AGNES D. UNDERWOOD v. MARILYN J. UNDERWOOD, EXECUTRIX OF THE ESTATE OF JOHN THOMAS UNDERWOOD, III, DECEASED
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RENDERED: May 21, 1999; 10:00 a.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000736-MR
AGNES D. UNDERWOOD
APPELLANT
APPEAL FROM FRANKLIN CIRCUIT COURT
HONORABLE ROGER L. CRITTENDEN, JUDGE
ACTION NO. 1997-CI-1807
v.
MARILYN J. UNDERWOOD,
EXECUTRIX OF THE ESTATE OF
JOHN THOMAS UNDERWOOD, III, DECEASED
APPELLEES
OPINION
AFFIRMING IN PART, REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
KNOPF, KNOX, AND SCHRODER JUDGES.
KNOPF, JUDGE:
This is an appeal from a dismissal of a claim
against an estate for enforcement of the provisions of a
dissolution decree.
The trial court dismissed the action based
upon the statute of limitations, the plaintiff’s failure to
present the claim to the estate prior to filing the action, and
improper venue.
Finding that the maintenance claim was not
subject to the presentation requirement or to the six (6) month
statute of limitations, and that it was brought in the proper
forum, we affirm in part, reverse in part, and remand for further
proceedings.
The appellant, Agnes D. Underwood (Agnes), was divorced
from the decedent, John Thomas Underwood, III (John), by a decree
entered in Oldham Circuit Court on October 13, 1988, and amended
by order dated July 3, 1992.1
Among other things, the decree
directed that Agnes would receive maintenance payments of
$1,350.00 per month from John for her lifetime.2
In addition,
the court ordered that Agnes would receive thirty-five percent
(35%) of John’s National Guard pension, and fifty percent (50%)
of his pension from Chevron.
John died testate in Franklin County on December 2,
1996.
On December 16, 1996, John’s second wife, Marilyn J.
Underwood was appointed the executrix of his estate.
Agnes filed
a verified complaint against the estate on December 11, 1997.
She alleges that the maintenance payments and the National Guard
pension payments to her ceased following John’s death.
Apparently, John failed to take the appropriate steps to arrange
for Agnes to receive survivor benefits from his National Guard
retirement account.
Agnes sought a judgment against the estate
for lifetime maintenance payments and for an amount equal to
1
The dissolution action was the subject of a published
opinion by this Court. Underwood v. Underwood, Ky. App., 836
S.W.2d 439 (1992), which affirmed the circuit court judgment in
part and reversed the judgment in part. The 1992 judgment was
entered following remand by this Court.
2
Specifically, the Oldham Circuit Court held that
maintenace payments were to continue beyond John’s death if Agnes
has not achieved the age of sixty (60). The decree further
states that “if there is in existence at the time of [John’s]
death an insurance policy which is assigned by the Court under
this division of property which has a value equal to in excess of
those amounts which would be paid or required by the Court for
maintenance, then the insurance proceeds prevail, and there is no
enforcement concerning maintenance against the estate . . . .”
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thirty-five percent (35%) of John’s National Guard retirement
account continuing until her death.
The executrix filed an answer and a motion to dismiss
on December 17, 1997, asserting that the complaint should be
dismissed for lack of subject matter jurisdiction and for failure
to state a claim upon which relief can be granted.
Subsequently,
on January 5, 1998, the executrix filed a second motion to
dismiss, alleging that the claim was untimely under KRS 396.011.
She also asserted that the claim was barred because Agnes had
failed to present a demand for payment to the personal
representative.
KRS 396.035.
Finally, the executrix again
argued that the Franklin Circuit Court lacked subject matter
jurisdiction over the claim because the claim should have been
asserted against the estate in the Oldham Circuit Court action.
In an order entered February 3, 1998, the Franklin
Circuit Court agreed with the executrix and dismissed the
complaint.
The trial court first held that Agnes had failed to
comply with KRS 396.035, in that she had not alleged that any
claim had been presented to the personal representative or that
it had been rejected.
Second, the trial court found that the
claim was untimely because it had not been presented within six
(6) months after the appointment of the personal representative,
as required by KRS 396.011.
Lastly, the trial court concluded
that the claim should not have been brought in Franklin County.
Rather, the trial court opined that the claim should have been
raised in Oldham Circuit Court by filing a motion in the
dissolution action to substitute the estate.
to this Court.
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Agnes now appeals
In dismissing the action below, the trial court first
relied upon KRS 396.035, which mandates that “[n]o action shall
be brought against a personal representative on a claim against
decedent’s estate unless the claimant shall have first presented
his claim in the manner described by KRS 396.015."
As noted by
the trial court, Agnes failed to allege that she had made a
presentation of the claim or that it had been rejected by the
personal representative.
The trial court further held that
Agnes’s claims are barred by the six (6) month statute of
limitations contained in KRS 396.011(1).
The statute bars any
claim “which arose before the death of the decedent,” unless
presented within six (6) months after the appointment of the
personal representative.
Claims arising after the death of the
decedent must be brought within two (2) years after the
appointment of the personal representative.
KRS 396.205.
Although the requirement for presentation of claims to
the personal representative and the statute of limitations are
separate grounds, they are related under the circumstances of
this case.
In Batson v. Clark, Ky. App., 980 S.W.2d 566 (1998),
this Court explained that claims which arise after the death of
the decedent are not subject to the presentation requirements of
KRS 396.035 and 396.015, or the statute of limitations contained
in KRS 396.011.
The word “claim,” as used in KRS 396.011,
generally refers to “‘debts or demands against the decedent which
might have been enforced against him during his lifetime.’”
Id.
at 570 (quoting 31 Am. Jur. 2d Executors and Administrators § 603
(1989)).
If the decedent took no action during his lifetime
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which could have prompted litigation, then the claim cannot be
said to have arisen during the decedent’s lifetime.
In the present case, Agnes alleges that John failed to
take the necessary steps for Agnes to receive his National Guard
survivor benefits.
Agnes also alleges (although the record does
not confirm this fact) that the Oldham Circuit Court issued a
qualified domestic relations order (QDRO) to enforce her rights
to receive a portion of John’s military retirement.
Clearly, any
breach of duty by John occurred prior to his death, when he could
have been directed to make the necessary arrangements for Agnes
to receive his survivor benefits.
Therefore, this claim arose
prior to his death and was subject to both the presentation
requirement in KRS 396.015 and the six (6) month statute of
limitations in KRS 396.011.
However, Agnes’s claim for maintenance is a different
issue.
The Oldham Circuit Court directed that, under certain
circumstances, her maintenance would continue after John’s death.
If the cessation of maintenance occurred after John died, as
Agnes alleges, then the claim did not arise out of any action
taken by John during his life.
Rather, Agnes has stated a claim
for actions taken (or not taken) by the personal representative.
Since Agnes’s claim for continuation of maintenance arose after
John’s death, it is not subject to the six (6) month statute of
limitations in KRS 396.011 or to the presentation of claims
requirement in KRS 396.035 and 396.015.
570-572.
Batson, 980 S.W.2d at
Consequently, the trial court erred in dismissing
Agnes’s claim for maintenance.
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Agnes argues that the trial court erred in relying upon
the statute of limitations because the executrix did not
specifically plead the defense in her initial answer and motion
to dismiss.
The issue of the statute of limitations was not
raised for three (3) weeks after filing of the answer until the
filing of the second motion to dismiss.
limitations is an affirmative defense.
The statute of
CR 8.03; Thompson v.
Ward, Ky., 409 S.W.2d 807, 808-09 (1966).
The defense must be
raised in either the initial answer or in a motion to dismiss in
lieu of an answer.
CR 12.02.
Since the executrix did not raise
the issue timely, Agnes argues that the defense was waived.
We agree that the executrix did not raise the issue of
statute of limitations in a timely manner.
The defense must be
raised in an initial pleading, either by answer or by a motion to
dismiss.
Yet, while the executrix’s failure to specifically
plead the defense may constitute a waiver of the defense, we do
not conclude that the trial court’s consideration of the issue
was error.
First, although failure to plead the statute of
limitations constitutes a waiver of that defense, if the
complaint on its face shows that the action is barred by time,
the statute of limitations may be raised by a motion to dismiss.
Tomlinson v. Siehl, Ky., 459 S.W.2d 166 (1970).
The statute of
limitations issue was clear from the face of the complaint.
Moreover, even if the statute of limitations was waived, Agnes
still did not comply with the presentation requirements of KRS
396.035 and 396.015(1).
The presentation of claims requirement
is not an affirmative defense, but a statutory prerequisite to
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filing an action.
Consequently, the requirement was not waived
under these circumstances.
The executrix insists that Agnes’s failure to comply
with the statutory requirement for presentation of claims
deprived the trial court of subject matter jurisdiction over the
claim.
Likewise, the executrix asserts that only the Oldham
Circuit Court would have subject matter jurisdiction over the
dissolution issues.
We disagree on both counts.
Subject matter
jurisdiction refers to a court's authority to determine "this
kind of case" (as opposed to "this case").
451 S.W.2d 626, 631 (1970).
Duncan v. O'Nan, Ky.,
A prospective plaintiff must satisfy
the statutory prerequisites to filing an action against an
estate.
A failure to fulfil these requirements will deprive the
plaintiff of the right to bring an action against the estate, but
it does not affect the jurisdiction of the court to hear the
case.
Similarly, the observations concerning the proper forum
for Agnes’s claims relate to venue, not to the subject matter
jurisdiction of the trial court.
Stewart v. Sampson, 285 Ky.
447, 148 S.W.2d 278, 281-82 (1941).
The trial court took the position that Agnes’s claims
for John’s retirement benefits and for continuation of
maintenance should have been presented in the dissolution action.
Consequently, the trial court reasoned that Agnes should have
sought to revive her dissolution action in Oldham Circuit Court,
or to substitute the personal representative for John in that
action.
We disagree.
KRS 396.035 requires a claimant against an
estate to file a written statement of the claim with the personal
representative prior to bringing an action on that claim.
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KRS
396.015(1) sets out the form for that presentation.
However, KRS
396.015(2) further provides:
(2) In an action pending against the decedent
at the time of his death, which action
survives at law, the substitution of the
personal representative for the decedent, or
motion therefor, shall constitute the
presentation of a claim. Such claim shall be
deemed to have been presented from the time
of substitution, or motion therefor.
KRS 396.015(2) waives the presentation requirement if
the action is pending at the time of death, and the claimant
substitutes the estate for the decedent.
Even if the
presentation requirement were applicable to the maintenance
claim, the Oldham Circuit Court issued a final order in the
dissolution proceedings and that case was no longer pending.
Although the Oldham Circuit Court retained continuing
jurisdiction to enforce its prior orders, KRS 396.015(2) did not
require Agnes to revive her action in Oldham County in order to
enforce the award against the estate.
Since Franklin County was
John’s residence at the time of his death and the place where his
will was being probated, Franklin County was the proper forum to
consider the merits of Agnes’s claim.
See, Duvall v. Duvall,
Ky., 550 S.W.2d 506, 507 (1977).
Accordingly, the order of the Franklin Circuit Court
dismissing the complaint is affirmed in part, reversed in part,
and remanded for consideration of the merits of the maintenance
claim.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
John Frith Stewart
Steven G. Bolton
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Laura Ellis Stoess
Stewart & Roelandt Attorneys
Crestwood, Kentucky
Frankfort, Kentucky
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