Opinion
NO. 2016-CA-001421-MR
02-23-2018
JAMES R. MOORE II APPELLANT v. SVETLANA A. MOORE APPELLEE
BRIEF FOR APPELLANT: William D. Tingley Louisville, Kentucky BRIEF FOR APPELLEE: Richard H. Shuster Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE A. CHRISTINE WARD, JUDGE
ACTION NO. 15-CI-500600 OPINION AND ORDER
DISMISSING
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BEFORE: KRAMER, CHIEF JUDGE; JOHNSON AND MAZE, JUDGES. KRAMER, CHIEF JUDGE: James R. Moore II appeals from the final judgment of the Jefferson Family Court in which the court resolved the issue of property division in the parties' dissolution of marriage action. On appeal, James claims the family court erred by ordering the sale of the marital home to satisfy its judgment for Svetlana's 11% marital interest in the home, amounting to $17,619.69 therein.
We dismiss the appeal because there is not an actual case or controversy for us to decide. Consequently, we lack jurisdiction.
Factual and Procedural Background
James and Svetlana were married in February 2005. No children were born of this marriage. The parties jointly owned the marital residence located at 3722 Stanton Boulevard, Louisville, Kentucky. James, however, claimed a non-marital interest, because he and his father originally purchased the home in June 1998. James testified that he paid a down payment on this home of $8,000.00, which he got from an inheritance, and paid on the mortgage by himself for some time. Following the marriage, in April 2012, the parties refinanced the home. James quitclaimed the house on Stanton Boulevard to both he and Svetlana in joint survivorship.
A few years later, James and Svetlana were divorced. The family court found that Svetlana had an 11%, or $17.619.69 marital interest in Stanton Boulevard and relevant to this appeal, in the final judgment, ordering that:
Refinance and Equalization: Petitioner, JAMES MOORE, shall refinance the property located at 3722 Stanton Blvd, Louisville, Kentucky within ninety (90) days of entry of this Order. Petitioner shall pay Respondent, SVETLANA MOORE, the sum of $17,619.69 (SEVENTEEN THOUSAND SIX HUNDRED AND NINETEEN DOLLARS AND SIXTY-NINE CENTS) representing her portion of equity in the home within ten (10) days of the refinancing of the home. If Petitioner, is unable to refinance the home within ninety (90) days of entry of this Order, the home shall be listed for sale in order to satisfy payment to Respondent for her portion of equity.
James timely filed an appeal on this portion of the judgment.
Analysis
In this case, it is not disputed that the family court properly followed the three-step process for dividing the property as set forth in KRS 403.190. On appeal, James makes two arguments. He argues (1) that the family court did not have the authority to order him to sell the property to satisfy the family court's judgment restoring Svetlana's 11% interest (i.e. $17, 619.69); and (2) James argues that the family court abused its discretion in doing so.
Kentucky Revised Statute.
We never get to the resolution of these arguments, however, because the order to sell is contingent on whether James satisfies the first condition of refinancing. The record does not reflect that he has made any attempts to satisfy the first condition of the order. Without that evidence in the record, there is only an order for a contingency to sell the property. Accordingly, there is no justiciable case before this court. "It has been long established that judicial power may constitutionally extend to only justiciable controversies. Therefore, an appellate court is generally without jurisdiction to reach the merits where no 'present, ongoing controversy' or case in controversy exists as the court is unable to grant meaningful relief to either party." Cabinet for Health & Family Servs. v. Courier- Journal, Inc., 493 S.W.3d 375, 382 (Ky. App. 2016) (internal citations omitted) (quoting Dep't of Corr. v. Engle, 302 S.W.3d 60, 63 (Ky. 2010)).
The record does not reflect that James could satisfy this judgment through some other means other than refinancing the home. --------
In this case, there is no "present, ongoing controversy" because there is no evidence in the record to support whether refinancing has been successful or not, or even attempted. James is asking this Court to make a speculation on whether the family court had the authority to order him to sell the home. Therefore, this is a premature argument and would require this court to render an advisory opinion.
The existence of an actual controversy respecting justiciable questions is a condition precedent to an action . . . . The court will not decide speculative rights or duties which may or may not arise in the future, but only rights and duties about which there is a present actual controversy presented by adversary parties, and in which a binding judgment concluding the controversy may be entered.Nordike v. Nordike, 231 S.W.3d 733, 739 (Ky. 2007) (quoting Veith v. City of Lousiville, 355 S.W.2d 295, 297 (Ky. 1962)).
The second argument that James asserts is that the family court abused its discretion in ordering the sale of the property. However, this issue is moot for the above-stated reasons.
Conclusion
In light of the foregoing, we have nothing to review on appeal, and accordingly, this appeal is DISMISSED.
ALL CONCUR. ENTERED: __________
/s/ Joy A. Kramer
CHIEF JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky BRIEF FOR APPELLEE: Richard H. Shuster
Louisville, Kentucky