PATRICIA SMITH v. MICHAEL SMITH
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RENDERED: JULY 30, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-001287-MR
PATRICIA SMITH
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE C. DAVID HAGERMAN, JUDGE
ACTION NO. 00-CI-00625
v.
MICHAEL SMITH
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; AND EMBERTON, SENIOR JUDGE.1
JOHNSON, JUDGE:
Patricia Smith has appealed from a final order
of the Boyd Circuit Court entered on April 25, 2003, overruling
her objections and confirming and adopting the report of the
Domestic Relations Commissioner dated April 9, 2003.
Having
concluded that Patricia has failed to demonstrate that the
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
evidence did not support the findings and decision of the
circuit court, we affirm.
Patricia and Michael were married on May 19, 1990.
On
July 18, 2000, Michael filed a petition for dissolution of
marriage and a motion for temporary custody of their child and
for temporary possession of their house.
After a failed
reconciliation attempt, Michael filed a motion for a Putnam v.
Fanning,2 decree on December 11, 2001, which was granted on
December 14, 2001.
Michael claimed below that the parties reached an
agreement on November 25, 2002, concerning the division of their
assets and debts, but that Patricia refused to sign an agreed
order.
The disputed agreed order provided: (1) that the parties
would list the marital residence with a local realtor, with the
money from any sale to be paid into an escrow account to be
followed by a hearing to determine any non-marital contribution
and the subsequent distribution thereof; (2) that a Qualified
Domestic Relations Order would be entered concerning both of the
parties’ retirement accounts; (3) that Michael would receive the
Harley Davidson motorcycle and a truck, while Patricia would
receive a 1994 Chevrolet Blazer, with each party assuming any
debt owed on the vehicle he or she received; and (4) that
2
Ky., 495 S.W.2d 175 (1973) (stating that a circuit court may enter a final
decree of dissolution before resolving other issues in regards to the
dissolution).
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Patricia and Michael would both be responsible for one-half of
the Commissioner’s fee.
On March 18, 2003, the circuit court
entered an order accepting the agreement save the paragraph
pertaining to the division of the motorcycle, the truck and the
Blazer.
The division of these vehicles was to be determined
along with all other outstanding issues at a hearing before the
Commissioner.
An evidentiary hearing was held before the
Commissioner on March 27, 2003.
In a report filed on April 9,
2003, the Commissioner recommended that the vehicles and debts
thereon be divided as previously discussed, i.e., Patricia would
receive the Blazer and Michael would receive the motorcycle and
the truck; that Patricia and Michael would retain possession of
the items each had taken from the home; and that Patricia and
Michael would be individually responsible for any debts she or
he was currently in the process of paying.
The Commissioner
also found that Patricia and Michael had been separated for 33
months before the final dissolution.
Patricia’s objections to
the Commissioner’s recommendations were overruled by the circuit
court in the final order entered on April 25, 2003.
This appeal
followed.
Patricia’s primary claim of error is that the circuit
court abused its discretion by failing to comply with the
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mandates of KRS3 403.190.
Patricia offers several arguments in
support of her claim of error, but none of her arguments include
proper citations to the record, nor citations to any applicable
case law as required by CR4 76.12(4)(c)(v).5
It has long been established that a brief may be
stricken if it does not meet procedural requirements.6
The Court
will not search the record, transcript, or video recording to
determine if the issue was properly preserved,7 and the Court may
also refuse to review issues and arguments not properly
referenced.8
However, the decision to strike the brief for
noncompliance is within the discretion of the court,9 and in the
case sub judice, we choose not to do so.
However, there is an additional procedural deficiency
which is fatal to Patricia’s appeal.
Patricia seeks review of
errors she claims the circuit court made in its findings of
3
Kentucky Revised Statutes.
4
Kentucky Rules of Civil Procedure.
5
CR 76.12(4)(c)(v) provides as follows:
An “ARGUMENT” conforming to the Statement of Points
and Authorities, with ample supportive references to
the record and citations of authority pertinent to
each issue of law and which shall contain at the
beginning of the argument a statement with reference
to the record showing whether the issue was properly
preserved for review and, if so, in what manner.
6
CR 76.12(8).
7
Hollingsworth v. Hollingsworth, Ky.App., 798 S.W.2d 145, 147 (1990).
8
Elwell v. Stone, Ky.App., 799 S.W.2d 46, 48 (1990).
9
Burberry v. Bridges, Ky.App., 427 S.W.2d 583, 585 (1968).
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fact.
She contends that the circuit court erred by failing to
properly value the property before it was divided between the
parties, thus failing to comply with the requirements of KRS
413.190.
However, the record on appeal does not include a
transcript or recording of the evidentiary hearing.
It is well-established that “for purposes of appellate
review, a finding of fact of a trial judge ranks in equal
dignity with the verdict of a properly instructed jury, i.e., if
supported by substantial evidence, it will be upheld, otherwise,
it will be set aside as ‘clearly erroneous.’”10
A factual
finding is not clearly erroneous if it is supported by
substantial evidence.11
Also, CR 53.06 “‘allows the trial judge
complete discretion as to the use of a commissioner’s report,’”
up to and including adopting the commissioner’s findings as its
own.12
However, it is impossible for this Court to conduct an
adequate review of the evidence in this case since the record on
appeal does not include either a recording or a transcript of
the March 27, 2003, hearing.
While the designation of record
filed by Patricia includes “the transcript of the Domestic
10
Owens-Corning Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 414
(1998).
11
Id.
12
Squires v. Squires, Ky., 854 S.W.2d 765, 770 (1993).
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Relations Commissioner’s Hearing of March 27, 2003[,]” no
transcript was ever filed.
It was Patricia’s duty to ensure
that a transcript or recording of the hearing was included in
the appellate record.13
When the appellate record does not
include evidence presented to the circuit court, we must presume
that the missing evidence supported the judgment of the circuit
court.14
The only time this presumption does not arise is when
the omitted portions of the record “were not considered by the
trial court or did not influence its decision[.]”15
Since we do not have a record of the March 27, 2003,
hearing before us and the circuit court adopted the
Commissioner’s recommendations, we must presume that the
evidence and testimony from that hearing supported the circuit
court’s order.
In the absence of the transcript of the hearing
from the record, we can only conclude that the findings of the
circuit court were not clearly erroneous and met the
requirements of KRS 403.190.
To the extent Patricia wishes to
argue that the circuit court’s findings are inadequate on their
face, we must still decline to remand this matter for more
complete findings when the record does not demonstrate that
Patricia presented any evidence to allow the circuit court to
13
Burberry, 427 S.W.3d at 585.
14
Miller v. Commonwealth, Dept. of Highways, Ky., 487 S.W.2d 931, 933 (1972).
15
Cadden v. Commonwealth, Ky., 242 S.W.2d 409 (1951).
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make such findings.
Again, it is incumbent upon the complaining
party to demonstrate in the record on appeal how the circuit
court fell short in meeting its obligation to make appropriate
findings.
Without a transcript for this Court to review, we
must assume that the circuit court made findings to the extent
it was able based on the evidence presented.
If Patricia’s
proof fell short of meeting her burden, which we must assume
that it did, we cannot vacate the circuit court’s findings based
upon the inadequacy of Patricia’s evidence.
For the foregoing reasons, the judgment of the Boyd
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael J. Curtis
Ashland, Kentucky
Jeffrey L. Preston
Catlettsburg, Kentucky
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