BARBARA BUCCHOLZ SUTTON v. TERRY LAYNE SUTTON
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RENDERED:
March 13, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-3059-MR
BARBARA BUCCHOLZ SUTTON
v.
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER CRITTENDEN, JUDGE
CIVIL ACTION NO. 94-CI-001908
TERRY LAYNE SUTTON
APPELLEE
OPINION
AFFIRMING
* * * * *
BEFORE:
GUDGEL, CHIEF JUDGE; EMBERTON and GUIDUGLI, Judges.
GUIDUGLI, JUDGE.
Appellant, Barbara Buccholz Sutton (Barbara),
appeals the denial by the Franklin Circuit Court of her motion
made pursuant to CR 60.02 to set aside the final judgment entered
in her dissolution of marriage action.
For the reasons set forth
below, we affirm the order entered by the trial court.
The parties to this action married on March 14, 1987.
They separated on May 10, 1994, and Barbara filed a petition for
dissolution of marriage in Franklin Circuit Court on December 28,
1994.
The petition was filed on appellant's behalf by her
attorney at that time, Marilyn S. Smith (Smith).
There were no
children born of the marriage and the only issues to be resolved
were the division of marital and non-marital property and the
debts and obligations of the parties.
Appellee, Terry Layne
Sutton (Terry), filed an answer on January 13, 1995, admitting
that the marriage was irretrievably broken and seeking the return
of his non-marital property and an equitable distribution of the
marital property and obligations.
Shortly thereafter, on
February 7, 1995, Terry filed a motion to have his non-marital
property restored to him and sought an order requiring Barbara to
account for all tangible and intangible personal property of the
marriage.
In an affidavit filed at that same time, Terry
expressed concern that if the court did not issue the requested
order that marital property in Barbara's control would not be
properly accounted for or preserved.
Throughout 1995 there were various evidentiary issues
raised by the parties in an attempt to determine the extent and
nature of the marital estate.
However, by year's end appellant
had not fully complied with the requested discovery nor with
prior court orders relating thereto.
It should also be noted
that on August 14, 1996, appellant, a licensed practicing
attorney in the Commonwealth, filed a notice of representation in
which she entered her appearance as co-counsel in the case and
directed that all pleadings and notices be sent to her, as well
as, her co-counsel, Smith.
Finally, on December 15, 1995, the
trial court entered an order directing both parties to comply
with previous discovery attempts and to produce within fifteen
(15) days all necessary banking, business, farm, martial and
property (real and personal) documentation.
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Appellee complied
with the court order, however, appellant did not.
As a result of
appellant's failure to comply with the trial court's order, a
motion for a rule was filed on February 9, 1996, and set for a
hearing on February 22, 1996.
Certification of service was sent
to both appellant, as co-counsel, and Smith, as attorney of
record.
Neither appellant nor Smith was present at the scheduled
hearing.
The court entered an order continuing the motion until
March 4, 1996, and distributed the order to all attorneys of
record, including appellant.
Again, neither Smith nor appellant
attended the scheduled hearing.
At that time the trial court
scheduled the case for final hearing on April 22, 1996, and held
that if appellant failed to appear a default judgment would be
entered.
At the April 22, 1996, hearing, appellant appeared, pro
se, and informed the court that she had not receive notification
of the previous hearings because she changed her address, that
Smith no longer represented her and was no longer practicing law,
and that appellant had been under psychiatric care.
Based upon
this explanation the court granted appellant ten days to fully
comply with the previously ordered discovery and to obtain new
counsel.
On May 1, 1996, Honorable Catherine C. Staib, filed a
motion to substitute herself as counsel of record for Barbara and
to permit an extension of time in which to file the requested
discovery.
Attached to the motion was a letter from Mary Alice
Whitehead, LCSW, (Whitehead) indicating that she was treating
appellant for major depression.
Said motions were scheduled for
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a hearing on May 24, 1996.
However, on May 24, 1996, Ms. Staib
appeared before the DRC and informed the Commissioner that
although appellant was aware of the hearing date, she was not
present.
Ms. Staib also indicated that appellant had not
contacted her since their initial conference and, as such,
requested to withdraw as attorney of record and to withdraw her
motions previously filed.
The DRC recommended that said motions
be granted and that a default judgment, which had been tendered
by appellee, be entered.
The trial court accepted the DRC's
recommendations and entered judgment on May 24, 1996, dissolving
the marriage and dividing the parties' property.
Appellant obtained counsel and filed a CR 60.02 motion
on August 30, 1996, seeking to be relieved of the May 24, 1996,
judgment.
Relying upon CR 60.02(a) excusable neglect and
CR 60.02(f) reasons of extraordinary nature justifying relief,
appellant alleged that she suffered from a significant and
disabling medical condition which caused her to be unable to
participate in the court proceedings.
The trial court after
reviewing the evidence presented by the parties and after a
hearing on the motion, denied appellant's CR 60.02 motion.
This
appeal followed.
Appellant argues that the trial court's denial of the
CR 60.02 motion was an abuse of discretion, in that, the court
failed to consider all the evidence before it prior to issuing
its ruling.
Specifically, Barbara contends that the trial court
failed to consider the letters from Mary Alice Whitehead
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(Whitehead) L.C.S.W., as medical proof that appellant was
suffering from major depression and unable to provide assistance
to her counsel during the dissolution action.
Other evidence
before the circuit court included a letter from Dr. Karjcia Van
Sickle that appellant had been hospitalized for major depressive
disorder, severe, with psychotic features and suicidal ideation
between August 1 and August 4, 1996, and that Dr. Van Sickle was
now treating appellant on an outpatient basis.
This medical
treatment occurred, as pointed out by the trial court, some three
months after the final decree was entered.
Appellant claims that
Whitehead's reports should be considered as coming from a medical
professional, however, this simply is not true.
KRS 335.100 sets forth the criteria for one to become
licensed as a licensed clinical social worker (L.C.S.W.).
must:
(a) (Have) received a master's degree or
doctoral degree in social work from an
educational institution approved by the
board;
(b) (Have) had a minimum of two (2) years of
full time post-paster's experience,
consisting of at least thirty (30) hours per
week, or three (3) years of part time,
consisting of at least twenty (20) hours per
week, post-master's degree experience
acceptable to the board inthe use of
specialty methods and measures to be employed
in clinical social work practice, the
experience having been acquired under
appropriate supervision as established by the
board by promulgation of an administrative
regulation;
(c) (Have) paid to the board an examination
fee established by the board of promulgation
of an administrative regulation;
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One
(d) (Have) passed an examination prepared by
the board for this purpose;
(e) (Have) not within the preceding six (6)
months failed to pass an examination given by
the board;
(f) (Have) paid an initial license fee
established by the board by promulgation of
an administrative regulation; and
(g)
(Have) complied with KRS 214.615(1).
KRS 335.100(1).
Under KRS 335.020 subsection 2 defines "the practice of
social work to mean the professional activity of helping for
remuneration individuals, groups, or communities enhance or
restore their capacity for social functioning and create social
conditions favorable to this goal.
It includes the professional
application of social work values, principles, and techniques to
one or more of the following ends:
psychotherapy... ."
counseling and nonmedical
(emphasis added).
By its statutorily
defined principles and techniques, a L.C.S.W. cannot provide
medical psychotherapy.
As such the trial court was correct when
it stated in its opinion and order of October 14, 1996, that
appellant had not provided any medical evidence that Barbara was
afflicted with a claimed psychiatric disorder.
Appellant's
argument in this vain is meritless.
Appellant also argues that the trial court abused its
discretion by entering a judgment dissolving the marriage and
distributing the marital and non-marital assets and liabilities.
Citing Bethlehem Minerals Co. v. Church and Mullins Corp., Ky.,
887 S.W.327 (1994), appellant contends that the trial court
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should have granted her CR 60.02 motion to set aside the judgment
because she did not have a fair opportunity to present her claims
at trial on the merits and granting said motion would not be
inequitable or prejudicial to appellee.
Despite appellant's
arguments to the contrary, under the facts presented in this
case, we believe both considerations weigh in favor of the
conclusion that the trial judge acted well within the bounds of
his discretion.
Barbara had every opportunity to present her
documentation and arguments as to the marital and non-marital
assets of the parties.
She simply refused to comply with court
orders relative to discovery.
Appellee complied with the
sought-after discovery in a timely fashion and appellant was
given numerous continuances and additional opportunities but
simply failed to comply with court orders or attend scheduled
hearings.
Appellant alleges a serious medical condition
prevented her from actively and knowingly participating in the
process but has failed to provide adequate medical evidence of
that fact to the court.
Additionally, evidence was presented
that she continued to be gainfully employment by the Commonwealth
as an attorney during this time period and that she or her
attorney had adequate notice of the scheduled hearings.
"[T]he
determination to grant relief from a judgment or order pursuant
to CR 60.02 method is generally left to the sound discretion of
the trial court with one of the chief factors guiding it being
the moving party's ability to present his claim prior to the
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entry of the order sought to be set aside."
Schott v. Citizens
Fidelity Bank & Trust Co., Ky. App., 692 S.W.2d 810, 814 (1985).
Appellant had numerous opportunities to present her claims but
failed to do so and both appellant and her attorneys refused to
comply with court orders which would have put the necessary
evidence before the court.
This Court is barred from disturbing
rulings under CR 60.02 absent a showing that the trial court
abused its discretion in ruling on the motion.
Littlefidd v.
Commonwealth, Ky. App., 554 S.W.2d 872 (1971).
The argument that appellee would not be prejudiced by
additional delays brought on by a reopening is also not true.
Appellee did everything required of him to permit the court to
make proper findings and resolve any pending issues.
The parties
were separated in May of 1994, now over three years later there
has been no finality in what appeared to be a relatively simple
dissolution proceeding.
Appellee is not the cause of this long
drawn out proceeding and it would be inequitable and prejudicial
to him to allow appellant to benefit from her inaction and
continual non-compliance.
CR 60.02 actions are left to the sound discretion of
the trial court and the exercise of that discretion will not be
disturbed on appeal except for abuse.
Brown v. Commonwealth,
Ky., 932 S.W.2d 359 (1996); Richardson v. Brunnel, Ky., 327
S.W.2d 572 (1959).
"Rule 60.02(f) 'may be invoked only under the
most unusual circumstances...'
Howard v. Commonwealth, Ky., 364
S.W.2d 809, 810 (1963); see also, Cawood v. Cawood, Ky., 329
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S.W.2d 569 (1959) and relief should not be granted, pursuant to
Rule 60.02(f), unless the new evidence, if presented originally,
would have, with reasonable certainty, changed the result.
Wallace v. Commonwealth, Ky., 327 S.W.2d 17 (1959)."
supra.
See
Brown,
A review of the judgment entered by the Franklin Circuit
Court distributing the marital assets and liabilities appears
proper, not an abuse of discretion, and in all likelihood not
subject to change even had appellant more properly and adequately
participated.
"The strong and sensible policy of the law in
favor of the finality of judgments has historically been overcome
only in the presence of the most compelling equities.
Relief
under CR 60.02(f) is available where a clear showing of
extraordinary and compelling equities is made."
Bishir, Ky., 698 S.W.2d 823, 826 (1985).
Bishir v.
We cannot say that
appellant has met her burden in this matter or that the trial
court abused its discretion.
It is time that this matter be
finally put to rest and the parties move on with their lives.
For the foregoing reasons, we affirm the judgment of
the Franklin Circuit Court.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
J. Eric Coffman, Esq.
Frankfort, KY
Steven G. Bolton
Frankfort, KY
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