Opinion
2023-CA-0296-MR
08-30-2024
PATSY ROSE, IN HER OFFICIAL CAPACITY AS GUARDIAN OF THE ESTATE OF LARRY BUSSEY APPELLANT v. DIANNA PENDLEY AND HONORABLE ALLEN MCKEE DODD APPELLEES
BRIEFS FOR APPELLANT: Allison Spencer Russell BRIEF FOR APPELLEE DIANNA PENDLEY: Dennis C. Burke. BRIEF FOR APPELLEE HONORABLE ALLEN MCKEE DODD: Allen McKee Dodd.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 20-CI-501753
BRIEFS FOR APPELLANT: Allison Spencer Russell
BRIEF FOR APPELLEE DIANNA PENDLEY: Dennis C. Burke.
BRIEF FOR APPELLEE HONORABLE ALLEN MCKEE DODD: Allen McKee Dodd.
BEFORE: CETRULO, GOODWINE, AND KAREM, JUDGES.
OPINION
GOODWINE, JUDGE:
Patsy Rose, in her official capacity as guardian of the estate of Larry Bussey ("Rose") appeals from the November 22, 2022 findings of fact, conclusions of law and judgment, and March 7, 2023 order of the Jefferson Circuit Court, Family Division. After careful review, we vacate and remand.
BACKGROUND
Larry Bussey ("Larry") and Dianna Pendley ("Dianna") were married in 1995. No children were born of the marriage. During the marriage, Larry was the primary earner. He was employed by Ford Motor Company but is now retired and receives both retirement and disability income. Dianna did not work for much of the marriage and now faces health challenges as well. Both parties are in their early sixties. Dianna petitioned for the dissolution of their marriage on August 3, 2020. Initially, both parties were represented by counsel.
The family court ordered the parties to mediation on August 20, 2020. Larry moved for a final hearing on March 16, 2021. On March 29, 2021, the court set this matter for a final hearing on August 11, 2021. Upon a motion by Dianna, Larry was found in contempt for failing to comply with the court's status quo order. He was also ordered to advance Dianna's attorney's fees. The parties continued to attempt to negotiate a settlement throughout the pendency of this matter.
On July 27, 2021, Dianna filed a motion to continue the final hearing. The family court did not rule on this motion because the parties agreed to a continuance to allow for a second mediation. At that time, the parties did not request a new hearing date. Thereafter, Larry's counsel, Earl C. Mullins, Jr. ("Mullins"), moved to withdraw from the case. In his motion, Mullins informed the court the parties were planning for a third mediation. He did not give any reason for his withdrawal. The family court granted his withdrawal on January 19, 2022.
Dianna moved for a final hearing date, and on February 16, 2022, the family court set the hearing for June 3, 2022. On May 31, 2022, Larry, pro se, filed a handwritten sworn affidavit which stated:
No Lawyer[.] Need new lawyer the other lawyer is off the case[.] Pills [are] not working need the right pills[.] Mental Health in and out of Mental Health Hospitals anxiety Disorder Bipolar Disorder Depression[.]Record ("R.") at 497. Dianna filed a memorandum opposing a continuance.
The parties appeared virtually for the final hearing. Dianna was represented by Allen McKee Dodd ("Dodd"). Tracy Smith ("Smith") entered a limited appearance on Larry's behalf to argue for a continuance. She argued Larry had been in the hospital for surgery for some time in April 2022 and had continued outpatient treatment for a month thereafter. She indicated that she would need additional time to determine whether she could represent him and prepare for a final hearing. Dodd claimed he had recently been contacted by several attorneys on Larry's behalf. He informed the court he would have been amenable to a continuance had Smith contacted him a week or two before trial. The family court denied the motion and relieved Smith.
The hearing proceeded with Larry representing himself. At the outset, Larry attempted to again raise his request for a continuance. He claimed to have documentation of mental health issues, which made him unable to proceed. He described himself as "mentally unstable" due to bipolar disorder and reported he was recently admitted to a mental health hospital. Dianna objected to the admission of Larry's mental health records because they were not certified. The family court sustained the objection and again denied Larry a continuance.
During the hearing, both parties testified. Dianna presented evidence regarding three parcels of real property in Louisville, Kentucky; Marysville, Indiana; and Charleston, Indiana; eight vehicles; nine bank and investment accounts; a Stiefel Nicholas investment account; several retirement accounts belonging to Larry; Larry's disability payments; Larry's withdrawals from accounts to allege Larry dissipated marital assets; the parties' income from LMD Properties LLC; the mortgage on the parties' marital home; her attorney's fees; and her monthly expenses to support her maintenance request. She entered numerous exhibits in support of her testimony. Dodd also questioned Larry extensively regarding the exhibits. Larry disputed some of Dianna's documentation and claims during his testimony but entered no documentary evidence. When opposing Dianna's request for maintenance, he suggested that she instead remain on his health insurance, which would not be legally possible after the parties were divorced.
The family court also granted Dianna's motion to supplement the record with records from three of Larry's bank accounts after the final hearing because the documents were not available at the time of trial.
During his testimony regarding the value of the parties' marital home, Larry presented the court his cellphone screen which showed an estimate of the home's value on Zillow.com. No documentation was entered into the record. The court noted this evidence, but did not rely on it, in its order. R. at 807.
Before the entry of the family court's judgment, Rose, through counsel, moved to intervene as Larry's permanent legal guardian. She was granted guardianship in case no. 10C01-2207-GU-00084 by the Clark Circuit Court in Indiana on August 18, 2022. R. at 758. The family court granted her motion.
The court entered a thirty-six-page judgment on November 22, 2022.
As to its denial of Larry's motion for a continuance, the family court cited the factors in Guffey v. Guffey, 323 S.W.3d 369, 371 (Ky. App. 2010), and found "legal proceedings were pending for nearly two years as of the date of trial. This trial was the second trial date set in this matter due to a previous continuance." R. at 806.
The judgment includes lengthy findings of fact, primarily relying on the evidence Dianna presented at trial. The court found Larry did not dispute Dianna's evidence and/or did not provide admissible evidence as to the following: (1) the value of the Marysville property; (2) the value of the parties' vehicles; (3) the value of the parties' bank accounts; (4) whether there was a nonmarital portion of Larry's retirement account; (5) the possible nonmarital nature of the Stiefel Nicholas account; (6) his monthly expenses; (7) any nonmarital portion of the parties' real property; and (8) to refute Dianna's claim he dissipated marital assets.
Larry's mother is a joint owner of this account.
The family court awarded Dianna the marital home in Louisville and the Marysville property. Larry was awarded the Charleston property. Dianna was awarded one vehicle, and Larry retained the other vehicles. The court awarded the parties their own bank accounts. The court found Larry dissipated the funds in a retirement account, which was factored into the overall property division. The court found the Stiefel Nicholas account marital in nature and awarded it to Larry. The balance of the mortgage on the marital home was assigned to Dianna. The judgment includes a detailed chart specifying the values of assets and calculating a payment necessary for equalization. On this basis, the court ordered Larry to pay Dianna $30,549.00.
In deciding Dianna's request for maintenance, the family court considered evidence of her expenses, her lack of income, her health conditions, and Larry's income from retirement and disability. The court did not consider his expenses because Larry did not provide any documentation. The court awarded Dianna $2,000.00 per month in maintenance. The family court also ordered Larry to pay the entirety of Dianna's $53,284.75 in attorney's fees.
Both Dianna and Larry, through Rose, filed post-judgment motions under CR 59.05. Regarding this appeal, Rose argued that the family court erred in denying Larry's request for a continuance. She cites his mental health conditions as evidence that a continuance was warranted. In its order denying Rose's motion, the family court found:
Kentucky Rules of Civil Procedure.
[Larry's] counsel did not raise the issue of [Larry's] mental capacity. Only after the [c]ourt denied his request to continue the [t]rial did [Larry], while representing himself, argue that he could not go forward with the [t]rial as he was mentally unstable. ...
Only following the June 3, 2022 [t]rial, was [Larry's] mental capacity legally raised and addressed by Order for Appointment of Permanent Guardian in Clark County, Indiana. The guardianship proceeding was commenced by the same attorney who withdrew his representation prior to the [t]rial in this proceeding. Said attorney never raised an issue regarding [Larry's] competency in this action nor moved for a continuance due to [Larry's] alleged mental health issues. The [c]ourt also notes that [Larry] was able to represent himself, reference various documents, recall dates that occurred for payments and expenses, and dispute [Dianna's] home appraisal value. These behaviors further indicate his understanding and ability to meaningfully participate in this proceeding.R. at 882-83.
Elsewhere in its order on the parties' post-judgment motions, the family court awarded Dianna half of Larry's Ford pension and annuity, amounting to $1,404.10 per month in addition to its maintenance award. As to the Marysville property, the court found Dianna "maintains that [Larry] testified that the [Marysville] property is co-owned with his father, Donald Bussey." R. at 880. The court found it would be complicated for Dianna to take ownership of the property. On this basis, the court allowed Larry to retain the Marysville home and entered a common law judgment against him for $256,100.00. The court denied the parties' remaining requests.
The family court granted Larry's motion, in part, to remove a finding regarding a country club membership because the parties did not possess such a membership.
Dodd is a party to this appeal because the family court granted Dodd & Dodd Attorneys, PLLC's motion to intervene and enforce the award of attorney's fees on April 27, 2023. Dianna is now represented by separate counsel. Both filed appellee briefs.
STANDARD OF REVIEW
Division of a marital estate requires the family court to engage in a three-step process. First, each asset must be characterized as either marital or nonmarital. Smith v. Smith, 235 S.W.3d 1, 5 (Ky. App. 2006) (footnote omitted). Next, each party must be awarded his or her nonmarital property. Id. Finally, the court must divide the marital property in "just proportions." Id. The court has broad discretion in dividing marital property. Id. at 6 (footnote omitted).
However, because it is a question of law, we review the determination of whether property is marital or nonmarital de novo. Id.
We review a family court's denial of a continuance for abuse of discretion. Deleo v. Deleo, 533 S.W.3d 211, 216 (Ky. App. 2017) (citation omitted).
ANALYSIS
On appeal, Rose argues the family court abused its discretion when it (1) denied Larry's request for a continuance, (2) divided the parties' marital property, (3) awarded Dianna maintenance, and (4) ordered Larry to pay all of Dianna's attorney fees.
While the family court has discretion over whether to grant a continuance, such a decision "must be made within a legal framework so that there can be some meaningful appellate review." Id. at 217 (citation omitted). Under this framework, the court must consider the totality of the circumstances, including the following factors:
1) length of delay; 2) previous continuances; 3) inconveniences to litigants, witnesses, counsel, and the court; 4) whether the delay is purposeful or caused by the [movant];
5) availability of other competent counsel; 6) complexity of the case; and 7) whether denying the continuance will lead to identifiable prejudice[.]Guffey, 323 S.W.3d at 371 (quoting Snodgrass v. Commonwealth, 814 S.W.2d 579, 581 (Ky. 1991), overruled on other grounds by Lawson v. Commonwealth, 53 S.W.3d 534 (Ky. 2001)). We will consider the applicability of each of these factors to this matter.
Length of delay: The family court did not make a finding as to how long a continuance would delay the final hearing. However, the court found this case had been pending for almost two years. This is true but it appears from the record that the parties were actively engaged in negotiating a settlement for much of that time. In fact, the parties agreed to cancel their first hearing date to allow for negotiations. There was no hearing on the court's calendar from August 2021 until February 1, 2022 when Dianna moved for a new hearing date.
Although we have no definitive evidence of the court's schedule, the record indicates the final hearing would have been delayed by approximately four months. During those months, the family court's status quo order would remain in place. See Deleo, 533 S.W.3d at 217. "[M]ere delay in a trial alone is not a sufficient reason to deny a continuance." Id. While any delay is not ideal, this factor does not weigh against granting Larry's motion.
We acknowledge Larry was previously held in contempt for failure to comply with the status quo order.
Previous continuances: As found by the court, there was a single prior continuance, which was agreed upon by the parties to allow for mediation. This weighs in favor of granting a continuance. See Bouvette v. Bouvette, No. 2013-CA-000927-MR, 2014 WL 5064477, at *3 (Ky. App. Oct. 10, 2014); see also Sawar v. Kadir, No. 2017-CA-001849-MR, 2019 WL 1870643, *2 (Ky. App. Apr. 26, 2019).
We cite to these cases as persuasive, nonbinding authority. Kentucky Rules of Appellate Procedure ("RAP") 41(A).
Inconvenience: Neither appellee alleges any particular inconvenience, and the family court did not make any finding thereto. Anytime a hearing is rescheduled, there is some inconvenience to the parties and the court. Deleo, 533 S.W.3d at 217. However, for this to weigh against granting a continuance, "there must be some significant or substantial inconvenience, which should be demonstrated on the record." Id. (citation omitted). While we can assume Dianna may have incurred additional attorney fees in the interim, this could be remedied by an award of attorney fees. See Bouvette, 2014 WL 5064477, at *3. Without evidence of significant or substantial inconvenience to Dianna and/or the court, this factor weighs in favor of granting a continuance.
Delay purposeful or caused by Larry: Both Dianna and Dodd claim Larry's request for a continuance was a delay tactic. The family court made no such finding. However, Mullins was allowed to withdraw as Larry's counsel on January 19, 2022, giving Larry more than four months to retain new counsel. It appears Larry contacted several attorneys but did not hire any of them to represent him at the final hearing. This may be explained by his delay in contacting them. Although this delay may have been caused by his mental and/or physical health issues, it weighs against granting him a continuance. See Deleo, 533 S.W.3d at 217.
Availability of other competent counsel: Other competent counsel was unavailable but likely would have been had Larry contacted them sooner. Smith told the court she needed time to familiarize herself with the case but did not guarantee she would represent him if a continuance was granted. Because Larry's delay in contacting attorneys impacted the availability of other counsel, this factor also weighs against granting a continuance.
Complexity of the case: Before withdrawing from the case, Mullins filed a trial memorandum setting out the determination of nonmarital property and to which party the nonmarital property should be awarded, division of marital property, division of marital debt, and adjudication of both parties' contempt motions as issues for the final hearing. R. at 449. The memorandum laid out facts he planned to elicit to support his claims and listed close to thirty exhibits he intended to introduce. The record indicates Larry did not effectively raise these issues or introduce any exhibits at trial.
During the hearing, Dianna introduced extensive evidence of the parties' large and complicated marital estate. Dianna also introduced evidence to support her claim that Larry dissipated marital assets and her maintenance request. The trial court entered thorough and detailed findings of fact and conclusions of law, relying almost entirely on Dianna's exhibits. The court found Larry's mother's name was on the Stiefel Nicholas account, and his father was a joint owner of the Marysville home, indicating Larry may have had nonmarital claims to portions of those assets. This was a complex case. These are complicated, factintensive issues. This weighs in favor of granting Larry a continuance.
Identifiable prejudice: "There is inevitably an imbalance at trial when one party is represented by counsel and the other party is without counsel." Deleo, 533 S.W.3d at 218. However, a party must explain "how a later hearing in which [he] might have had representation would have rendered results different from the hearing at which [he] acted pro se." Guffey, 323 S.W.3d at 372. Here, the family court repeatedly found Larry did not dispute Dianna's evidence or present evidence supporting his own arguments. See Bouvette, 2014 WL 5064477, at *4. Rose claims that had Larry been represented by counsel, he would have been able to present evidence of: (1) his father's ownership of the Marysville home; (2) the ownership, operability, and value of the parties' vehicles; (3) Dianna's education and work history; (4) his own medical and mental health history; (5) the parties' lifestyle during the marriage; (6) his monthly expenses; (7) gift income received by Dianna from her father; (8) the nonmarital nature of the Stifel Nicholas account, and (9) his current income. This is sufficient to show that the result of the hearing likely would have been different had Larry been represented by counsel.
Additionally, Larry's mental health issues and competency are "unique circumstances" that create additional identifiable prejudice. See Guffey, 323 S.W.3d at 371 (citation omitted). In its order denying Rose's CR 59.05 motion about the continuance, the court found Mullins did not raise Larry's mental capacity before withdrawing, that his capacity was only raised after the hearing, and Larry could "meaningfully participate" in the hearing. R. at 883. The record refutes these findings. First, Mullins' trial memorandum states Larry had been diagnosed with bipolar disorder, depression, and anxiety; and explains that he suffered an "emotional, nervous breakdown" which required hospitalization. Id. at 452, 454. He did not raise his client's ability to represent himself, but he made the court aware of Larry's condition. Furthermore, Larry attempted to raise his capacity in the affidavit he filed on May 31, 2022, wherein he referred to his lack of representation, mental health conditions, medication, and prior hospitalizations. He then raised these issues again at the outset of the final hearing, claiming he could not proceed because he was mentally unstable. He attempted to present the court with medical evidence, but Dianna objected to the lack of certification of the records. Furthermore, the court found that on the day of the hearing, Larry's appearance was "haggard," and he "didn't look healthy and well." R. at 833.
Larry did not file this as a motion but attempted to make the court aware of his concerns regarding his mental health and ability to proceed without counsel. See Smith v. Bear, Inc., 419 S.W.3d 49, 55 (Ky. App. 2013) (citation omitted) (holding pro se litigants should be afforded some leniency and should not be strictly held to the same standards as counsel).
While he may have been able to reference documents and recall dates, as detailed above, he could not effectively present his own case.
A month after the final hearing, Rose filed her verified petition for appointment of guardian requesting to be made Larry's legal guardian in the Clark Circuit Court in Indiana. The court appointed her Larry's permanent guardian, finding him "incompetent by reason of cognitive issues, emotional illness, and physical impediments[.]" Id. at 758. As support for her petition, Rose presented the Indiana court with medical records documenting Larry's mental illness dating back to November 2020, including a letter from a physician dated May 19, 2022, which states "[h]e needs to have a legal Guardian to keep his mental impairments from resulting in poor decision making." Id. at 768. Although the family court was not presented with this documentation until after the final hearing, it shows Larry's mental health was an issue before the hearing.
The court was made aware of Larry's mental health diagnoses before the final hearing, and, considering the medical documentation and order appointing Rose as his guardian, it is apparent that, had he had counsel, his mental health would have been made an issue at trial, and his counsel would have presented the court with certified records thereto. This, in addition to the previously detailed evidence regarding the marital estate, shows that the final hearing likely would have had a different outcome had Larry been represented by counsel. This weighs in favor of granting a continuance.
Considering the totality of the circumstances, the family court abused its discretion by denying Larry's motion for a continuance. Because this requires remand for a new hearing, we need not address the merits of Rose's remaining arguments.
CONCLUSION
Based on the foregoing, the November 22, 2022 judgment and March 7, 2023 order of the Jefferson Circuit Court, Family Division are vacated. This matter is remanded to the family court for a new final hearing.
ALL CONCUR.