and appropriate in order to
protect Norma’s rights or prevent threatened loss of some interest. We agree.
While much of our caselaw interpreting this rule involves wrongful
death claims for damages and intestate matters,9 Payne clarifies that these
principles also pertain to the probate of wills and other matters. 239 Ky. at 105, 39
S.W.2d at 208.10 In Payne, the Court found that although the testatrix was not a
resident of Kentucky, like here, the Kentucky court could properly probate her will
in Kentucky even though “[i]t had not been proven or probated elsewhere.” Id. at
101, 39 S.W.2d at 206. Ultimately, the Kentucky Court decided not to probate the
will, not because it did not have the authority to do so, but because the property in
dispute was no longer located in Kentucky: it had “been delivered to the Ohio
administrator, where presumably they are available to the parties entitled
thereto[.]” Id. at 106, 39 S.W.2d at 208. Therefore, the Court concluded, “no
9
See Service Lines, Inc. v. Mitchell, 419 S.W.2d 525, 528 (Ky. 1967) (citing Trotta’s Adm’r v.
Johnson, Briggs & Pitts, 28 Ky. L. Rptr. 851, 121 Ky. 827, 831, 90 S.W. 540, 541 (1906)
(Kentucky’s highest court “approved the appointment of an Ancillary Administrator without the
prior appointment and qualification of a primary administrator.”)).
10
To be clear, “such probate of a will . . . is merely ancillary. It is not for the purpose of
establishing general rights of succession whether under a will or otherwise. The validity of wills
and the right of succession generally are to be settled by the laws and determined by the courts of
the state or country where the deceased person had his domicile.” Payne, 239 Ky. at 104, 39
S.W.2d at 208 (citation omitted).
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sufficient reasons appear for the probate of the holographic will here in advance of
its probate at the domicile.” Id. Importantly, that is not the situation here. Here,
the disputed property – the alleged spousal benefits in Decedent’s accounts – are
still located in Jefferson County.
At this stage in the proceedings, there is no evidence to suggest – or
any discussion below – that Executor Angela’s claims are not of a “peculiar
circumstance[] rendering [ancillary administration prior to domiciliary
administration] necessary for the immediate protection of rights . . . .” 239 Ky. at
105, 39 S.W.2d at 208. Instead, the circuit court simply determined that Kentucky
law does not allow ancillary administration before domiciliary administration.
Such a conclusion is not supported by Kentucky caselaw.
Summarily, Kentucky law provides that ancillary administration may
be implemented where a debt or demand is owed to the decedent, and it may
precede domiciliary administration when necessary to preserve a claim or
protected right. We find both components to be present here. Therefore, Executor
Angela had standing to bring these claims against Decedent’s estate and the motion
to dismiss her claims on these grounds was improper.
Actual Controversy
Second, Executor Angela argues the circuit court improperly
determined there was no actual controversy regarding her claims against the estate.
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Administrator Howard argued the claims were not yet ripe because he had not
collected the disputed assets and had only one asset for the Decedent: a $1,592.00
partial funeral reimbursement. Further, he stated on the probate court record that
he would comply with the Agreement signed July 26, 2006, between Decedent and
Norma.11 However, in a motion to dismiss, it is the plaintiff’s (here, Executor
Angela’s) allegations that we must accept as true. Hardin v. Jefferson County Bd.
of Educ., 558 S.W.3d 1, 5 (Ky. App. 2018).
A CR 12.02(f) motion should be granted if “it appears the pleading
party would not be entitled to relief under any set of facts which could be proved in
support of [her] claim.” Hardin, 558 S.W.3d at 5 (quoting James v. Wilson, 95
S.W.3d 875, 883-84 (Ky. App. 2002)). We must accept the plaintiff’s factual
allegations as true, and all reasonable inferences must be drawn in her favor. Id.
Thus, we are to accept the allegations Executor Angela made in her verified
complaint and make all reasonable inferences in her favor.12 We “must ask if the
facts alleged in the complaint can be proved, would [Executor Angela] be entitled
to relief?” Id.
11
As discussed above, it is unclear whether Administrator Howard acknowledged that he would
comply with the full Marriage Agreement or just the portion signed July 26, 2006.
12
See Spillman v. Beauchamp, 362 S.W.2d 33, 34 (Ky. 1962) (“[I]n a ‘Memorandum in Support
of Defendants’ Motion to Dismiss’ filed in the circuit court the defendants set forth a statement
of facts which they relied upon as exonerating them from liability or at the least creating issues
of which the circuit court would not have jurisdiction. Apparently the circuit judge accepted this
statement of facts in ruling on the motion to dismiss. In so doing he erred.”).
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In Executor Angela’s verified complaint, she claims in pertinent part
that the accounts listed on the petition to open Decedent’s estate, or portions of
them, contain pension or other benefits subject to the Marriage Agreement. She
further contends that she received a letter from Minnesota Life acknowledging that
payments were being made to the L&N Federal Credit Union account and
requesting confirmation that Norma received her payments for spousal
survivorship benefits from that account. She also claims the Prudential account
holds a portion of Decedent’s work pension.
These allegations, taken as true when construed in a light most
favorable to Executor Angela, suggest that she could be entitled to relief. Despite
the circuit court’s reliance on Administrator Howard’s promises that he has
received only a partial funeral reimbursement and that he will adhere to the
Marriage Agreement, we cannot consider such information in his favor at this
stage. We are bound by the allegations in the verified complaint, and it does
appear to describe an actual controversy.
Because the verified complaint alleges facts that, if true, could entitle
Executor Angela to relief, and because she has standing under Kentucky law, we
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believe her claims against Decedent’s estate are justiciable in the Jefferson Circuit
Court. Therefore, the circuit court improperly dismissed those claims.13
Next, we must analyze Executor Angela’s fraud claims against
Administrator Howard.14 The circuit court dismissed those claims because it found
(1) the Marriage Agreement waived such claims; (2) Executor Angela did not
properly plead the fraud claim in the verified complaint; and (3) the claim became
moot when Administrator Howard amended the death certificate.
First, we believe the circuit court’s holding that the Marriage
Agreement waived fraud claims of this nature is incorrect.15 Because the Marriage
Agreement is a valid contract, it must be interpreted under traditional contract law.
See Ford v. Blue, 106 S.W.3d 470, 473 (Ky. App. 2003). Administrator Howard
relied upon Section 2 of the Marriage Agreement, which stated that Norma and
Decedent “waive, release and relinquish any and all claims and rights that either of
them may have, or hereafter acquire as surviving spouse in the Separate Property
of the other.” (Emphasis added.)
13
We need not determine whether it was proper for the circuit court to dismiss these claims with
prejudice because we find the dismissal to be improper as a whole.
14
Unlike the claims against Decedent’s estate, these were against Administrator Howard
personally, not in his capacity as administrator of Decedent’s estate.
15
While Administrator Howard did not make this claim prior to this appeal, which is
procedurally improper, the circuit court rendered findings involving this waiver, so we will
review it. Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) (citation
omitted).
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The Marriage Agreement described “Separate Property” as
“individual assets as of the date of [the Marriage Agreement]” and stated that such
items were identified on exhibits attached to and incorporated into the Marriage
Agreement. When the Marriage Agreement is reviewed in relation to that
description of “Separate Property,” it is clear that the Marriage Agreement sought
to affect only the parties’ respective rights to the specific property listed. The
Marriage Agreement is silent as to either party’s waiver or release of claims
involving anything other than “Separate Property,” including potential fraud claims
concerning a death certificate – which is neither an “individual asset” nor an item
identified on the exhibits. See Koszarek v. Minzner, No. 2014-CA-001955-MR,
2017 WL 1102995, at *3 (Ky. App. Mar. 24, 2017); Sadler v. Van Buskirk, 478
S.W.3d 379, 384 (Ky. 2015). Therefore, neither Norma nor Executor Angela
waived any claims other than those involving Decedent’s “Separate Property.”
Second, in dismissing these claims, the circuit court again relied upon
information outside the verified complaint. The circuit court dismissed the claims
because “any fraud caused no perceptible injury” and Administrator Howard
claimed it “had been resolved by . . . amending the death certificate.” However, as
discussed, the circuit court must accept Executor Angela’s allegations as true at
this stage in the proceedings. While it may ultimately prove true that any fraud
caused no injury, and that the claim is now moot, this was an improper
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determination on a motion pursuant to CR 12.02. In the verified complaint,
Executor Angela alleged that there was damage:
[Administrator Howard] knowingly, intentionally and
fraudulently submitted information that created errors on
the Decedent’s death certificate and those errors
prevented [Norma] during her life and continue to
prevent her estate from collecting assets that rightly
belong to her. [Executor Angela] has been damaged by
[Administrator Howard’s] fraudulent and deceptive
conduct in an amount to be determined by the Court.
Thus, at this stage of the proceedings, it is not clear whether Norma’s
estate has been denied assets that should have gone to her. If the statement of the
attorney for Decedent is correct, there may be no injury, but that cannot be
determined at this stage of litigation, or concluded on the basis of representations
of counsel. Despite the potential that Executor Angela’s fraud claim is moot, the
circuit court failed to properly consider the verified complaint when analyzing the
motion to dismiss. Therefore, we cannot affirm the circuit court’s decision to
dismiss the fraud claims for the reasons it provided in the opinion and order.
IV. CONCLUSION
As to Executor Angela’s ancillary appointment as administrator of
Norma’s estate, claims against Decedent’s estate, and fraud claims against
Administrator Howard, we hereby REVERSE the Jefferson Circuit Court order of
dismissal under CR 12.02. These matters are hereby REMANDED to the circuit
court to set aside the dismissal and allow the case to proceed on the merits.
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ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE HOWARD
L. STIKES:
Cornelius E. Coryell, II
Mary Elizabeth Anderson Daniel M. Oyler
Victoria Boland Fuller Edward H. (Ted) Bartenstein
Louisville, Kentucky Louisville, Kentucky
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