Opinion
NO. 2014-CA-001260-MR
12-09-2016
TERRY DON HOLT APPELLANT v. KATHERINE HOLT APPELLEE
BRIEF FOR APPELLANT: Ryan K. Rice Greenville, Kentucky BRIEF FOR APPELLEE: Ralph D. Vick Greenville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MUHLENBURG CIRCUIT COURT
HONORABLE BRIAN WIGGINS, JUDGE
ACTION NO. 14-CI-00019 OPINION
AFFIRMING
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BEFORE: COMBS, NICKELL AND VANMETER, JUDGES. NICKELL, JUDGE: Terry Don Holt has appealed from three orders of the Muhlenberg Circuit Court in his dissolution of marriage action which denied a requested continuance of the final hearing, restored non-marital funds to his ex-wife, Katherine Holt, and declared Katherine to be the primary residential parent of their minor son. Following a careful review, we affirm.
Terry and Katherine were married in 1999 and welcomed a son in 2005. Difficulties in the marriage arose, leading to Katherine filing for dissolution of the union on January 17, 2014. Due to the execution of a prenuptial agreement, the only contested issues in the divorce related to a diamond acquired after the marriage, restoration of non-marital funds to Katherine, and the care, custody and control of the minor child. A pendente lite hearing was conducted shortly after the filing of the petition, following which Katherine was granted temporary custody of the child, Terry's temporary child support obligation was set, and it was agreed trial would commence on May 7, 2014. Approximately three weeks later, Terry filed a notice of an independent medical examination of Katherine focusing primarily upon her mental health and stability. Pursuant to the notice, Katherine presented herself for the examination on February 24, 2014.
On March 17, 2014, Terry moved the trial court for a continuance of the May 7 trial date. The request was premised upon his desire to attempt reconciliation of the marital relationship. In response, Katherine informed the trial court the couple had undergone unsuccessful reconciliation counseling which had been terminated by agreement. Terry's request to continue the trial was denied.
Approximately three weeks later, Terry's counsel moved and was granted permission to withdraw from the case. As a result, the trial court continued the hearing for approximately sixty days to allow Terry to obtain substitute counsel. The trial was rescheduled for July 1, 2014. Terry's new counsel entered an appearance on May 9, 2014.
Less than one week before the scheduled trial date, Terry again moved for a continuance. In his motion, Terry indicated he had retained the services of Dr. Robert B. Fane to conduct a psychological examination of the parties' son but Dr. Fane had indicated the need to examine both parents to properly diagnose any mental or psychological issues exhibited by the child. Although Dr. Fane had previously examined the boy, Terry stated Katherine refused to make the child available for a second examination, thereby necessitating his request for a continuance. Terry expressed his intent to call Dr. Fane as an expert witness at the trial, but without the ability to examine all of the parties, Dr. Fane would be unable to make appropriate determinations or diagnoses and thus, would have nothing about which to testify. Terry argued he would be severely prejudiced if forced to try the matter without the assistance and testimony of his expert.
Katherine opposed the continuance on multiple grounds. She indicated she had been informed on June 13 that an appointment with Dr. Fane had been scheduled and, in an effort to stave off any delays of the trial, cancelled her pending travel plans—of which Terry was aware—to make the child available for the initial examination on June 19. Katherine reminded the trial court she had previously undergone an independent medical examination at Terry's behest and questioned the need for a second. She argued Terry was simply dissatisfied with the results of her first examination and was seeking a second opinion in hopes the results would be different. She believed Terry had ample opportunity to obtain any and all evidence he desired and his failure to timely do so was not a valid reason to continue the trial.
On June 30, 2014, the trial court entered an order denying Terry's request to continue trial. Therein, the trial court noted the motion was not verified as required by CR 43.03, nor was a supporting affidavit included with the filing, thereby warranting denial of the motion. Further, the trial court indicated its belief Terry had not acted with due diligence in obtaining Dr. Fane's services and opinions as he was aware of the potential psychological issues related to the child for several years yet waited until only a short time prior to the scheduled trial date to attempt to obtain a professional opinion on the matter. Additionally, the trial court concluded the delay would likely be significantly longer than averred in Terry's motion, resulting in substantial prejudice to Katherine. Finally, the trial court noted the latest motion constituted Terry's third request for continuance of a previously agreed upon trial date.
Kentucky Rules of Civil Procedure. --------
The matter proceeded to trial on July 1, 2014. At the beginning of trial, Terry filed another motion seeking a continuance or, alternatively, to exclude testimony from a late-disclosed expert witness for Katherine. No ruling on this motion appears in the record, but the expert did not, in fact, testify at trial. At the trial's conclusion, the court entered an order dissolving the marriage. A subsequent order was entered regarding division of personal property and restoration of non-marital property. Pertinent to this appeal, the order required Terry to pay Katherine $6,260.39 for her non-marital contribution to improvement projects to a prior marital home. Finally, on July 14, 2014, the trial court entered its supplemental findings of fact, conclusions of law and order regarding custody of the parties' minor son which granted joint custody and designated Katherine as the primary residential parent. This appeal followed.
Terry raises three allegations of error in seeking reversal. First, Terry argues under the factors set forth in Snodgrass v. Commonwealth, 814 S.W.3d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)), he was entitled to a continuance and the trial court abused its discretion in denying his motion for same. Next, he contends the trial court's order restoring Katherine's financial contributions to the former marital residence was in error as it was unsupported by findings of fact. Finally, Terry argues the trial court erroneously failed to give equal consideration to both parents in deciding on custody. We address each allegation in turn.
First, Terry argues the trial court incorrectly characterized his motion when it relied upon CR 43.03 as grounds for denial. Additionally, he contends a proper analysis of the seven-factor test set forth in Snodgrass reveals he was entitled to his requested continuance and the trial court erred in not so finding. We disagree.
When tasked with determining the propriety of a trial court's denial of a continuance, our standard of review is whether the court abused its discretion. Stallard v. Witherspoon, 306 S.W.2d 299, 300 (Ky. 1957). The trial court's discretion has been described as "a liberty or privilege allowed to a judge, within the confines of right and justice, to decide and act in accordance with what is fair, equitable, and wholesome as determined by the peculiar circumstances of the case[.]" City of Louisville v. Allen, 385 S.W.2d 179, 182 (Ky. 1964) (overruled on other grounds by Nolan v. Spears, 432 S.W.2d 425 (Ky. 1968)) (quoting In re Welisch, 18 Ariz. 517, 163 P. 264, 265 (1917)). An abuse of discretion occurs when a trial court's decision is "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
We are unable to discern any abuse of discretion. As correctly found by the trial court, CR 43.03 requires a motion for continuance of trial due to absence of evidence to be accompanied by an "affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been made to obtain it." No affidavit of any kind appears on the record. This omission is fatal to Terry's motion. "A statement of the facts the absent witness would relate upon trial should be incorporated in the affidavit and this requirement is expressly provided for by CR 43.03. Compliance is necessary before a continuance may be granted. See Clay, CR 43.03, Author's Comment 2; Harlan-Central Coal Co. v. Gross, 298 Ky. 540, 183 S.W.2d 550." Walker v. Farmer, 428 S.W.2d 26, 28 (Ky. 1968). Without a supporting affidavit, the trial court was without adequate basis to grant the requested relief and properly denied the motion.
While Terry attempts to divert attention from his failure to include a supporting affidavit by alleging his motion was not made based on the absence of evidence but rather on the existence of evidence, his argument falls flat. Although Terry averred he had employed the services of an expert witness to testify on his behalf, and thus had evidence to produce, his position clearly fails to recognize the sole reason given for requesting a trial continuance was to enable the expert to gather sufficient information about which he could testify. Terry had no more than an expectation of a favorable report from the expert. We cannot countenance an argument that merely hiring an expert somehow relieves a litigant from following the clear mandates of CR 43.03.
Because the trial court correctly concluded Terry's motion was improper due to his failure to comply with CR 43.03, an in-depth examination of the Snodgrass factors is unnecessary. Nevertheless, we have reviewed the factors and do not believe they lend credence to Terry's position. Based on the record, Terry's perception of the strength of his position is inflated and we cannot fault the trial court's analysis. There was no error.
Finally, Terry's other two arguments are not properly preserved for our review. CR 76.12(4)(c)(v) requires "at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner." In his brief, Terry alleges his final issues were "properly preserved for review on appeal by way of Notice of Appeal filed on July 31, 2014 with the Muhlenberg Circuit Court in civil action number 14-CI-00019." However, contrary to Terry's assertion, merely filing a notice of appeal is insufficient to preserve an error for our review.
A notice of appeal, when filed, transfers jurisdiction of the case from the circuit court to the appellate court. City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). The notice of appeal does not serve to apprise the trial court of the alleged errors nor give it the opportunity to make corrections.
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 (Ky. App. 1987) (overruled on other grounds by Conner v. George W. Whitesides Co., 834 S.W.2d 652 (Ky. 1992)).
Terry has not requested palpable error review pursuant to CR 61.02. Our Supreme Court has made it clear a party "may invoke CR 61 .02 and claim palpable error if its substantial rights have been affected and a manifest injustice has resulted from the error." Childers Oil Co., Inc. v. Adkins, 256 S.W.3d 19, 27 (Ky. 2008) (emphasis added). But, as Childers states, a party must "invoke" the rule. Terry did not invoke the rule here. "Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review . . . unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008), as modified on denial of reh'g (May 22, 2008) (emphasis added; applying RCr 10.26). We must ask ourselves then, whether there are extreme circumstances in this case amounting to a substantial miscarriage of justice. We conclude there are not. Thus, Terry is not entitled to the requested relief.
For the foregoing reasons, the judgment of the Muhlenberg Circuit Court is AFFIRMED.
ALL CONCUR. BRIEF FOR APPELLANT: Ryan K. Rice
Greenville, Kentucky BRIEF FOR APPELLEE: Ralph D. Vick
Greenville, Kentucky