PAUL J. WEBER V. ANDREA J. WEBER
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RENDERED:
January 16, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
NO. 96-CA-1497-MR
PAUL J. WEBER
APPELLANT
APPEAL FROM CLARK CIRCUIT COURT
HONORABLE JULIA HYLTON ADAMS, JUDGE
ACTION NO. 90-CI-0162
V.
ANDREA J. WEBER
APPELLEE
OPINION
AFFIRMING
* * * * * * * *
BEFORE:
ABRAMSON, COMBS and GARDNER, Judges.
GARDNER, JUDGE:
Paul Weber (Paul) appeals from an order of the
Clark Circuit Court compelling him to comply with the terms of a
prior decree of dissolution.
We affirm.
Paul and Andrea Weber (Andrea) were married on October 1,
1977, and separated in January of 1990.
One child was born of the
marriage.
On September 1, 1993, a decree of dissolution was
entered
Clark
in
Circuit
Court.
The
decree
terminated
the
marriage, and addressed related issues including custody, child
support, and the disposition of marital assets.
this
Court,
disputing
the
valuation
and
Paul appealed to
division
property and the amount of child support awarded.
of
marital
This Court
affirmed the judgment by opinion rendered June 9, 1995.
Paul's
petition for rehearing was denied on August 25, 1995, and a motion
for discretionary review was denied by the Kentucky Supreme Court
on March 13, 1996.
Following the denial of Paul's motion before the Kentucky
Supreme Court, Andrea moved the trial court for an order enforcing
the terms of the September 1, 1993 decree of dissolution.
Upon
hearing proof on the motion, the court entered an order on April
24, 1996 enforcing disputed and/or unresolved portions of the
original decree.
The order held as follows:
1) Child Support:
The 1993 decree ordered Paul to pay child
support in the amount of $344.00 per month effective August 11,
1991.
Paul actually paid $269.00 per month, leaving a deficiency
of $4,200.
The trial court ordered payment of that deficiency
along with interest at the rate of 12% per annum on each payment as
it became due.
2) Promissory Note:
The 1993 decree ordered Paul to deliver to
Andrea a promissory note in the amount of $27,776.00, payable at
10% interest and secured by a mortgage on a parcel of real
property.
The
April
24,
1996
order
simply
reiterated
this
obligation and calculated the interest due in accordance with the
terms of the original decree.
3) IRAs and Securities:
Andrea
IRAs
and
The 1993 decree ordered Paul to deliver to
securities
then
valued
attempted to transfer those assets in 1996.
had declined to $33,981.77.
at
$39,059.00.
Paul
However, their value
The April 24, 1996 order reiterated
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that Andrea was entitled to $39,059.00 plus interest at the rate of
12% per annum.
4) Damages for Stay on Collection of Judgment:
Pursuant to KRS
26A.300(2), the April 24, 1996 order awarded damages of $6,683.60,
representing 10% of the promissory note and securities awarded
under the decree.
Such damages may be awarded where a second
unsuccessful appeal is taken which stays the collection of the
original award.
5) Interest:
The trial court ordered that interest was payable
from the date of the commissioner's findings on August 19, 1991.
6) Letter of Credit:
Prior to the entry of the order now on
appeal, Paul caused a letter of credit to be issued in lieu of a
supersedeas bond.
The April 24, 1996 order caused the proceeds of
that letter of credit to be paid to Andrea in partial satisfaction
of all amounts awarded under the decree.
Paul now appeals from the entry of this order. He argues
that the court erred in awarding interest on the unpaid child
support and property award from the date of the commissioner's
findings rather than the date of the decree.
He also maintains
that the court committed reversible error in awarding 10% damages
under KRS 26A.300(2) when no stay or supersedeas bond had been
executed and no second appeal had been taken.
We have closely
examined these arguments and affirm the trial court.
On the question of whether the court erred in awarding
interest from the date of the commissioner's findings rather than
the date of the decree, we find no error.
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As a general rule,
prejudgment interest may be awarded where justified by the facts of
a particular case.
State Farm Mutual Automobile Ins. Co. v.
Reeder, Ky., 763 S.W.2d 116 (1988) citing 22 Am.Jur.2d, Damages
ยง179.
In addressing the question of prejudgment interest, the
distinction is often drawn between liquidated and unliquidated
damages.
The Kentucky Supreme Court addressed this distinction in
Nucor Corp. v. General Electric Co., Ky., 812 S.W.2d 136 (1991),
wherein it stated:
When
the
damages
are
'liquidated,'
prejudgment interest follows as a matter
of course.
Precisely when the amount
involved qualifies as 'liquidated' is not
always clear, but in general 'liquidated'
means '[m]ade certain or fixed by
agreement of parties or by operation of
law.' Black's Law Dictionary 930 (6th ed.
1990).
Common examples are a bill or
note past due, an amount due on an open
account, or an unpaid fixed contract
price. In the present case, all parties
agree the amount due General Electric for
its
property
damage
qualifies
as
'unliquidated,' defined in Black's as
'[d]amages which have not been determined
or calculated, . . . not yet reduced to a
certainty in respect to amount.' Black's
supra at 1537.
Nucor, at 141.
While it appears that prejudgment interest follows as a
matter of course from an award of liquidated damages, the question
is less clear when addressing unliquidated damages.
The case law
does
an
reveal
prejudgment
a
general
interest
on
proposition,
unliquidated
discretion of the trial court.
though,
damages
that
is
award
left
to
of
the
Middleton v. Middleton, 287 Ky. 1,
152 S.W.2d 266, 268 (1941) (stating that it has long been held in
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Kentucky that "interest runs as a matter of right on a liquidated
demand, and, in the case of an unliquidated claim, the allowance of
interest rests in the discretion of the jury or the court trying
the case."); Brown v. Fulton, Hubbard & Hubbard, Ky. App., 817
S.W.2d 899 (1991); City of Henderson Police & Fireman Pension Board
v. Riley, Ky. App., 674 S.W.2d 27 (1984).
Thus, to prevail on the instant appeal, Paul must show by
credible evidence that the lower court abused this discretion in
awarding prejudgment interest. We cannot conclude that he has met
this burden.
It is the duty of this Court to search for errors of
law, Old Republic Insurance Co. v. Ashley, Ky. App., 722 S.W.2d 55
(1986), and to recognize that the trial court is presumptively
correct in its rulings.
City of Louisville v. Allen, Ky., 385
S.W.2d 179 (1964) (overruled on other grounds Nolan v. Spears, Ky.,
432 S.W.2d 425 (1968)).
Having closely examined the facts and the
law on this issue, we find no error.
Paul next maintains that the court committed reversible
error in awarding 10% damages under KRS 26A.300(2) when no stay or
supersedeas bond has been executed and no second appeal had been
taken.
Citing Ford v. Ford, Ky., 623 S.W.2d 903 (1981), he argues
that the Supreme Court of Kentucky has specifically held that the
division of property in a divorce action does not constitute a
judgment for purposes of imposing the 10% penalty.
We are not
persuaded by this argument.
Contrary to Paul's assertion, Ford, does not stand for
the proposition that the division of property in a divorce action
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does not constitute a judgment for purposes of awarding 10% damages
under KRS 26A.300(2).1
Rather, Ford merely held that the award
must be a sum certain in order to calculate the 10% penalty.
"Logic dictates that in order for the penalty to apply, there must
be
judgment
ascertainable.
in
an
amount
Otherwise,
definite,
there
is
no
certain,
figure
and
from
readily
which
to
calculate the ten percent (10%) penalty." Ford v. Ford, 623 S.W.2d
at 904, citing Kelley v. Kelley, 183 Ky. 576, 209 S.W. 335 (1919).
In the matter at bar, the property award was fixed and readily
ascertainable, and Ford cannot serve to bar the application of KRS
26A.300(2).
Paul also maintains that he has not prosecuted a second
appeal as required by KRS 26A.300(2), and that the 10% penalty
therefore is not applicable.
We disagree.
The filing of a motion
for discretionary review is sufficient to support application of
KRS 26A.300(2). Wells v. Southern Railway Co., Ky., 633 S.W.2d 406
(1982).
We find no basis for concluding that the facts of the
present case bar application of the 10% penalty.
For the foregoing reasons, the order of the Clark Circuit
Court is affirmed.
1
KRS 26A.300(2) provides that:
When collection of a judgment for the
payment of money has been stayed as
provided in the Rules of Civil Procedure
pending any other appeal, damages of ten
percent (10%) on the amount stayed shall
be imposed against the appellant in the
event the judgment is affirmed or the
appeal is dismissed after having been
docketed in an appellate court.
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ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Henry L. Rosenthal
Winchester, Kentucky
Beverly Ann Shea
Winchester, Kentucky
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