← LexyCorpus index

LexyCorpus case page

CourtListener opinion 4765651

Citation: Domestic Relations Order · Date unknown · US

Extracted case name
MR CHARLES ROBERT RUSSELBURG APPELLANT APPEAL FROM DAVIESS CIRCUIT COURT v. HONORABLE JULIA H. GORDON
Extracted reporter citation
Domestic Relations Order
Docket / number
2020-CA-1287-MR CHARLES ROBERT RUSSELBURG APPELLANT
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
Research-use warning: This page contains machine-draft public annotations generated from public opinion text. The headnote is not Willie-approved gold-label work product and is not legal advice. Verify the full opinion and current law before relying on it.

Machine-draft headnote

Machine-draft public headnote: CourtListener opinion 4765651 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

rance 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 be

retirement benefits

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 des

pension

ts 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

401(k)

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

Source and provenance

Source type
courtlistener_qdro_opinion_full_text
Permissions posture
public
Generated status
machine draft public v0
Review status
gold label pending
Jurisdiction metadata
US
Deterministic extraction
reporter: Domestic Relations Order · docket: 2020-CA-1287-MR CHARLES ROBERT RUSSELBURG APPELLANT
Generated at
May 14, 2026

Related public corpus pages

Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

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-