GORDON JAY SETTLOW v. ALICE JEAN HAENDIGES SETTLOW
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RENDERED: JUNE 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002408-MR
and
NO. 2003-CA-002413-MR
GORDON JAY SETTLOW
v.
APPELLANT/CROSS-APPELLEE
APPEAL AND CROSS-APPEAL FROM TRIGG CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 98-CI-00074
ALICE JEAN HAENDIGES SETTLOW
APPELLEE/CROSS-APPELLANT
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
HENRY AND SCHRODER, JUDGES; EMBERTON, SENIOR JUDGE.1
HENRY, JUDGE:
Gordon Jay Settlow and Alice Jean Haendiges
Settlow appeal and cross-appeal, respectively, from a July 14,
2003 final order and judgment of the Trigg Circuit Court
adopting the special domestic relations commissioner’s report
and findings as to how maintenance should be awarded to Alice.
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.
Upon review, we vacate the trial court’s final order and
judgment and remand for further proceedings.
Gordon and Alice were married on July 25, 1970.
At
the time of their marriage, Alice was a nurse and Gordon was a
medical intern.
The parties were married for nearly thirty (30)
years, during which time they had four (4) children and Gordon
became a board-certified pathologist.
At some point in their marriage, Gordon and Alice
separated, with Alice and the children moving to San Diego,
California, and Gordon moving to the Kentucky/Tennessee area to
practice medicine.
However, Gordon traveled to California on a
number of occasions to visit Alice and the children.
Alice also
visited Gordon on multiple occasions, and the two vacationed
together in Europe during the fall of 1996.
Gordon filed for the dissolution of his marriage to
Alice on May 14, 1998, in Trigg County, Kentucky.
In August
1998, Alice consented to have the dissolution action tried in
Trigg County after filing her own dissolution petition in San
Diego on April 27, 1998.
Following a two-day evidentiary
hearing on January 14 and 15, 1999, the Trigg County domestic
relations commissioner issued findings that were fully adopted
by the trial court on November 29, 1999.
appealed from this decision.
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Alice subsequently
On May 11, 2001, this court vacated the judgment of
the trial court in part and remanded this case to that court for
further proceedings.
In particular, we held that the trial
court’s $1,000 per month maintenance award was an abuse of
discretion given the significant disparity between the incomes
of Gordon and Alice.
We accordingly remanded the case back to
the trial court for reconsideration of the maintenance award.
On June 24, 2003, the special domestic relations
commissioner, upon request of the trial court, filed a final
report containing his recommendations that Alice be paid $2,100
per month in permanent maintenance.
On July 2, 2003, Gordon
filed objections to the commissioner’s report along with a
motion to amend the report to comply with his objections.
Of
particular note is the fact that Gordon noticed the matter to be
heard on August 13, 2003.
On July 3, 2003, Alice filed her own
objections to the commissioner’s report and also moved for an
amendment of the report.
She also noticed the matter for oral
argument on August 13, 2003.
However, on July 14, 2003, the trial court entered a
final order and judgment without conducting a hearing on the
parties’ objections to the commissioner’s report.
The court
noted: “Both sides have noticed hearings on their objections for
August 13, 2003.
However the Court has reviewed the
Commissioner’s report as well as the well stated exceptions and
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finds that the written exceptions are adequate.
hearing is necessary.”
Therefore no
The court subsequently adopted all of
the commissioner’s recommendations as its final order and
judgment.
Gordon then filed a motion to alter, amend, or vacate
the court’s judgment that was denied on October 14, 2003.
This
appeal and cross-appeal followed.
The parties raise a number of issues on appeal, but we
are compelled to focus primarily upon Gordon’s argument that the
trial court erred in overruling the objections and denying the
motions of both parties as to the special domestic relations
commissioner’s findings without providing notice and a hearing.
As noted above, in its order of July 14, 2003, the trial court
stated: “Both sides have noticed hearings on their exceptions
for August 13, 2003.
However, the Court has reviewed the
Commissioner’s as well as the well stated exceptions and finds
that the exceptions are adequate.
necessary.”
Therefore, no hearing is
Gordon notes that neither party was provided with
notice of the trial court’s intent to rule on the objections and
the pending motions without a hearing, even though a hearing had
been noticed by both parties.
He adds that neither party was
afforded an opportunity to present a memorandum or other
material in support of his or her objections and motion, or in
opposition to the objections and motion of the other party.
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CR2 53.06(2), subtitled “Action on report,” provides as
follows:
Except in pendente lite matters, within 10
days after being served with notice of the
filing of the report any party may serve
written objections thereto upon the other
parties. Application to the court for
action upon the report and upon objections
thereto shall be by motion and upon notice
as prescribed in CR 6.04. The court after
hearing may adopt the report, or may modify
it, or may reject it in whole or in part, or
may receive further evidence, or may
recommit it with instructions.
(Emphasis added).
In Kelley v. Fedde, 64 S.W.3d 812 (Ky. 2002),
the Kentucky Supreme Court held that CR 53.06 requires the trial
court to afford parties an opportunity for oral argument before
ruling on objections to a domestic relations commissioner’s
report.
Id. at 814.
Specifically, the Supreme Court concluded
that "while a full-blown evidentiary hearing is not contemplated
by the rule, the parties must be afforded an opportunity for
oral argument."
Id., citing Haley v. Haley, 573 S.W.2d 354
(Ky.App. 1978).
Accordingly, we must conclude that the trial court was
in error here in failing to afford the parties an opportunity
for oral argument pursuant to CR 53.06(2) when objections to the
special domestic relations commissioner’s report were timely
2
Kentucky Rules of Civil Procedure.
-5-
filed.3
Therefore, we find it necessary to vacate and remand
this case to the Trigg Circuit Court for proceedings consistent
with this opinion.
Specifically, the trial court must allow for
oral argument on the parties’ objections and motions as to the
commissioner’s report before rendering a decision.
However, with this in mind, we also feel it necessary
to address Gordon’s contention that the trial court erred in
making new findings of fact (or, more specifically, adopting the
special domestic relations commissioner’s findings) following
the remand of this case in May 2001.
Gordon argues that the
case was remanded for a new maintenance award determination
based on the record as it existed at the time the first judgment
was entered.
As a basis for this argument, Gordon asserts that
this court did not conclude that the trial court’s original
findings of fact were clearly erroneous in deciding to remand,
meaning that those findings must have been sufficient when we
ruled upon the propriety of the original maintenance award.
Therefore, the argument goes, these findings should not have
been disturbed by the circuit court on remand.
Gordon further
notes that some of the findings of fact made on remand cannot be
reconciled with the original findings of fact.
3
In reaching this decision, we note that Alice offered no arguments in her
brief opposing Gordon’s position that the trial court erred in not allowing
oral arguments on the parties’ objections to the commissioner’s report.
-6-
Upon reviewing our May 2001 opinion rendered in this
case, we find that no explicit rulings were made as to whether
the trial court should or should not make new findings of fact
in determining a new maintenance award.
We note, however, that
this court took issue with the trial court’s original finding
that Alice could regain her license, return to nursing, and
significantly increase her income, concluding that this
assertion was “speculative.”
Consequently, we cannot say that
this court uniformly agreed with all of the trial court’s
original findings of fact when it first remanded this case.
With this said, however, it appears as if the trial
court’s request for new findings of fact and conclusions of law
from another domestic relations commissioner was perhaps
unnecessary and a cause of confusion.
Relatively little new
evidence was presented to that commissioner; indeed, it appears
from his report that he relied almost exclusively upon the
evidence that had been tendered previously to the first
commissioner and the trial court in reaching his conclusions.
However, our Supreme Court has held that trial courts have the
“broadest possible discretion with respect to the use [they]
make[ ] of reports of domestic relations commissioners.”
Eiland
v. Ferrell, 937 S.W.2d 713, 716 (Ky. 1997), citing Haley v.
Haley, 573 S.W.2d 354 (Ky.App. 1978); Basham v. Wilkins, 851
S.W.2d 491 (Ky.App. 1993).
We also note that CR 53.06(2), which
-7-
deals with the time for objections to a domestic relation
commissioner’s report, provides that a trial court, with respect
to such a report, “may adopt, modify or reject it, in whole or
in part, and may receive further evidence or may recommit it [to
the domestic relations commissioner] with instructions.”
Id.
Given the substantial discretion afforded to trial
courts as to how they use these reports, and this court’s
previous failure to give explicit directions as to whether new
findings of fact should be made by a domestic relations
commissioner, we are inclined to conclude that the trial court
did not abuse its discretion here in requesting a new report
from the special domestic relations commissioner.
As this case
is to be remanded for oral argument, the parties will be able to
address any inconsistencies between the two reports before the
trial court makes a ruling.
As these rulings are dispositive, the other issues
raised by Gordon and Alice shall not be addressed.
ALL CONCUR.
BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
William G. Deatherage, Jr.
Hopkinsville, Kentucky
Dov Moore
Bowling Green, Kentucky
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