MARY O'NEAL v. MICHAEL O'NEAL
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RENDERED: DECEMBER 27, 2002; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001012-MR
MARY O'NEAL
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, SPECIAL JUDGE
ACTION NO. 99-CI-00585
v.
MICHAEL O'NEAL
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, BUCKINGHAM, AND MILLER, JUDGES.
BUCKINGHAM, JUDGE: Mary O’Neal appeals from a judgment entered by
the Boyd Circuit Court in favor of her former husband, Michael
O’Neal, on an issue concerning his pension plan.
We affirm.
Mary and Michael were married on July 30, 1964.
They
were divorced by a decree of the Boyd Circuit Court entered on
March 30, 1984.
Michael worked for Allied Chemical for
approximately 14 1/2 years during the parties’ twenty-year
marriage.
However, the 1984 divorce decree did not address the
division of Michael’s pension plan with Allied Chemical.
In 1987 Mary went to work as a deputy clerk for the
Boyd Circuit Court.
Divorce cases are filed in the circuit
court, and Mary eventually noticed that on some occasions the
wife was awarded a portion of the husband’s pension in divorce
In December 1996 she filed a motion pursuant to CR1
cases.
60.02(f) asking the court to reopen the divorce decree as it
related to the property division and to award her a share of
Michael’s pension.
On April 23, 1999, the trial court entered an order
denying Mary’s motion to reopen the case.
The court relied on
Fry v. Kersey, Ky. App., 833 S.W.2d 392 (1992), a case involving
similar circumstances.
Further, the court found “that sufficient
cause to reopen this action has not been shown under the
requirements of Civil Rule 60.02(f).”
In addition, the court
stated that its ruling did not determine whether Mary could
maintain a separate independent action concerning Michael’s
pension.
On July 12, 1999, Mary filed a separate action against
Michael in the Boyd Circuit Court demanding judgment for her
share of his pension plan.
By an order entered by the court on
January 30, 2001, the trial court upheld Mary’s right to file an
independent action to divide the pension plan.
However, the
court qualified its order by stating that the earlier omission of
the property from the original decree must have occurred due to
fraud, accident, or mistake in order for the independent action
to be successful.
The court then set the case for a hearing.
A hearing was held on February 23, 2001, and the court
entered findings of fact, conclusions of law, and a judgment on
1
Kentucky Rules of Civil Procedure.
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April 26, 2001.
Granting a judgment in Michael’s favor, the
court found as follows:
The record is void of any evidence indicating
that fraud, accident or mistake brought about
this omission. It has been twelve years
after her divorce that the Plaintiff filed
her unsuccessful CR 60.02 motion. It has
been almost fifteen (15) years after her
divorce that she filed this independent
action. The long passage of time and absence
of evidence indicating fraud, accident or
mistake made relief for the Plaintiff
untenable. Therefore, the Court is unable to
grant the relief requested by the Plaintiff.
This appeal by Mary followed.
Mary acknowledges that there was no evidence of fraud
or accident.
Rather, she argues that she is entitled to relief
because there was a mistake.
Specifically, she argues that “the
parties forgot to mention it [the pension plan]” and that she
should now be awarded a portion of Michael’s pension due to the
mutual mistake of the parties when the original decree was
entered.
The trial court granted judgment against Mary for two
reasons.
First, the court determined that there was no evidence
of fraud, accident, or mistake in connection with the omission of
the pension from the property division in the decree.
Second,
the court denied Mary relief from the judgment due to the “long
passage of time” between the entry of the divorce decree in 1984
and Mary’s attempts to have the decree altered, amended, or
vacated in 1996 and again in 1999.
Regardless of whether these
reasons are sufficient to withstand scrutiny on appeal, we
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believe the judgment should be affirmed due to the provision of
CR 60.03.2
CR 60.03 allows independent actions to be filed to
relieve a person from a judgment such as the one involved herein.
CR 60.03 states as follows:
Rule 60.02 shall not limit the power of any
court to entertain an independent action to
relieve a person from a judgment, order or
proceeding on appropriate equitable grounds.
Relief shall not be granted in an independent
action if the ground of relief sought has
been denied in a proceeding by motion under
Rule 60.02, or would be barred because not
brought in time under the provisions of that
rule. [Emphasis added.]
CR 60.02(a) provides that a court may grant relief to a
party from a judgment on the ground of mistake.
However, CR
60.02 also provides that “[t]he motion shall be made within a
reasonable time, and on grounds (a), (b), and (c) not more than
one year after the judgment, order, or proceeding was entered or
taken.”
Therefore, pursuant to CR 60.03, Mary could not be
granted relief on the ground of mistake because her independent
action was time barred.
See also Huffaker v. Twyford, Ky., 445
S.W.2d 124, 125 (1969).
There is a second reason why Mary is not entitled to
relief.
In the CR 60.02 proceeding, Mary sought relief pursuant
to CR 60.02(f) even though other subsections appear to have been
2
“[T]he appellate court may affirm the judgment if the
record on appeal discloses any ground on which the decision could
properly have been made.” Old Republic Ins. Co. v. Ashley, Ky.
App., 722 S.W.2d 55, 58 (1986). See also Revenue Cabinet v. Joy
Technologies, Inc., Ky. App., 838 S.W.2d 406, 410 (1992), and
Cooksey Bros. Disp. Co. v. Boyd Co., Ky. App., 973 S.W.2d 64, 70
(1997).
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applicable.
After the court ruled against Mary in that
proceeding, she filed the independent action involved herein
seeking relief on the same grounds.
Although Mary was allowed to
seek relief by way of an independent action, she was not entitled
to relief because the ground for relief had previously been
denied in the CR 60.02 proceeding.
CR 60.03.
Mary’s second argument is that even if the trial court
did not err in failing to find fraud, accident, or mistake, then
“it does not necessarily follow that the entire pension should
have been given to the appellant.”
Mary asserts that “[t]he
Court needs to make some specific findings of fact as to why the
Court feels that the Appellee is entitled to one hundred percent
(100%) of the pension and the Appellant not entitled to any
portion of the pension.”
There are problems with this argument.
If Mary had wanted more specific findings of fact in
this regard, she should have requested additional findings
pursuant to CR 52.02.
This court may not reverse the trial court
because of its failure to make a specific finding of fact on this
issue since Mary made no request for such a finding.
CR 52.04.
At any rate, we conclude that the argument is without
merit.
Mary maintains that even though there may not have been
fraud, accident, or mistake, the pension is nonetheless marital
property which is partially hers.
She asserts that it makes no
difference that the pension was in Michael’s name only.
She
cites no legal support for her position on this issue nor are we
aware of any.
In fact, the Kentucky Supreme Court held in
Kidwell v. Mason, Ky., 564 S.W.2d 534 (1978), that any interest
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one party to a divorce may have had in or to the property of the
other party which was indisposed of in the final decree “is in
the posture as if the court had so adjudged their respective
interests.”
Id. at 536, quoting Ping v. Denton, Adm’x etc., Ky.,
562 S.W.2d 314, 317 (1978).
In short, Mary’s argument in this
regard is without merit.
The judgment of the Boyd Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey L. Preston
Catlettsburg, Kentucky
W. Jeffrey Scott
Grayson, Kentucky
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