LAURIE MCCLUNG v. ALLEN MCCLUNG
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RENDERED: JUNE 8, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001793-MR
LAURIE MCCLUNG
APPELLANT
APPEAL FROM CAMPBELL CIRCUIT COURT
HONORABLE LEONARD KOPOWSKI, JUDGE
ACTION NO. 93-CI-00266
v.
ALLEN MCCLUNG
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, GUIDUGLI, AND TACKETT, JUDGES.
BARBER, JUDGE:
This is an appeal of the Campbell Circuit Court’s
denial of Appellant, Laurie McClung’s (“Laurie”), Motion for
Rehearing.
We affirm.
On March 4, 1994, Laurie and Allen McClung were granted
a dissolution of marriage, and subsequently entered into a
Settlement Agreement on June 6, 1996.
The trial court entered
the Settlement Agreement, which dealt with all financial, child
custody and support issues between the parties, as an Agreed
Order.
On March 21, 1997, Laurie filed a motion for contempt,
asserting that Appellee, Allen McClung (“Allen”), had violated
the terms of the Settlement Agreement by failing to remain
current in child support payments, failing to pay his share of a
child’s medical expenses, and violating express provisions of the
Settlement Agreement contained in Paragraph 9.
Before the
circuit court, Allen argued that paragraph 9 of the Settlement
Agreement should be found null and void.
A three day hearing on the parties’ motions was held
before the Campbell County Domestic Relations Commissioner
(“DRC”), resulting in eighteen hours of taped testimony.
The
testimony was not taped by a court reporter, but by the DRC,
himself.
By Order dated May 27, 1998, following a hearing on the
parties’ objections to the DRC’s report, the trial court adopted
the DRC’s decision in its entirety.
A timely notice of appeal
was filed, with the case captioned as McClung v. McClung, 98-CA1487-MR.
No designation of the record on appeal was filed by
Laurie in the 1998 appeal.
In January 2000, Laurie had yet to
ensure that the Record on Appeal was certified by the circuit
court clerk.
She claims that when she attempted to have the
testimony given in the hearing transcribed, the audio tapes of
the hearing were not capable of transcription, and some of the
audio tapes were missing.
Laurie did not bring this issue to the
attention of this Court, and failed to provide an explanation for
her failure to have the record completed or certified.
Allen filed a motion to have the 1998 appeal dismissed
due to Laurie’s failure to designate or certify the record.
designation and certification is the responsibility of the
-2-
Such
Appellant.
CR 75.07(5).
Prior to the Court of Appeals dismissal
of the case, Laurie filed a motion with the circuit court
requesting a second hearing of the parties’ motions which were
the subject of the 1998 appeal.
The grounds for the request to
have the matter reheard was the fact that the tapes were not
capable of transcription.
CR 75.13(1) provides an avenue for
parties where the record is not capable of transcription.
did not follow these procedures in the 1998 appeal.
Laurie
Laurie does
not cite to any documents indicating that she brought this matter
to the attention of the appellate court at any time during the
1998 appeal.
Allen objected to Laurie’s motion before the circuit
court.
He argued, that pursuant to CR 59.02, the circuit court
no longer had jurisdiction over the matter, and thus could not
order the DRC to conduct another hearing.
On March 14, 2000, this Court dismissed the 1998 appeal
for lack of a certified record and Laurie’s failure to provide a
response to Allen’s motion to dismiss the appeal.
Laurie then
moved the circuit court for a rehearing on this matter, arguing
that it would be impossible for her to reconstruct the eighteen
hours of testimony, and that it was inequitable to deny her the
right to appeal due to the absence of a transcribed record.
circuit court denied the motion for rehearing.
denial.
The
We affirm that
The time for correcting the problem with the record was
during the pendency of the 1998 appeal.
Laurie’s failure to
bring any problems with the record on appeal before this Court at
that time precludes litigation of those matters now.
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Laurie is
time-barred from re-litigating those matters at the present time.
We affirm the ruling of the Campbell Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert N. Trainor
Covington, Kentucky
Dana E. Deering
Jacqueline S. Sawyers
Covington, Kentucky
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