Opinion
NO. 2011-CA-001332-MR
06-14-2013
TRACIE MESKER APPELLANT v. JAMES MESKER APPELLEE
BRIEF FOR APPELLANT: Jonathan O. Wells LaGrange, Kentucky NO BRIEF FOR APPELLEE
NOT TO BE PUBLISHED
APPEAL FROM OLDHAM CIRCUIT COURT
HONORABLE TIMOTHY E. FEELEY, JUDGE
ACTION NO. 07-CI-00668
OPINION
REVERSING AND REMANDING
BEFORE: MAZE, TAYLOR, AND VANMETER, JUDGES. VANMETER, JUDGE: Tracie Mesker appeals from the June 29, 2011, order of the Oldham Family Court concerning payment obligations on a Ford Ranger vehicle. For the following reasons, we reverse and remand for further proceedings.
This matter stems from the divorce of Tracie and James Mesker. The parties' settlement agreement, which was incorporated by reference into the decree of dissolution, states in pertinent part:
Tracie shall have as her own the 2002 Ford Ranger pickup truck valued at $9,000.00. The parties owe Chase Bank $12,000.00 on a note and chattel mortgage on the Ford Ranger. Tracie shall refinance the Ford Ranger and put the note or assume a new note in her name only within thirty (30) days of the date of this Agreement. In the event Tracie is unable to refinance the Ford Ranger into her name only, the Ford Ranger shall become the property of James free and clear of any claim of Tracie and James shall pay the mortgage to Chase Bank according to its terms and $2,000 to Tracie.
Tracie was unable to refinance the Ford Ranger, so James gained possession of it and the accompanying mortgage. In October 2009, the parties were before the trial court on a post-decree motion concerning James' failure to pay the debt on the Ford Ranger. Tracie was never dropped from the lien note and was being contacted by the creditor for payment on the defaulted loan. By order entered October 15, 2009, the court held as follows:
The Court will not hold Mr. Mesker in contempt. However, the Court will require Mr. Mesker to hold Ms. Mesker harmless from any adverse affect of the loan default. The Court orders him to pay the debt to Chase Auto Finance or in the alternative negotiate with the creditor to remove Ms. Mesker's name from the loan default. Failing the above, Mr. Mesker shall remain responsible for any and all cost incurred by Ms. Mesker in clearing up the loan default, as well as any proven financial cost directly attributable to the default's effect on her credit rating.
The parties were before the trial court in January 2010 regarding the unpaid balance. Tracie had negotiated with the creditor a reduced sum in the amount of $3,200, based on timely payments. By order entered January 21, 2010, the court held James in contempt and permitted him to defer his jail sentence by making timely payments to Tracie to satisfy the debt agreement she had negotiated. The court ordered: "The first of the month payments shall continue for fourteen (14) months, or until the agreed upon settlement amount with Chase Bank is paid in full." The order reflects that if James made all payments as ordered, the total amount of $3,200 would satisfy the agreement with the creditor.
The parties were before the trial court again in October 2010. At that time, James had made late payments and had also missed a payment. During the hearing, counsel for Tracie stated that the agreement with the creditor had fallen through due to James' late payments. Tracie's counsel introduced a letter from the creditor showing that the new balance on the debt had increased to $3,639.73. The court ordered on October 22, 2010 that until the debt was paid in full, James was to pay Tracie $200 by the first of each month.
In May 2011, the parties reappeared in court due to James' failure to pay as ordered. Tracie asserted that the amount due was $2,341.03 plus interest at 9.82% per annum. James in turn argued that he had paid $3,200 as ordered in January 2010, thereby satisfying the debt balance. Tracie reiterated that the agreement with the creditor had defaulted because of James' late payments, causing the full balance to be reinstated. Tracie pointed to the court's October 2010, order requiring the debt to be paid in full. On June 29, 2011, the trial court entered an order finding that Tracie had failed to provide notice that the agreement with the creditor had defaulted. The court found that in January 2010, James was ordered to pay the amount due and owing at that time and that he had complied with that order. Though James was late in several payments, the court held that he had satisfied his responsibility for the debt because he had made all payments as required by the court. This appeal followed.
James did not file an appellate brief. Pursuant to Kentucky Rules of Civil Procedure (CR) 76.12(8)(c)(i), if the appellee fails to file a brief, an appellate court accepts the appellant's statement of the facts and issues as correct. If those facts conflict with findings of fact by the trial court, the appellate court may accept them only if it can say that the trial court's findings are clearly erroneous. Whicker v. Whicker, 711 S.W.2d 857, 858 (Ky.App. 1986) (citations omitted).
CR 52.01 provides 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." A factual finding is clearly erroneous if not supported by substantial evidence, which is evidence that a reasonable mind would accept as adequate to support a conclusion, when taken alone or in light of all the evidence. Brooks v. Brooks, 350 S.W.3d 823, 825 (Ky. App. 2011) (citations omitted).
Kentucky Rules of Civil Procedure.
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Tracie argues that the trial court's finding that she allowed the agreement with the creditor to default without notice to the court or James was erroneous. We agree.
During the October 2010, hearing, counsel for Tracie stated that the agreement with the creditor had defaulted due to James' late payments. At that time, Tracie's counsel submitted a letter from the creditor stating that the new balance on the debt was $3,639.73. No one disputes that James' failure to timely pay caused the agreement to default. By the time of the June 2011, order, James had paid a total of $3,200; however, this amount did not satisfy the debt since $2,341.03 remained unpaid. The trial court's finding that Tracie allowed the agreement to default without notice to the court or James was erroneous since no substantial evidence exists to support that finding. The trial court held Tracie liable for the remaining debt based on this erroneous factual finding.
We disagree with the court's decision to absolve James from financial responsibility on the Ford Ranger. The record clearly shows that James was responsible for the debt and was continually late in making his payments, causing the agreement with the creditor to default. The record is clear that James is responsible for any and all cost incurred by Tracie in resolving the loan default, and that Tracie is to be held harmless from any adverse effect of the loan default.
Accordingly, the Oldham Family Court's order is reversed and this case is remanded to that court with instructions to hold James responsible for the debt in the amount of $2,341.03 plus interest at 9.82% per annum.
ALL CONCUR. BRIEF FOR APPELLANT: Jonathan O. Wells
LaGrange, Kentucky
NO BRIEF FOR APPELLEE