Opinion
NO. 2013-CA-001444-MR
05-15-2015
DEANNA JANE GADDIE APPELLANT v. GREGG SCOTT GADDIE APPELLEE
BRIEFS FOR APPELLANT: Michael R. Slaughter Louisville, Kentucky BRIEF FOR APPELLEE: D. Berry Baxter LaGrange, Kentucky
NOT TO BE PUBLISHED APPEAL FROM TRIMBLE CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 11-CI-00174
OPINION
AFFIRMING
BEFORE: MAZE, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: Deanna Jane Gaddie has appealed from the Trimble Circuit Court, Family Division's March 26, 2013 Findings of Fact, Conclusions of Law and Decree of Dissolution and the July 30, 2013 order which largely denied her motion to alter, amend or vacate findings contained in the March 16, 2013 opinion. She contests the trial court's findings related to the distribution of marital property and debts between herself and her former husband, Gregg Scott Gaddie. Following a careful review, we affirm.
Deanna and Gregg married in 1993. One daughter, Nicole, was born of the marriage; she reached the age of majority during the pendency of the instant action. Difficulties arose in the marriage leading to Gregg petitioning to dissolve the marriage on November 10, 2011. Approximately one week after being served with the dissolution petition, Deanna filed a petition seeking a domestic violence order ("DVO") alleging abuse predating the filing of the divorce action. Following a lengthy hearing on the DVO petition, the trial court entered a mutual restraining order in the dissolution action and dismissed the DVO action. No appeal was filed from the dismissal and no further action was taken on the DVO petition.
During a lengthy period of discovery and motion practice, the parties agreed on child support but could not resolve the remaining issues involving division of the marital estate and spousal maintenance. A final hearing was conducted on October 24, 2012, wherein the trial court heard testimony from the parties, Nicole, and Deanna's mother. Post-trial memoranda, proposed findings of fact and conclusions of law, and the filing of numerous motions followed on the heels of the hearing. The trial court entered its final order on March 26, 2013, dissolving the marriage, setting spousal maintenance and dividing the marital estate. Dissatisfied with the decision, Deanna filed a motion to alter, amend or vacate, challenging several aspects of the March 26, 2013 order. The trial court denied the motion by order entered on July 30, 2013, and this appeal followed.
Although not pertinent to this appeal, the trial court did grant the motion to the extent it corrected a typographical error in regard to the termination of spousal maintenance. The trial court agreed the original order incorrectly stated maintenance payments to Deanna would cease upon Gregg's remarriage or cohabitation. The order was corrected to reflect maintenance payments would cease upon Deanna's remarriage or cohabitation. No other changes were made.
Deanna's arguments are not presented in the usual fashion and, in contravention of CR 76.12(4)(c)(v), contain no supportive references to the record, nor do they provide "reference to the record showing whether the issue was properly preserved for review and, if so, in what manner."
CR 76.12(4)(c)[(v)] in providing that an appellate brief's contents must contain at the beginning of each argument a reference to the record showing whether the issue was preserved for review and in what manner emphasizes the importance of the firmly established rule that the trial court should first be given the opportunity to rule on questions before they are available for appellate review. It is only to avert a manifest injustice that this court will entertain an argument not presented to the trial court. (Citations omitted).Elwell v. Stone, 799 S.W.2d 46, 48 (Ky. App. 1990) (quoting Massie v. Persson, 729 S.W.2d 448, 452 (1987)). Failing to comply with this rule is an unnecessary risk the appellate advocate should not chance. Compliance with CR 76.12 is mandatory. See Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky. App. 2010). Although noncompliance with CR 76.12 is not automatically fatal, we are especially troubled in this matter as Deanna's original brief to this Court was stricken for her failure to comply with the mandates of CR 76.12(4)(c)(iv) and (v). Deanna's current brief corrected some of the deficiencies of the original brief, yet the latest filing still widely misses the mark. Her brief contains only bare contentions that the evidence presented was insufficient to support the trial court's findings of fact and conclusions of law, and that the trial court's reasoning was "biased," "flawed" and "inequitable." We will not consider bare allegations of error which are unsupported by evidence or argument on appeal. Stewart v. Jackson, 351 S.W.2d 53, 54 (Ky. 1961) (citations omitted). Further, although we would be well within our discretion to strike the brief or dismiss the appeal for Deanna's failure to comply with the rules, Elwell, we have chosen not to impose such a harsh sanction but will instead limit our review to a determination of whether a manifest injustice has occurred. We caution counsel that such latitude may not be extended in the future.
In a dissolution action, the well-settled standard of review of a trial court's legal findings is de novo. Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003); Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001). It is also well-settled that an appellate court may set aside a lower court's factual findings
only if those findings are clearly erroneous. And, the dispositive question that we must answer, therefore, is whether the trial court's findings of fact are clearly erroneous, i.e., whether or not those findings are supported by substantial evidence. "[S]ubstantial evidence" is "[e]vidence that a reasonable mind would accept as adequate to support a conclusion" and evidence that, when "taken alone or in the light of all the evidence, . . . has sufficient probative value to induce conviction in the minds of reasonable men." Regardless of conflicting evidence, the weight of the evidence, or the fact that the
reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnotes omitted). See also CR 52.01, Reichle v. Reichle, 719 S.W.2d 442 (Ky. 1986).
Kentucky Rules of Civil Procedure.
The inherent nature of domestic relations proceedings tends to breed hostility. Dissension is not uncommon, emotions are heightened, and the proffering of conflicting evidence is a virtual certainty. Trial courts are faced with the difficult task of weeding through emotionally-charged testimony and often slanted evidence to reach a fair and equitable result. Because of this, trial courts are afforded broad discretion in dividing marital property and marital debt, and awarding maintenance. We will not disturb a trial court's rulings on these issues in the absence of an abuse of its discretion or clearly erroneous factual findings. Powell v. Powell, 107 S.W.3d 222, 224 (Ky. 2003); Smith v. Smith, 235 S.W.3d 1, 6 (Ky. App. 2006). "An abuse of discretion generally 'implies arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision.'" Rice v. Rice, 372 S.W.3d 449, 452 (Ky. App. 2012) (citation omitted). Clearly erroneous factual findings are those not supported by substantial evidence. Mullins v. Picklesimer, 317 S.W.3d 569, 581 (Ky. 2010).
Deanna appears to allege the trial court treated her unfairly and the division of the marital estate was not divided in just proportions. Her arguments appear to be based on her belief the trial court accepted Gregg's testimony while discounting her own and/or those testifying on her behalf. As best we can glean, Deanna is contending the trial court's findings of fact related to the distribution of the marital estate are unsupported by substantial evidence. As previously noted, Deanna does not indicate whether or how her allegations are preserved for our review, nor whether they were brought to the trial court's attention. It is axiomatic that a trial court must be given the opportunity to rule before an alleged error will be reviewed on appeal. Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky. 1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010). Regardless of her failure to reveal adequate preservation of her assertions of error, our review of the record reveals the trial court's findings were supported by substantial evidence.
If the testimony before the trial court is conflicting, as in this case, we may not substitute our decision in place of the judgment made by the trial court. R.C.R. v. Commonwealth Cabinet for Human Resources, 988 S.W.2d 36 (Ky. App. 1998). Questions as to the weight and credibility of a witness are purely within the province of the court acting as fact-finder and due regard shall be given to the court's opportunity to judge the witness's credibility. CR 52.01; Sherfey v. Sherfey, 74 S.W.3d 777 (Ky. App. 2002) (overruled on other grounds by Benet v. Commonwealth, 253 S.W.3d 528 (Ky. 2008)). The test is not whether we as an appellate court would have decided the matter differently, but whether the trial court's rulings were clearly erroneous or constituted an abuse of discretion. Cherry v. Cherry, 634 S.W.2d 423, 425 (Ky. 1982).
Deanna recounts several portions of the testimony she presented at the trial as support for her argument the trial court erred in its assessment. Essentially, she contends the trial court's factual findings must be incorrect as they did not follow the testimony and evidence she presented. She appears to assert the trial court should have assessed the credibility of the witnesses and weighed the evidence presented differently.
"It is within the province of the fact-finder to determine the credibility of witnesses and the weight to be given the evidence." Uninsured Employers' Fund v. Garland, 805 S.W.2d 116, 118 (Ky. 1991) (citing Gen. Tire & Rubber Co. v. Rule, 479 S.W.2d 629 (Ky. 1972)). Further, an "[a]buse of discretion in relation to the exercise of judicial power implies an arbitrary action or capricious disposition under the circumstances, at least an unreasonable and unfair decision." Sherfey, 74 S.W.3d at 783.
The trial court utilized the correct legal standard in its review of the evidence. The court also expressed concern regarding Deanna's credibility based on her own shifting testimony and unwillingness to answer some questions in a straightforward manner. Nevertheless, the court carefully analyzed and set forth its findings of fact and conclusions of law in a well-written order. The court, in its discretion, determined the values to be placed on assets of the marital estate, the division of those assets, and the allocation of marital debts. "While some of the evidence conflicted with the trial court's conclusions, and a different trial court or a reviewing appellate court might disagree with the trial court, the standard on appellate review requires a great deal of deference both to its findings of fact and discretionary decisions." Frances v. Frances, 266 S.W.3d 754, 758 (Ky. 2008). We discern no abuse of discretion by the trial court.
In fairness, we note even a cursory review of the record reveals neither party has been completely forthcoming in this matter. Each has attempted to paint himself or herself in the best possible light, portraying themselves as victims while attempting to vilify the other party.
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Deanna has failed to show the existence of any error, and certainly there is no indication on the record before us of the existence of any manifest injustice. Therefore, for the reasons herein stated, the judgment of the Trimble Family Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Michael R. Slaughter
Louisville, Kentucky
BRIEF FOR APPELLEE: D. Berry Baxter
LaGrange, Kentucky