AND VIRGIL KEITH GIFFORD v. JANICE ELAINE GIFFORD
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RENDERED: NOVEMBER 27, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 2000-CA-001288-MR
AND
NO. 2000-CA-001289-MR
VIRGIL KEITH GIFFORD
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE ROBERT B. OVERSTREET, JUDGE
ACTION NO. 98-CI-00292
v.
JANICE ELAINE GIFFORD
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
COMBS and DYCHE, Judges; POTTER, Special Judge1.
BEFORE:
COMBS, JUDGE:
Virgil Keith Gifford appeals from an order of the
Scott Circuit Court that directed him to pay a portion of his
former spouse's attorney fee.
Virgil also contends that the
trial court erred in its classification of the couple's personal
property.
In her cross-appeal, Janice Elaine Gifford contends
that the trial court erred by concluding that the parties' postnuptial agreement was valid and enforceable against her.
A
consideration of the transcript of evidence is necessary to the
1
Senior Status Judge John Potter sitting as Special Judge by
assignment of the Chief Justice pursuant to Section 110(5)(b) of
the Kentucky Constitution.
determination of the issue raised by way of Janice’s crossappeal.
However, it has not been provided.
cannot prevail.
As a result, she
In light of the inadequate state of the record
before us, we are also unable to review properly the issues (with
one exception) presented by Virgil on appeal.
Having reviewed
this one issue, we affirm the judgment.
Virgil and Janice were married in October 1991.
children were born of the marriage.
No
In July 1998, Janice filed a
petition for dissolution of the marriage, and Virgil was ordered
to pay $462.00 per week as temporary maintenance.
The trial court referred the matter to a domestic
relations commissioner, who took evidence and heard testimony.
The commissioner entered findings of fact, conclusions of law,
and a recommended order in March 1999.
Based upon the evidence
presented, the commissioner found that the parties had entered
into a valid post-nuptial agreement with respect to the real
property and concluded that the terms of the agreement were fully
enforceable.
The commissioner also assigned and divided the
parties' personal property — including certain watercraft valued
at approximately $7,000.00 and the proceeds from a claim made
against a homeowner's insurance policy.
While the commissioner
did not recommend a maintenance award, she did suggest that
Virgil be ordered to pay more than $2,000.00 toward Janice's
attorney fee.
Both parties filed objections to the commissioner's
recommended order.
The objections were overruled, and in April
2000, the trial court entered its order substantially adopting
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the commissioner's recommendations.
The parties' timely notices
of appeal and cross-appeal followed.
In August 2000, Virgil filed a motion with this court
requesting an extension of time in which to prepare and file a
narrative statement in accord with the provisions of CR 75.13.
In his motion, counsel declared that while a proper record of the
testimony offered during the commissioner's hearing was missing,
such a record was "essential for any meaningful review of the
final judgment for error. . . ."
Appellant's motion at 1.
Through our order, Virgil was permitted to supplement the record
on appeal as the record had already been certified by the Scott
Circuit Clerk's office.
However, despite his previous assertion
that a proper record of the testimony was "essential," Virgil's
counsel did not supplement the record.
In January 2001, Janice's counsel filed a motion to
dismiss the appeal.
Counsel contended that without a
"transcript, narrative statement, [or] agreed statement of the
proceedings," this court could not review the merits of the case
on appeal.
Appellee/Cross-Appellant's motion at 2.
In the
alternative, Janice sought a ninety-day extension in which "to
obtain an approved narrative statement of the final divorce
proceedings because the Appellee believes that a statement of the
proceedings is crucial to this Court's review of the testimony
and is necessary in the preparation of the Appellee's brief."
Id. at 3.
In February 2001, this court abated the motion to
dismiss the appeal and ordered the parties to complete a
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narrative or agreed statement, to obtain the approval of the
trial court as to its contents, and to insure that the circuit
clerk prepared a supplemental certification of the record.
In
June 2001, and in response to the motion of Virgil's counsel to
withdraw from representation, we ordered the parties to file a
response with our clerk indicating the status of the narrative or
agreed statement.
In response, Janice's counsel indicated that
Virgil's counsel bore the primary responsibility to prepare the
statement and admitted that nothing had been done to comply with
our previous order.
Virgil's counsel agreed that neither party
had adequately addressed the requirements of our February order
but nevertheless contended that he should be permitted to
withdraw from representation.
On August 31, 2001, we entered a show cause order,
indicating that sanctions against the parties' counsel might be
appropriate in view of their blatant and inexcusable failure to
abide by the requirements of our February order.
Additionally,
we directed that the appeals proceed without a narrative
statement or supplemental certification of the record.
The
question of whether the record as certified would be sufficient
for adequate appellate review was specifically reserved for the
merits panel.
Following our examination of the record, we
believe that a full and proper review of the issues presented is
not possible.
On appeal, Virgil argues that the trial court erred by
designating the watercraft and the insurance proceeds as marital
property subject to division.
To support his position as to the
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watercraft, he recounts testimony offered during the
commissioner's hearing, including evidence suggesting that the
boat and seadoos were owned by others.
However, a proper review
of this issue would clearly require reference to a complete
record.
Without an adequate record on appeal, we must presume
that the commissioner's findings of fact were properly supported
by the evidence.
Commonwealth Dep’t of Highways v. Richardson,
Ky., 424 S.W.2d 601 (1968).
Next, Virgil contends that he should not have been
ordered to pay a portion of Janice's attorney fees.
KRS2 403.220
authorizes a trial court to order one party to a divorce action
to pay a "reasonable amount" for the attorney fees of the other
party if it finds a disparity in the relative financial resources
of the parties.
While Virgil offers evidence to support his view
that Janice's financial resources were never fully explored, we
are limited to a review of the certified record.
Once again, in
the absence of a record, we must presume sufficiency and adequacy
of the evidence to support the finding underlying the award of
attorney fees.
See Miller v. Commonwealth Dep’t of Highways,
Ky., 487 S.W.2d 931 (1972).
Moreover, we cannot say that the
trial court abused its discretion in this case by awarding
attorney fees as a sanction against Virgil for his dilatory
behavior.
Gentry v. Gentry, Ky., 798 S.W.2d 928 (1990).
Virgil also attacks the order of the trial court
requiring him to pay temporary maintenance.
An award of
temporary maintenance is made on the same basis as permanent
2
Kentucky Revised Statutes.
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maintenance.
KRS 403.160(3).
Permanent maintenance is
appropriate where the court finds that the spouse seeking it:
(1) lacks sufficient property to provide for his or her
reasonable needs and (2) is unable to support himself or herself
through appropriate employment.
The trial court carefully
considered the circumstances of both parties prior to awarding
temporary maintenance to Janice.
In her temporary order, the
commissioner specifically found that Janice was unable to support
herself through appropriate employment and that she lacked
sufficient property to meet her reasonable (as distinguished from
minimal) needs.
The commissioner’s findings were supported by
substantial evidence, and she did not abuse her discretion by
ordering Virgil to pay temporary maintenance.
Finally, Virgil contends that Janice has unfairly
refused to release certain liens against his property.
This
issue was not presented to the trial court and, therefore, cannot
be reviewed here.
On cross-appeal, Janice contends that the trial court
erred by finding valid and enforceable the post-nuptial agreement
of the parties to divide two parcels of real property between
them.
A review of the evidence would be necessary for a proper
determination of this issue.
It is well established that parties may enter into an
agreement whereby each relinquishes his or her respective
interest in the property of the other.
recognized as enforceable.
Such agreements are
The court has authority to uphold the
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validity of such an agreement and to divide the property
according to the terms of the agreement.
Janice argues that the court failed to consider factors
relevant to a finding of whether the agreement was enforceable.
She also contends that it failed to consider evidence that the
agreement had been abandoned by the parties prior to separation.
In support of her argument, Janice cites evidence adduced at the
hearing to indicate the nature of the change in value of the
disputed property and to support her contention that Virgil
failed to make an adequate disclosure of the property's initial
value.
Once more, in the absence of a proper record, we are
unable to review the evidence upon which Janice’s argument is
based.
Therefore, we are compelled to presume that the actions
of the trial court were correct.
The judgment of the Scott Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS IN RESULT.
POTTER, SPECIAL JUDGE, CONCURS.
BRIEF FOR APPELLANT PRO SE:
BRIEF FOR APPELLEE:
Virgil Keith Gifford
Georgetown, Kentucky
Robert G. Johnson
Georgetown, Kentucky
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