RAY SIMONS, II v. LINNYA SIMONS
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RENDERED: July 2, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-003497-MR
RAY SIMONS, II
CROSS-APPELLANT
CROSS-APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA OVERSTREET, JUDGE
ACTION NO. 94-CI-01799
v.
LINNYA SIMONS
CROSS-APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, COMBS, and MCANULTY, Judges.
BUCKINGHAM, JUDGE.
Ray Simons, II (Ray) cross-appeals from
findings of fact, conclusions of law, and a decree of dissolution
of marriage entered by the Fayette Circuit Court.
The appeal by
Linnya Simons (Linnya) has been previously dismissed.
Having
reviewed the record, we affirm.
Ray and Linnya were married in 1990, and Linnya filed a
petition for dissolution of marriage in the Fayette Circuit Court
in June 1994.
Findings of fact and conclusions of law were
entered by a domestic relations commissioner (DRC) on October 22,
1996.
The findings and conclusions of the DRC relative to this
appeal involve the disposition of marital and nonmarital property
and the division of the debts.
On October 31, 1996, a decree of
dissolution proposed by the DRC was entered into the record.
Both the October 22 DRC report and the October 31 decree were
signed by the DRC and the trial judge, although there is no
indication as to when the trial judge signed those documents.1
On November 1, 1996, Ray filed exceptions to the DRC’s
October 22 findings of fact and conclusions of law.
The sole
subject of Ray’s exceptions is the custody of the parties’ minor
child.
On November 6, 1996, Ray filed a response to Linnya’s
exceptions to the DRC’s October 22 report.
The trial court
apparently held a hearing on the parties’ exceptions on November
8, 1996, and entered an order on November 20, 1996, overruling
all exceptions.
Linnya then filed a direct appeal which has been
dismissed, and Ray then filed a cross-appeal.
Ray’s appeal
raised issues concerning the restoration of nonmarital property,
the division and assignment of marital debts, and the award of
attorney’s fees.
Ray did not file exceptions to the DRC’s
recommendations concerning property or debt division; thus, he is
1
We assume that the trial judge did not sign the documents
until after those dates, as the trial judge is required by
Kentucky Rule of Civil Procedure (CR) 53.06(2) to wait ten days
after the report is served on the parties before adopting the
report so as to give the parties an opportunity to file written
objections or exceptions to the report. The procedure of having
the trial judge adopt the DRC report by signing that document is
a flawed procedure. A separate document, adopting a DRC’s
report, should be prepared for the judge’s signature. As the DRC
report and the judge’s adoption of the report usually occur on
different days, a single document cannot be used to reflect both
actions.
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precluded from raising these issues before this court.
In Eiland
v. Ferrell, Ky., 937 S.W.2d 713, 716 (1997), the Kentucky Supreme
Court stated that “[i]n general, a party who desires to object to
a report [of a commissioner] must do so as provided in CR 53.06
(2) or be precluded from questioning on appeal the action of the
circuit court in confirming the commissioner’s report.”
Ray’s
failure to file exceptions concerning the aforementioned issues
precludes him from raising those issues before this court.
The judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael Davidson
Lexington, KY
Charles W. Arnold
Lexington, KY
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