WANDA LEE HUGHES v. BENJAMIN HUGHES
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RENDERED:
DECEMBER 19, 2003; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001786-MR
WANDA LEE HUGHES
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE DOUGLAS C. COMBS, JR., JUDGE
ACTION NO. 99-CI-00367
BENJAMIN HUGHES
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BAKER, KNOPF, AND TACKETT, JUDGES.
TACKETT, JUDGE:
Wanda Hughes appeals from an order of the Perry
Circuit Court setting aside its previous order dismissing the
petition for dissolution of marriage filed by her former spouse,
Benjamin Hughes.
Because it appears that the order dismissing
the petition was entered mistakenly, we affirm the trial court’s
decision to set it aside.
Benjamin initiated a divorce action in the Perry
Circuit Court on July 1, 1999.
He also requested exclusive use
of the marital residence consisting of a 1978 mobile home
situated on property which his parents had given the couple.
Wanda requested an emergency protection order directing Benjamin
to vacate their residence.
Eight days later, she filed a
response to his divorce petition, a motion for exclusive use of
the marital residence and a motion for temporary maintenance.
The trial court granted Wanda’s motion to use the home, but
denied her request for maintenance.
In addition to the mobile home, the parties owned a
1995 Buick Regal, valued at $9,475.00; a 1978 Chevrolet truck,
valued at $100.00; a Honda Magnum, value unknown; and some
household furniture.
The Domestic Relations Commissioner (DRC)
held a final hearing regarding Benjamin’s petition on November
22, 1999, with both parties present and represented by counsel.
Benjamin and Wanda advised the DRC that they had agreed on a
property settlement.
Benjamin promised to pay the $5,129.60
debt on the Buick Regal and transfer the title to Wanda.
In
addition, he was to pay her $5,000.00 for her interest in their
1978 mobile home.
divided.
The household furnishings had already been
The DRC ordered a judgment approving the separation
agreement as fair and equitable to be entered and recommended
that the circuit court enter a final decree of dissolution.
Benjamin’s counsel prepared an agreed order dissolving
the marriage and forwarded it to Wanda’s attorney.
It was never
signed or entered, and the circuit court, pursuant to Kentucky
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Rule of Civil Procedure (CR) 77.02(2), sent counsel for the
parties a notice to dismiss based on lack of prosecution.
A
show cause hearing was held on January 22, 2001, and an order
dismissing Benjamin’s petition for dissolution was entered on
February 1, 2001; however, his counsel never received a copy of
the order.
On August 15, 2001, Benjamin’s counsel filed a motion
requesting that a decree of dissolution be entered.
Upon
finding out that the petition for dissolution had been
dismissed, counsel filed a CR 60.02 motion requesting that the
dismissal order be set aside due to mistake, inadvertence,
surprise or excusable neglect.
As grounds, counsel noted that
the parties had entered into a separation agreement which was
approved by the DRC, a draft divorce decree was sent to Wanda’s
counsel to be signed and entered, and, after receiving the
circuit court’s CR 77.02(2) notice to dismiss for lack of
prosecution, Benjamin’s counsel had forwarded a dissolution
decree to the circuit court to be entered.
The circuit court entered an order setting aside the
dismissal for lack of prosecution on November 16, 2001, and
remanded the case to the DRC to review the separation agreement.
The DRC held another hearing and, once again, determined that
the separation agreement was not unconscionable.
The circuit
court entered a decree of dissolution on March 13, 2002.
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Wanda
filed an order to amend, alter or vacate alleging that the
evidence did not support a finding that the settlement agreement
was fair.
The circuit court entered an order denying Wanda’s
motion, and this appeal followed.
Wanda argues that the circuit court had no authority
to set aside the order dismissing Benjamin’s petition for
dissolution or, in the alternative, the property settlement
agreement reached by the parties is unconscionable.
Benjamin
points out that Wanda failed to preserve her argument about the
circuit court’s alleged lack of jurisdiction by including it as
a ground in her motion to amend, alter, or vacate the decree of
dissolution.
Moreover, the petition was dismissed pursuant to
CR 77.02(2) which allows trial courts to review their dockets
annually and dismiss, without prejudice, cases where an
insufficient answer to a notice of pending dismissal for lack of
prosecution is made.
In the case sub judice, Benjamin’s counsel
responded to the circuit court’s notice by forwarding a decree
of dissolution, incorporating the terms of the settlement
agreement, to the circuit court to be entered.
Although the
circuit court received an adequate answer to its notice to
dismiss for lack of prosecution, Benjamin’s petition was
dismissed and his counsel was not notified of the order of
dismissal.
Consequently, we agree with his counsel that the
circuit court’s February 1, 2001 order dismissing the petition
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was the result of mistake or inadvertence and, therefore,
setting aside the order was proper pursuant to CR 60.02.
Wanda also contends that the evidence did not support
the DRC’s finding that the settlement agreement was not
unconscionable.
The only marital property owned by the parties
was a 1978 mobile home, a 1995 Buick Regal, a 1978 pickup truck,
a motorcycle, and some household furnishings.
Both parties were
represented by counsel when they entered into the settlement
agreement.
The furnishings had already been divided, and the
parties agreed that Wanda would receive the Buick, which had a
value of close to $10,000.00, and an additional $5,000.00 for
her share in the mobile home.
Benjamin would be required to pay
off the debt on the Buick before transferring the title to
Wanda.
The DRC made a finding that the settlement agreement was
fair after holding a hearing on November 22, 1999.
After the
circuit court set aside its order dismissing the petition for
dissolution, the case was remanded to the DRC for another
hearing.
After a hearing held November 26, 2001, the DRC once
again found that the settlement agreement was not
unconscionable.
We believe that the DRC’s finding regarding the
fairness of the settlement agreement was not clearly erroneous;
therefore, we are bound to uphold the circuit court’s order
dissolving the Hughes’ marriage and dividing their property in
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accordance with the provisions of the settlement agreement.
Ghali v. Ghali, Ky. App., 596 S.W.2d 31 (1980).
For the forgoing reasons, the judgment of the Perry
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank C. Medaris, Jr.
Hazard, Kentucky
Denise M. Davidson
Hazard, Kentucky
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