MARY DIANE CLEMENTS v. JAN HARRIS, EXECUTRIX OF THE ESTATE OF THOMAS LEROY CLEMENTS
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001343-MR
MARY DIANE CLEMENTS
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 96-CI-01177
v.
JAN HARRIS, EXECUTRIX OF THE
ESTATE OF THOMAS LEROY CLEMENTS
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
GUIDUGLI, KNOPF, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
The Daviess Circuit Court entered a decree of
dissolution of marriage and ordered a distribution of property in
the marriage of Thomas Leroy Clements (Leroy) and Mary Diane
“DeDe” Clements (DeDe).
DeDe argues the court was without
jurisdiction because Leroy was a not a resident of Kentucky for
the required statutory period immediately preceding the filing of
the petition.
Leroy has since died and the personal
representative of his estate was substituted as a party to this
action.
We affirm the dissolution but reverse the property
disposition and remand.
Leroy and DeDe met at church functions in Owensboro,
Kentucky, and after dating for some time, decided to move to
Florida, where they intended to marry and purchase a home
together.
The couple moved to Florida in June of 1996, and were
married in Florida on July 19, 1996.
Following their wedding,
Leroy and DeDe purchased a home near Orlando, Florida for
$183,000.
The closing on this home took place on August 7, 1996.
Leroy obtained the purchase money by cashing in several
annuities, closing out the Individual Retirement Accounts from
his previous employment and by taking money from his savings in
Owensboro.
The money was transferred over time to Leroy’s new
bank in Florida.
Although Leroy transferred the bulk of his
assets to his newly established Florida account, approximately
$3,000 remained in the Owensboro accounts.
At some point
contemporaneous with the couple’s move to Florida, Leroy put his
Owensboro residence up for sale and later found a buyer.
On October 2, 1996, Leroy was arrested for acts of
domestic violence against DeDe, and, after posting bond, Leroy
returned to Kentucky and began living with his daughter.
On
October 11, 1996, after returning to the Commonwealth, Leroy
filed a Petition for Dissolution of Marriage.
In addition to the
divorce petition, Leroy also filed a motion to obtain possession
of the marital domicile, to freeze the disposition of all
personal property, to obtain possession of his personal papers,
and to compel DeDe to execute a deed to complete the sale of his
Owensboro residence.
On October 17, 1996, a summons was purportedly served
in Florida since Dede remained there after Leroy moved out.
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However, the “proof of service” indicated the process server left
a copy of Leroy’s complaint and a summons with a “white female
over the age of fifteen,” who “advised she was a relative and a
resident of 525 Lake St., Windermere, Florida.”
On October 31,
1996, the Domestic Relations Commissioner entered a Recommended
Order on Leroy’s motion.
The issues regarding possession of the
marital domicile, vehicle, personal property, and personal papers
were held in abeyance.
The Domestic Relations Commissioner did
recommend, however, that the circuit court issue an order to
execute a deed on the Owensboro property conveying all of DeDe’s
interest to the waiting buyer.
On November 11, 1996, the circuit court entered an
order authorizing the Master Commissioner to execute a deed to
the Owensboro property on behalf of DeDe, selling the property to
a third party.
The proceeds from this sale were to be placed in
an interest-bearing escrow account where they could not be
disbursed without court order or a written agreement by both
parties.
On December 9, 1996, DeDe filed a Special Appearance
Motion to Dismiss for Lack of Jurisdiction.
On that same day,
the Master Commissioner entered a pendente lite order granting
the proceeds of the sale of the Owensboro property to Leroy in
the amount of $80,202.74.
On April 30, 1997, Leroy filed a Motion to Submit for a
Decision Before the Commissioner.
Leroy stated that he had
completed his proof, and that DeDe had failed to submit any
contradictory proof.
On May 21, 1997, DeDe filed a Special
Appearance Reply to Response, concerning Leroy’s response to her
earlier motion to dismiss for lack of jurisdiction.
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On September 12, 1997, the Domestic Relations
Commissioner issued his report, finding among other things that
DeDe and Leroy were both residents of the state of Kentucky and
recommending that the vast majority of the real and personal
property be awarded to Leroy.
The Commissioner also determined
DeDe had been properly served, and the Daviess Circuit Court had
jurisdiction over her.
Ten days later, DeDe filed objections to
the Commissioner’s Report and renewed her motion to dismiss for
lack of jurisdiction.
DeDe Clements was personally served in Florida on
December 17, 1997, and the Orange County (Florida) Sheriff’s
Return of Service was filed with the court on December 31, 1997.
On January 7, 1998, DeDe again renewed her motion to dismiss.
A
copy was delivered to Leroy’s attorney, but the motion was not
heard.
On April 14, 1998, Leroy filed a Motion for Entry of
Decree.
Despite another objection and motion to dismiss by DeDe,
on May 12, 1998, the Daviess Circuit Court entered the decree,
finding that both parties had been residents of the Commonwealth
for the 180 days immediately preceding the filing of the petition
and awarding the vast majority of real and personal property to
Leroy.
DeDe puts forth several grounds for reversing the court
below.
The first is a two-part question concerning service and
jurisdiction.
DeDe also alleges that she has been denied due
process of law in that the court below refused to rule on her
numerous motions to dismiss.
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It is clear from the record that DeDe became a resident
of the state of Florida sometime in June of 1996, and she
remained a resident of that state during the pendency of the
action in circuit court.
Leroy tried several times to obtain
personal service of his divorce petition on DeDe.
Although
numerous attempts were made, including leaving a complaint with
an underage resident of the Florida home, proper personal service
under CR 4.04(8) was not accomplished until December 17, 1997.
DeDe maintains service under CR 4.04(8) was improper because she
was not a resident of the state of Kentucky.
While we agree that
DeDe was not a resident of the Commonwealth, we believe service
under CR 4.04(8) was proper.
CR 4.04(8) states in pertinent
part:
Service may be had upon an individual out of
this state, other than an unmarried infant, a
person of unsound mind or a prisoner, either
by certified mail in the manner prescribed in
Rule 4.01(1)(a) or by personal delivery of a
copy of the summons and of the complaint (or
other initiating document) by a person over
18 years of age. . . .
Id.
Under this rule, the individual to be served must be absent
from this state, but nowhere in the statute is Kentucky residency
a prerequisite, so service under this rule was proper, and DeDe’s
arguments to the contrary are not persuasive.
The fact remains
that DeDe accepted personal service, although that personal
service on DeDe did not occur until December 17, 1997.
The court
below disposed of DeDe’s interest in the Owensboro property by
executing a deed on her behalf on November 11, 1996, nearly a
year before personal service on DeDe was obtained.
also states:
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CR 4.04(8)
Such service without an appearance shall not
authorize a personal judgment, but for all
other purposes the individual summoned shall
be before the courts as in other cases of
personal service.
Id.
Clearly, the execution of a deed to the Owensboro property
on behalf of DeDe was improper, as it was executed before service
of process.
Also, the trial court did not have jurisdiction to make
a property disposition.
In the Commonwealth of Kentucky, the
dissolution of a marriage is governed by KRS Chapter 403.
KRS
403.140(1) states in pertinent part:
The circuit court shall enter a decree of
dissolution of marriage if:
(a) The court
finds that one of the parties, at the time
the action was commenced, resided in this
state, or was stationed in this state while a
member of the armed services, and that the
residence or military presence has been
maintained for 180 days next preceding the
filing of the petition;
Id.
Clearly, one of the parties to the action must have resided
in this state for the last 180 days immediately prior to the
filing of the petition for dissolution of marriage.
The court
below found that both Leroy and Diane were residents of the state
of Kentucky for purposes of the statute, but we must disagree.
The trial court found that Leroy remained a resident of
the Commonwealth at all times, and his absence from this state
was temporary in nature.
The court made this determination from
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the facts that Leroy had retained a Kentucky driver’s license;
his motor vehicle was still registered in Kentucky; he still had
a bank account in Kentucky; and he maintained a residence in
Kentucky.
The trial court relied heavily on the case of McGowan
v. McGowan, Ky. App., 663 S.W.2d 219 (1983).
In the McGowan
case, we upheld a finding of jurisdiction where the parties were
not present in this state for the required 180-day period.
However, the parties had left this state so that the husband
could receive advanced training in oral surgery.
The parties
used the wife’s parents’ address as their permanent address.
Furthermore, the couples’ vehicles were still registered and
insured in the state of Kentucky.
The couple indicated they
always intended to return to Kentucky, and they only intended to
be temporarily absent from the jurisdiction.
bar is much different.
Id.
The case at
Although Leroy did maintain a Kentucky
license and registration for his vehicle, the record clearly
indicates Leroy listed his house in Owensboro, Kentucky for sale.
Leroy also cashed in various annuities, retirement accounts, and
life insurance policies so that he could purchase a home in
Florida which cost in excess of $180,000.
Although some $3,000
remained in a Kentucky account, the vast majority of Leroy’s
assets were transferred to the state of Florida.
The weight of
the evidence simply does not suggest that Leroy intended to be
only temporarily absent from the Commonwealth.
In fact,
following the couple’s move to Florida and their subsequent
marriage, Leroy often listed his home address as Florida, and he
transferred many of his personal papers to the Florida residence.
It was not until the incident involving the charge of domestic
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violence that Leroy returned to Kentucky and changed his tune
about his residency.
Actual residence, as opposed to legal
residence or domicile, is necessary to give the court
jurisdiction over a divorce suit.
S.W.2d 439 (1945).
Lanham v. Lanham, Ky., 188
The trial court should have found that Leroy
was a resident of Florida, even if only for a brief time.
Therefore, the trial court did not have jurisdiction as Leroy did
not meet the 180-day next residency requirement.
Ironically,
although Leroy was a resident of the state of Florida, he would
not have satisfied their residency requirements for seeking a
divorce, and the Florida courts would have also lacked
jurisdiction.
After deciding that Leroy did not meet the residency
requirement imposed by KRS 403.140, there is little that this
Court can do as to the decree of dissolution.
Where the question
of jurisdiction in a divorce action has been raised in the lower
court and there is any evidence to show the jurisdictional
residence of the parties, the lower court’s judgment granting a
decree of dissolution based upon a determination that it has
jurisdiction is not void and cannot be questioned on appeal,
regardless of the fact that the determination may be against the
overwhelming weight of the evidence and be clearly erroneous.
KRS 22A.020(3); Elswick v. Elswick, Ky., 322 S.W.2d 129 (1959).
Therefore, we cannot disturb the granting of the decree of
dissolution by the court below and the decree of dissolution must
be affirmed.
On the other hand, we are not powerless to address the
other issues in the case at bar.
Where KRS 21.060, the
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predecessor to KRS 22A.020(3), forbade the reversal by the Court
of Appeals of a judgment granting a decree of divorce, the court
could review the evidence to determine whether the judgment was
correct in all other respects.
275 (1944).
Smith v. Smith, Ky., 180 S.W.2d
Hence, we can determine whether the court below had
service or jurisdiction to make a property disposition.
We
believe the lower court did not have service on DeDe at the time
her interest in the Owensboro property was deeded out and did not
have jurisdiction to make a property distribution.
Finally, we address DeDe’s contention that she has been
denied due process of law.
The record clearly shows that DeDe
put forth numerous motions to dismiss.
These motions were never
heard, presumably because DeDe did not schedule them for hearing
at the time the motions were filed.
DeDe argues it was the
court’s responsibility to schedule the motions for hearing, and
failure to do so was a denial of due process.
Under CR 6.04, we believe it is the movant’s
responsibility to see that a motion is brought on for a hearing.
CR 6.04(1) states in pertinent part:
A written motion, other than one which may be
heard ex parte, and notice of the hearing
thereof shall be served a reasonable time
before the time specified for the
hearing, . . .
Id.
It would seem that the responsibility of setting the time
for a hearing lies with the moving party.
This is why courts
have regularly scheduled motion hours and motion dockets.
Under
the local rules of the Daviess Circuit Court, anyone who wishes
to bring a motion before the court must call the clerk’s office
to determine an available time.
The movant then notifies the
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clerk of the half hour on which he wants to be heard and shall
include the designated time in the notice to opposing counsel.
Daviess Cir. Ct. R.P. 20(b).
An almost identical situation
involving CR 6.04 and the scheduling of motions was addressed by
the then Kentucky Court of Appeals in Carnahan v. Yocum, Ky., 526
S.W.2d 301 (1975).
In Carnahan, the Court stated, “The Rules of
Civil Procedure are designed to provide for a speedy disposition
of proceedings in court.”
Id. at 304.
The Court specifically
addressed CR 6.04 saying:
Clay in his comments on CR 6.04, Comment 2,
page 112, said: “The apparent intent of the
Rule is that a notice of hearing of motions
required to be served should be given in all
cases as a part of the motion procedure.
Since one of the underlying purposes of the
Rules is to expedite the disposition of
cases, and motions for delay purposes should
be condemned, a speedy hearing on all motions
is imperative. Thus it might be argued that
a party has not properly made a motion by
simply serving and filing it without giving
notice of some hearing date. The better
uniform practice would be to serve such
required notice with all motions. . . .”
Carnahan, 526 S.W.2d at 304.
Although the Court did stop short
of saying that a motion without notice is per se no motion at
all, the Court did say that where the moving party made no
attempt to obtain a hearing or ruling on the motion, it is the
same as “no motion at all.”
Id.
In our case, DeDe failed to
comply with the Civil Rules and the local rules of the Daviess
Circuit Court and, thus, cannot say that she has been denied due
process of law.
For the reasons stated above, the decision of the
Daviess Circuit Court is affirmed with regard to the entry of the
decree of dissolution of marriage.
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The decision of the Daviess
Circuit Court as to the property disposition is reversed, and the
case is remanded for proceedings consistent with this opinion.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Michael T. Connelly
Louisville, Kentucky
John W. Stevenson
Owensboro, Kentucky
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