GOLDEN (GWENDOLYN) VS. GOLDEN (JOHN HOWARD)
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RENDERED: DECEMBER 10, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000847-MR
GWENDOLYN GOLDEN
v.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE RODERICK MESSER, SPECIAL JUDGE
ACTION NO. 03-CI-00350
JOHN HOWARD GOLDEN
APPELLEE
OPINION AND ORDER
AFFIRMING
** ** ** ** **
BEFORE: TAYLOR, CHIEF JUDGE; KELLER, JUDGE; LAMBERT,1 SENIOR
JUDGE.
KELLER, JUDGE: Gwendolyn Golden (Gwendolyn) appeals from a decision of
the Bell Circuit Court terminating the maintenance obligation of her ex-husband,
John Golden (John), following her remarriage. Gwendolyn also appeals from the
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Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
circuit court’s May 5, 2009, order denying her Kentucky Rule of Civil Procedure
(CR) 60.02 motion. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The underlying facts are not in dispute. On June 27, 2003, John filed
a petition seeking a divorce from Gwendolyn, his wife of twenty-four years. On
November 6, 2003, the Bell Circuit Court entered an interlocutory decree of
dissolution of marriage. All remaining issues were reserved for a final hearing,
including custody and support of the minor child and the division of the property
and debts.
A hearing was held, and on July 5, 2006, the circuit court entered a
final order as to the division of the property and debts. The parties each filed a
motion to alter, amend, or vacate the final order, and on March 1, 2007, the circuit
court entered an “Amended Findings of Fact, Conclusions of Law, and Judgment.”
In pertinent part, this order stated the following:
[John] presently receives retirement benefits by
virtue of his past service as the Bell County Attorney.
[John] purchased five years of retirement credit with
funds he inherited. This portion of his retirement benefit
is nonmarital and equals sixteen percent (16%) of his
total retirement benefit.
The remaining eighty-four percent (84%) of
[John’s] retirement benefit is a marital asset and the
Court awards each party one-half of [John’s] retirement
benefit.
[John’s] retirement benefit is $5,367.00 per month.
Since the Kentucky Retirement System will not issue a
check to each party based on a Qualified Domestic
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Relations Order, [John] will be liable for all taxes on his
retirement benefit. [John] presently received a monthly
retirement benefit of $4,753.00 after taxes. [John] shall
pay [Gwendolyn] on the 10th day of each month her part
of his retirement benefit, in the amount of $1,996.00.
(42%, or one-half of 84%, which is the marital
component.)
In the event [John’s] retirement is increased, he
should pay [Gwendolyn] an increased amount which is
equal to 42% of [John’s] after-tax retirement benefit.
[Gwendolyn] is awarded 42% of the death benefit
from [John’s] retirement benefit in the event he
predeceases her.
(Emphasis added).
Once again, neither party was satisfied and both filed motions to alter,
amend, or vacate the March 1, 2007, order. During the pendency of those motions,
the parties entered into negotiations and tendered to the circuit court an “Agreed
Division of Property, Maintenance Award, Child Support” (the Agreed Order).
The Agreed Order was entered by the circuit court on July 13, 2007 and states in
pertinent part the following:
3.
[Gwendolyn] is awarded 42% of [John’s] gross
Kentucky Retirement benefits as maintenance
during [John’s] lifetime. The award increases with
the cost of living increases. No deductions will be
included in computing the 42%. This paragraph is
non-modifiable.
4.
Should [John] die before [Gwendolyn], the death
benefit from Kentucky Retirement will be paid
84% to [Gwendolyn] with the remainder to be
divided equally among [John’s] and
[Gwendolyn’s] 3 children. This part of the
Retirement Death Benefit will be characterized for
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all purposes as a division of marital property. At
the death of both parties, the retirement benefit
will be divided among the three children as long as
[John’s] son John is alive.
....
8.
[John] shall receive 58% of his Kentucky
Retirement benefits.
....
11.
[Gwendolyn] will owe [John] no other money;
[John] will owe [Gwendolyn] no other money.
(Emphasis added). Neither party appealed the Agreed Order.
Gwendolyn remarried on April 5, 2008. John continued to pay
maintenance to Gwendolyn in the amount of $9,689.59 until he became aware of
the marriage. At this time, John ceased paying the maintenance and filed a motion
for the repayment of the $9,689.59. Gwendolyn subsequently filed a motion for
contempt asking the circuit court to hold John in contempt for failing to pay
maintenance. On April 3, 2009, the circuit court entered an order wherein it
determined that, pursuant to Kentucky Revised Statute (KRS) 403.250(2), John’s
maintenance obligation terminated upon Gwendolyn’s remarriage. Thus, the
circuit court ordered Gwendolyn to refund John the $9,689.59.
Gwendolyn subsequently filed a Kentucky Rule of Civil Procedure
(CR) 60.02 motion asking the circuit court to award her 42% of John’s retirement
benefits as undivided marital property. The circuit court judge orally denied
Gwendolyn’s CR 60.02 motion on April 30, 2009, and entered a written order
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denying the motion on May 5, 2009. In the May 5, 2009, order, the circuit court
noted that the parties characterized the 42% of John’s retirement benefits awarded
to Gwendolyn as maintenance and that John’s maintenance obligation ceased upon
Gwendolyn’s remarriage. In denying Gwendolyn’s motion, the court further
concluded that the 42% was not undivided marital property, but was simply a
factor used to determine the dollar amount John was to pay Gwendolyn as
maintenance.
We note that before we can address the parties’ arguments, there is a
procedural issue that must be addressed. One day prior to the entry of the May 5,
2009, written order denying Gwendolyn’s CR 60.02 motion, Gwendolyn filed her
notice of appeal. Gwendolyn appealed from the Agreed Order that terminated
John’s maintenance obligation. Gwendolyn also tried to include the April 30,
2009, oral order denying her CR 60.02 motion in the notice of appeal. However,
the Bell Deputy Clerk would not allow Gwendolyn to file the notice of appeal
unless the portion appealing from the April 30, 2009, oral order was marked out.
Having reviewed the notice of appeal, we note that the section appealing from the
April 30, 2009, oral order is crossed out.
On May 15, 2009, Gwendolyn filed a motion with this Court to amend
her notice of appeal to include the May 5, 2009, written order denying her CR
60.02 motion. This issue was passed to the merits panel in an order entered by this
Court on November 19, 2009. Having reviewed the motion and noting that John
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did not object, we grant Gwendolyn’s motion to amend her notice of appeal. Thus,
we address Gwendolyn’s arguments with respect to her CR 60.02 motion below.
ANALYSIS
The two issues on appeal are whether the circuit court erred in
terminating John’s maintenance obligation and whether it erred in denying
Gwendolyn’s CR 60.02 motion. We address each issue in turn.
1. Maintenance
Gwendolyn’s first argument involves the interpretation of the parties’
Agreed Order. The terms of a settlement agreement “are enforceable as contract
terms.” KRS 403.180(5); see also Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99,
105 (Ky. 2003). The interpretation of a contract is a question of law for the courts
and is subject to de novo review. First Commonwealth Bank of Prestonsburg v.
West, 55 S.W.3d 829, 835-36 (Ky. App. 2000).
Gwendolyn first argues that the circuit court erred when it concluded
that the provision in the Agreed Order dealing with 42% of John’s retirement
benefits constituted maintenance. Specifically, Gwendolyn is contending that 84%
of John’s retirement benefits constituted marital property and that she is entitled to
42%. We disagree.
Initially, we note that the parties litigated this case for a number of
years and that numerous orders were entered by the circuit with respect to the
division of the parties’ property. In an order entered on March 1, 2007, the circuit
court concluded that 84% of John’s retirement benefits constituted marital
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property. However, because both parties disagreed with portions of this order, they
entered into the Agreed Order. Paragraph 3 of the Agreed Order provides that
“[Gwendolyn] is awarded 42% of [John’s] gross Kentucky Retirement benefits as
maintenance during [John’s] lifetime.” (Emphasis added). Based on this
provision, it is clear that both parties agreed that Gwendolyn’s award of 42% of
John’s retirement benefits would qualify as maintenance rather than marital
property.
KRS 403.180(1) provides that parties may enter into a written
separation agreement which contains provisions concerning maintenance, division
of property, and the custody, support, and visitation of minor children. KRS
403.180(2) provides that, with the exception of those terms providing for custody,
support, and visitation, the terms of the separation agreement are binding on the
court. Because the Agreed Order provided that 42% of John’s retirement benefits
was maintenance, we are bound by this provision.
Gwendolyn further contends that the April 3, 2009, order terminating
John’s maintenance obligation left 42% of the “marital property” unassigned to
either party. As a result, John now has 100% of his retirement benefits instead of
the 58% awarded to him in the Agreed Order. In support of this argument,
Gwendolyn points to Paragraph 8 of the Agreed Order which states that “[John]
shall receive 58% of his Kentucky Retirement benefits.” As noted above, the
parties clearly agreed that the 42% of the retirement benefits awarded to
Gwendolyn constituted maintenance. Further, in Paragraph 11 of the Agreed
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Order, the parties agreed that they would owe no other money to each other.
Therefore, we conclude that the circuit court did not err in concluding that 42% of
John’s retirement benefits was maintenance.
Having determined that the 42% constituted maintenance, we now
must determine whether John’s maintenance obligation terminated upon
Gwendolyn’s remarriage. KRS 403.250(2) states that “[u]nless otherwise agreed
in writing or expressly provided in the decree, the obligation to pay future
maintenance is terminated upon the death of either party or the remarriage of the
party receiving maintenance.” Further, as concluded by the Supreme Court of
Kentucky in Messer v. Messer, 134 S.W.3d 570, 573 (Ky. 2004):
[A]bsent a specific statement in the written agreement or
in the decree that maintenance will not terminate upon
the death of either party or the obligee’s remarriage, the
occurrence of one of those statutory contingencies
terminates the maintenance obligation by operation of
law.
As correctly noted by John, the Agreed Order was silent concerning
the effect that Gwendolyn’s remarriage would have on John’s maintenance
payment obligation. John contends that, based on Messer, his obligation to make
future maintenance payments terminated when Gwendolyn remarried. Gwendolyn
argues that unlike in Messer, John’s maintenance obligation was not for future
maintenance because the 42% was really a lump sum payable in installments.
We find Gwendolyn’s argument to be unpersuasive. As noted by the
Court in Messer, under KRS 403.250(2), a lump sum maintenance award may be
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terminated upon the remarriage of the spouse receiving maintenance. Id. at 57273. Thus, it is irrelevant whether or not the maintenance provision in the Agreed
Order was for a lump sum. Because the Agreed Order is silent as to whether the
maintenance award would terminate upon Gwendolyn’s remarriage, we conclude
that John’s maintenance obligation did terminate upon Gwendolyn’s remarriage.
We are also not persuaded by Gwendolyn’s argument that the
termination of her maintenance award resulted in John being unjustly enriched. As
noted above, the parties agreed that the 42% awarded to Gwendolyn was
maintenance. Because Gwendolyn remarried, John’s maintenance obligation
terminated as a matter of law. See Messer, 134 S.W.3d at 573. While Gwendolyn
might find it unfair that John will now receive 100% of his retirement benefits, we
are bound by the terms of the parties’ agreement. See KRS 403.180(2).
Accordingly, the Bell Circuit Court was correct in terminating John’s maintenance
obligation and ordering Gwendolyn to reimburse John the $9,689.59.
2. CR 60.02 Motion
Gwendolyn also argues that the circuit court erred in denying her CR
60.02 motion. On appeal, we review the denial of a CR 60.02 motion for an abuse
of discretion. White v. Commonwealth, 32 S.W.3d 83, 86 (Ky. App. 2000). In her
motion brought in the circuit court, Gwendolyn alleged that she was entitled to
relief under CR 60.02(d), (e), and (f), which state as follows:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
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grounds: . . . (d) fraud affecting the proceedings, other
than perjury or falsified evidence; (e) the judgment is
void, or has been satisfied, released, or discharged, or a
prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief . .
..
Although it is unclear, it appears that Gwendolyn is contending that,
as a result of the April 3, 2009, order which terminated John’s maintenance, there
are marital funds left unassigned. We note that we addressed this issue above in
Gwendolyn’s appeal from the April 3, 2009, order. CR 60.02 “is designed to
provide relief where the reasons for the relief are of an extraordinary nature.” Ray
v. Commonwealth, 633 S.W.2d 71, 73 (Ky. App. 1982). “Civil Rule 60.02 is not
intended merely as an additional opportunity to relitigate the same issues which
could reasonably have been presented by direct appeal . . . .” McQueen v.
Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997) (internal quotation marks
omitted). CR 60.02 “is not a separate avenue of appeal to be pursued in addition to
other remedies, but is available only to raise issues which cannot be raised in other
proceedings.” Id. Because Gwendolyn raised this same issue in her appeal from
the April 3, 2009, order, she has not met the requirements of CR 60.02.
Accordingly, the Bell Circuit Court was correct in denying Gwendolyn’s CR 60.02
motion.
CONCLUSION
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Gwendolyn’s motion to amend her notice of appeal is hereby
GRANTED. The April 3, 2009, order and the May 5, 2009, order of the Bell
Circuit Court are affirmed.
ALL CONCUR.
ENTERED: December 10, 2010
/s/ Michelle M. Keller
JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Martha Farmer Copeland
Corbin, Kentucky
Stephen W. Cessna
London, Kentucky
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