Opinion
NO. 2012-CA-000874-ME
03-08-2013
GRAHAM WHATLEY APPELLANT v. NORKA P. WHATLEY (NOW RATNAVALE) APPELLEE
BRIEF FOR APPELLANT: Mark Hyatt Gaston Louisville, Kentucky BRIEF FOR APPELLEE: John T. Fowler III Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DOLLY W. BERRY, JUDGE
ACTION NO. 06-CI-501294
OPINION
AFFIRMING
BEFORE: MAZE, STUMBO AND THOMPSON, JUDGES. MAZE, JUDGE: Appellant, Graham Whatley ("Graham"), appeals the ruling of the Jefferson Family Court, which denied his motion to adjudicate the issues of a proposed credit to his child support obligation to Appellee, Norka Whatley ("Norka") and the trial court's continuing jurisdiction. We find that the trial court did not abuse its discretion in denying Graham's motion and therefore, we affirm.
On March 6, 2007, the trial court entered a decree dissolving the marriage of Norka and Graham and incorporating the parties' prior written agreement regarding the division of property, maintenance and custody of their children. On March 26, 2009, the parties entered into an Agreed Order Regarding Parenting Schedule and Child Support (hereinafter "Agreement"). Under the Agreement, the parties maintained equal parenting time, despite Norka's planned relocation to Maryland in June 2009. The Agreement also resolved that Graham's child support obligation to Norka under the prior order would remain unchanged. Finally, the Agreement stated, "[j]urisdiction of this matter shall remain in Jefferson County, Kentucky so long as either party has minimum contacts with this jurisdiction or unless explicitly waived by both parties." The parties signed the Agreement and the trial court entered it on April 7, 2009.
On July 11, 2011, Norka filed a motion for contempt based on several allegations, including that Graham failed to pay timely child support to her pursuant to the Agreement. Graham responded by filing a motion to reduce his child support and to be credited for monies which he allegedly provided Norka when she still lived in the marital home in Kentucky. The trial court scheduled an evidentiary hearing for October 28, 2011, on both matters and ordered that both parties attend mediation in the interim. At the hearing, evidence was heard; however, Norka was not in attendance and her motion for contempt was remanded. The trial court heard testimony and received evidence of the parties' respective incomes as they related to Graham's motion for a decrease in his child support. The trial court also heard testimony from Graham that he had contributed a total of $19,310 to Norka prior to her move to Maryland and while she lived in the marital home following their separation. Graham testified that the purpose of these payments was to repair and improve the home in preparation for its sale, and that the money was given with the mutual understanding that it would be credited to any future child support obligation owed to Norka.
In its Order entered December 8, 2011, the trial court made no finding regarding Graham's assertion that he was due a credit toward his child support obligation. The court reasoned that such an argument was "not relevant" because it was proffered in response to Norka's motion for contempt, which was remanded. The trial court went on to deny Graham's motion for a reduction in his child support because he did not meet the statutory requirement. Graham did not challenge these rulings of the trial court.
On April 9, 2012, Graham, through counsel, filed a motion requesting that the trial court adjudicate the issue of Graham's alleged child support credit due to recent attempts by Norka to collect on his alleged child support arrearage through local authorities in Maryland. Graham's motion also took apparent exception to Norka's attempt to collect child support despite the terms of the Agreement which kept jurisdiction over the matter in Kentucky. The tendered order which Graham attached to his motion proposed a finding that "[c]ontinuing jurisdiction of the within action and the enforcement of its terms lies with this Jefferson County Family Court per the parties [sic]agreement." In denying the motion, the trial court crossed out the entirety of the tendered order, wrote "Motion Denied" and signed immediately below the handwritten denial. The order was entered on April 10, 2012, and Graham now appeals from that order.
Nothing in the record on appeal indicates that the trial court made verbal findings of fact or conclusions of law in lieu of written ones.
Graham contends on appeal that, by crossing out, writing "Motion denied" on and signing the tendered order, the trial court made a finding that it did not have jurisdiction over the case and that it could not rule on the child support issue. Graham argues this supposed finding is in contravention of the Agreement's requirement that jurisdiction remain in Jefferson County. We review the trial court's denial of the motion for an abuse of its discretion. See Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999). Therefore, we will affirm unless the trial court's decision was "arbitrary, unreasonable, unfair or unsupported by sound legal principles." Id. at 945.
Although the question is not expressly raised by the parties or referred to in the briefs, the appellate court should determine for itself whether it is authorized to review the order appealed from. Hook v. Hook, 563 S.W.2d 716, 717 (Ky. 1978) (citing Hubbard v. Hubbard, 197 S.W.2d 923 (Ky. 1946)). "A final and appealable judgment is a final order adjudicating all the rights of all the parties in an action or proceeding . . . ." (CR) 54.01. "It has been said that if an order entered in a cause does not put an end to the action, but leaves something further to be done before the rights of the parties are determined, it is interlocutory and not final." Hubbard, supra, at 924.
While the facts of this case cause us to question briefly the finality of the order in question, we find that it is a final and appealable order. The motion and order, unlike those in Hubbard and Hook, did not precede final adjudications of all the parties' rights in the divorce and custody action. In the present case, such adjudication occurred years prior to the motion and order with the entry of the divorce decree and the Agreement. Thus, a denial of subsequent motions, filed by either party, in effect puts an end to the action. Accordingly, the present order is final and appealable and, more importantly, it falls under the jurisdiction of this Court on appeal.
Graham's contention that the trial court denied its jurisdiction over the case is unsupported by the limited record available on appeal. The record before us lacks any evidence or authority which demonstrates to this Court that the trial court's denial of Graham's motion constituted an affirmative abdication of its jurisdiction as opposed to a summary refusal to entertain the merits of the motion. Due to the nature of Graham's motion, the trial court was not required to state its findings of fact and conclusions of law, if any, which formed the basis for the denial. See CR 52.01; see also Clay v. Clay, 424 S.W.2d 583 (Ky. 1968). The record further lacks any video or transcript which may have demonstrated the court's reasoning, if any, in denying the motion. In the absence of such information, we are unable to conclude, as Graham urges us to do, that the trial court's summary denial constituted a legal finding regarding its continuing jurisdiction.
Furthermore, it was Graham's responsibility or prerogative to request additional findings of fact and conclusions of law, though the trial court was not required to oblige. See CR 52.04; see also Clay, supra. In the absence of such a request or further information indicating error on the trial court's part, we decline to find that the trial court abused its discretion or somehow acted arbitrarily or unreasonably in denying the motion.
We find that Graham has failed to establish that the trial court abused its discretion in summarily denying his motion. Accordingly, the order of the Jefferson Family Court is affirmed.
STUMBO, JUDGE, CONCURS.
THOMPSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
THOMPSON, JUDGE, DISSENTING: Respectfully, I dissent. The family court denied this motion without a hearing or even a hint as to the basis for its denial. I believe that the court's summary denial was not only unusual but denied Graham access to the courts and a fair determination on the merits of his motion.
The majority rejects Graham's contention that the family court rejected his motion on the basis of a lack of jurisdiction citing the limited record and the family court's failure to state its reasoning for a summary denial. Its reasoning is circuitous. Under the majority's analysis, CR 52.01 does not require the court to make findings of fact. It then reasons that because there were no findings of fact, we cannot review the legal argument regarding whether the family court retained continuing jurisdiction over the matter. Finally, the majority seems to impose the burden on Graham to have filed a motion for additional findings of fact and conclusions of law, even though it noted that the family court was not required to grant the motion and it would have presumably been a futile act because no findings or conclusions were required. It seems that Graham was denied a meaningful review by the family court and has suffered the same fate in this Court.
I believe Graham's argument regarding jurisdiction is a legal argument and one that this Court should consider on the merits. If this Court determines that the family court has jurisdiction to consider Graham's motion, the case should be remanded for a hearing and decision on the merits. Based upon the agreement of the parties which vested jurisdiction in the Jefferson Family Court, the family court's summary denial without a hearing or an explanation denied him access to justice. BRIEF FOR APPELLANT: Mark Hyatt Gaston
Louisville, Kentucky
BRIEF FOR APPELLEE: John T. Fowler III
Louisville, Kentucky