Opinion
NO. 2011-CA-002215-MR
04-26-2013
WOLODYMYR CYBRIWSKY APPELLANT v. CATHERINE CYBRIWSKY APPELLEE
BRIEF FOR APPELLANT: Wolodymyr Cybriwsky Prestonsburg, Kentucky BRIEF FOR APPELLEE: Fred E. Fugazzi, Jr. Lexington, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JOHNSON CIRCUIT COURT
HONORABLE JANIE MCKENZIE-WELLS, JUDGE
ACTION NO. 06-CI-00191
OPINION
AFFIRMING
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. CLAYTON, JUDGE: Wolodymyr Cybriwsky appeals from the findings of fact, conclusions of law, and judgment entered on August 31, 2011, by the Johnson Family Court; he also appeals from the November 8, 2011 amended order resulting from his motion to alter, amend, or vacate. Wolodymyr maintains that the family court erred in its findings of fact and improperly denied his motion to alter, amend, or vacate. After our review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2006, Catherine filed a petition for dissolution of marriage. Wolodymyr, who is an attorney, was represented by counsel for part of the litigation, but since October 20, 2010, he has represented himself. During the pendency of the action, Catherine filed six motions to compel Wolodymyr and two show cause motions.
The trial took place on June 9, 2011. Wolodymyr did not appear nor did he send someone to appear on his behalf. Nonetheless, he had received proper notice about the trial. Catherine, a real estate appraiser and an evaluation expert, testified. Additionally, Catherine introduced considerable evidence including Wolodymyr's deposition and the deposition of David V. Craig. Craig explained in his deposition that a request for innocent spouse relief was filed with the Internal Revenue Service for Catherine's benefit.
The family court entered findings of fact, conclusions of law, and a decree on August 31, 2011. Then, on September 9, 2011, Wolodymyr filed a motion to alter and vacate the judgment pursuant to Rule 59(e) of the federal rules of civil procedure. Notwithstanding Wolodymyr's use of the federal rules of procedure rather than state rules of procedure, the family court responded to the motion and, for the most part, denied it. It did, however, clarify the language regarding visitation and amended the division of the SEP-IRA plan since the issue was legal. The order was entered on November 8, 2011. Wolodymyr now appeals both the August 31, 2011 judgment and the November 8, 2011 order.
STANDARD OF REVIEW
For a trial without a jury, Kentucky Rules of Civil Procedure (CR) 52.01 states, in part, that "[f]indings 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." Therefore, an appellate court does not have the authority to disturb the findings of a family court in dissolution of marriage cases unless those findings are clearly erroneous. Downing v. Downing, 45 S.W.3d 449, 453-54 (Ky. App. 2001). Furthermore, findings of fact are not clearly erroneous if supported by substantial evidence. See Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998). Substantial evidence is that which has sufficient probative value to induce conviction in the mind of a reasonable person when taken alone or in light of all the evidence. Id.
The standard of review used by an appellate court to review a trial court's decision to grant or deny CR 59.05 motions is an abuse of discretion standard. See Batts v. Illinois Central Railroad Co., 217 S.W.3d 881, 883 (Ky. App. 2007). The test for abuse of discretion is whether the trial court's decision is arbitrary, unreasonable, unfair, or unsupported by legal principles. Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). With these standards in mind, we now address this case.
ANALYSIS
In his appellate brief, Wolodymyr argues that the family court's findings were in error regarding his visitation with the children, the disposition of the home, the treatment of the SEP-IRA, the allocation of the automobiles, the valuation of the law practice, the payment of the accountant's fee, the division of the household items, and the award of maintenance. Significantly, Wolodymyr made these arguments in the motion to amend and in his appellate brief.
Catherine responds to Wolodymyr's arguments by observing that he chose not to participate at the trial and, therefore, offered no proof to these allegations at trial. She maintains that the time for challenging the findings was during the trial, and Wolodymyr cannot now, on appeal, contest these findings.
In the family court's order following Wolodymyr's CR 59.05 motion, the trial court stated that Wolodymyr chose not to participate at the hearing and cannot now raise arguments that should have been raised at trial. Furthermore, Wolodymyr's arguments that he makes were not sworn to nor subject to cross-examination by Catherine. The family court then patiently addressed each argument and its lack of evidentiary proof at trial. Other than clarifying the visitation and addressing a legal issue about the SEP-IRA, the family court denied Wolodymyr's post-trial motion.
In our review of the matter, we concur with the family court's assessment that because Wolodymyr did not participate at trial, he cannot now rectify this failure by proffering these arguments to the appellate court. Because Wolodymyr did not participate in the trial, on his own volition, no evidence exists for an appellate court to consider.
A review of the record adequately supports that Catherine presented a sufficient and convincing evidence to support her position before the family court. Thus, the family court had sufficient evidence to make appropriate findings.
Wolodymyr claims that the family court made a number of errors when it made the findings. Yet, at no time did Wolodymyr make a motion under CR 52.04 for the family court to make new findings. Pursuant to this civil rule, "[a] final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02." CR 52.04. As stated in Adkins v. Adkins, 574 S.W.2d 898, 900 (Ky. App. 1978), "no judgment shall be reversed for failure to make such findings unless the failure is brought to the court's attention in the form of a written request or motion for said findings." Wolodymyr never made such a motion. This procedural flaw also renders his post-decision actions without merit.
Next, we address whether the family court abused its discretion when it denied Wolodymyr's CR 59.05 motion. Given the circumstances, Wolodymyr has not demonstrated that the family court Judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. Nor do we discern that the decision could be characterized as such.
It has long been this Court's view that specific grounds not raised before the trial court, but raised for the first time on appeal, will not support a favorable ruling on appeal. Most simply put, "[a] new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999).
In fact, according to Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009), an appellate court "is without authority to review issues not raised in or decided by the trial court." The presentation of issues and facts at trial fairly apprises a Judge as to the movant's position and affords opposing counsel an opportunity to argue each ground before the Judge makes his ruling. The actions of the parties and the Judge provide the appellate court with reviewable matters. Here, Wolodymyr is attempting to subvert this necessary sequence.
The family court did not abuse its discretion when it denied Wolodymyr's motion to amend the findings. Thus, we affirm the family court's order.
Lastly, we are compelled to comment about Wolodymyr's lack of attention to the civil rules of procedure regarding the filing of appeals in Kentucky. The form and content of Wolodymyr's brief falls far short of the requirements set forth in CR 76.12. Among other things, the brief fails to follow the formatting requirements for proper margins, font, and spacing. CR 76.12(4)(a).
Additionally, under the heading "Statement of Points and Authorities," Wolodymyr cites three cases but does not pair them with his arguments for reversal or the respective pages of the brief on which the argument appears and on which the authorities are cited. CR 76.12(4)(c)(iii).
Next, in the "Statement of the Case," Wolodymyr does not cite the record to support the narrative statement. CR 76.12(4)(c)(iv). Therefore, we are left with only bare assertions as to the facts and evidence without any way of determining where (or if) this information is actually located in the record. Undoubtedly, making such a reference would be difficult since Wolodymyr did not attend the trial to present his own evidence or to dispute Catherine's evidence. According to Dennis v. Fulkerson, 343 S.W.3d 633, 637 (Ky. App. 2011), "[i]t is not the job of the appellate court to scour the record in support of an appellant['s] argument," we would have to do so and even more in the case at bar. And as noted above, we most definitely are not finders of fact.
We have wide latitude to determine the proper remedy for a litigant's failure to follow the rules of appellate procedure. Age v. Age, 340 S.W.3d 88, 97 (Ky. App. 2011). While Wolodymyr's brief clearly did not fully comply with the rule, dismissal for failure to comply with the provisions of CR 76.12 is discretionary rather than mandatory. Baker v. Campbell County Bd. of Educ., 180 S.W.3d 479, 482 (Ky. App. 2005). We chose to address the issues raised and not dismiss the appeal.
CONCLUSION
To summarize, Wolodymyr waived his right to attack the proof at trial by failing to appear. First, ample and credible evidence was provided by Catherine to the family court so that its findings of fact were supported by sufficient evidence and, thereby, not clearly erroneous. Second, the function of the Court of Appeals is to review possible errors made by the family court, but if the family court had no opportunity to hear the facts or rule on the questions in Wolodymyr's brief, there is no alleged error for this court to review. Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985). Finally, the family court did not abuse its discretion in its handling of the motion to alter, amend or vacate. Thus, the decision of the Johnson Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Wolodymyr Cybriwsky
Prestonsburg, Kentucky
BRIEF FOR APPELLEE: Fred E. Fugazzi, Jr.
Lexington, Kentucky