JACK DARRELL SAMMONS v. RITA ANN SAMMONS
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RENDERED:
December 19, 1997; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-001417-MR
JACK DARRELL SAMMONS
APPELLANT
APPEAL FROM PIKE CIRCUIT COURT
HONORABLE CHARLES E. LOWE, JR., JUDGE
ACTION NO. 90-CI-00504
v.
RITA ANN SAMMONS
APPELLEE
OPINION
REVERSING
*
BEFORE:
*
*
*
*
GUDGEL, CHIEF JUDGE; EMBERTON and JOHNSON, Judges.
JOHNSON, JUDGE:
Jack Darrell Sammons (Jack) appeals following an
order by the Pike Circuit Court that was entered on May 3, 1996,
that denied his motion to alter, amend or vacate the amended
findings of fact, conclusions of law and decree of dissolution of
marriage entered on August 25, 1995.
We reverse.
This appeal has been aptly described by Jack's counsel as
a "procedural quagmire into which we must now attempt to extricate
ourselves."
To completely explain what occurred in this divorce
case, we have no choice but to start at the petition for dissolution of marriage which was filed by Jack on April 17, 1990.
The
appellee wife, Rita Ann Sammons (Rita) filed a response to the
petition on May 3, 1990.
While Rita requested an award of
maintenance in her response, she did not file a counter-petition.
The trial court entered a decree of dissolution of marriage on May
16, 1990, that reserved for determination by the trial court the
issues of division of property, maintenance, and payment of debts,
court costs and attorneys' fees.
On May 22, 1990, the trial court
ordered that Jack pay Rita temporary maintenance consisting of a
rent payment of $300.00 per month and $350.00 per month temporary
maintenance beginning on May 18, 1990.
The matter was referred to
the Special Commissioner for the taking of proof and the making of
a recommendation to the trial court.
After extensive proof was
taken, the Special Commissioner filed a report on February 5, 1991,
that recommended that Rita be awarded no maintenance. Both parties
filed exceptions to the Special Commissioner's recommendations, and
the trial court heard arguments from counsel. On October 30, 1992,
after a nineteen-month delay, the trial court finally entered
findings of fact, conclusions of law and a supplemental decree
which awarded Rita "maintenance in the sum of $200.00 per month for
a period of 36 months from and after the date of this Judgment."
It is rather apparent that this nineteen-month delay contributed to
the procedural woes of this case.
What follows is a series of
convoluted pleadings and rulings that are, to put it mildly, a
challenge to decipher.
On November 9, 1992, Rita filed a pleading entitled
"Motion to Reopen Evidence,"1 in which she moved "the Court for the
re-opening of evidence for the purpose of presenting evidence
1
Kentucky Rules of Civil Procedure (CR) 59.01 sets forth the
grounds for which a trial court may grant a new trial.
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concerning the state of the Respondent's health, her reduced income
ability and the failure of the Petitioner to properly notify the
Respondent about the cancellation of her health insurance which
resulted in her becoming uninsurable."
In support of her motion,
Rita pointed out that the exceptions had been pending before the
trial court for almost nineteen months, and that she had experienced unfortunate occurrences such as illness, increased medical
expenses, cancellation of medical insurance and reduced income.
Rita also filed on November 9, 1992, a "Motion to Alter, Amend, and
Vacate,"2 in which she sought, among other things, an award of
open-ended maintenance.
By an order entered on November 30, 1992,
the trial court denied Rita's motion to alter, amend or vacate as
it related to maintenance.
A notice of appeal (92-CA-3083-MR) was filed by Rita on
December 18, 1992.
While the appeal was pending on January 6,
1993, Rita filed a "Motion for 60.02 Relief."
In her motion, Rita
pointed out that "a Motion to Reopen Evidence was filed and never
ruled on."
In her CR 60.02 motion, Rita restated the allegations
that she had made in her other two post-trial motions and additionally claimed "these physical and emotional problems may have
prevented the Respondent from adequately assisting in the preparation of her case, evidence of which the Respondent should be
allowed to develop."
The Court of Appeals on February 2, 1993, entered an
order that granted Rita's motion to abate the appeal pending
2
CR 59.05 provides for "[a] motion to alter or amend a
judgment, or to vacate a judgment and enter a new one. . . ."
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disposition of her CR 60.02 motion.
On February 12, 1993, the
trial court entered an order that granted Rita's motion to reopen
evidence and, insofar as it had been rendered moot, denied the CR
60.02 motion.
The trial court found that during the pendency of
this action "certain events and/or changes in circumstances have
occurred
relevant
to
the
issues
of"
maintenance
and
marital
property, and ordered that the matter be remanded to the Special
Commissioner "for the taking of evidence and making of a report and
recommendations relevant thereto[.]"
Jack vehemently objected to
the taking of additional proof on the grounds that the trial court
lacked jurisdiction and that there was no basis to support a new
trial.
In
a
report
filed
on
August
27,
1993,
the
Special
Commissioner recommended that Jack pay Rita "maintenance in the sum
of $300.00 per month for her lifetime or until she remarries,
whichever shall first occur." Jack filed exceptions to the Special
Commissioner's report, but they were not ruled upon for almost two
years.
"Amended
Finally, on August 25, 1995, the trial court entered
Findings
of
Fact,
Conclusions
of
Law
and
Decree
of
Dissolution of Marriage," wherein it made findings of fact that
stated in part as follows:
1. That subsequent to the first Commissioner's hearings on September 4, 1990 and
October 9, 1990, the Respondent become [sic]
disabled to the extent that she had to quit
her job at Food City and as a part-time secretary at a church. This was due to her hospitalization for prescription drug abuse. . . .
She was subsequently hospitalized beginning
June 21, 1991 for five (5) weeks which resulted in a medical bill of eighteen thousand
($18,000.00) dollars. . . .
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Respondent testified that her health insurance
was canceled in December, 1990 and she did not
receive any notice of same from the Petitioner
or his employer in time to file for COBRA
benefits. Respondent did not receive notice
of this termination of benefits until approximately May 11, 1991.
. . .
4. The Court FINDS that the Respondent was
suffering from a drug dependency at the time
of the first hearings, and although it did not
totally prevent the Respondent from fully
testifying to issues involved in the action,
it did impair her to some extent.
The trial court ordered that Jack pay Rita "the sum of three
hundred ($300.00) dollars a month maintenance, each and every
month, commencing on the 1st day of September, 1995, until her
death or she remarries."
On August 31, 1995, Jack filed a "Motion to Alter, Amend
or Vacate Decree as Amended."
This motion was not denied by the
trial court until May 3, 1996.
The appeal currently before this
Court followed.
However, and unfortunately, following the entry of the
amended decree but during the pendency of Jack's CR 59.05 motion,
this Court removed the first appeal from abatement. In its opinion
rendered on December 1, 1995, that affirmed the trial court, this
Court
referred
to
this
case's
"somewhat
checkered
procedural
history" and noted that the trial court had resolved various issues
by the amended decree.
This Court stated:
"After the trial judge
complied with the directive from this Court by order dated August
25, 1995, the case was at last ready for appellate disposition."3
3
Apparently, the amended decree was entered following an
order by this Court for the trial court to act.
-5-
Unfortunately, this statement by this Court overlooked Jack's
pending CR 59.05 motion.
This Court in its December 1, 1995 opinion referred to
the maintenance issue briefly as follows:
The case is not factually complex and
appellant's complaint with respect to the
denial of maintenance for life has been rendered moot by the trial judge's order of
August 25, 1995. We would note, however, that
in the context of the evidence as a whole,
adduced in the five years this case has been
pending, the maintenance award could not be
disturbed as an abuse of discretion were the
matter properly before us.
Clark v. Clark,
Ky. App., 782 S.W.2d 56 (1990).
Having
thoroughly
reviewed
this
case's
contorted
procedural
history, we will now address the merits of this appeal.4
We accept Jack's argument that the trial court erred in
granting Rita relief pursuant to CR 59.
CR 59.01 states as
follows:
A new trial may be granted to all or any of
the parties and on all or part of the issues
for any of the following causes:
(a) Irregularity in the proceedings of the
court, jury or prevailing party, or an order
of the court, or abuse of discretion, by which
the party was prevented from having a fair
trial.
(b) Misconduct of the jury, of the prevailing party, or of his attorney.
4
Rita indicates in her brief that she remarried on June 4,
1996.
Accordingly, the total maintenance award in issue is
approximately $2,300.00.
The October 30, 1992 decree ordered
maintenance of $200.00 a month for 36 months. The August 25, 1995
amended decree increased the amount to $300.00 commencing on
September 1, 1995, and continuing until Rita remarried on June 4,
1996. Thus, there was a $100.00 increase for the remaining two
months of the original 36-month period totalling $200.00, and the
additional seven months at $300.00 per month equals $2,100.00.
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(c) Accident or surprise which ordinary
prudence could not have guarded against.
(d) Excessive or inadequate damages, appearing to have been given under the influence
of passion or prejudice or in disregard of the
evidence or the instructions of the court.
(e) Error in the assessment of the amount
of recovery whether too large or too small.
(f) That the verdict is not sustained by
sufficient evidence, or is contrary to law.
(g)
Newly discovered evidence, material
for the party applying, which he could not,
with reasonable diligence, have discovered and
produced at the trial.
(h) Errors of law occurring at the trial
and objected to by the party under the provisions of these rules.
Obviously, since this matter was tried by the court and not a jury,
the trial court proceeded under CR 59.07 which provides as follows:
On motion for a new trial in an action tried
without a jury, the court may grant a new
trial or it may open the judgment if one has
been entered, take additional testimony, amend
findings of fact and conclusions of law or
make new findings and conclusions, and enter a
new judgment.
While the trial court in its amended findings of fact,
conclusions of law and decree of dissolution failed to even refer
to CR 59, we can only assume that it was relying upon CR 59.01(g)
which
allows
for
a
new
trial
because
of
"[n]ewly
discovered
evidence, material for the party applying, which he could not, with
reasonable diligence, have discovered and produced at the trial."
The flaw in the granting of this relief is that the trial court
based its decision on "certain events and/or changes in circumstances" that occurred after the hearings before the Special
Commissioner on September 4, 1990, and October 9, 1990, but before
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the entry of the decree on October 30, 1992.
The proper procedure
for Rita to have followed if she wanted to supplement her proof
following the October 9, 1990 hearing was to have moved the trial
court
for
judgment.
leave
to
submit
additional
evidence
before
final
Even after the Special Commissioner filed his report on
February 5, 1991, and while the exceptions were pending for almost
nineteen months and before final judgment was entered on October
30, 1992, Rita could have sought to supplement her proof.
To allow
Rita to wait to see if the trial court was going to rule favorably
to her before deciding if she wanted to submit additional proof,
would be an abuse of the rules of civil procedure.
Ferrell,
Ky.,
937
S.W.2d
713,
716
(1997),
the
In Eiland v.
Supreme
Court
discussed the broad discretion of the trial court as follows:
With respect to the [domestic relations commissioner's] report, the court may adopt,
modify or reject it, in whole or in part, and
may receive further evidence or may recommit
it with instructions. In sum, the trial court
has the broadest possible discretion with
respect to the use it makes of reports of
domestic relations commissioners.
Thus, the evidence relied upon by the trial court in
granting Rita CR 59 relief was not new evidence.
Rather, it was
evidence available to her prior to entry of judgment on October 30,
1992.
Accordingly, the trial court abused its discretion in
allowing the taking of additional evidence when the requirements of
CR 59.01(g) were not met.
See Sanders v. Drane, Ky., 432 S.W.2d 54
(1968); and Walker v. Bencini, Ky., 374 S.W.2d 368 (1964).
judgment of August 25, 1995, is reversed.
ALL CONCUR.
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The
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Lawrence R. Webster
Pikeville, KY
Hon. Kathryn Burke
Pikeville, KY
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