Full Opinion

RENDERED: JULY 10, 2026; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2025-CA-0257-MR JEAN H. RAMSEY APPELLANT APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE ACTION NO. 19-CI-00263 FRANK RAMSEY, III, AS EXECUTOR OF THE ESTATE OF FRANK V. RAMSEY, JR.; CLIFFORD CECIL RAMSEY; FRANK RAMSEY, III; FRANK RAMSEY, III, AS TRUSTEE OF THE FRANK V. RAMSEY, JR. IRREVOCABLE TRUST AGREEMENT DATED AUGUST 19, 2013; AND FRANK RAMSEY, III, AS TRUSTEE OF THE SARAH RAMSEY GST EXEMPTION TRUST APPELLEES AND NO. 2025-CA-0267-MR CYNTHIA RAMSEY COOPER APPELLANT APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE ACTION NO. 19-CI-00263 FRANK RAMSEY, III, AS EXECUTOR OF THE ESTATE OF FRANK V. RAMSEY, JR.; CLIFFORD CECIL RAMSEY; FRANK RAMSEY, III; FRANK RAMSEY, III, AS TRUSTEE OF THE FRANK V. RAMSEY, JR. IRREVOCABLE TRUST AGREEMENT DATED AUGUST 19, 2013; AND FRANK RAMSEY, III, AS TRUSTEE OF THE SARAH RAMSEY GST EXEMPTION TRUST APPELLEES AND NO. 2025-CA-0440-MR FRANK RAMSEY, III, AS EXECUTOR OF THE ESTATE OF FRANK V. RAMSEY, JR.; CLIFFORD CECIL RAMSEY; FRANK RAMSEY, III; FRANK RAMSEY, III, AS TRUSTEE OF THE FRANK V. RAMSEY, JR. IRREVOCABLE TRUST AGREEMENT DATED AUGUST 19, 2013; AND FRANK RAMSEY, III, AS TRUSTEE OF THE SARAH RAMSEY GST EXEMPTION TRUST CROSS-APPELLANTS CROSS-APPEAL FROM HOPKINS CIRCUIT COURT v. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE ACTION NO. 19-CI-00263 -2- CYNTHIA RAMSEY COOPER CROSS-APPELLEE OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** ** BEFORE: ECKERLE, A. JONES, AND L. JONES, JUDGES. ECKERLE, JUDGE: These three appeals raise numerous, familial issues with an irrevocable trust and a postnuptial agreement. After considering the briefs, relevant law, and oral argument, we provide the following facts, law, and rulings. I. RELEVANT FACTUAL AND PROCEDURAL HISTORY The Trial Court record underlying these appeals is immense, consisting of 40 volumes of record filling four large boxes. The parties’ briefs have a combined length approaching 200 substantive pages. In the interests of judicial economy, we shall provide only what we perceive to be the essential, underlying history. Similarly, to avoid making this already-lengthy Opinion completely unwieldy, we shall not discuss each argument or citation to authority but will endeavor to provide a full analysis of the significant issues. As we have previously done in similar situations, we “will discuss only the arguments and cited authorities we deem most pertinent, the remainder being without merit, irrelevant, or redundant.” Schell v. Young, 640 S.W.3d 24, 29 (Ky. App. 2021). -3- This combined appeal and the underlying cases stem from the union of Frank V. Ramsey, Jr. (“Husband”) and Appellant, Jean H. Ramsey (“Wife”), who had been married for over 60 years when Husband died in 2018. Husband and Wife had three “Children”: Appellant/Cross-Appellee, Cynthia Jean Ramsey Cooper (“Daughter”); Appellee/Cross-Appellant, Frank “Tripp” Ramsey, III (“Trustee”), who would become an Executor of the Estate and Trustee; and Appellee/Cross-Appellant, Clifford Cecil Ramsey. In approximately 2011, Wife initiated divorce proceedings. However, in 2013 Husband and Wife entered into a settlement agreement (“the Agreement”), the net result of which would leave them remaining married but living separately. The Agreement provided specified assets to Wife, including two condominiums; two vehicles; jewelry; several bank accounts; various items of personal property; and a substantial, lump-sum, cash payment. Wife agreed that her receipt of that specific property constituted a “full and final settlement of all of her marital rights with respect to the restoration of non-marital property” and “the allocation of marital property . . . .” Trial Record (“R.”) at 106. The Agreement stated that it “shall be binding” on Husband’s and Wife’s “respective estates, heirs, successors, assigns, and personal representatives.” R. at 108. In the Agreement, Husband and Wife each waived the right to renounce the other’s will. Relevant here, Wife also waived her dower rights. The parties attached a list of assets to the Agreement -4- (“the List”) “setting forth all of the property owned or controlled by the parties (both individually and jointly).” R. at 103. Particularly at issue in these appeals, the Agreement also required Husband to allocate and distribute specified assets to Wife and then to create a trust for Children’s benefit upon Husband’s death. The Agreement describes the parties’ intent to create an irrevocable trust (“the Trust”), as follows in full: It is the parties’ express intention to transfer certain assets owned and controlled by Husband to an irrevocable trust for the benefit of Husband, for life, with remainder as Husband may appoint among his descendants (provided Wife consents to the appointment), and in default of appointment, for the equal benefit of the parties’ three children, Frank V. Ramsey, III, Clifford Cecil Ramsey, and Cynthia Jean Ramsey Cooper (hereinafter “the children”), or if any child predeceases Husband, the descendants, per stirpes, of the deceased child. In furtherance of this mutual intent, to which both parties agree to be bound, it is agreed that within thirty (30) days of execution of this Agreement, Husband shall cause the 899.1 shares of Dixon Bank Stock and the approximately 1,248.68 acres of farm property in Webster County, Kentucky (listed separately on Exhibit “A” as “273.68 acres Lisman Road” and “975 acres, Webster County, Kentucky”) to be transferred into the irrevocable trust (“Trust”), attached hereto as Exhibit “B”, which Husband agrees to execute and deliver to Wife contemporaneously with this Agreement, and shall provide proof of same to Wife. R. at 104-05. The document creating the Trust was attached to the Agreement. The Trust begins by noting that Husband would serve as initial trustee and then names -5- Trustee as his successor. All first-person references in the Trust are understood to reference Husband, as the party responsible for legal creation of the Trust. Section 3.2 of the Trust provides that during Husband’s lifetime, the “[n]et income of the trust will be distributed to” him. R. at 117. Article 5 of the Trust, titled “Division of Trust After My Death,” substantively then provides in relevant part: 5.1 Division of Trust Assets. Assets administered by this Article will be divided in equal shares, one for each of my then living children and one for each of my deceased children with descendants then living, and held or distributed as provided herein. R. at 118. Notably, the record makes clear that Husband and Wife negotiated the creation of the Trust, as well as what assets would be transferred into it, through experienced legal counsel while reaching the Agreement. In 2014, approximately one year after execution of the Agreement, Husband executed his will, which explicitly states that it contains no provisions for Wife because she “has been provided for by a written agreement made during our marriage.” R. at 133. Husband’s will similarly states that it contains no provisions for Daughter “for reasons that need not be expressed herein.” Id. Finally, Husband’s will names Trustee as the personal representative, or Executor, of Husband’s Estate and Children, or at least Trustee and Clifford, as the primary beneficiaries. Section two of Husband’s will addresses the topic of Estate taxes by directing that his -6- death taxes, if any, be paid out of my residuary estate, other than apportionment property, without proration and my personal representative shall not seek contribution toward or recovery of any such payments. Death taxes means any estate or inheritance taxes, but not generation- skipping transfer taxes, imposed under the laws of any jurisdiction due to my death on any property passing by reason of my death whether or not such property passes under this will. With regard to apportionment property, my personal representative shall take such actions as are necessary to obtain reimbursement with respect to apportionment property, including withholding distribution. Apportionment property means (a) any property titled in the Frank V. Ramsey, Jr. Irrevocable Trust Agreement dated August 19, 2013, (b) any property with respect to which my personal representative may be entitled to recover federal estate tax under Internal Revenue Code Section 2207, 2207A, or 2207B . . . . R. at 133-34. The second codicil also states: This codicil is intended to clarify my intent in regard to paragraph 2 of my Last Will and Testament. It is my intent that my children pay to my estate the federal estate taxes owed on the inheritance they receive from me under [the Trust] . . . . As my estate will be required to pay the federal estate taxes owed on my estate within nine (9) months of my death, I direct my personal representative to receive reimbursement to my estate for such federal estate taxes at or prior to the time of filing my federal estate tax return. R. at 141. It is uncontested that at Husband’s death in June of 2018, the Trust’s assets were valued at over $21,000,000, and the federal estate tax owed on those -7- assets was slightly over $6,000,000. After Husband’s death, Trustee assumed his roles as set forth in both the Trust documents and in Husband’s will. In March of 2019, Wife and Daughter (collectively, “Plaintiffs”) filed a complaint against Trustee (individually and in his capacities as Executor of the Estate and Trustee) and Clifford Cecil Ramsey (collectively, “Defendants”) in the Fayette Circuit Court. Although both sons are named as defendants in the suit, a majority of the counts allege acts of breach, negligence, or fraud specifically by Trustee in administering either the Trust or Husband’s Estate. Because the particular language of many of these counts are at issue in the appeals sub judice, they will be discussed in detail at the relevant sections in this Opinion.1 Upon Defendants’ motion, the Fayette Circuit Court transferred the action to the Hopkins Circuit Court, because Husband’s Estate was being probated in Hopkins County. Hereafter, references to “the Trial Court” are to the Hopkins Circuit Court. Defendants also filed counterclaims against Daughter alleging that she had violated the “no-contest” provisions of the Trust and thus should be deemed to have predeceased Husband. Moreover, Defendants sought a judgment 1 Not all counts of the complaint have been raised on appeal, notably Counts VI, IX, and X. The Trial Court issued summary judgment to Defendants on these counts, and they were not raised in Wife or Daughter’s appeals. Accordingly, they will not be discussed in any detail in this Opinion, except where relevant to the issues on appeal. -8- requiring that Daughter reimburse the Estate for the taxes owed on her share of the Trust’s assets. Over five years of litigation followed, in which the parties made numerous motions for dismissal, to file and amend counterclaims, and for summary judgment. As discussed below, many of the counts of the original complaint and the counterclaims were resolved wholly or in part by grants of summary judgment to one party. However, as of late 2024, the parties and the Trial Court determined that there remained issues on three counts of the complaint that would require submission to a jury. As the trial date on the remaining claims approached, Defendants filed a motion in limine seeking, among other requests, to exclude evidence of administrative fees paid to Trustee and of a previous grant of summary judgment to Plaintiffs that Trustee had breached the irrevocable Trust by delaying distribution of the Trust assets. The Trial Court denied the motions. In December of 2024, the Trial Court conducted a jury trial on the remaining claims. After a multi-day trial that involved witness and expert testimony, as well as contentious motion practice over proposed jury instructions, the Trial Court submitted the case to the jury. Ultimately, the jury awarded Daughter $103,000 for Trustee’s breach of his fiduciary duty and breach of the Trust. -9- In January of 2025, Defendants asked the Trial Court to include language in the final judgment directing Daughter to pay a sum slightly over $2,000,000 to Husband’s Estate for her share of the taxes based on a previous grant of summary judgment by the Trial Court to Defendants on their counterclaim. Meanwhile, Plaintiffs’ tendered final judgment reflected only the jury’s verdict awarding Daughter $103,000 and omitted discussions of any other rulings for either side. The Trial Court issued the final judgment requested by Plaintiffs and denied Defendants’ motion to include language directing Daughter to pay any amount. These appeals followed. Case No. 2025-CA-0257-MR is an appeal filed solely by Wife challenging the Trial Court’s summary judgment to Defendants on Counts I, VII, and VIII of the complaint, which largely involves Husband’s alleged failure to disclose assets during the process of the Separation Agreement. Case No. 2025-CA-0267-MR is an appeal filed solely by Daughter that focuses on the Trial Court’s conclusion that Defendants were entitled to seek reimbursement from her for her share of the taxes. Case No. 2025-CA-0440-MR is a cross-appeal filed by Defendants against Daughter, challenging numerous decisions made by the Trial Court.2 2 Defendants also filed a cross-appeal against Wife, Case No. 2025-CA-0412-MR. However, in November of 2025, we granted Defendants’ motion to dismiss that cross-appeal once Wife confirmed she did not seek to resolve any other claims on appeal. -10- Before turning to the merits of these appeals, we must first address Daughter’s procedural argument that Defendants can only raise issues expressly contained in the final judgment and order denying Defendants’ motion to alter, amend, or vacate because those are the only judgments specified in Defendants’ prehearing statement. The version of Kentucky Rules of Appellate Procedure (“RAP”) 22(C)(2) in effect at the time of the prehearing statement provided that a party was “limited on appeal to issues identified in the prehearing statement . . . .” The current version, which took effect on April 1, 2026, does not contain this provision. It is a bedrock principle of appellate law that “one can only appeal from a final judgment and that all interlocutory orders or judgments are ‘readjudicated finally’ upon entry of a final judgment disposing of all issues making it unnecessary to name any judgment in the notice of appeal other than the final one.” Blair v. City of Winchester, 743 S.W.2d 28, 31 (Ky. App. 1987). See also Kentucky Rules of Civil Procedure (“CR”) 54.02(2) (“When the remaining claim or claims in a multiple claim action are disposed of by judgment, that judgment shall be deemed to readjudicate finally as of that date and in the same terms all prior interlocutory orders and judgments determining claims which are not specifically disposed of in such final judgment.”). Thus, the final judgment -11- inherently encompasses the issues previously resolved by the Trial Court that Defendants seek to challenge. Moreover, Defendants attached as exhibits to their prehearing statement numerous, contested rulings of the Trial Court. Defendants’ notice of cross-appeal further mentions the decisions at issue, and Defendants attached copies of those decisions to the notice. We thus reject Daughter’s limiting procedural argument and proceed to consider the merits of the appeals before us. II. STANDARD OF REVIEW As noted in the procedural history above, the majority of issues on appeal in these combined cases relate to the Trial Court’s grant of summary judgment on various counts in the complaint and counterclaims. We recently summarized Kentucky’s familiar summary-judgment standards as follows: Summary judgment is governed by CR 56.03, stating that “if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law.” In evaluating a party’s entitlement to summary judgment, a Trial Court must view the record in the light most favorable to the nonmoving party. Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476, 480 (Ky. 1991). If it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in her favor, then summary judgment is proper. Id. (citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255, 256 (Ky. 1985)) (stating that summary judgment “is only proper where the movant shows that the adverse party could not -12- prevail under any circumstances”). To combat summary judgment, the opposing party must present “at least some affirmative evidence showing that there is a genuine issue of material fact for trial.” Steelvest, 807 S.W.2d at 482. Crowder v. Yussman, 724 S.W.3d 772, 778 (Ky. App. 2025). “An issue of material fact is ‘genuine’ at the summary judgment phase when discovery has revealed facts which make it possible for the non-moving party to prevail at trial.” Kearney v. University of Kentucky, 638 S.W.3d 385, 397 (Ky. 2022). “Determination that a fact is material or immaterial rests on the substantive law’s identification of which facts are critical and which facts are irrelevant.” Id. (citations omitted). We review the Trial Court’s grant of summary judgment de novo. Id. at 398. With this standard in mind, we will address the substantive law as necessary for each claim on appeal in the relevant portion of the Opinion. For the few issues where summary judgment is not involved, the relevant standard of review will be addressed individually below. III. ANALYSIS A. Wife’s Appeal of Summary Judgment to Defendants on Counts I, VII, and VIII of the Complaint Because of the fundamental importance of the Agreement and the Trust to all of the combined appeals in this case, we must begin with Wife’s appeal -13- from the Trial Court’s grant of summary judgment to Defendants on Counts I, VII, and VIII of the complaint, which seeks to invalidate portions of the Agreement for breach of contract, fraud, or negligence by Husband. Although the other issues on appeal are not directly intertwined with this one, our decision on this issue significantly alters the factual posture of the case should we find in Wife’s favor. Accordingly, it must be resolved prior to consideration of Daughter’s appeal and Defendants’ cross-appeal. In order to examine the merits of Wife’s appeal, we must review the terms of the Agreement and the process used to create the Trust. As part of the negotiation process, Wife and Husband, through counsel, identified assets that would be subject either to the filed divorce proceedings or the negotiated postnuptial agreement. Both Husband and Wife represented that they had examined the List and that it was “an accurate reflection of the property currently owned or controlled” by each. R. at 103-04. Similarly, the Agreement provided that, “after being duly sworn[,]” Husband and Wife “represent[] and warrant[] to the other” that the List “contains a complete listing of all known assets and debts, marital and non-marital, owned and owed by both of them.” R. at 104. The List contains numerous assets, such as “273.68 acres Lisman Road” (valued at $273,000) and “975 acres, Webster County, Kentucky” (valued at $3,500,000.00). R. at 113. The List also denotes ownership of a “1/2 interest -14- 256.42 acres of mineral rights, Hopkins County” and “[m]ineral rights described in DB 624, page 150, Hopkins County[.]” Id. The List does not specify the value of either of those two mineral ownership interests; instead, the List simply states that each is “not valued[.]” Id. The List assesses the value of the properties that were to be transferred to the Trust at $13,663,100. In the final version of the Agreement, Husband and Wife “waive[d] any further financial disclosures from the other.” Id. Section 14 of the Agreement reiterates that Husband and Wife had each “made full and complete disclosure to the other of all assets and liabilities, both marital and nonmarital” and “based upon said representations, [they] have agreed to enter into this Agreement according to the terms thereof.” R. at 108. However, that section also recognizes that “certain of the assets owned by the parties may be difficult to value . . . .” Id. Thus, the Agreement provides that “the fact that such assets could arguably have a different fair market value than heretofore understood or represented has been fully and adequately considered by the parties[,] and any such potential difference in value shall not be considered a failure to disclose the asset” or otherwise affect the validity of the Agreement. Id. Nonetheless, the Agreement did not completely foreclose Husband and Wife from seeking relief in litigation. Section 15 provides in relevant part that if either Husband or Wife “has failed to disclose any property” or made a -15- “materially inaccurate” representation, then “the defaulting and/or breaching party shall be liable to the other for said default or breach.” R. at 109. The breaching party must “indemnify and hold the other [party] harmless of and from any and all liabilities, claims, damages and expenses . . . arising out of or in any way connected with any such default, breach, failure to perform, misrepresentation or failure to disclose.” Id. In Section 21 of the Agreement, “both parties acknowledge that they have been advised to obtain independent tax advice from a Certified Public Accountant regarding any tax consequences or filing obligations arising from the provisions contained herein.” R. at 110. In the complaint filed by Plaintiffs, Count I sought to enforce Section 15 of the Agreement and asserted that Husband breached the Agreement by failing to provide a full and accurate disclosure of assets, omitting certain mineral rights, and misrepresenting the value of others. The complaint specifically alleges: 52. The mineral rights for real property located in Hopkins County is listed as “not valued” in the [List] attached to the Separation Agreement. In connection with the Divorce Proceeding Frank V. Ramsey, Jr., submitted a Preliminary Verified Disclosure Statement . . . . Frank V. Ramsey, Jr., set forth in his Verified Disclosure that the mineral interests for said property had been mined to exhaustion. 53. Subsequent to the Separation Agreement being entered into Frank V. Ramsey, Jr., continued to receive substantial amounts of royalties for the mineral rights to the Hopkins County real property. -16- 54. In the inventory for the Estate of Frank V. Ramsey, Jr., said mineral rights to the Hopkins County real property are listed and valued in excess of $600,000.00 by the Executor. 55. Frank V. Ramsey, Jr., further failed to assess any value to the mineral rights for the real property located in Webster County in the [List] attached to the Separation Agreement. Frank V. Ramsey, Jr.’s Preliminary Verified Disclosure Statement states that the fair market value of the real property is to be $3,500,000.00. Said value approximates the value set forth in the [List]. 56. Following the death of Frank V. Ramsey, Jr. said mineral rights to the Webster County real property were appraised . . . as of the date of death of Frank V. Ramsey, Jr., for $3,824,000.00. In addition, said firm appraised the surface rights of the Webster County real property for $5.55 million as of the date of death of Frank V. Ramsey, Jr. 57. The omissions and representations by Frank V. Ramsey, Jr., were material in nature and constitute a failure to provide full disclosure in entering into the Separation Agreement. R. at 84-85. Count VII sought to set aside portions of the Agreement that prevented Wife from renouncing Husband’s will due to his alleged failure to disclose these assets. R. at 91-94. Similarly, Count VIII alleged fraud on Wife’s dower interests for Husband’s alleged failure to honor the agreement to treat all -17- three children equally while transferring significant assets into a separate revocable trust not subject to the provisions of the Agreement. R. at 94-96.3 In 2023, Wife and Defendants sought separate summary judgment on Wife’s claims in Counts I, VII, and VIII based on Husband’s failure to disclose mineral rights. As part of the extensive filings made by both parties in support of these motions, Wife submitted an affidavit asserting that she had relied upon Husband’s asset disclosure when signing the Agreement and had not then known about the valuable mineral rights or payments for the land in Hopkins and Webster Counties. R. at 3331-32. However, the Trial Court granted summary judgment to Defendants on each of those counts of the complaint, holding: the express language, waivers and acknowledgements contained in the [Agreement] entered [into] between Frank and Jean Ramsey while represented by extremely competent and well[-]respected legal counsel on both sides, is controlling and precludes, as a matter of law, Plaintiffs’ factually unsupported claims as to Counts I, VII and VIII of Plaintiffs’ Complaint. R. at 4193. On appeal, Wife contends that the Trial Court erred in granting judgment to Defendants on her claims that Husband materially breached the 3 Although each count also contains allegations of breach or fraud due to provisions in Husband’s will regarding the reimbursement of Estate tax, Wife’s appeal focuses solely on the grant of summary judgment based on Husband’s alleged failure to disclose assets. Accordingly, we will not address those tax issues in this portion of the Opinion and maintain focus solely on the issues raised on appeal of this particular judgment. -18- Agreement by failing to denote properly and completely the mineral-rights-based assets in the List. First, with regard to Webster County, she alleges that Husband entirely omitted his ownership interest in mineral rights, which were valued at approximately $3,800,000 after his death. Instead, Husband had only listed two parcels of Webster County land and valued them together at slightly over $3,750,000 without reference to any mineral rights. Wife asserts that she was entirely unaware of these rights when she signed the Agreement and that the Trial Court erred in failing to consider an affidavit she provided as evidence of this disputed fact. Second, regarding Hopkins County, Wife also contends that she relied on Husband’s assertion in the List that mineral rights had only a nominal value because the land had been mined to exhaustion. However, she alleges that he collected over $3,300,000 in royalty payments from that land between 2011 and his death in 2018. Wife argues that these two List omissions constitute material breaches, or at least a genuine issue of material fact as to the breaches, which should allow her to withdraw from “only the provision of the Separation Agreement where she relinquished her renunciation and dower rights.” Wife’s Reply Brief, p. 6. In other words, Wife does not wish to set aside the portion of the Agreement requiring creation of the Trust but seeks to alter the disposition of the remainder of Husband’s Estate. -19- In return, Defendants assert that the evidence fails to establish that Husband intentionally failed to disclose assets or misled Wife as to their value. Instead, they contend that the evidence proves that Wife had knowledge that the properties in question could have contained valuable mineral rights but failed to pursue independent valuation or to take further steps to secure that interest if she chose. Since the only material facts at issue related to discrepancies in value that the Agreement foreclosed Wife from challenging, Defendants argue that the Trial Court properly granted their motion for summary judgment as to Counts I, VII, and VIII. Although both parties moved for summary judgment on these counts, the Trial Court’s grant of Defendants’ motion means that we must review the evidence in favor of Wife as the non-prevailing party. However, we also note that Wife must still provide some affirmative evidence that there exists a genuine issue of material fact. Steelvest, 807 S.W.2d at 482. To support her claim that there are genuine issues of material fact precluding summary judgment, Wife primarily relies on the affidavit filed in October of 2023, which provides as follows: 6. During our marriage I was not consulted regarding financial decisions [Husband] made, including, but not limited to real property and mineral rights. 7. During the divorce proceeding I was provided with [Husband]’s Preliminary Verified Disclosure Statement -20- . . . . I read [Husband]’s Preliminary Verified Disclosure Statement and had no reason to question his assertions therein. 8. When I signed the Separation Agreement that resolved the divorce action, I relied on [Husband]’s Preliminary Verified Disclosure Statement which stated that the Hopkins County mineral rights had been mined to exhaustion and were of nominal value. When I signed the above mentioned Separation Agreement I further relied on [Husband]’s Preliminary Verified Disclosure Statement which document stated he was disclosing all assets in which he held an interest. When I signed the Separation Agreement I relied upon [Husband]’s disclosures regarding his finances and further relied upon those disclosures not failing to list any significant assets in which he held an interest. 9. I further relied on [Husband]’s preparation of the [List] attached to and incorporated into the Settlement Agreement. I relied on [Husband]’s preparation of the [List] disclosing all assets he held an interest in, and that he did not fail to disclose any significant assets he held an interest in. 10. As to the Hopkins County mineral rights, I did not question those being listed by [Husband] as “not valued” in the [List] because he had represented to me in his Preliminary Verified Disclosure Statement that they had been mined to exhaustion and were of nominal value. 11. At the time of entering into the Separation Agreement, I did not know [Husband] was still receiving royalty payments for the Hopkins County mineral rights. 12. At the time of entering into the Separation Agreement, I did not know there were substantial mineral rights associated with the Webster County property. -21- R. at 3331-32. At oral argument, counsel for Wife asserted that the affidavit supports Wife’s claim that she never possessed any true understanding of Husband’s complex business and property interests during 60 years of marriage and that she had relied in good faith on his representations once the union was broken. However, Defendants assert that the Trial Court correctly disallowed this affidavit as evidence due to conflicts between its contents and Wife’s own previous deposition testimony offered in May of 2022. During that deposition, Wife testified as follows: Q. Were you aware during your marriage with Mr. Ramsey that he was receiving money for mineral rights for coal in property, real estate that he owned? A. Was I aware? I’m asking myself. Was I aware of all this? I don’t know if I was aware or not. Q. Let me rephrase the question. Did you know Mr. – during your marriage did you know Mr. Ramsey was getting checks related to the sale of coal on land that he owned? A. He probably told me. I mean, I didn’t – [Wife’s counsel]: Try to answer the question he asked; okay? He’s asking you if you knew. If you don’t – if you don’t know, then just say you don’t know. If you do know, then – A. I’m not certain. I’m not. -22- Wife’s Depo., pp. 28-29. Neither Wife’s counsel nor Defendants’ counsel asked pertinent follow-up questions to probe more specifically what actual knowledge Wife possessed or lacked regarding the mineral royalties. Notably, counsel for both parties encouraged a review of this deposition testimony in support of their positions. Although counsel for Wife asserts that the affidavit only clarifies the testimony offered in that deposition, a review of the transcript is most consistent with Defendants’ interpretation that Wife clearly demonstrated no affirmative memory of whether she had knowledge of any of Husband’s interests in mineral rights. Throughout her deposition, Wife frequently struggled to understand questions posed to her, and she generally testified that she had no specific recollection of specific pieces of evidence shown to her. Although Defendants cited only federal cases to support their position that the Trial Court properly disallowed the affidavit, we have previously held that “[w]hile a post-deposition affidavit may be admitted to explain deposition testimony, an affidavit which merely contradicts earlier testimony cannot be submitted for the purpose of attempting to create a genuine issue of material fact to avoid summary judgment.” Gilliam v. Pikeville United Methodist Hosp. of Kentucky, Inc., 215 S.W.3d 56, 62-63 (Ky. App. 2006) (internal quotation marks, footnotes, and citations omitted). -23- Here, Wife’s subsequent affidavit conflicts with her deposition testimony, where she averred that she did not know – one way or the other – whether Husband received mineral royalty checks during the marriage. By contrast, in the affidavit, which was not subject to cross-examination, she explicitly and conclusively stated that she had not been aware at the time of the Agreement that Husband was in fact receiving mineral royalties. Given the discrepancy between the deposition testimony and affidavit, we find the Trial Court properly concluded that the subsequent affidavit could not be used to create an issue of fact where none previously existed. Id. Without the affidavit, the Trial Court was left to determine from the remaining evidence whether there existed a genuine issue of material fact as to breach of the Agreement. In order to show breach, Wife must offer some evidence that Husband failed to disclose the Webster mineral rights or provided a materially inaccurate representation of the Hopkins mineral rights. The Trial Court determined that the available evidence failed to do so. Despite Wife’s deposition testimony that she could not recall whether she had knowledge of any interest Husband had in mineral rights, Defendants have provided evidence suggesting that Wife did have previous knowledge of certain mineral rights prior to entering into the Agreement. This evidence includes Wife’s signature on a Hopkins coal lease between Alliance Resource Properties, L.L.C. -24- and both spouses, as well as annual income from advance coal royalties with checks made out to both Husband and Wife. See R. at 2311-24 and 3783. Although counsel for Wife asserted at Oral Argument that this did not necessarily prove Wife’s knowledge of the specific mineral right interests on the subject properties, the record contains no affirmative evidence to contradict the conclusion that Wife would reasonably have been aware of her own tax returns, bank statements, and legal filings, all of which include references to interests in mineral rights. R. at 2311-24, 3783, and 4282-83. Although the Trial Court did not have the benefit of all of this evidence at the time summary judgment was entered, the full record on appeal remains consistent with the conclusion that Wife did have knowledge of at least some of these interests at the time she signed the Agreement and that she had the opportunity to pursue further valuation prior to signing. Similarly, regarding the Webster County property, no one disputes the lack of any active mineral le