Opinion
NO. 2013-CA-001214-MR NO. 2013-CA-001253-MR
04-10-2015
JILL LEANN STANLEY, F/K/A LEE APPELLANT/CROSS-APPELLEE v. JOHN DAVID LEE APPELLEE/CROSS-APPELLANT
BRIEFS FOR APPELLANT: Jill Leann Stanley, f/k/a Lee, Pro se Louisville, Kentucky BRIEF FOR APPELLEE: Steven D. Yater Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. BAILEY TAYLOR, JUDGE
ACTION NO. 08-CI-504095
OPINION
AFFIRMING
BEFORE: COMBS, D. LAMBERT, AND VANMETER, JUDGES. VANMETER, JUDGE: Jill Leann Stanley (f/k/a Lee) appeals, and John David Lee cross-appeals, from the Jefferson Circuit Court's order entered June 21, 2013. After a review of the record and applicable law, we affirm.
John and Jill were married in July 1991 and separated in November 2008. The parties divorced via a limited decree of dissolution on April 22, 2009. In an order dated June 17, 2011, the original trial court judge ordered the parties to split evenly the Kentucky State tax debt from a 2007 audit in an amount to be determined by an accountant John hired. No specific amount due was mentioned in the judgment. That judgment was declared final and appealable, but neither party appealed. Once the amount due was determined, John filed a motion for a judgment in the amount of $13,258.03 for the 2007 tax debt. He subsequently filed an affidavit for non-wage garnishment with the court, and presented that same affidavit to Jill's bank, which froze her account. Jill filed a motion to quash the garnishment, which the trial court denied in its June 21, 2013, order. From that ruling, Jill appeals.
"Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." CR 52.01. However, a "trial court's legal conclusions are reviewed de novo as an issue of law." Smith v. Smith, 450 S.W.3d 729, 734 (Ky. App. 2014).
Kentucky Rules of Civil Procedure.
Jill argues that the trial court never entered a judgment for a specific amount of tax debt owed, and without a judgment ordering her to pay a sum certain, John cannot obtain an order of garnishment. We disagree. The record shows Jill was the one who initially requested that the 2007 tax debt be split evenly between the parties. John agreed, and the trial court entered a judgment accordingly. Jill did not appeal that judgment and is now barred from challenging its validity. Regarding the garnishment order, KRS 425.501(1) states:
Kentucky Revised Statutes.
Any person in whose favor a final judgment in personam has been entered in any court of record of this state may, upon the filing of an affidavit by him or his agent or attorney in the office of the clerk of the court in which the judgment was entered, and in the same cause in which said judgment was obtained showing the date of the judgment and the amount due thereon, and that one (1) or more named persons hold property belonging to, or are indebted to, the judgment debtor, obtain an order of garnishment to be served in accordance with the Rules of Civil Procedure.KRS 425.501(1) does not explicitly require that the underlying judgment name a specific dollar amount in order to obtain an order of garnishment, and Jill has directed this court to no case law in support of her contention. Here, the trial court's June 17, 2011, order directed the parties to split the tax debt evenly, in an amount as determined by John's accountant. We believe this sufficient to constitute a judgment in John's favor that he may enforce by way of a garnishment order.
In his cross-appeal, John argues that because the trial court destroyed Dr. Crumbo's records which were originally submitted under seal, KRS 422.240(1) now requires the court to replenish destroyed evidence. In July 2010, the court held a trial to determine various issues, including matters concerning the parties' minor children. At this trial, John attempted to introduce medical records from the children's former psychologist, Dr. Ginger Crumbo, but was denied. The trial court judge at the time destroyed the subpoenaed information from Dr. Crumbo, finding it irrelevant for John's purpose of proving that Dr. Crumbo was biased against him. In April 2013, John filed a motion to replenish the destroyed records pursuant to KRS 422.240(1). The trial court denied his motion in its June 21, 2013, order, finding that the original trial court judge had already found the records to be irrelevant.
Jill has not filed an appellee's brief with this court in reply to John's cross-appeal. Under these circumstances, the provisions of CR 76.12(8)(c) permit the panel to reverse the trial court's order if the appellant's brief reasonably appears to support such a result. We do not believe John's brief justifies the reversal he seeks.
--------
KRS 422.240(1) states:
If the records or papers of any court are lost, destroyed, defaced, or obliterated, the court shall appoint a commissioner, who shall have power and authority to fix on a convenient place to meet for the purpose of hearing evidence in regard to the lost records or papers, giving reasonable public notice thereof.John claims the "shall" language in this statute requires the court to appoint a commissioner to determine whether the medical records need to be replaced. We do not believe this statute applies in this situation. At the time, the original trial court judge found these records to be irrelevant since John wanted the records to prove that Dr. Crumbo was biased against him. The trial court only destroyed the records because they were irrelevant. John has not presented a new rationale for these records to be introduced, and we fail to see any unwarranted bias against him by Dr. Crumbo. We do not believe KRS 422.240(1) applies where the records have been destroyed because the court has previously deemed them irrelevant. Hence, we find no error in the court's decision to deny John's motion to replace the records.
For the foregoing reasons, the order of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Jill Leann Stanley, f/k/a Lee, Pro se
Louisville, Kentucky
BRIEF FOR APPELLEE: Steven D. Yater
Louisville, Kentucky