Opinion
NO. 2011-CA-000714-MR
12-21-2012
IGOR MINTCHENKO AND RHONDA DEATON APPELLANTS v. VITALI POPKHADZE AND MARIA POPKHADZE APPELLEES
BRIEFS FOR APPELLANTS: Ellen M. Longshore Alexandria, Kentucky Christopher K. Herron Danville, Kentucky BRIEF FOR APPELLEES: Richard Clay Danville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM BOYLE CIRCUIT COURT
HONORABLE DARREN W. PECKLER, JUDGE
ACTION NO. 10-CI-00378
OPINION
AFFIRMING
BEFORE: CAPERTON, STUMBO AND THOMPSON, JUDGES. STUMBO, JUDGE: Igor Mintchenko and Rhonda Deaton appeal from an Order of the Boyle Circuit Court granting a Declaratory Judgment in favor of Vitali and Maria Popkhadze. Mintchenko and Deaton argue that the circuit court improperly concluded that a Decree of Dissolution terminated Mintchenko's right of survivorship on a parcel of real property jointly owned by Mintchenko and his former and now deceased wife Irina Ilina. We find no error, and accordingly affirm the Order on appeal.
The facts are not in controversy. Mintchenko and Ilina were married, and purchased a parcel of real property situated in Danville, Kentucky. About five weeks after obtaining title to the parcel as tenants by the entirety with rights of survivorship, Mintchenko and Ilina filed a Separation Agreement and Property Rights Settlement in Boyle Family Court as part of a pending dissolution of marriage proceeding. That Agreement, which was subsequently incorporated into a Decree of Dissolution, provided that the real estate "shall become the sole and absolute property of the Wife and she shall assume indebtedness against the property; Husband agrees to execute any documents reasonably necessary to effectuate the transfer of this property upon either payoff or refinance of the existing loan with Central Kentucky Federal."
Ilina took possession of the property, but never paid off or refinanced the existing loan. She died approximately seven years later on October 16, 2009.
On June 25, 2010, Mintchenko executed a quitclaim deed on the parcel in favor of Deaton. Thereafter, the Popkhadzes filed the instant action against Mintchenko as heirs of Ilina. The filing of this action apparently followed a probate proceeding which is not contained in the appellate record. In the instant action, the Popkhadzes sought to quiet title in their favor, and demanded damages for trespass, conversion and fraud.
The matter proceeded in Boyle Circuit Court, with the Popkhadzes filing a motion and memorandum for partial summary judgment. Relying on Nelson v. Mahurin, 994 S.W.2d 10 (Ky. App. 1998), the circuit court characterized the issue before it as "whether the survivorship provision of the deed to defendant Igor Mintchenko at his late, former wife, Irina Ilina, supersedes the final divorce decree of this court between them entered January 10, 2002." That is to say, the court sought to determine whether the divorce decree's provision vesting title with Ilina, or Mintchenko's survivorship interest under the deed, were controlling. The court subsequently characterized the partial summary judgment motion as a motion for a declaratory judgment. On March 31, 2011, it rendered an Order concluding that Nelson operated to hold the provisions of the divorce decree as superior to Mintchenko's survivorship interest under the deed. The result of this holding was a determination that at the time of Ilina's death, title to the property passed to Ilina's estate and the quitclaim deed from Mintchenko to Deaton was without legal effect. This appeal followed.
Mintchenko and Deaton now argue that the circuit court erred in concluding that the terms of the divorce decree, which required Mintchenko to transfer title to Ilina at such time the mortgage was refinanced, superceded Mintchenko's right of survivorship under the deed. They maintain that Ilina never received Mintchenko's undivided interest in the parcel since Ilina never paid off the mortgage or refinanced the loan in accordance with the terms of the divorce decree. They also argue that the circuit court improperly ordered a supersedeas bond far exceeding the amount allowable under the civil rules, and incorrectly ruled that the issue of the Popkhadzes' standing should be addressed in the probate court proceeding rather than herein. Mintchenko and Deaton contend that the circuit court improperly failed to consider Mintchenko's alleged contributions to mortgage payments, insurance and other costs; that Mintchenko was the rightful owner because Ilina failed to perform her part of the separation agreement executed nine years earlier; that Deaton is a bona fide purchaser; or, in the alternative, that the divorce only changed the tenancy in the entirety to a tenancy in common. In sum, they argue that the quitclaim deed from Mintchenko to Deaton had legal effect, and that the circuit court erred in failing to so rule.
Mintchenko and Deaton make several arguments requiring reference to the circuit court record and/or the probate proceeding. While the appellate record now before us contains the circuit court pleadings, Mintchenko and Deaton did not designate the record under Kentucky Rules of Civil Procedure (CR) 75 and we do not have the depositions and videotape or DVD record, and are lacking at least some of the circuit court's orders. For example, Mintchenko and Deaton now argue that the supersedeas bond of $120,000 was excessive, but the Order imposing that bond is not in the appellate record. At one point in the circuit court record, the Clerk of the Boyle Circuit Court notes that there is a video record, but states that "[t]here were no videos or Depositions designated in this appeal." Additionally, Mintchenko and Deaton have not complied with the CR 76.12(4)(c)(v), which requires a statement at the beginning of the written argument of whether each issue was preserved and, if so, in what manner. CR 76 requires citation to those portions of the record which support the argument.
We "are required to assume that any evidence in the record not before us supports the findings of the lower court." Colonial Life & Acc. Ins. Co. v. Weartz, 636 S.W.2d 891 (Ky. App. 1982) (overruled on other grounds by Mifflin v. Mifflin, 170 S.W.3d 387 (Ky. 2005)). Additionally, the failure to demonstrate that the issues were preserved, and to cite to the record in support of the argument, allows us to summarily affirm the trial court. Skaggs v. Assad, By and Through Assad, 712 S.W.2d 947 (Ky. 1986); Pierson v. Coffey, 706 S.W.2d 409 (Ky. App. 1985).
Arguendo even if the full record including depositions and videotapes were before us, and if Mintchenko and Deaton had cited to that record in their written argument, we would find no error in the circuit court's reliance on Nelson, supra. Nelson held in relevant part that by operation of law, a decree of dissolution terminates the divorcing spouses' tenancy by the entirety and concomitant right of survivorship to the entire estate. In its Order granting a declaratory judgment, the Boyle Circuit Court found that Nelson is controlling herein, and we would find no error in that conclusion.
For the foregoing reasons, we affirm the Order of the Boyle Circuit Court.
ALL CONCUR BRIEFS FOR APPELLANTS: Ellen M. Longshore
Alexandria, Kentucky
Christopher K. Herron
Danville, Kentucky
BRIEF FOR APPELLEES: Richard Clay
Danville, Kentucky