JOANN THOMAS v. BILL RAYMOND THOMAS
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RENDERED: JUNE 30, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001997-MR
JOANN THOMAS
APPELLANT
APPEAL FROM CALLOWAY CIRCUIT COURT
HONORABLE DENNIS R. FOUST, JUDGE
ACTION NO. 99-CI-00183
v.
BILL RAYMOND THOMAS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND MINTON, JUDGES; HUDDLESTON, SENIOR JUDGE.1
BARBER, JUDGE:
This appeal comes to us from a divorce
proceeding originating in Calloway County, Kentucky.
Appellee,
Joann Thomas (Joann), and Appellant, Bill Raymond Thomas (Bill),
were married on December 31, 1993.2
It was a relatively short
marriage with the parties separating February 25, 1999.
On May
17, 1999, Joann filed for divorce from Bill.
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.
2
At the time of marriage, Joann was 50 years old and Bill was 58 years old.
At Joann’s request, an Interlocutory Decree was
entered November 17, 1999.
A final hearing was held on the
remaining issues of marital property and debt on April 27, 2000.
The parties resolved several of the remaining issues at the
hearing themselves.
At the conclusion of the hearing, the
Domestic Relations Commissioner (DRC) made oral findings on all
issues of marital property and debt presented to him, including
those agreed upon by the parties.
The DRC delegated the task of
putting his oral findings into written form to Joann’s attorney.3
However, the DRC’s Recommended Findings of Fact and Conclusions
of Law was not entered until June 10, 2004.
Joann filed exceptions to the DRC’s recommendations
arguing primarily that due to the DRC’s delay and the parties’
subsequent changes in circumstance that additional proof needed
to be taken.4
3
The exceptions were heard by the circuit court on
Joann’s attorney through the dissolution proceedings was Cynthia Gale Cook.
4
Joann argued that the following “financial inequities” would occur to her if
the circuit court adopted the DRC’s recommendations:
1) Home in Versailles, KY – Joann alleged Bill had failed to comply with any
of the conditions imposed upon him with respect to purchasing her
equitable interest. Also, additional proof needed to be taken about the
amount of mortgage on the property, the decrease in fair market value
(FMV) attributable to Bill’s failure to properly maintain, and the
increase in FMV due to market conditions.
2) Rental property in Murray, KY - Property was sold and proceeds divided
accordingly, but she argued that Bill should return a portion of the
proceeds as reimbursement related to the issues with the home in
Versailles.
3) 1995 Cadillac – The automobile was not sold as agreed upon by the
parties. Bill retained possession of the car. As such, she argued that
Bill should be required to pay her one-half the equity in the automobile
at the time of the final hearing but also interest on the amount of
equity.
-2-
August 23, 2004.5
Neither party presented a possible explanation
for the delay in the DRC’s issuance of his written
recommendations.
Shortly thereafter, the circuit court adopted
the DRC’s recommendations in their entirety September 1, 2004.
Joann now appeals to our court.
Joann argues that the circuit court erred in not
allowing her a hearing to present evidence as to why it would be
inequitable to enforce the original recommendations of the DRC.
Kentucky Revised Statute 454.350(2) states:
Where a report, findings, or recommendations
of a commissioner or hearing officer are
required by statute or rule as a
prerequisite to an order or judgment by the
Circuit or District Court the same shall be
filed within ninety (90) days of the
conclusion of the trial or hearing at which
the commissioner or hearing officer
presided.
4) Joann’s medical debts – The DRC recommended that said debts be divided
equally. She argued a hearing was needed to determine what amounts Bill
paid because he had not paid his share in full.
5) Chase/Manhattan Bank credit card debt - The DRC found that the marital
debt on said card was $9,950. Joann argues that since the matter has not
been finalized for four years, there is no reason why she should not be
allowed to present further proof on this indebtedness.
6) Auction of marital property – Joann argued that additional proof needed
to be put on so the DRC could properly allow each party credit for the
items of property bid upon.
7) Attorney fees/Maintenance – At the final hearing, the parties told the
DRC each would be responsible for their attorney fees. Joann argued that
because she had suffered a loss of income since the final hearing, she
was entitled to a consideration of maintenance, as well as, attorney
fees.
8) Bill’s IRA accounts – The DRC found that two of Bill’s IRA accounts were
non-marital. Joann argued she now had proof that she was entitled to a
credit against these accounts for sums she contributed.
5
The court did not get into the merits of each of Joann’s exceptions at
motion hour.
-3-
It is obvious from the record that the DRC failed to comply with
this statute.
A period of more than four years passed before
the DRC issued his written recommendations.
However, a
violation of KRS 454.350 does not render a judgment or report
void due to tardiness.
(Ky.App. 1983).
Dubick v. Dubick, 653 S.W.2d 652, 655
Further, the circuit court has the broadest
possible discretion with respect to the use it makes of reports
of domestic relations commissioners.
Eiland v. Ferrell, 937
S.W.2d 713, 716 (Ky. 1997); see also Ky. CR 53.06(2).
In this instance, both parties were aware of what the
DRC’s recommendations to the circuit court were going to be.
The DRC announced his findings in their entirety at the close of
the final hearing on April 27, 2000.
The language of Ky. CR
52.016 allows a court to dictate, in the record, specific
findings of fact and conclusions of law.
Skelton v. Roberts,
673 S.W.2d 733, 734 (Ky.App. 1984).
In essence, Joann requested an opportunity to present
additional proof on issues settled at the final hearing in 2000.7
6
Kentucky Rule of Civil Procedure 52.01 states, in pertinent part:
In all actions tried upon the facts without a jury or with an
advisory jury, the court shall find the facts specifically and
state separately its conclusions of law thereon and render an
appropriate judgment . . . The findings of a commissioner, to the
extent that the court adopts them, shall be considered as the
findings of the court.
7
She requested additional proof be taken related to the home in Versailles,
her medical bills, Chase/Manhattan Bank credit card debt, auction of marital
property, maintenance, attorney fees, and Bill’s IRA accounts. We also note
-4-
Although the delay was lengthy, the DRC’s written
recommendations were the same as his oral findings made four
years earlier.
At any time, either party could have requested
the DRC to make written recommendations based on his oral
findings, but neither chose to do so.
Following a review of the record, we do not believe
that the court erred in denying Joann a hearing relating to her
exceptions in this matter.
Therefore, we affirm the Calloway
Circuit Court.
MINTON, JUDGE, CONCURS.
HUDDLESTON, SENIOR JUDGE, DISSENTS.
HUDDLESTON, SENIOR JUDGE DISSENTING:
dissent.
Respectfully, I
The four-year delay from the hearing to the date when
the domestic relations commissioner submitted his report to the
circuit court not only violates Kentucky Revised Statutes (KRS)
454.350(2), it is unconscionable.
The financial condition of
the parties, the value of the assets they owned and the debts
they owed obviously changed significantly during those years.
The circuit court should have conducted a hearing to receive
updated information rather than summarily adopting the DRC’s
four-year-old report and recommendations.
I would reverse the
decree and remand with directions to Calloway Circuit Court to
conduct an evidentiary hearing and then make appropriate
that her issues related to Bill’s alleged failure to do some act would be
more suitable for a motion to compel.
-5-
findings of fact and an equitable division of the parties’
property and debts.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Dennis Lortie
Murray, Kentucky
Steve Vidmer
Murray, Kentucky
-6-
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