DALE CHARLES HERBST v. TERRI ANN HERBST
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RENDERED: June 23, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-000304-MR
DALE CHARLES HERBST
APPELLANT
APPEAL FROM CARTER CIRCUIT COURT
HONORABLE SAMUEL C. LONG, JUDGE
ACTION NO. 96-CI-00162
v.
TERRI ANN HERBST
APPELLEE
OPINION
AFFIRMING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, EMBERTON, and SCHRODER, Judges.
BUCKINGHAM, JUDGE.
Dale Charles Herbst appeals from orders of
the Carter Circuit Court regarding the disposition of marital
property in a dissolution of marriage action.
The issue is
whether the trial court erred in entering a judgment dividing the
marital property after a hearing where Herbst was not present and
not represented by counsel.
We find no error in the court’s
judgment or in its order denying Herbst’s motion to alter, amend,
or vacate.
Thus, we affirm.
Herbst and his wife, Terri Ann Herbst (now Perry), were
married in 1985.
On May 29, 1996, Perry filed a petition for
dissolution of the marriage in the Carter Circuit Court.
After
Herbst was served by warning order attorney and failed to
respond, a default judgment was entered against him on
November 6, 1996.
After a new summons was issued for Herbst, he
filed a pro se response on January 26, 1998.
A final hearing
before the domestic relations commissioner (DRC) was initially
scheduled for April 28, 1998.
At that hearing, Herbst’s original
attorney, W. Jeffrey Scott, entered an appearance on Herbst’s
behalf and requested a continuance.
rescheduled for June 9, 1998.
The final hearing was
In the meantime, the trial court
entered a decree on May 11, 1998, divorcing the parties.
On the day before the scheduled June 9, 1998, hearing,
Perry filed a motion to compel Herbst to comply with discovery
requests.
On the day of the hearing, the court ordered Herbst to
comply with discovery requests and reset the final hearing for
July 7, 1998.
On the rescheduled hearing date, Perry filed a
motion for the court to sanction Herbst for his failure to comply
with the discovery order.
Herbst was not present at the hearing,
and the court ordered the motion held in abeyance and rescheduled
the hearing to August 25, 1998.
On the day following the
scheduled July 7, 1998, hearing, Herbst’s attorney sent him a
letter advising him of the new hearing date, suggesting that he
be present for the hearing, and directing him to complete and
return the discovery information.
On the August 25, 1998, final hearing before the DRC,
Herbst again failed to appear and again failed to comply with the
court’s discovery order.
His attorney orally moved the court to
allow him to withdraw as Herbst’s counsel, and the court entered
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an order on September 1, 1998, granting the motion.
On
November 3, 1998, the DRC entered his findings and
recommendations which stated in part that “[t]he Respondent is
hereby precluded from defending herein pursuant to CR 37.02 for
his failure to comply with the court’s orders on discovery.”
In
addition to awarding custody of the parties’ child to Perry, the
DRC’s recommendations provided that Perry would be awarded onehalf of Herbst’s pension and savings plan, one-half of the equity
in the marital residence, one-half of other marital personal
properties, and one-half of Herbst’s savings accounts.
Further,
Herbst was directed to assume responsibility for all marital
debts.
On November 12, 1998, Perry filed a motion to confirm
the DRC’s recommendations and gave notice that the motion would
be heard on November 17, 1998.
On the date of the hearing,
Herbst faxed a letter to the trial judge stating that he was in
West Palm Beach, Florida, and asking for a continuance so that he
could obtain new counsel and be present for the hearing.
The
court then entered an order rescheduling the hearing for December
7, 1998.
At this rescheduled hearing, Herbst’s new attorney,
MaLenda Haynes, appeared to represent him, but Herbst once again
was not present.
The trial judge then adopted the DRC’s
recommendations, and the order was entered by the clerk on the
following day.
On December 15, 1998, Herbst’s attorney filed a
response to Perry’s motion to confirm the DRC’s recommendation
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and entered her appearance of record as Herbst’s attorney.1
On
December 18, 1998, Herbst filed a motion to alter, amend, or
vacate the court’s judgment.
On January 11, 1999, the court
entered an order denying the motion.
On February 10, 1999,
Herbst filed a notice of appeal from the court’s judgment and its
order denying his motion to alter, amend, or vacate.
The gist of Herbst’s appeal is his argument that his
attorney should not have withdrawn from representing him prior to
the August 25, 1998, hearing and that his improper withdrawal
from the case left him without representation and resulted in an
inequitable apportionment of the marital property.
He further
asserts that the trial court should have continued the hearing
after it allowed Herbst’s counsel to withdraw.
Among the several
arguments raised by Perry in her brief,2 she contends that any
representation of Herbst at the hearing would have been to no
avail since the court had precluded him from defending due to his
failure to comply with the discovery order.
See CR3 37.02(2).
Herbst has not attacked the portion of the trial
court’s ruling that he was precluded from defending due to his
failure to comply with the discovery order.
Further, it does not
1
The response was obviously untimely because the court had
already entered an order approving the DRC’s recommendations.
2
Perry also argues that this court lacks jurisdiction to
consider Herbst’s appeal because the notice of appeal was not
timely filed. We have considered this argument and determined
that it is without merit. She further asserts that Herbst’s
brief should be stricken for failure to comply with the appellate
procedural rules, but we decline to address this issue because we
affirm the trial court on the substantive issues.
3
Kentucky Rules of Civil Procedure.
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appear that the trial court abused its discretion by ruling in
this manner.
See Greathouse v. American Nat’l Bank & Trust Co.,
Ky. App., 796 S.W.2d 868, 869-70 (1990).
See also Nowicke v.
Central Bank & Trust Co., Ky. App., 551 S.W.2d 809, 811 (1977).
Therefore, in light of the trial court’s ruling precluding Herbst
from further defending the case, we find no error in the court’s
allowing his attorney to withdraw or in its refusal to continue
the hearing.
For this reason alone, his argument that CR 7.02,
CR 6.04, and CR 5.01 were not followed has no merit.
The judgment and order of the Carter Circuit Court are
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
MaLenda S. Haynes
Grayson, KY
Philip D. McKenzie
Grayson, KY
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