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In Regina v. Dowling, 3 Cox Crim. Cases, 509, "the prisoner's counsel, upon a juror being called to the box required him to be sworn on the voir dire in order that he might examine him with a view to a challenge, if necessary.
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NO. 2012-CA-000260-MR
03-08-2013
WILLIAM STEWART APPELLANT v. REGINA STEWART APPELLEE
BRIEF FOR APPELLANT: Stephen P. Huddleston Warsaw, Kentucky BRIEF FOR APPELLEE: Nicholas A. Marsh Carrollton, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM GALLATIN CIRCUIT COURT、
HONORABLE LINDA R. BRAMLAGE, JUDGE
ACTION NO. 11-CI-00029
OPINION
AFFIRMING
BEFORE: CLAYTON, COMBS, AND NICKELL, JUDGES. CLAYTON, JUDGE: William Stewart appeals from the January 12, 2012, judgment of the Gallatin Family Court and its February 2, 2012, order denying his motion to reconsider. The original judgment, inter alia, denied his motion pursuant to Kentucky Rules of Civil Procedure (CR) 60.02(e) or (f) to "Amend, Alter or Vacate" that portion of his August 1, 2001, decree of dissolution that incorporated a property settlement agreement. Additionally, William appeals from the family court order that found him in contempt for failure to follow the provisions of a property settlement agreement. For the following reasons, we affirm the family court.
FACTUAL AND PROCEDURAL BACKGROUND
William and Regina Stewart were married on June 5, 1993. On June 8, 2001, William filed a petition for dissolution of marriage with the assistance of then-counsel, Dennis R. Williams. Not only was Mr. Williams a business partner with the couple, but he also represented both parties in the dissolution action. Although the parties disagreed as to who selected Williams or, for that matter, whom he actually represented, the trial court, in the findings of fact declared that both parties chose him as the divorce attorney. During his representation, Mr. Williams prepared the parties' property settlement agreement (hereinafter "PSA"), dated July 1, 2001.
Notwithstanding that both parties now and at the time of the dissolution action resided in Gallatin County, on July 16, 2001, an uncontested dissolution hearing was held in Kenton Circuit Court. Shortly thereafter, the trial court entered a decree of dissolution on August 1, 2001, which incorporated the PSA and determined that it was not unconscionable.
Following the entry of the decree, the parties engaged in post-decree litigation. First, in October 2002, William made a motion to enforce the decree, that is the PSA. Then, in September 2006, he filed another motion requesting an order, pursuant to the PSA, to require that Regina cooperate in the listing of a sale of marital property. William was represented by counsel on both motions although he was no longer represented by Mr. Williams. These motions were ultimately withdrawn. At neither proceeding did William contest the conscionability of the PSA.
The inception of this case was in November 2010 when Regina filed a show cause motion in Kenton Circuit Court to mandate that William comply with the previous decisions of the court. In response to the motion, William filed a motion for change of venue. At a hearing held on February 4, 2011, William's motion for a change of venue was granted and the case was transferred to family court in Gallatin County.
On March 24, 2011, William filed a motion, under CR 60.02(e) and (f) to set aside the decree of dissolution because the PSA was unconscionable. This motion was made almost ten years after the entry of the decree. William maintained that the unconscionability of the PSA provided the extraordinary reason that allowed for relief under CR 60.02. Thereafter, the Gallatin Family Court held a hearing on January 6, 2012. After holding a hearing and considering the parties' arguments and evidence, the Gallatin Family Court issued findings of fact, conclusion of law, and an order wherein it denied William's motion to set aside the decree pursuant to CR 60.02(e) or (f) and denied his motion under Kentucky Revised Statutes (KRS) 403.180 to find the PSA unconscionable. Further, the family court held William in contempt for failure to pay certain marital debts pursuant to the PSA and for obtaining two (2) mortgages on the parties' joint property without Regina's consent. And as a sanction, the family court ordered William to pay $1,000 of Regina's attorney fees. William filed a motion to reconsider on January 20, 2012, which was denied on February 2, 2012. He now appeals from both the original order and the denial of his motion to reconsider.
Although the motion itself only cites CR 60.02(e), both the trial court's findings of fact and William's brief stated that the motion was made pursuant to both CR 60.02(e) and (f).
On appeal, William maintains that the PSA was unconscionable, the trial court's order was not supported by its findings, and it was clearly erroneous for the trial court to hold William in contempt for failure to pay certain marital debts and also for encumbering their jointly owned real estate without her knowledge. Regina responds that the decree is a final judgment and, thus, may only be challenged in accordance with the rules of civil procedure. The pertinent rule for making such a challenge is CR 60.02. She maintains that this rule is inapplicable to the case because no evidence of fraud under CR 60.02(d) was provided, the judgment was not void under CR 60.02(e), no extraordinary circumstances were established under CR 60.02(f), and, finally, the CR 60.02 motion was not filed within a reasonable time. Moreover, Regina contends that the trial court did not abuse its discretion by holding William in contempt and imposing sanctions.
ANALYSIS
1. CR 60.02 motion
Our standard of review for a trial court's denial of a CR 60.02 motion is whether the trial court abused its discretion. Richardson v. Brunner, 327 S.W.2d 572, 574 (Ky. 1959). The test for abuse of discretion is whether the trial court's decision was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Initially, we review the opportunity for a party to contest a PSA. A party challenging the conscionability of a PSA has several opportunities to do so. First, the parties negotiate the agreement. Then, after an agreement is entered, a trial court under KRS 403.180(2) ascertains whether the agreement is conscionable, and if it determines that the agreement is conscionable, the terms are binding after it is incorporated into the decree.
The record herein notes that in July 2001, the parties entered into a PSA, signed it, and filed it with the Kenton Circuit Court. At this time, the parties were represented-- albeit by the same attorney. Then, William appeared at an uncontested dissolution hearing and made no complaints regarding the agreement. When the trial court incorporated the PSA into the decree of dissolution, it had decided that the PSA was not unconscionable or it would not have incorporated it into the decree. Hence, the PSA passed the first level of scrutiny for conscionability.
Another way that William conceivably could have disputed the PSA would have been to make a motion pursuant to KRS 403.250, which allows for the modification of a property settlement. The relevant language in KRS 403.250 is "[t]he provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state." William cited CR 60.02 in lieu of statutory authority for the re-opening of the issue.
The purpose of CR 60.02 was to codify the common law writ of coram nobis, which provides parties an extraordinary and residual remedy to correct or vacate a judgment upon facts or grounds, not appearing on the face of the record and not available by appeal or otherwise, which were not discovered, through no fault of the parties, until after rendition of judgment. Davis v. Home Indem. Co., 659 S.W.2d 185 (Ky. 1983). Hence, CR 60.02 in certain limited situations allows for the re-opening of final judgments. Since a decree of dissolution incorporating the PSA is a final judgment, this relief is the only opportunity to re-open final decisions and, by its terms, extraordinary.
The rule provides that a court may grant relief from its final judgment on certain grounds. Nevertheless, under this provision, relief may be granted only with extreme caution and only in the most unusual and compelling circumstances. See Brown v. Commonwealth, 932 S.W.2d 359 (Ky. 1996); Bishir v. Bishir, 698 S.W.2d 823 (Ky. 1985). It is important to note that the law favors the finality of judgments, and therefore, the rules of civil procedure do not permit successive motions or the re-litigation of issues which could have been raised in prior proceedings. Stoker v. Commonwealth, 289 S.W.3d 592, 597 (Ky. App. 2009) (citations omitted).
William invoked two provisions under CR 60.02 for relief from the decree of dissolution entered in 2001. He claims that the trial court had authority pursuant to CR 60.02(e) or (f) to re-open the issue of whether the PSA was conscionable. The pertinent grounds named to justify a new look at the conscionability of the PSA were whether "(e) ... it is no longer equitable that the judgment should have prospective application," and the catchall provision, "(f) any other reason of an extraordinary nature justifying relief."
To begin our evaluation, we point out that contrary to the specified one-year time period stated for the grounds in CR 60.02(a), (b), and (c), no specific time limit is cited for the grounds in CR 60.02(d), (e), and (f). But timeliness is still a factor in the analysis since the rule states with regard to provisions (d - f) that "[t]he motion shall be made within a reasonable time."
In the case at bar, the motion was made almost ten years after the entry of the decree. Consequently, the question becomes whether ten years is reasonable under these circumstances. Given that William brought this action several times to court during the ten years and that he was always represented by attorneys, ten years later is not reasonable under these circumstances. Bolstering our decision that the motion was untimely is Fry v. Kersey, 833 S.W.2d 392 (Ky. App. 1992). In that case, our Court held that a lapse of five years from the entry of the decree until the filing of the CR 60.02(f) motion was not reasonable in a situation where an ex-wife sought to set aside a PSA because it failed to assign to her a portion of her former husband's pension.
Having determined that the CR 60.02 motion was not made within a reasonable time, we review the grounds invoked under CR 60.02 - (e) and (f). First, William, while mentioning CR 60.02(e) as a reason, never discusses its applicability. In fact, the judgment is not void, has not been satisfied, and is not based on a judgment that has been reversed or vacated. Therefore, the grounds under CR 60.02(e) do not allow for the re-opening of the decree of dissolution in this case.
Next, we note that even if the motion made under CR 60.02(f) had been timely made, William did not establish extraordinary circumstances necessitating relief be granted. Berry v. Cabinet for Families & Children ex rel. Howard, 998 S.W.2d 464 (Ky. 1999). "Relief under CR 60.02(f) is available where a clear showing of extraordinary and compelling equities is made." Bishir v. Bishir, 698 S.W.2d 823, 826 (Ky. 1985). Here, William merely made arguments that could have been made ten years ago. William's referencing that the land is still there does not implicate an extraordinary circumstance; indeed, it does just the opposite, that is, reinforces that nothing has changed since 2001 to create an extraordinary circumstance. Regardless, the unchanged nature of the real estate has no relevance.
In addition, we are cognizant that the family court in this recent case reviewed the PSA and held that it was not unconscionable. This factor, too, negates the extraordinary reason, unconscionability of the PSA, proffered by William. Our Supreme Court has warned that because of the desirability of according finality to judgments, CR 60.02(f) must be invoked only with extreme caution, and only under most unusual circumstances. Cawood v. Cawood, 329 S.W.2d 569 (Ky. 1959). That is most definitely not the case in this matter.
Since we have concluded that William's CR 60.02 was not timely and that he did not have grounds under CR 60.02(e) or (f), bluntly stated, it is not necessary for us to address the conscionability of the PSA. Even so, since this issue was cited as the extraordinary reason for reopening the judgment, we note our agreement with the family court that the PSA was not unconscionable.
An appellate court reviews the family court's determinations regarding settlement agreements for an abuse of discretion. Also, in reviewing decisions of the family court, an appellate court cannot substitute its judgment for that of the family court if there is substantial evidence supporting that court's decision. Bickel v. Bickel, 95 S.W.3d 925, 928 (Ky. App. 2002). Lastly, an appellate court may not set aside the family court's factual findings unless they are clearly erroneous. Wheeler v. Wheeler, 154 S.W.3d 291, 296 & n. 16 (Ky. App. 2004).
As outlined in the family court's findings of fact and conclusions of law, William's arguments that he was uninvolved and did not understand the PSA are unpersuasive. In sum, Regina's testimony indicated that the attorney prepared the PSA at the direction of William. The parties were represented by an attorney. Under the time line established by the record, William had adequate time to consider the provisions in the PSA. He also had the ability to read the PSA as well as to participate in its preparation.
The terms of a PSA are treated as contract terms when incorporated into the decree. KRS 403.180(5). Under Kentucky law, "a party who can read and has an opportunity to read the contract which he signs must stand by the words of his contract Smith v. Bethlehem Sand & Gravel Co., LLC, 342 S.W.3d 288, 295 (Ky. App. 2011) (citations omitted). Additionally, although William instituted action to enforce the PSA several times after the entry of the decree in 2001, he never contested the conscionability of the PSA. Significantly, William only acted to have the PSA declared unconscionable after Regina filed a show cause motion.
2. Efficacy of contempt order
Under KRS 403.180(5), "terms of an agreement set forth in a decree are enforceable by all remedies available for the enforcement of a judgment, including contempt, and are enforceable as contract terms." Hence, the terms of the PSA incorporated into the Stewartses' decree are enforceable through contempt orders. It was undisputed that William owed Regina $63,765.25 for one-half the marital debt and that he had not paid it. Undoubtedly, the family court had the authority to grant Regina's motion to hold William in contempt for his failure to pay these debts.
Further, statutory authorization under KRS 403.240(2) provides that "[t]he failure of either party, without good cause, to comply with a provision of a decree or temporary order or injunction, including a provision with respect to visitation or child support shall constitute contempt of court, and the court shall remedy the failure to comply." Thus, the family court had the authority to grant Regina's motion to hold William in contempt for encumbering the parties' joint property without giving her notice and to order William to pay $1,000 of Regina's attorney fees as a remedy for his deceitful action in obtaining mortgages without her knowledge.
CONCLUSION
The Gallatin Family Court did not abuse its discretion in denying William's CR 60.02 motion and determining that the property settlement agreement was conscionable. Furthermore, the Family Court clearly had the authority to hold William in contempt and sanction his actions. Therefore, the judgment of the Gallatin Family Court is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Stephen P. Huddleston
Warsaw, Kentucky
BRIEF FOR APPELLEE: Nicholas A. Marsh
Carrollton, Kentucky