GUFFEY (STEFANIE) VS. GUFFEY (ROGER)
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RENDERED: SEPTEMBER 24, 2010; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000932-MR
STEFANIE GUFFEY
v.
APPELLANT
APPEAL FROM BOONE FAMILY COURT
HONORABLE LINDA RAE BRAMLAGE, JUDGE
ACTION NO. 07-CI-02122
ROGER GUFFEY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
** ** ** ** **
BEFORE: CAPERTON AND COMBS, JUDGES; LAMBERT,1 SENIOR
JUDGE.
COMBS, JUDGE: Stefanie Guffey appeals a decree of dissolution issued by the
Boone Family Court. After our review, we affirm in part, reverse in part, and
remand for further findings.
Roger (Sam) and Stefanie Guffey married in July 2002. It was Sam’s
fourth marriage and Stefanie’s second. They had one minor child, A.G. Sam
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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.
worked as a database administrator during the marriage, and at the time of hearing,
he was employed by the same company as a project manager. Stefanie was either
unemployed or held temporary jobs during the marriage and divorce proceedings.
Sam filed a petition for dissolution in October 2007.
Between the filing of the petition and May 2008, the parties filed
numerous motions relating to division of property, child support, and visitation
with A.G. The court ordered the parties to sell the marital home and ordered Sam
to make the payments on its two mortgages until the sale occurred. The house had
been owned by Sam prior to the marriage, and its title was held in his name only.
Despite the fact that the house was Sam’s premarital property, Sam and Stefanie
could not agree on a selling price, and the house never went on the market.
Instead, Sam ceased making payments on the mortgages and filed for bankruptcy.
The mortgage lender foreclosed on the house, and Sam anticipates a deficiency
judgment on the mortgages. On May 19, 2008, the trial court set the final pre-trial
hearing for June 23, 2008.
On May 27, 2008, Stefanie received notice of Sam’s bankruptcy
filing. She then asked the court to stay the proceedings and to issue an order for
Sam to show cause as to why his failure to pay the mortgages was not contempt.
The record indicates that the parties appeared in court on June 30, 2008, and the
court reserved ruling on Stefanie’s motion to show cause and her motion to
continue the proceedings.
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On January 13, 2009, Sam’s bankruptcy petition was dismissed. He
filed a motion to set a trial date on January 16, 2009. On March 4, the court set a
final hearing for April 23, 2009. Approximately four weeks prior to the hearing,
on March 23, the court granted the motion of Stefanie’s counsel to withdraw from
the case. Stefanie testified that she contacted the judge’s office and Sam’s counsel
to ask that the hearing set for April 23 be continued. However, Sam’s counsel did
not consent to the continuance, and the trial judge did not grant Stephanie’s request
for a continuance. Stefanie represented herself at the hearing. The court entered
its findings and decree of dissolution on May 4, 2009. Stephanie filed this appeal.
Stefanie’s first argument is that the family court abused its discretion
when it denied her a continuance of the final hearing. We disagree.
The court permitted Stefanie’s counsel to withdraw four weeks before
the hearing. (The record does not indicate why Stefanie’s counsel withdrew.)
Stefanie testified that the weekend before the hearing, she called the court’s office
to ask that the hearing be postponed. The staff advised her to contact Sam’s
counsel. Sam’s counsel was unwilling to agree to continue the hearing. Stefanie
next attempted to request a continuance during the hearing. Stating that the court
was not aware of any previous request for a continuance, the judge denied a
continuance during the course of the hearing. Stefanie now claims that she was
prejudiced by the court’s denial of her request to postpone the hearing.
With respect to the denial of a continuance, our standard of review is
whether the court abused its discretion. Stallard v. Witherspoon, 306 S.W.2d 299,
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300 (Ky. 1957). The court’s discretion has been described as “a liberty or
privilege allowed to a judge, within the confines of right and justice, to decide and
act in accordance with what is fair, equitable, and wholesome as determined by the
peculiar circumstances of the case[.]” City of Louisville v. Allen, 385 S.W.2d 179,
182 (Ky. 1964) (overruled on other grounds by Nolan v. Spears, 432 S.W.2d 425
(Ky. 1968)) (quoting In re Welisch, 163 P. 264, 265 (Ariz. 1917)).
Our Supreme Court has set forth various factors for us to consider
when reviewing the denial of a continuance. Snodgrass v. Commonwealth, 814
S.W.2d 579, 581 (Ky. 1991) (overruled on other grounds by Lawson v.
Commonwealth, 53 S.W.3d 534 (Ky. 2001)). At the threshold, the Court first
admonishes that “[w]hether a continuance is appropriate in a particular case
depends upon the unique facts and circumstances of that case.” Id. (quoting Ungar
v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849 (1964)). The factors are:
1) length of delay;
2) previous continuances;
3) inconveniences to litigants, witnesses, counsel, and
the court;
4) whether the delay is purposeful or is caused by the
accused;
5) availability of other competent counsel;
6) complexity of the case; and
7) whether denying the continuance will lead to
identifiable prejudice
Id.
Because Snodgrass is a criminal case, the question arises as to
whether we may apply its factors to a civil case. Our court has dealt with this issue
and has reached inconsistent conclusions when choosing whether or not to apply
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Snodgrass. These opinions have all been unpublished, and the Supreme Court of
Kentucky has remained silent as to the distinction.
In cases where we have declined to apply the Snodgrass factors to a
civil case, the reasoning turned on the fact that Snodgrass was based on protecting
a defendant’s right to counsel. In civil cases, Snodgrass could only apply in the
rare event that a party to a civil case might face potential imprisonment. See
Cissell v. Cissell, 2008 WL 1757550 (Ky. App. Apr. 18, 2008); Snardon v.
Snardon, 2009 WL 2059094 (Ky. App. Jul. 17, 2009); Cooper v. Cooper, 2010
WL 1328656 (Ky. App. Apr. 2, 2010).
Our court has also rendered opinions in which it has opted to apply
the Snodgrass criteria in a civil context. See Jones v. Fenley, 2005 WL 3006073
(Ky. App. Nov. 10, 2005); Wooldridge v. Wooldridge, 2008 WL 820923 (Ky. App.
Mar. 28, 2008); Martin v. Weaver, 2009 WL 3321245 (Ky. App. Oct. 16, 2009).
Particularly persuasive is the reasoning set forth in a footnote authored by Judge
Wine:
While a civil case may require a different application and
analysis of the Snodgrass factors, we conclude that the
factors themselves are relevant in the trial court’s
exercise of its discretion in considering a motion for a
continuance. . . . [W]hile our review of the trial court’s
discretionary decisions is deferential, the trial court must
have some legal framework in which to exercise its
discretion. Otherwise, this Court could not provide any
meaningful appellate review. The Snodgrass factors are
not expressly conditioned on the existence of a right to
counsel. Rather, they merely set out a framework in
which a trial court may exercise its discretion to grant a
continuance. Furthermore, the Snodgrass factors are
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similar to the factors set out in Ward v. Houseman [sic],
which also addresses a matter involving an exercise of
discretion. Hence, we conclude that the Snodgrass
factors apply to civil litigation regarding continuances.
Martin, supra at n.3.
Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991), provides six
factors for trial courts to consider upon a motion for an involuntary dismissal of a
civil suit based on failure to comply with an order. They are:
1) the extent of the party’s personal responsibility;
2) the history of dilatoriness;
3) whether the attorney’s conduct was willful and in bad
faith;
4) meritoriousness of the claim;
5) prejudice to the other party, and
6) alternative sanctions.
Id. at 719. We agree that these factors are quite analogous to the Snodgrass
criteria. The lists in both cases address the parties’ responsibilities for creating the
situation, whether bad faith conduct was a factor, past behavior, the possibility of
prejudice, and alternative solutions.
Furthermore, our Supreme Court has recently refined Ward in
Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009). In Flege, the high court
emphasized the factors of Ward to be used as a framework of analysis
encompassing as well “all relevant facts and circumstances.” Id. at 37. We are
persuaded that it is wholly appropriate to apply the Snodgrass factors to analyze a
civil motion for a continuance while taking into account all the relevant facts and
circumstances.
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Therefore, applying the Snodgrass factors and considering the totality
of the circumstances of the case at hand, we do not believe that the family court
abused its discretion.
First, a continuance could have resulted in a significant length of
delay in a case that had been pending for more than one and one-half years. Sam’s
attempt to declare bankruptcy had already delayed the proceedings. A continuance
would have been inconvenient for the court, Sam, and his counsel. The court’s
docket had been arranged for the hearing, and a delay and re-appearance would
have resulted in extra attorney’s fees for Sam. Stefanie had known for four weeks
that she needed to retain counsel. Nevertheless, she did not begin her attempt to
request a continuance until a few days before the hearing.
Although Stefanie claims that she was prejudiced by the denial of a
continuance, the Snodgrass factors demand a showing of identifiable prejudice.
Stefanie has not explained how a later hearing in which she might have had
representation would have rendered results different from the hearing at which she
acted pro se. She mentions an inequitable division of debt (which we address later
in this opinion). However, she cannot demonstrate that the division of debt would
have been different if she had been represented by counsel, and we cannot
conclude that she was prejudiced by the denial of a continuance.
Based on the Snodgrass criteria, we conclude that the court did not
abuse its discretion when it declined to grant a continuance. While litigants may
perceive the need to act pro se as a handicap, in reality a court makes an extra
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effort to compensate for the lack of representation by affording special courtesy
and attention to the pro se litigant. And, as we determined from recourse to the
Snodgrass factors, the court’s decision to deny the continuance was fair and
equitable under the circumstances.
Stefanie next contends that the court erred in its division of marital
debt, including the anticipated deficiency judgment resulting from the foreclosure
of the marital home. We agree.
Although Kentucky Revised Statute[s] (KRS) 403.190 creates a
presumption that property acquired during a marriage is marital, no such
presumption exists for debt acquired during a marriage. Bodie v. Bodie, 590
S.W.2d 895, 896 (Ky. App. 1979). When assigning marital debt, trial courts
should consider:
1) whether the debt was incurred purchasing marital
assets; 2) whether it was necessary for maintenance and
support of the family; 3) economic circumstances of the
parties; 4) extent of participation and receipt of benefits.
Neidlinger v. Neidlinger, 52 S.W.3d 513, 523 (Ky. 2001)(citations omitted).
In this case, the family court ordered that approximately $4500 of
credit card debt and the expected deficiency judgment regarding the marital home
would be divided equally between the parties. In its findings, it did not apply any
of the Neidlinger factors. In light of the disparity between the parties’ financial
situations (Sam earns approximately 81% of their combined income), we are
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persuaded that the family court abused its discretion when it divided the marital
debts equally.
Stefanie did not have any means of mitigating the foreclosure of the
marital home. Sam had been ordered by the court to make payments on the
mortgages. His failure to comply with that order resulted in dire economic
consequences for which Stefanie was not responsible and which she could not
avoid.
Accordingly, we affirm the family court’s denial of Stefanie’s motion
for a continuance but reverse its division of the marital debt. We remand this
matter to the family court for additional findings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Randy J. Blankenship
Erlanger, Kentucky
Karen E. McCracken
Erlanger, Kentucky
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