CAROLYN S. NIXON v. CHARLES Y. NIXON
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RENDERED:
DECEMBER 1, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000542-MR
CAROLYN S. NIXON
v.
APPELLANT
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE STANLEY BILLINGSLEY, JUDGE
ACTION NO. 93-CI-00583
CHARLES Y. NIXON
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, GUIDUGLI, AND HUDDLESTON, JUDGES.
BUCKINGHAM, JUDGE:
Carolyn S. Nixon appeals from an order of the
Boone Circuit Court directing her to pay $5,515.87 in interest
and $1,000 in attorney’s fees to her ex-husband, Charles Y.
Nixon.
For the reasons set forth below, we affirm.
Carolyn filed for divorce from Charles in the Boone
Circuit Court on July 7, 1993.
A decree of dissolution was
entered by the trial court on January 29, 1996.
Among other
things, the decree dissolved the marriage of the parties, divided
the property, and ordered Carolyn to pay Charles $31,519.24
within sixty days to equalize the division of the parties’
marital property.
Carolyn appealed and Charles cross-appealed,
but this court entered an order on July 22, 1996, dismissing the
appeals at the request of both parties.
Carolyn did not make the payment within sixty days of
the order.
In an order dated December 30, 1996, Charles was
ordered to sign quitclaim deeds to Carolyn for the marital
residence and Carolyn’s farm.
Although the order was not entered
until December 30, it further ordered the parties to attend a
closing to be held at Fifth Third Bank in Hebron no later than
December 27, assuming the availability of the bank to close the
matter.
At the closing, Carolyn was to obtain financing from the
bank and was to pay Charles, and Charles was to sign the
quitclaim deeds.
The transaction was not closed at that time, and on
February 28, 1997, Charles moved the court to issue an order
finding Carolyn in contempt for failure to pay him the money to
close the transaction and for interest on the sum owed.
On March
12, 1997, Charles renewed his motion, and a show cause order
directing Carolyn to appear before the court was entered on April
16, 1997.
The show cause hearing was eventually held on June 11,
1997, before a domestic relations commissioner.
We have searched the record and are unable to find the
commissioner’s order which was apparently entered on June 24,
1997.
According to subsequent pleadings, however, the
commissioner apparently found that Carolyn wilfully failed to
comply with the court’s previous order by failing to pay Charles
and ordered her to pay him interest plus attorney’s fees of
$1,000.
Carolyn filed exceptions to the commissioner’s order,
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and the trial judge, Judge Joseph F. Bamberger, entered an order
rejecting the commissioner’s recommendations and referring the
matter to a special commissioner.
On October 27, 1997, Judge Bamberger’s wife entered an
appearance in the record as counsel for Charles, and Judge
Bamberger entered an order of recusal the following day.
Judge
Stanley Billingsley was appointed as a special judge in the case.
In the meantime, Carolyn had paid Charles the principal
amount of $31,519.24 on July 16, 1997.
On November 10, 1997,
Charles moved the court to order Carolyn to pay him twelve
percent interest from the date of January 29, 1996, to July 16,
1997, which amounted to $5,515.87.
He also requested $1,000 in
attorney’s fees as previously awarded by the commissioner plus
$2,000 in additional attorney’s fees for bringing this motion.
Although a special commissioner had been previously appointed,
this motion was noticed to be heard on December 11, 1997, before
the special judge.
A hearing was held before the special judge
on January 9, 1998, and he entered an order on February 3, 1998,
directing Carolyn to pay $5,515.87 in interest and $1,000 in
attorney’s fees to Charles within thirty days of the order.
This
appeal followed.
Charles did not file a brief in this case.
CR1
76.12(1) requires the parties to file briefs before the appeal is
submitted for final disposition on the merits.
The penalties for
an appellee’s failure to file a brief are set forth in CR
76.12(8)(c).
1
This court is not, however, required to consider
Kentucky Rules of Civil Procedure.
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Charles’s failure to file a brief as a confession of error and to
reverse the trial court for that reason.
See Kupper v. Kentucky
Board of Pharmacy, Ky., 666 S.W.2d 729, 730 (1983).2
In
reviewing Carolyn’s brief and the record herein, we choose to
affirm the trial court.
Carolyn asserts in her brief that the reason she did
not pay Charles his interest in the marital residence within the
time directed by the trial court was that Charles had remarried
and the bank would not loan her the money to pay him until the
dower interest of his new wife was extinguished.
She states that
she had attempted on numerous occasions to arrange the closing
but that Charles failed to attend.
While she claims that she
first learned on April 17, 1997, of Charles’s remarriage, she
does not explain why she apparently made no effort to close the
transaction during the fifteen month period from the entry of the
decree in January 1996 until she learned of the remarriage in
April 1997.
Our review of the record from the entry of the
decree through the end of 1997 indicates no effort to close the
transaction despite the trial court’s order that she pay Charles
within sixty days of the decree.
Carolyn’s defense to not paying Charles for the fifteen
month period following the entry of the decree appears to be that
she arranged the closing on numerous times but Charles failed to
2
In Hoffman v. Hoffman, Ky. App., 553 S.W.2d 474 (1977),
this court determined in a divorce case that the appellee’s
failure to file a brief would be treated as a confession of error
meriting reversal without considering the merits of the case.
Id. at 475. We decline to follow that case because the facts are
sufficiently distinguishable and because we are not required to
consider such failure as a confession of error. Kupper, supra.
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attend.
However, her brief does not cite to any testimony
supporting this assertion nor does the trial court’s order make
any findings in this regard.
While we are mindful that Charles
did not file a brief, we are also mindful that the burden on
appeal is with Carolyn as the appellant and that her brief should
have “ample supportive references to the record.”
See CR
76.12(4)(c)(iv).
We have reviewed the tape of the hearing before the
special judge where the issue of interest was addressed.
At that
time, Carolyn stated that she did not make the payment as ordered
because she and Charles were continuing to negotiate and because
Charles had failed to make maintenance payments to her in the
amount of $125 per month as ordered.3
She further acknowledged,
however, that Charles eventually made the payments in full with
interest.
The trial court rejected Carolyn’s reasons for not
making the payment within sixty days of the decree as ordered,
and directed her to pay interest.
We find that the court’s
ruling in this regard was neither clearly erroneous nor an abuse
of discretion.
See CR 52.01.
As to the award of $1,000 in attorney’s fees to
Charles, we conclude that the trial court acted within its
discretion in light of the efforts made by Charles’s attorneys to
force Carolyn to make the payment.
An award of attorney’s fees
is “entirely within the discretion of the court.”
Wilhoit v.
Wilhoit, Ky., 521 S.W.2d 512, 514 (1975).
3
We note that at the hearing Carolyn did not cite Charles’s
failure to attend scheduled closings or his remarriage as reasons
for her failure to make the payment.
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The order of the Boone Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
NO BRIEF FILED FOR APPELLEE
Paul J. Dickman
Covington, Kentucky
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