Opinion
NO. 2015-CA-001857-MR
05-05-2017
ALETHA VAN HUET APPELLANT v. JOSEPH GRANT HALL APPELLEE
BRIEF FOR APPELLANT: Douglas C. Howard Frankfort, Kentucky BRIEF FOR APPELLEE: Kami C. Brumley Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE SQUIRE WILLIAMS III, JUDGE
ACTION NO. 86-CI-01300 OPINION
AFFIRMING
** ** ** ** **
BEFORE: COMBS, MAZE, AND STUMBO JUDGES. COMBS, JUDGE: Aletha Van Huet appeals from an order of the Franklin Circuit Court, Family Court Division, denying her motion to reopen a divorce action that became final in 1988. The order at issue was entered in 1988, divided the parties' marital property, and became an enforceable order ten days after its entry. The attempt to collect the alleged indebtedness is now barred by the provisions of KRS 413.090. Consequently, we affirm the order of the family court.
Kentucky Revised Statutes.
Joseph Grant Hall filed a petition for the dissolution of his marriage to Aletha on July 15, 1986. A domestic relations commissioner (DRC) presided over the matter and conducted a final hearing. Following the hearing, the DRC recommended an addendum to certain findings of fact and conclusions of law, which was entered into the record on January 20, 1988. This "first addendum" provided, in part, as follows:
The Petitioner (Joe) has a state government retirement account worth $11,752.73. The Respondent (Aletha) has a federal employees retirement account worth $869.97. The assets are marital and should be equally divided. Thus, the Respondent (Aletha) has a credit in the amount of $5,441.38. The Petitioner (Joe) will have the option of paying that amount to the Respondent (Aletha) at the present time or delaying payment until he is eligible to receive his retirement account. If the Petitioner (Joe) chooses to delay the payment, at the time of payment the Respondent (Aletha) will be entitled to one-half of the percentage of the Petitioner's (Joe's) retirement earned during the term of the marriage, less the Petitioner's (Joe's) interest in one-half of the percentage of the Respondent's retirement earned during the term of the marriage.
Joe filed exceptions to the first addendum on January 29, 1988. Aletha filed exceptions on February 1, 1988. However, neither party took exception to the equalization of the parties' retirement accounts.
A second recommended addendum was entered on February 10, 1988. The second addendum provided as follows:
The Petitioner (Joe) has a state government retirement account worth $11,752.73. The Respondent (Aletha) has a federal employees retirement account worth $869.97. The assets are marital and should be equally divided. Thus, the Respondent (Aletha) has a credit in the amount of $5,441.38. If he wishes, the Petitioner (Joe) can maintain his account and pay the Respondent from another source.After entry of the second addendum, no other exceptions were filed by either party.
The decree of dissolution was entered on March 15, 1988. The decree provided that "all recommendations of the Domestic Relations Commissioner shall be affirmed, except as modified herein." Neither addendum is mentioned.
In the fall of 2015, more than 27 years after the parties were divorced, Aletha made her first attempt to execute the judgment -- despite having made numerous court appearances pertaining to other matters relevant to the divorce between 1988 and 1992. On October 22, 2015, Aletha filed a motion to reopen the proceedings. She sought to enforce the judgment through entry of a qualified domestic relations order. Joe filed a response contending that Aletha's motion was time-barred under the provisions of KRS 403.090(1), which provides as follows:
[T]he following actions shall be commenced within fifteen (15) years after the cause of action first accrued:Aletha had not sought to enforce the judgment within 15 years of the entry of the dissolution decree. Furthermore, Joe indicated that he believed that he had paid the lump sum to Aletha when she had asked for payment not long after the divorce decree was entered. Joe explained that his bank, Commonwealth Credit Union, kept records for 12 years; and so he could not independently verify the payment. Joe stated that since both of his former attorneys were now deceased, he could not now provide proof of payment by any means other than his own recollection and his word.
(1)An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon. . . .
On November 12, 2015, the circuit court conducted a hearing to determine whether the proceedings could be reopened. The court concluded that the provisions of KRS 413.090 did indeed apply, and in an order entered on November 16, 2015, it declined to reopen the proceedings. This appeal followed.
The court's dissolution decree, entered in March 1988, ordered Joe to pay to Aletha $5,441.38 -- an amount necessary to equalize the marital retirement accounts as of that date. This amount was undisputed by the parties.
The divorce decree, a civil judgment, became final ten days after its entry and became enforceable. CR 52.02. KRS 413.090 provides a statute of limitations of fifteen years in which a party may execute a judgment.
Kentucky Rules of Civil Procedure. --------
Joe was bound pursuant to the terms of the judgment to pay Aletha a sum certain, and he believes that he did so. However, in the event that he did not, Aletha failed to take timely action to enforce the judgment as she was bound by law. The circuit court did not err in its application of the provisions of KRS 413.090.
We affirm the order of the Franklin Circuit Court.
ALL CONCUR. BRIEF FOR APPELLANT: Douglas C. Howard
Frankfort, Kentucky BRIEF FOR APPELLEE: Kami C. Brumley
Lexington, Kentucky