RONNIE JOE MYATT v. DONITA JEAN MYATT
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RENDERED:
November 19, 2004; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000516-MR
RONNIE JOE MYATT
APPELLANT
v.
APPEAL FROM SHELBY CIRCUIT COURT
HONORABLE WILLIAM F. STEWART, JUDGE
ACTION NO. 00-CI-00218
DONITA JEAN MYATT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, CHIEF JUDGE; GUIDUGLI AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from various orders in a
domestic case which divided the parties’ real property and debt
and awarded the appellee sole custody of the parties’ five minor
children.
We affirm both the custody and property division
rulings.
Ronnie Myatt, appellant herein, and Donita Myatt,
appellee, were married for 30 years at the time the petition for
dissolution was filed on June 26, 2000.
Ten children were born
of the marriage, five of whom were of minority age at the time
of the decree.
Both Ronnie and Donita initially sought joint custody
of the children, but later in the course of litigation Donita
sought sole custody.
Donita was awarded temporary sole custody
in 2001.
As for property division, on November 19, 2001, the
parties placed a settlement agreement on the record, but the
final document incorporating it into an order was never signed
by Ronnie.
On April 22, 2002, the matter was referred to the
Domestic Relations Commissioner who held a hearing on June 24,
2002.
Another agreement was reached by the parties and placed
in the record.
This agreement was subsequently incorporated
into an agreed order entered on August 15, 2002.
In the
agreement, the parties agreed that Donita should receive the
Cooper Lane property and accompanying debt and that Ronnie
should receive the Brookview property and accompanying debt,
both properties on which foreclosure proceedings had been
initiated at the time of this agreement.
In the agreed order,
Donita waived further maintenance claims and agreed to pay
Ronnie $30,750 in exchange for her receiving tract 5 of the
Cooper Lane property.
Ronnie’s child support and maintenance
arrearage was reduced from $25,500 to $16,500, and his future
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child support obligation was reduced to $250 a week.
Ronnie
also agreed to pay a business loan that was secured by both
parties.
Relative to this distribution of the real property,
the agreement specifically stated:
Each party shall immediately apply for
refinancing on the real estate to be owned
by them. Petitioner shall quitclaim to
Respondent all of his right, title and
interest in and to Tracts 3, 4 and 5 of the
Faye Miller Estate [the Cooper Lane
property] Divided. Respondent shall
quitclaim to Petitioner all of her right,
title and interest in the real estate
located at 124 Brookview Drive, Shelbyville,
Kentucky. It is the intention of the
parties to complete refinancing and have the
foreclosure action dismissed within sixty
(60) days from this date. Upon refinancing
by both parties, Respondent shall pay to
Petitioner the sum of $30,750.
Subsequently, Ronnie failed to refinance the Brookview
property and refused to sign the quitclaim deed to Donita.
Donita secured financing to purchase the Brookview property and
to borrow an additional $31,115 she owed Ronnie under the agreed
order.
Both properties proceeded to foreclosure – the Brookview
property being sold to a third party for $80,000 and the Cooper
Lane property being sold for $310,000.
At the foreclosure sale,
Ronnie bid $75,000 on the Brookview property which was appraised
for $90,000.
According to the court’s findings, Ronnie had an
employee bid $305,000 on the Cooper Lane property for him at the
foreclosure sale, which was appraised for $150,000.
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This forced
Donita to pay the inflated price of $310,000 for the property.
This, in turn, essentially required Donita to pay off, not only
the remaining debt on the Cooper Lane property, but also certain
debts that Ronnie would otherwise have been responsible for
under the agreed order - a business debt of Ronnie’s, the
remainder of the debt on the Brookview property after
foreclosure (the loans were cross-collateralized), and a sewer
assessment lien of $3,625.72.
On November 19, 2002, Ronnie filed a motion to have
the August 14, 2002, agreed order set aside.
Ronnie argued that
the parties’ agreement was inequitable because the amount the
Cooper Lane property sold for was much greater than the
Brookview property and because he was unable to refinance the
Brookview property, which was a condition precedent to the
agreement.
On February 11, 2003, the court entered an order
denying the motion.
Ronnie then filed a motion to reconsider.
On August 19 and September 11, 2003, the Commissioner held a
hearing on the motion to reconsider as well as on custody.
On
November 5, 2003, the Commissioner filed his recommended order
in which he found that the agreed order of August 15, 2002, was
enforceable and that Donita should receive sole custody of the
children.
On December 3, 2003, the trial court entered an order
overruling Ronnie’s exceptions to the Commissioner’s recommended
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order.
From the subsequent order denying Ronnie’s motion to
alter or amend, this appeal by Ronnie followed.
Ronnie’s first argument is that the trial court abused
its discretion in granting sole custody to Donita.
The hearing
on permanent custody took place on August 19, 2003, and
September 11, 2003.
Per the August 15, 2002, agreed order, the
Cabinet for Families and Children (“the Cabinet”) prepared a
custody report based on interviews with the parties and their
children.
These interviews took place in 2002 and the report
was filed with the court on January 16, 2003.
The custody
report recommended awarding sole custody to Donita with
visitation one weekend per month to Ronnie.
In the report, the
Cabinet recognized that all the children appeared uncomfortable
with their father and were angry that he left their mother.
When asked by the Cabinet whom they wanted to live with, all the
children responded that they wanted to live with their mother
and never wanted to see their father.
At the custody hearing,
Ronnie testified that he should have custody because Donita
works much of the weekend and the children were sometimes at
home unsupervised.
He also testified that since the preparation
and filing of the Cabinet’s report, some of the children have
enjoyed visiting him.
In awarding Donita sole custody, the
court stated:
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Although the children did not testify, it
appears clear from the record that they
would prefer that Donita have custody and
their interaction with their father has been
strained at best since his departure from
the family home. . . . The children are
apparently well adjusted in their current
circumstances although the location of their
schooling has been a continuing point of
controversy between their parents.
Under the circumstances of this case, it is
in the best interests of the children that
their mother, Donita, have sole custody.
There seems little likelihood that the
parties will ever be able to cooperate on
issues relating to their continued
upbringing. Also, all of the children are
of sufficient age to have significant input
into the decision concerning custody.
Ronnie contends that the trial court erred in
considering the custody report of the Cabinet since the
information contained therein was not current.
Ronnie also
complains that the court erred in relying exclusively upon this
report in making the custody decision, citing Reichle v.
Reichle, Ky., 719 S.W.2d 442 (1986).
The record indicates that
the children were brought to court to be interviewed two
different times, but Ronnie did not want them to be interviewed
and Donita did not press the issue, so the only evidence as to
the children’s preference was in the Cabinet’s report.
Further,
Ronnie could have subpoenaed the Cabinet employee who conducted
the interviews and filed the report, but did not.
Ronnie was
free to and did present his own evidence regarding the current
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state of his relationship with the children.
Whether to admit
or exclude evidence to ensure the fairness of a trial is within
the discretion of the trial court and its determination will not
be overturned on appeal in the absence of a showing of an abuse
of such discretion.
210 (1997).
Mullins v. Commonwealth, Ky., 956 S.W.2d
In looking at the Cabinet’s report, even though it
was eight months old at the time of the hearing, we cannot say
that it was an abuse of discretion to allow it to be admitted at
the hearing.
As for Ronnie’s argument that the court erred in
relying exclusively on the Cabinet’s report, we would note that
Reichle involved the lower court’s sole reliance on a
psychological evaluation, not a report by the Cabinet as in this
case.
Further, there is no indication from the court’s findings
in the instant case that the court only considered the Cabinet’s
report.
Ronnie also argues that the court erred in considering
the fact that the parties were unable to cooperate, citing
Scheer v. Zeigler, Ky. App., 21 S.W.3d 807 (2000).
In Scheer,
the Court overruled Mennemeyer v. Mennemeyer, Ky. App., 887
S.W.2d 555 (1994), which held that in order to modify an award
of joint custody, there must be a threshold finding that the
parties were unable to cooperate in the joint custody
arrangement.
The Scheer Court eliminated that threshold
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requirement for modification of joint custody.
However, the
Scheer Court qualified its holding, stating, “Our holding in no
way alters or destroys the ability of courts to modify joint
custody in situations where the parties are unable to
cooperate.”
Scheer, 21 S.W.3d at 814.
Hence, this Court did
not hold that the parties’ inability to cooperate can never be
considered by the courts, only that it cannot be a threshold
requirement for a modification of joint custody.
The present
case was not a modification of joint custody; it was an original
award of sole custody.
Under KRS 403.270(2), we believe it was
a relevant factor to be considered in this case.
Ronnie’s next argument is that the trial court erred
in its division of the parties’ property and debt.
In
particular, Ronnie maintains that the August 15, 2002, agreed
order should not have been enforced because the requirement that
the parties refinance the loan on their respective property was
a condition precedent to the contract and Ronnie never
refinanced the Brookview property.
As to this claim, the lower
court found:
Nothing in the agreement supports this
assertion [that the provision relative to
refinancing was a condition precedent to the
contract]. Again, everyone involved at the
time knew of the pending foreclosure and
could have easily made the agreement
contingent upon refinancing the properties
before the foreclosure sale. This would
have in effect left either party free to
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scuttle the agreement by failing to
cooperate prior to the sale. This in effect
appears to be what Ronnie attempted to do.
Under Kentucky law, if a contractual condition
precedent is not satisfied, then the contract is not
enforceable.
In re Big Rivers Electric Corp., 233 B.R. 726
(Bkrtcy. W.D. Ky. 1998).
The general rule of contract construction is
that: (C)onditions precedent are not
favored and the courts will not construe
stipulations to be precedent unless required
to do so by plain, unambiguous language or
by necessary implication. This is
particularly so when interpreting a
stipulation as a condition precedent would
work a forfeiture or result in inequitable
consequences.
A.L. Pickens Co., Inc. v. Youngstown Sheet & Tube Co., 650 F.2d
118, 121 (6th Cir. 1981).
Although the agreed order stated that the parties
shall apply for refinancing and that it was the intention of the
parties to complete refinancing to avoid the foreclosure, those
provisions in the agreement were not stated as conditions of the
contract.
The purpose of the refinancing provision was clearly
to eliminate the cross liens on the properties so each party
would be responsible only for the liens on the property they
were awarded.
As the trial court noted, if the refinancing
provision was a condition precedent, the parties could easily
avoid the contract by refusing or not making a good faith
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attempt to refinance, which would be wholly inequitable.
There
was evidence that this is precisely what Ronnie did in this
case.
Finally, Ronnie argues that the agreed order was
inequitable because the property Donita was awarded sold for
$310,000, whereas his property sold for only $80,000.
Given the
appraisals done on the properties prior to the agreed order,
both parties knew that the Cooper Lane property was valued much
higher than the Brookview property.
Moreover, there was
evidence that Ronnie was the sole reason the property sold for
an inflated price – he had his employee bid against Donita for
the property.
It is axiomatic that a party seeking equitable
relief must come with clean hands.
249 S.W.2d 529 (1952).
Gastineau v. Bradley, Ky.,
Ronnie did not have clean hands
regarding the sale of the Cooper Lane property.
Hence, his
argument is devoid of merit.
For the reasons stated above, the orders of the Shelby
Circuit Court are affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul C. Harnice
Frankfort, Kentucky
C. Lewis Mathis, Jr.
Shelbyville, Kentucky
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