DIANA BUTLER FUGATE AND KEVIN FUGATE v. JORDAN FUGATE
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RENDERED: NOVEMBER 9, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000380-MR
DIANA BUTLER FUGATE
AND KEVIN FUGATE
v.
APPELLANTS
APPEAL FROM BREATHITT CIRCUIT COURT
HONORABLE FRANK A. FLETCHER, JUDGE
ACTION NO. 06-CI-471
JORDAN FUGATE
APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: DIXON, VANMETER AND WINE, JUDGES
DIXON, JUDGE: Appellants, Diana Butler Fugate and Kevin Fugate, appeal from an
order of the Breathitt Circuit Court denying their motion to partition real estate in
Breathitt County, Kentucky.
The property at issue consists of a lot and house that Diana and her exhusband, Appellee Jordan Fugate, jointly owned. Diana asserts in her brief to this Court
that the property was purchased on February 16, 2006, after the couple was divorced,
while Appellee claimed in the lower court that the couple owned the property in 2003, at
the time they separated.
On November 27, 2006, Appellants filed a partition action, requesting that
the property be sold and the proceeds distributed between the parties. Appellants argued
that a sale was necessary since the real estate could not “be divided without materially
impairing its value or the value of the interest of the Plaintiffs . . . .” Appellee thereafter
filed a pro se response objecting to the sale on the grounds that he was living on the
property and had been paying all of the expenses attributable to such.
The trial court held a hearing on February 9, 2007, during which the court
ruled that because Diana had “moved on” and had a “new man,” and because Appellee
was sick, it was not going to order the property sold. Thus, it denied Appellants' request
for partition. This appeal ensued. We would note that Appellants filed a motion on
August 20, 2007, informing this Court that Appellee had died. There has been no
substitution of parties.
Appellants argue herein that the trial court erred in denying the motion to
sell the property. They point out that Diana's marital status and Jordan's health status
were irrelevant to the determination of whether partition was appropriate. We agree.
Partition of property in Kentucky is governed by KRS 381.120 to 381.136.
Where land is jointly owned, a partition is the joint owner's primary right. See Leslie v.
Sparks, 172 Ky. 303, 189 S.W. 463 (1916). However, if it appears that the property is
indivisible without materially impairing its value, a sale of the property as a whole is the
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proper procedure. Id. See also Turley v. Turley, 193 Ky. 151, 235 S.W. 18 (1921). In
Talbott v. Campbell, 67 S.W. 53 (Ky. 1900), Kentucky's highest court noted that, “the
owner of each share is entitled to hold his property subject only to the rights of his cotenants. If indivisible, it would be unjust to the other tenants to compel them to suffer
sacrifices to gratify one joint owner's whim or claim to personal use of the identical
property.”
We conclude that the trial court herein failed to set forth valid grounds for
denying the request for partition. See VanMeter v. VanMeter, 160 Ky. 163, 168, 169
S.W. 592, 594-95 (1914) (courts are required to follow statutory direction in cases
involving partition of real property). We further note that the record is devoid of any
affirmative evidence as to when the property was purchased and how it was held by the
parties. Certainly, as Appellee is now deceased, these factors may determine whether a
sale is required or if this action is moot.
Accordingly, we reverse the Breathitt Circuit Court and remand this matter
for additional fact finding and for an order of either partition or sale of the subject
property if, in fact, Appellant's action is still viable. See KRS 381.135.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Melissa C. Howard
Jackson, Kentucky
No brief filed
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