ALICE MARIE GAMBLE v. HOWARD EUGENE GAMBLE
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RENDERED: October 29, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000216-MR
ALICE MARIE GAMBLE
APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
ACTION NO. 95-CI-00083
v.
HOWARD EUGENE GAMBLE
APPELLEE
OPINION AFFIRMING IN PART,
VACATING IN PART, AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI, AND JOHNSON, JUDGES.
DYCHE, JUDGE:
Alice Marie Gamble appeals from an order of the
Daviess Circuit Court modifying the terms of the parties’ final
divorce decree.
The order relieved appellee, Howard Eugene
Gamble, (Howard) from a $750.00 dollar per month maintenance
award and reduced Alice’s share of Howard’s marital 401K
retirement account.
The parties were married on September 25, 1981.
On
January 20, 1995, Howard filed a petition to dissolve the
marriage.
The action was then referred to a Domestic Relations
Commissioner (DRC).
On May 2, 1995, the DRC’s recommended order was entered
requiring Howard to pay Alice temporary maintenance of $1000 per
month.
Additionally, both parties were ordered to file with the
court and opposing counsel within thirty days a sworn statement
of all assets either party had knowledge of.
The parties were
also ordered not to transfer or dispose of any marital property.
On February 13, 1996, the DRC issued his final report.
The DRC recommended that Alice be awarded $750 per month in
maintenance for eight years, and a one-half, or $33,000.00,
interest in Howard’s 401K retirement account.
each filed exceptions to the report.
Howard and Alice
On May 14, 1996, the trial
court entered an order affirming and adopting the Commissioner’s
report in all respects, though the order did, in addition, make
certain clarifications.
In response to the order, Howard filed a
“motion for reconsideration.”
On June 7, 1996, the trial court entered the
dissolution decree.
Included in the decree was a judgment that
Howard pay Alice $750.00 per month in maintenance for a period of
eight years and that Howard’s $66,000.00 401K be divided equally
between the parties.
Howard did not file a motion to vacate or
amend the order, nor did he file an appeal with this court.
Following the entry of the decree, various contempt
litigation continued.
On November 25, 1996, Howard filed a
motion to terminate the maintenance ordered under the decree and
requested that matters be referred back to the DRC for additional
consideration.
On November 26, 1996, a hearing on the motion was
held before the trial court.
At the hearing, Howard accused
Alice of having perjured herself by lying about or failing to
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disclose certain assets in her possession at the time of the
parties’ separation.
Howard requested that Alice execute waivers to permit
him to obtain certain bank records.
On January 22, 1997, the
trial court entered an order requiring Alice to execute waivers
to permit Howard to gain access to the bank account records.
The
trial court held the motion to terminate maintenance in abeyance
pending the results of the information obtained as a result of
the waivers.
While the maintenance issue languished in abeyance, on
October 23, 1997, Howard filed, in conjunction with a motion for
contempt, another motion to terminate maintenance.
The motion
further complained that Alice had failed to execute the bank
account waivers.
Following a November 20, 1997 hearing on the motion, on
December 24, 1997, the circuit court entered an order terminating
Howard’s maintenance obligation to Alice, retroactive to January
1, 1997.
The order also reduced Alice’s interest in Howard’s
401K account.
Alice filed a “motion to reconsider,”
denied by order entered January 21, 1998.
which was
This appeal followed.
Modification or termination of provisions for
maintenance and modification of a prior property disposition are
both addressed by KRS 403.250(1).
KRS 403.250(1) provides, in
pertinent part, that
the provisions of any decree respecting
maintenance may be modified only upon a
showing of changed circumstances so
substantial and continuing as to make the
terms unconscionable. The provisions as to
property disposition may not be revoked or
modified, unless the court finds the
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existence of conditions that justify the
reopening of a judgment under the laws of
this state.
The provisions of a property disposition cannot be
revoked or modified unless the court finds the existence of
conditions that justify the reopening of a judgment “under the
laws of this state.”
291 (1991);
Burke v. Sexton, Ky. App., 814 S.W.2d 290,
KRS 403.250(1).
Alice has correctly identified the
method for reopening a final judgment, Rule of Civil Procedure
(CR) 60.02.
Alice argues that the trial court abused its
discretion by reopening the case under CR 60.02.
We disagree.
Howard’s November 25, 1996, motion alleged that Alice
had committed perjury or falsified evidence relating to assets
she controlled at the time of the parties’ separation.
The trial
court may reopen the proceedings to relieve a party from a final
judgment upon the grounds of perjury or falsified evidence.
60.02(c);
Duncil v. Greene, Ky., 424 S.W.2d 940 (1968).
CR
A
motion for relief under CR 60.02(c) must be brought within one
year.
Copley v. Whitaker, Ky. App., 609 S.W.2d 587, 942 (1980).
Howard did bring his motion alleging perjury and
falsified evidence within one year.
The decree was entered on
June 7, 1996, and Howard’s initial motion was filed on November
25, 1996.
There is substantial evidence in the record that Alice
committed perjury or falsified evidence in the course of these
proceedings.
For example, her supposed inability to explain what
became of a significant amount of Howard’s personal possessions
following his departure from the marital residence was
particularly incredible.
Moreover, Alice’s asset disclosure
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exhibit failed to accurately list or account for withdrawals and
amounts held in her bank accounts at the time of separation.
“[T]he determination to grant relief from a judgment or
order pursuant to CR 60.02 is one that is generally left to the
sound discretion of the trial court[.]”
Schott v. Citizens
Fidelity Bank and Trust Co., Ky. App., 692 S.W.2d 810, 814
(1985).
The time limitation and the perjury or evidence
falsification criteria for reopening a proceeding under CR
60.02(c) were met.
The trial court did not abuse its discretion
in reopening the proceedings to reconsider property distribution.
We reject Alice’s argument that Hartford Accident &
Indemnity Company v. Lewis, Ky., 296 S.W.2d 228 (1956), required
Howard to specifically request relief under CR 60.02, either in
the caption of his motion or in the body of his motion, for the
trial court to reopen the proceedings under CR 60.02.
Hartford
held that the grounds for CR 60.02(f) relief for reasons of an
“extraordinary nature”
must be clearly stated in a written
motion or petition attempting to invoke it.
Howard’s November
21, 1996, motion specified grounds for relief consistent with the
requirements stated in CR 60.02(c).
The trial court properly
reopened the final judgment for consideration of whether property
distribution should be modified.
In its order of December 24, 1997, the trial court made
a finding that
[t]he records establish that Mrs. Gamble
withdrew $21,223.67 from a personal account
(No. 0001378643) in her name only, on
December 14, 1994, the day after the parties
separated. Mrs. Gamble never provided such
information and, indeed, denied any knowledge
of such.
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We may not set aside a finding of fact of the trial
court unless the finding is clearly erroneous.
v. Reichle, Ky., 719 S.W.2d 442 (1986).
CR 52.01; Reichle
If supported by
substantial evidence, the trial court’s finding of fact is not
clearly erroneous.
954 (1964).
Black Motor Co. v. Greene, Ky., 385 S.W.2d
The bank records, when compared with Alice’s
testimony and asset disclosure sheets, support the trial court’s
finding.
To provide Howard relief from Alice’s prior
dissemblances, the trial court reduced Alice’s share of Howard’s
401K by $21,223.00.
This represents the amount Alice had
withdrawn from Owensboro National Bank account No. 0001378643
immediately following the separation and had failed to disclose
in her subsequent testimony and asset disclosure schedules.
Our
standard of review in considering property distribution awards is
limited to determining whether the trial court abused its
discretion in light of the factors set forth in KRS 403.190.
Russell v. Russell, Ky. App., 878 S.W.2d 24, 25 (1994).
Here,
the trial court merely off-set Alice’s previous award by the
amount she had failed to disclose in the prior proceedings.
This
was not an abuse of the trial court’s discretion.
We now consider the trial court’s termination of
Alice’s maintenance award of $750.00 per month for eight years, a
total award of $72,000.00. Alice argues that the trial court
erred as a matter of law in terminating her maintenance award
under Dame v. Dame, Ky., 628 S.W.2d 625 (1982).
A sum certain
payable for a definite period, as here, is considered a lump sum
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Dame award.
John v. John, Ky. App., 893 S.W.2d 373 (1995).
Dame
awards are, generally, non-modifiable.
However, as discussed supra, the trial court properly
reopened this case pursuant to CR 60.02(c).
A Dame maintenance
award may be reopened if, as here, the standards of CR 60.02(c)
are met.
Moreover, the form of relief under CR 60.02 “may
include modification or setting aside of the judgment or order,
or granting a new trial, or taking other appropriate action.”
7
Kurt A. Philipps, Jr., Kentucky Practice, CR 60.02, cmt. 1 (5th
ed. 1995).
Therefore, it was unnecessary for the trial court to
consider the general statutory elements, i.e., change of
conditions and unconscionability, for a modification of
maintenance under KRS 403.250.
The trial court’s rationale, which we set forth in
full, for reducing Alice’s share of Howard’s 401K account and
terminating her maintenance was as follows:
waivers were prepared and presented to Mrs.
Gamble [allowing Howard access to alleged
accounts Alice has or had at Republic and
Charter Banks], however, she refuses to
execute the waivers. This continued refusal
to comply with demands of Mr. Gamble and
orders of this Court for a full disclosure of
assets gives credibility to Mr. Gamble’s
claims that Mrs. Gamble is hiding thousands
of dollars in assets. Mr. Gamble has
subpoenaed records from out of state banks.
The subpoena was not honored. Particularly
telling, however, is the fact that Mr. Gamble
was able to obtain records from the Owensboro
National Bank. The records establish that
Mrs. Gamble withdrew $21,223.67 from a
personal account (No. 0001378643) in her name
only, on December 14, 1994, the day after the
parties separated. Mrs. Gamble never
provided such information and, indeed, denied
any knowledge of such. (See e.g., Transcript
of Mrs. Gamble’s testimony, July 31, 1995, p.
97, line 19). This account should not be
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confused with other accounts at Owensboro
National.
Mrs. Gamble also received a $14,000 severance
package from Peabody Coal Company which has
not been accounted for.
When Mr. Gamble left the marital residence
all his personal belongings, except some work
clothes, were left in the residence. These
items included such things as safety awards
from his employer, a bedroom suite, gifts to
him from relatives, guns, clothing, and so
forth. Mrs. Gamble acknowledged having
possession of such items, however, in spite
of being ordered to deliver such items to Mr.
Gamble, she has refused to do so and now
claims she doesn’t know what happened to
them. She has no explanation for their
disappearance. She was ordered to return a
fishing boat to Mr. Gamble that she took to
their farm in Illinois. She failed to do so
until Mr. Gamble made several appearances in
an Illinois court to finally get its return.
He has valued his missing property at
$10,000.
Rarely, if ever, has this Court experienced
such blatant contempt as that shown by Mrs.
Gamble. This may explain her reluctance to
return to Kentucky for the hearing on this
matter.
To enforce the previous orders of this Court
against Mr. Gamble under the circumstances of
this case, particularly in view of the
inexcusable leniency this Court has shown
Mrs. Gamble to this point, would make a
mockery of the judicial system.
Combining the reduction in her share of Howard’s 401K
account with the amount of the terminated maintenance,
$72,000.00, the total reduction to Alice’s original property and
maintenance award as a result of the reopened proceedings was
$93,223.00.
While the $21,223.00 reduction to Alice’s 401K
account is accounted for by Alice’s withdrawal from the Owensboro
National Bank the day after the parties’ separation, the trial
court has only identified an additional $24,000.00 in undisclosed
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assets - $14,000.00 relating to Alice’s severance package and
$10,000.00 relating to the personal property of Howard which
Alice failed to return.
That leaves $48,000.00 (less any maintenance actually
paid following the decree) of the reduction to the maintenance
award unaccounted for in the trial court’s order.
While we sympathize with the trial court in its
frustration with Alice’s conduct, we believe the imposition of,
in effect, a $48,000.00 civil sanction was excessive and
therefore an abuse of its discretion.
In this regard, we note
that Howard has not been a model of virtue in complying with the
trial court’s orders.
In particular, he failed to timely make
certain maintenance payments.
While certainly Alice should be
assessed attorney fees for the additional litigation she has
caused for Howard in these proceedings, we do not believe Howard
should be the recipient of a forty thousand dollar plus windfall
if, in fact, Alice is entitled to maintenance under KRS 403.200.
We therefore vacate that portion of the trial court’s order
terminating maintenance and remand for a de novo determination of
maintenance under KRS 403.200.
We affirm the trial court’s reduction of Alice’s share
of Howard’s 401K account, vacate the trial court’s termination of
Alice’s maintenance award, and remand for a determination of
appropriate maintenance, if any, under KRS 403.200.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kathy L. Hornaday
Owensboro, Kentucky
Patrick T. Flaherty
Owensboro, Kentucky
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