ROGER WILLIAM BALLENGER, SR. v. BARBARA MAE GRIFFIN BALLENGER
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RENDERED: MAY 28, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001628-MR
ROGER WILLIAM BALLENGER, SR.
v.
APPELLANT
APPEAL FROM GRANT CIRCUIT COURT
HONORABLE STEPHEN L. BATES, JUDGE
ACTION NO. 00-CI-00291
BARBARA MAE GRIFFIN BALLENGER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, JOHNSON AND MINTON, JUDGES.
GUIDUGLI, JUDGE.
Roger William Ballenger (hereinafter “Roger”)
appeals from the Grant Circuit Court’s order entered June 28,
2002, which divided certain property owned by him and Barbara
Mae Griffin Ballenger (hereinafter “Barbara”).
Roger and Barbara were married on July 24, 1964.
During the marriage, each party inherited various properties
from his or her parents.
Barbara inherited an interest in a 146
acre farm and Roger inherited approximately $126,000 from his
family.
Also during the marriage, the parties purchased the
remaining interest in the farm and used Roger’s inheritance to
develop the farm into a golf course.
However, the golf course
failed and on the date of dissolution, the value of the property
was based upon its value as farmland.
The parties had also
accumulated other property that is not at issue in this appeal.1
On May 16, 2002, the circuit court entered a decree of
dissolution dissolving the marriage and reserving its ruling on
“all issues concerning the real estate.”
Thereafter, the matter
concerning the real estate was heard by the Domestic Relations
Commissioner (hereinafter “DRC”).
The DRC filed his report
concerning the real estate on June 6, 2002.
In his report, the
DRC recommended the following:
Based on the above cited Findings of
Fact and Conclusions, this Commissioner
recommends the following order:
1. That the wife be awarded a
$227,250.00 interest in all real property of
the marriage and assume marital debt in the
amount of $13,200.00.
2. That the husband be awarded a
$75,750.00 interest in all real property of
the marriage and assume marital debt in the
amount of $4,400.00.
1
In that the record before this Court is very limited, it is impossible to
ascertain the other assets and liabilities of the parties. We assume that
they have been divided in an equitable manner. In any case, that information
is not before this Court nor does either party address any other issue
relative to the dissolution of marriage or related matters.
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3. That the wife shall pay to the
husband the net sum of $71,350.00 within
sixty (60) days of entry of this Order.
4. That simultaneously with receipt of
said funds, the husband shall execute a
quitclaim deed to the wife for his interest
in the real property. Should the husband
fail or refuse to do so, upon notice and
motion, the Master Commissioner of the Grant
Circuit Court is authorized to sign the deed
in his behalf.
Dissatisfied with the division of the property in the
fashion decided by the DRC, Roger filed an “exception to Report
of Domestic Relations Commissioner” on June 19, 2002.
However,
since said exceptions were filed outside the ten days permitted
by CR 53.06 and the pleading failed to comply with the
provisions of the Grant County Local Rules, the circuit court
refused to docket Roger’s objections.2
Thereafter, on June 28,
2002, the Grant Circuit Court entered an order disposing of the
real property in question following the recommendations made by
the DRC.
This appeal followed.
On appeal, Roger attempts to put forth arguments
similar to those he attempted to present to the circuit court in
the exceptions he tendered following the DRC’s report.
However,
the trial court rejected them as untimely and not in compliance
2
While Roger’s pleading uses the term “exceptions” to the DRC report, the
trial court correctly noted that CR 53.06 speaks in terms of objections.
Since Roger refers to his objections as exceptions, we will do likewise to
avoid additional confusion.
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with local rules and proceeded as if no objections had been
filed.
The circuit court’s order states:
The Domestic Relations Commissioner
having filed his Report in this action with
no objections having been filed within the
time required by law, or with any such
objections having been overruled, and the
Court having fully reviewed the record
herein and being otherwise fully advised, IT
IS HEREBY ORDERED AS FOLLOWS:
1. That the wife be awarded a
$227,250.00 interest in all real property of
the marriage and assume martial debt in the
amount of $13,200.00.
2. That the husband be awarded
$75,750.00 interest in all real property of
the marriage and assume marital debt in the
amount of $4,400.00.
3. That the wife shall pay to the
husband the net sum of $71,350.00 within
sixty (60) days of entry of this Order.
4. That simultaneously with receipt of
said funds, the husband shall execute a
quitclaim deed to the wife for his interest
in the real property. Should the husband
fail or refuse to do so, upon notice and
motion, the Master Commissioner of the Grant
Circuit Court is authorized to sign the deed
in his behalf. (Emphasis added).
CR 56.06(2) sets forth that objections to a DRC’s
report are to be filed within ten days.
In Eiland v. Ferrell,
Ky., 937 S.W.2d 713 (1997), the Supreme Court of Kentucky held
that in order to preserve an issue for appeal, a party must file
timely objections to the DRC report.
held:
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Specifically, the Court
While actions tried before the court
without intervention of a jury are governed
by CR 52, et. seq., it seems apparent that
on matters referred to a commissioner
pursuant to CR 53.03, the specific
provisions of the rules relating to
commissioners prevail. Williams v.
Commonwealth, Ky.App., 829 S.W.2d 942
(1992). In general, a party who desires to
object to a report must do so as provided in
Cr 53.06(2) or be precluded from questioning
on appeal the action of the circuit court in
confirming the commissioner’s report.
United States v. Central Bank & Trust Co.,
Ky., 511 S.W.2d 212 (1974). Such a rule
does not create in the commissioner an
additional level of the Court of Justice or
elevate the status of the office, but merely
recognizes that enforcement of such a rule
is necessary as the means of informing the
trial court of the parties’ disagreement
with or complaint about the report.
Ordinarily, appellate courts review only the
orders or judgments of lower courts, and
pursuant to CR 46, a party must make “known
to the court the action which he desires the
court to take or his objection to the action
of the court.” If we should merely apply
the provisions of CR 52.03, as appellant
urges, and authorize review of questions of
sufficiency of evidence without requiring
objections to the commissioner’s report,
appeals would be taken from trial court
judgments adopting commissioner’s reports
without the trial court ever having been
apprised of any disagreement with the
report. Not only would this amount to the
blind-siding of trial courts, it would also
result in unnecessary appeals, confusion in
appellate courts, needless reversals, and in
general, would invite all the mischief
associated with appellate review of
unpreserved error.
Id. at 716.
See also Brewick v. Brewick, Ky.App., 121 S.W.3d
524 (2003).
In that Roger was deemed to have not filed
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objections, any error that he makes relative to the circuit
court’s order that relied upon and adopted the DRC’s report was
not properly preserved and is not subject to our review.
Based upon the foregoing, the order of the Grant
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
C. Ed Massey
Erlanger, KY
Steven N. Howe
Dry Ridge, KY
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