RITCHIE BRACK v. NELDA BRACK
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RENDERED: JUNE 24, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000689-MR
RITCHIE BRACK
APPELLANT
APPEAL FROM BALLARD CIRCUIT COURT
HONORABLE WILLIAM LEWIS SHADOAN, JUDGE
ACTION NO. 01-CI-00132
v.
NELDA BRACK
APPELLEE
OPINION AND ORDER
(1)
(2)
AFFIRMING
DENYING COSTS AND ATTORNEY FEES
** ** ** ** **
BEFORE:
BARBER AND SCHRODER, JUDGES; HUDDLESTON, SENIOR JUDGE.1
SCHRODER, JUDGE:
Ritchie L. Brack appeals the denial of a CR
60.02 motion which asked the court to make a division of a wage
settlement received by Nelda Brack prior to their divorce.
The
settlement proceeds were traced to a CD which was awarded to the
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110 (5)(b) of the Kentucky Constitution
and KRS 21.580.
wife in a division of the marital assets, which implies that the
asset was treated as marital property.
Therefore, we affirm.
The parties were divorced and a final hearing was held
on February 17, 2004, to divide the marital and non-marital
property.
Appellant did not appear at the final hearing nor did
his attorney of record.
However, an attorney friend of
appellant’s attorney appeared and announced ready.
At the
hearing, the court had before it, each party’s financial
statement.
Nelda’s financial statement was filed with the court
on December 21, 2001.
On page two of the disclosure, Nelda
lists a 1997 Park Avenue Buick with a balance owed of
$14,193.01.
On page three, she listed a CD, valued at
$15,000.00, as collateral for a loan.
as possessing the CD.
Neither party is listed
Ritchie’s financial statement of the same
date lists a $10,000.00 CD in possession of both.
On June 18,
2003, Nelda Brack filed, pro se, a “Requested List Of Items From
The Former Marital Residence” with the circuit court clerk.
In
that list, Nelda requested “Full current value of the CD.”
(Only one CD was listed in either financial statement filed with
the court).
On February 6, 2004, Nelda Brack filed a memorandum
for the contested final hearing which stated:
“The Petitioner
would receive the Certificates of Deposit, which were purchased
with monies from her income and a Corvette for which she paid
$5,626.41.”
Ritchie’s pretrial memorandum only mentions one CD,
-2-
valued at $12,000.00, with an attached mediation memorandum
which lists the value of a CD at $11,537.64, in July of 2003.
By supplemental decree filed on February 20, 2004, the
court awarded Nelda the CD (#206401422).
On March 1, 2004,
Ritchie filed a motion to vacate, set aside and correct the
judgment pursuant to CR 60.02, which acknowledged Nelda received
the $12,000.00 CD, and asserts that division of assets was
unconscionable, but the motion does not contend the CD
represents lost wages.
The motion was denied on March 30, 2004.
An order was entered on March 31, 2004, (dated March 29, 2004)
which specifically mentioned “the division of a $19,000.00 wage
settlement received by the Petitioner prior to separation, said
issue not being raised at the final hearing of this matter, nor
was said issue set out in the Pretrial Memorandum filed by the
Respondent on or about February 12, 2004; therefore, any claim
of the Respondent to said wage settlement is waived; . . . .”
The court then denied the motion to vacate, set aside and
correct.
order.
The notice of appeal refers to the March 30, 2004,
A supplemental notice refers to an order dated March 29,
2004.
On appeal to this Court, appellant contends there is
one issue, whether wages earned during a marriage are marital
property.
He argues that he listed the item on his financial
disclosure and the trial court merely forgot to divide it, and
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that is the remedy he sought in his CR 60.02 motion.
The
appellee counters that the remaining funds from the settlement
were listed as a CD in appellee’s financial settlement and if
the appellant had attended the final hearing, he would have
learned that fact.
Therefore, appellee contends, the appellant
should not be allowed to raise the issue for the first time on
appeal.
From a review of the record, we note that both parties
acknowledged a CD on their financial disclosures.
Both parties
acknowledge in their briefs that the CD represents the remaining
proceeds from a wage settlement of $19,000.00 or $19,500.00.
At
the final hearing, the trial court awarded the CD to the
appellee.
Appellant’s CR 60.02 motion to vacate contended the
distribution was unfair but made no argument about the origin of
the funds to purchase the CD.
The first mention of the CD
representing the proceeds of a settlement appear in the trial
court’s order dated March 29, 2004, and entered March 31, 2004.
In said order, the court acknowledged appellant’s argument and
ruled it was waived since it was not argued at the final
hearing.
We agree with the trial court.
The purpose of a CR
60.02 motion is to bring before the court errors that had not
been put into issue and were unknown and could not have been
known to the party by exercise of reasonable diligence in time
-4-
to have been presented to the court before judgment.
Home Indem. Co., 659 S.W.2d 185, 188 (Ky. 1983).
Davis v.
The court’s
division of assets makes no specific finding that the CD
represents lost wages and is marital or non-marital.
However,
it was awarded to the appellee in the division of assets,
suggesting it was considered marital.
If appellant wanted
further findings of fact, he should have asked for them at the
final hearing as he was aware of the CD and what it represented,
or he could have learned those facts at the final hearing, or
before, with a little diligence.
Nelda’s memorandum filed for
the contested final hearing listed the certificate of deposit
“purchased with monies from her income . . . .”
Whether it
represented a settlement or wages, all appellant had to do was
ask.
He snoozed, so he loses.
McLean County v. Meuth Carpet
Supply, 573 S.W.2d 340, 341 (Ky. 1978).
Appellee requests that the appellant’s appeal should
be considered frivolous and the appellee awarded cost and
attorney fees.
Appellant filed no reply.
CR 73.02(4) allows an
appellate court to award single or double costs for a frivolous
appeal.
Lake Village Water Ass’n v. Sorrell, 815 S.W.2d 418,
421 (Ky.App. 1991) authorizes attorney fees for frivolous
appeals.
In order to find an appeal frivolous, it must be
totally lacking in merit in that no reasonable attorney could
assert such an argument and bad faith can be inferred.
-5-
Leasor
v. Redmon, 734 S.W.2d 462, 464 (Ky. 1987).
We do not believe
the facts in the record are clear enough to deem the appeal as
frivolous.
Therefore, we deny the requests for costs and
attorney fees.
For the foregoing reasons, the judgment of the Ballard
Circuit Court is affirmed, and the request for costs and
attorney fees denied.
ALL CONCUR.
ENTERED:
/s/ Wil Schroder
Judge, Court of Appeals
June 24, 2005
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Tod D. Megibow
Paducah, Kentucky
Ben J. Lookofsky
Mayfield, Kentucky
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