PHILLIP BYRON BUSH v. DEBBIE COMBEST
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RENDERED:
October 8, 2004; 2:00 p.m.
ORDERED NOT TO BE PUBLISHED:
October 29, 2004; 10:00 a.m.
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002034-MR
PHILLIP BYRON BUSH
APPELLANT
APPEAL FROM BARREN CIRCUIT COURT
HONORABLE PHILIP R. PATTON, JUDGE
ACTION NO. 03-CI-00233
v.
DEBBIE COMBEST
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND KNOPF, JUDGES.
JOHNSON, JUDGE:
Phillip Byron Bush has appealed from an order
entered by the Barren Circuit Court on August 20, 2003, which
dismissed his complaint against Debbie Combest on jurisdictional
grounds.
Having concluded that the family court division of
Barren Circuit Court has exclusive jurisdiction over the issues
raised in Bush’s complaint, we affirm.
Bush and Combest were married on October 26, 1997, in
Gatlinburg, Tennessee.
Sometime thereafter, the couple took up
residence in Barren County.
On January 22, 2002, Combest filed
a petition for dissolution of marriage in the Barren Circuit
Court.
On May 9, 2002, Bush and Combest entered into a written
separation agreement, which provided, in relevant part, as
follows:
WHEREAS, the parties are desirous of
effecting settlement of their property
rights, irrespective of whether or not a
decree dissolving their marriage be entered,
and of determining, by agreement, questions
of division of marital property, and all
other matters in issue, and said parties
having reached an understanding and
agreement which they desire to reduce to
writing,
NOW, THEREFORE, for and in
consideration of the premises and other good
and valuable considerations as are
hereinafter stated, including the mutual
covenants herein, it is agreed by and
between the parties hereto, as follows:
1. Husband’s waiver. Husband does hereby
waive, release, and relinquish unto Wife,
her heirs and assigns forever, all of his
right, title, and interest in and to all
property now owned or hereafter acquired by
Wife[.]
. . .
4. Wife had title to 101 acres of farmland
which was in her name prior to this
marriage. This property is secured by
indebtedness owed to Area Bank, a portion of
which was incurred during the establishment
of Country Auto Sales. The 101 acres will
remain the property of Wife and she will
retain full ownership interest in the
business, Country Auto Sales, and its
inventory. Husband makes no claim to
marital or non-marital interest in the 101
acres of farmland; the business, Country
Auto Sales; or the business’ inventory.
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. . .
14. The parties agree that certain other
marital property and debts that were
accumulated during this marriage have been
divided in kind and that each party has
received his or her separate share of the
marital property[.]
On May 15, 2002, the Barren Circuit Court entered a decree of
dissolution, which incorporated the separation agreement.
On or about November 25, 2002, Combest initiated
contempt proceedings against Bush in the Barren Circuit Court
for allegedly failing to comply with the terms of the separation
agreement.
On January 6, 2003, the family court division of
Barren Circuit Court was created pursuant to Section 112(6) of
the Kentucky Constitution.
The contempt proceedings were
subsequently transferred to the family court division of Barren
Circuit Court.1
On April 8, 2003, Bush filed a complaint in Barren
Circuit Court, in which he alleged, inter alia, that he entered
into an oral agreement with Combest, prior to the execution of
the written separation agreement, regarding the disposition of
the farmland and the business known as Country Auto Sales.
More
specifically, Bush claimed Combest orally agreed to surrender
possession of Country Auto Sales on or before August 31, 2002,
and that she agreed to hold title to the farmland in trust for
1
The record is silent as to the status or disposition of the contempt
proceedings.
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the benefit of Bush’s son.2
Bush insisted that this oral
agreement “was independent of, collateral to, and not
inconsistent with, the [separation] agreement[.]”
Bush claimed
the terms of the separation agreement were “devised by the
parties in order to protect the assets from creditors.”
In
addition, Bush alleged that in Mach 2002 he entrusted Combest
with $10,000.00 “to preserve and protect for him while he was
incapacitated by an illness[,]” which she failed to return.
On May 5, 2003, Combest filed an answer and
counterclaim, in which she alleged, inter alia, that the Barren
Circuit Court lacked jurisdiction over the subject matter of the
issues raised in Bush’s complaint.3
In sum, Combest maintained
that Bush’s complaint was an attempt to collaterally attack the
validity of the written separation agreement entered into
between the parties on May 9, 2002.
In support of this
contention, Combest attached a copy of the separation agreement
and the decree of dissolution incorporating the agreement.
On
August 20, 2003, the Barren Circuit Court entered an order
dismissing Bush’s complaint.
The order reads, in relevant part,
as follows:
2
Bush maintained that an “express[ ] specific agreement [existed] between the
parties which imposes a constructive trust on the title to the [farmland] for
[his] son, Daron Bush.”
3
Combest also denied the existence of any oral agreement concerning the
farmland and Country Auto Sales and she claimed the $10,000.00 Bush allegedly
entrusted her with was a gift.
-4-
The Court after hearing argument of counsel
and having reviewed the pleadings and
memorandum filed herein finds that the
subject matter of the above styled action is
an effort to collaterally attack the
decision from the dissolution action between
the parties. The Court finds that the
Barren Circuit Family Court Division has
exclusive jurisdiction of these matters.
This appeal followed.
Bush’s sole argument on appeal is that the Barren
Circuit Court erred by dismissing his complaint.
In sum, Bush
contends the Barren Circuit Court has subject-matter
jurisdiction over the issues raised in his complaint pursuant to
Section 109 and Section 112(5) of the Kentucky Constitution.
We
disagree.
Section 112 of the Kentucky Constitution provides, in
relevant part, as follows:
(1) Circuit Court shall be held in each
county.
. . .
(5) The Circuit Court shall have original
jurisdiction of all justiciable causes not
vested in some other court. It shall have
such appellate jurisdiction as may be
provided by law.
(6) The Supreme Court may designate one or
more divisions of Circuit Court within a
judicial circuit as a family court division.
A Circuit Court division so designated shall
retain the general jurisdiction of the
Circuit Court and shall have additional
jurisdiction as may be provided by the
General Assembly [emphasis added].
-5-
A family court’s jurisdiction is defined by KRS 23A.100, which
provides, in relevant part, as follows:
(1) As a division of Circuit Court with
general jurisdiction pursuant to Section
112(6) of the Constitution of Kentucky, a
family court division of Circuit Court shall
retain jurisdiction in the following cases:
(a)
Dissolution of marriage;
(b)
Child custody;
(c)
Visitation;
(d)
Maintenance and support;
(e)
Equitable distribution of property in
dissolution cases;
(f)
Adoption; and
(g)
Termination of parental rights.
. . .
(3) Family court divisions of Circuit Court
shall be the primary forum for cases in this
section, except that nothing in this section
shall be construed to limit the concurrent
jurisdiction of District Court [emphasis
added].4
Thus, in judicial circuits where the Supreme Court has
designated a family court division of circuit court,
jurisdiction over the matters set forth in KRS 23A.100 is
exclusively vested in the family court.
4
To hold otherwise would
KRS 23A.100 was repealed, reenacted, and amended in 2003. See 2003 Ky.
Acts, Ch. 66, § 1, eff. June 24, 2003. Prior to June 24, 2003, family court
jurisdiction was defined by KRS 23A.110, which was also repealed, reenacted,
and amended in 2003. See 2003 Ky. Acts, Ch. 66, § 2, eff. June 24, 2003.
-6-
defeat the very purpose for which family courts were created,
i.e., to consolidate the litigation on all cases and
controversies related to the family into one court.
Moreover,
we are persuaded that Bush’s complaint is nothing more than a
thinly-veiled attempt to collaterally attack the decree of
dissolution entered by the Barren Circuit Court on May 15, 2002.
While Bush insists that he is simply attempting to enforce an
oral agreement between himself and Combest, he fails to
acknowledge that the resolution of the issues raised in his
complaint would require an interpretation of the written
separation agreement, which was incorporated into the decree of
dissolution.
As previously discussed, the family court division
of Barren Circuit has exclusive jurisdiction over cases
involving, inter alia, dissolution of marriage and the equitable
distribution of property in dissolution cases.
In sum, we are
convinced that the family court division of Barren Circuit Court
is the appropriate forum for Bush to litigate the issues raised
in his complaint.
Consequently, the Barren Circuit Court did
not err when it dismissed Bush’s complaint.
Based on the foregoing reasons, the order of the
Barren Circuit Court is affirmed.
BUCKINGHAM, JUDGE, CONCURS.
KNOPF, JUDGE, CONCURS IN RESULT ONLY AND FILES
SEPARATE OPINION.
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KNOPF, JUDGE, CONCURRING IN RESULT ONLY:
While I
fully agree with the result reached by the trial court and the
majority, I do not believe that it is necessary to reach this
result by limiting the subject matter jurisdiction of the
circuit court.
Under the terms of the settlement agreement,
Bush surrendered possession of the auto sales business to
Combest.
In his subsequent complaint, Bush alleged that the
parties later entered into an oral agreement which required
Combest to return ownership of the business to him.
Bush also
alleged that during their period of separation prior to entry of
the degree, he entrusted $10,000.00 to Combest while he was
incapacitated by a serious illness.
Despite Bush’s assertions
to the contrary, these issues were clearly subsumed by the
settlement agreement and by the dissolution decree.
And as the
majority correctly notes, any resolution of these alleged oral
agreements would require an interpretation and modification of
the written settlement agreement.
Consequently, they could only
be addressed through a motion to re-open the dissolution
judgment and modify the settlement agreement.5
5
CR 60.02 and KRS 403.250(1).
S.W.2d 5, 7-8 (1990).
Thus, Bush’s
See also Brown v. Brown, Ky., 796
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attempt to circumvent this process by filing a new complaint in
circuit court was barred by the doctrine of res judicata.6
The trial court and the majority, however, conclude
that the circuit court lacked subject matter jurisdiction over
the allegations in Bush’s complaint.
I disagree.
As the
majority correctly notes, the 2002 amendment to Section 112 of
the Kentucky Constitution authorized the creation of a family
court division within the circuit court.
As a division of
circuit court, family court has general jurisdiction, plus
jurisdiction over juvenile and other family-related matters
which are otherwise assigned to the district court.
KRS 23A.100(3) specifically provides that “Family
court divisions of Circuit Court shall be the primary forum” for
cases set out in subsection (1) of the statute.
The trial court
and the majority read this to mean that the family court has
exclusive jurisdiction over these matters.
But the term
“primary forum”, when considered in the context of Ky. Const. §
112 and the rest of KRS 23A.100, suggests that the circuit court
and the district court retain concurrent jurisdiction over
matters which would be assigned to them in the absence of a
family court.
The family court is designated as the primary,
not the exclusive forum, for such cases.
6
As a practical matter,
See Commonwealth ex rel. Hansard v. Schackleford, Ky. App., 908
S.W.2d 671 (1995).
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this is a subtle distinction that will generally not be a
factor.
Nevertheless, I believe that the majority goes further
than the legislature intended by holding that the regular
divisions of circuit court have no jurisdiction over these
matters whatsoever.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Jeffrey F. Safford
Bowling Green, Kentucky
Gregory Y. Dunn
Liberty, Kentucky
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