CAROLE ANN TRAUGOTT v. JAMES MICHAEL TRAUGOTT
Annotate this Case
Download PDF
RENDERED:
DECEMBER 1, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002035-MR
CAROLE ANN TRAUGOTT
v.
APPELLANT
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
CIVIL ACTION NO. 05-CI-00095
JAMES MICHAEL TRAUGOTT
APPELLEE
OPINION AND ORDER
DISMISSING
** ** ** ** **
BEFORE:
BARBER, JUDGE; HUDDLESTON AND PAISLEY, SENIOR JUDGES.1
HUDDLESTON, SENIOR JUDGE:
Carole Ann Traugott appeals from a
decree entered on September 1, 2005, that dissolved her marriage
with James Michael Traugott and from an interlocutory order
entered on August 18, 2005, that denied her objections to and
adopted Boyd Circuit Court’s domestic relations commissioner’s
(DRC) report and recommendation that she be awarded maintenance
of $300.00 per month for four months.
1
Carole argues that the
Senior Judges Joseph R. Huddleston and Lewis G. Paisley sitting as
Special Judges by assignment of the Chief Justice pursuant to Section
110(5)(b) of the Kentucky Constitution and Ky. Rev. Stat. (KRS)
21.580.
circuit court abused its discretion when it awarded inadequate
maintenance.
Unfortunately, Carole’s appeal must be dismissed
because her notice of appeal was not timely filed.
The Traugotts were married in November 1979 and
separated in November 2004.
They have no children.
Both
parties are approximately fifty years old and have lived in
Ashland, Kentucky, throughout most of their marriage.
James is
currently employed by AK Steel and had gross earnings in 2004 of
$5,417.00 per month or $65,800.00 per year.
Carole was employed
by General Telephone for 17 years earning $13.00 per hour, and
by Ashland Electric Power Company (AEP) for a few years, but she
left both jobs after declining to accept job transfers to new
cities following restructuring within the companies.
Carole
participated in a retraining assistance program provided by AEP
to its displaced employees and earned an associate degree from
Ashland Community College in office system technology with
medical coding in May 2005.
Carole was unable to procure
employment in the office system technology field, so she took a
job as a secretary/receptionist at Buchanon Sound at $8.00 per
hour with gross earnings of approximately $1,386.00 per month or
$16,650.00 per year.
The parties reached an agreement to divide their
property pursuant to which Carole received $35,000.00 in cash
and a vehicle.
On May 31, 2005, the DRC conducted a hearing on
-2-
the question of maintenance for Carole during which she
requested $1,000.00 per month in permanent maintenance.
The DRC
issued her report on July 6, 2005, recommending that Carole be
awarded maintenance of $300.00 per month for a period of four
months.
On July 19, 2005, Carole timely filed exceptions to the
report asserting that the maintenance award was against the
great weight of the evidence and constituted an abuse of
discretion.
After James filed a response to Carole’s
objections, the circuit court conducted a hearing on August 12,
2005.
On August 18, 2005, the court overruled the objections
and confirmed the DRC’s report and recommendations.
On the same
date, that is, August 18, 2005, a decree of dissolution of
marriage, which, inter alia, adopted the DRC’s report, was
entered and James was ordered to pay Carole maintenance of
$300.00 per month for four months.
However, on September 1,
2005, a second, quite similar decree of dissolution of marriage
that again awarded Carole maintenance of $300.00 for four months
was entered.
Carole filed a notice of appeal to this Court on
September 29, 2005.
In his brief, James argues that Carole’s appeal should
be dismissed because her notice of appeal was filed untimely.
Kentucky Rule of Civil Procedure (CR) 73.02(1)(a) requires the
filing of a notice of appeal within 30 days after the date the
-3-
circuit court clerk places the notation of service of the
judgment or order under CR 77.04(2) on the circuit court docket.
In discussing CR 73.02, numerous early cases stated
that the filing of a notice of appeal was jurisdictional and
mandatory.2
More recently, the Kentucky Supreme Court has
modified the early view by indicating that the filing of a
notice of appeal is the procedural device prescribed by the
Rules of Civil Procedure by which a litigant may invoke the
exercise of jurisdiction of an appellate court and is a matter
of procedure, rather than jurisdiction.3
Thus, compliance with
CR 73.02 falls within the Supreme Court’s inherent authority to
promulgate rules of court,4 rather than within the ambit of
constitutionally delegated jurisdiction.5
Nevertheless, CR
73.02(2) provides that “[t]he failure of a party to file timely
a notice of appeal, cross-appeal, or motion for discretionary
review shall result in a dismissal or denial.”6
In Excel Energy,
Inc. v. Commonwealth Institutional Securities, Inc.,7 the Supreme
2
See, e.g., City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990);
Electric Plant Bd. v. Stephens, 273 S.W.2d 817 (Ky. 1954); Burchell v.
Burchell, 684 S.W.2d 296 (Ky. App. 1984).
3
Johnson v. Smith, 885 S.W.2d 944, 950 (Ky. 1994).
4
See Hutchins v. General Elec. Co., 190 S.W.3d 333, 337 (Ky. 2006) (citing
Kentucky Farm Bureau Mut. Ins. Co. v. Wright, 136 S.W.3d 455 (Ky. 2004)).
5
Id.; Norwest Bank Minnesota v. Hurley, 103 S.W.3d 21 (Ky. 2003); Foxworthy
v. Norstam Veneers, Inc., 816 S.W.2d 907 (Ky. 1991).
6
Emphasis supplied.
7
37 S.W.3d 713 (Ky. 2001).
-4-
Court said that “our holding today, that a tardy notice of
appeal is subject to automatic dismissal and cannot be saved
through application of the doctrine of substantial compliance,
is a policy decision that is reflected in CR 73.02.”8
As a
result, the timely filing of a notice of appeal is considered
mandatory as a policy matter designed to promote the finality of
judgments.9
The civil rules do provide for an extension of time to
file a notice of appeal.
For instance, under CR 73.02(1)(e),
the time for filing a notice of appeal is tolled by the filing
of a timely post-judgment motion under Rules 50.02, 52.02 or 59,
so that an appellant has a full 30 days to file a notice of
appeal upon the entry of an order denying the post-judgment
motion.
In addition, CR 73.02(1)(d) allows the trial court to
extend the time for filing the notice of appeal for a period of
10 days upon a showing of excusable neglect based on a failure
of a party to learn of the entry of the judgment or order which
affects the running of the time for taking an appeal.
In this case, the decree of dissolution of marriage
that overruled Carole’s exceptions to the DRC’s report and
8
Id. at 716.
9
Id.; Stewart v. Kentucky Lottery Corp., 986 S.W.2d 918, 921 (Ky. App. 1998).
The mandatory approach to the filing of a notice of appeal can be contrasted
with the issue of the payment of filing fees, where the Supreme Court has
applied a more lenient, discretionary approach. See Norwest and Foxworthy,
supra, note 5.
-5-
adopted her proposed findings of fact, conclusions of law and
recommendations was entered on August 18, 2005.
The decree
explicitly adopted the DRC’s recommendation that James pay
Carole maintenance in the sum of $300.00 per month for a period
of four consecutive months following entry of the decree.
The
decree recites that it is a final judgment and that there is no
just cause for delay.10
subject to appeal.11
Thus, this decree was a “final judgment”
The Boyd Circuit Court clerk certified and
entered the decree of record with notation of service on the
docket, and mailed a copy to the parties’ attorneys, all on
August 18, 2005.
Carole did not file her notice of appeal until
September 29, 2005, which was well beyond the 30-day time frame
allowed for filing a notice of appeal.
However, the record also contains a second decree of
dissolution of marriage, entered on September 1, 2005, that,
while worded differently in certain respects, is substantially
similar to the decree entered on August 18, 2005.
It is not
clear from the record why a second decree was entered.
There
were no post-judgment motions, such as a CR 52.02 motion
requesting amendment to or additional factual findings or a CR
59.05 motion to alter, amend or vacate the judgment, filed by
10
See CR 54.02.
11
CR 54.01.
-6-
either party.12
Generally, “‘a trial court loses control of a
judgment ten (10) days after entry of the judgment, except to
the extent an authorized, timely motion under CR 59 is made.’”13
Carole’s notice of appeal states an intention to appeal from the
divorce decree entered on September 1, 2005,14 but the circuit
court no longer had jurisdiction to enter this second decree
because it was outside the 10-day time period permitted for
amendments to prior judgments absent a timely motion extending
the court’s authority to amend the judgment or grant additional
12
Although there were some differences between the two decrees, there is
nothing in the September decree indicating that it was entered pursuant to CR
60.01 to correct a clerical mistake in the August decree. In any event,
action under CR 60.01 does not extend the time for filing an appeal from the
underlying judgment. See, e.g., United Tobacco Warehouse, Inc. v. Southern
States Frankfort Cooperative, Inc., 737 S.W.2d 708 (Ky. App. 1987).
13
Marrs Electric Co. v. Rubloff Bushford LLC, 190 S.W.3d 363, 367 (Ky. App.
2006) (quoting Kentucky Farm Bureau Ins. Co. v. Gearhart, 853 S.W.2d 907, 910
(Ky. App. 1993)). In addition to CR 59, the trial court retains jurisdiction
to amend or add factual findings to its judgment pursuant to a motion filed
by a party under CR 52.02 within 10 days after entry of the judgment. The
trial court also may obtain jurisdiction to amend a prior final judgment
pursuant to other timely post-judgment motions such as CR 60.01 or 60.02, but
a motion under these rules does not affect the finality of the judgment or
extend the time for filing a notice of appeal from the underlying judgment.
See Brozowski v. Johnson, 179 S.W.3d 261, 263 (Ky. App. 2005) (involving CR
60.02); United Bonding Ins. Co., Don Rigazio, Agent v. Commonwealth, 461
S.W.2d 535,536 (Ky. 1970)(a party may not resort to CR 60.02 to gain an
additional extension of time to prevent application of CR 73.02); United
Tobacco Warehouse, id.
14
The notice of appeal also states an intention to appeal from the order
entered on August 18, 2005, which confirmed the DRC’s report and
recommendations. This order was interlocutory, but it became appealable once
a final and appealable judgment was entered. Since the decree of dissolution
entered on August 18, 2005, was a final and appealable judgment, any notice
of appeal from the August order had to be filed within 30 days from the date
of the final judgment. As a result, the September 29, 2005, notice of appeal
seeking to appeal the August 18, 2005, order was untimely.
-7-
time to file the notice of appeal under CR 73.02(1)(e).15 Under
the circumstances, we are obligated under CR 73.02(2) to dismiss
the appeal for failure to timely file a notice of appeal.16
Therefore, it is ORDERED that the above-styled appeal
is DISMISSED.
ALL CONCUR.
ENTERED: December 1, 2006__
/s/ Joseph R. Huddleston______
SENIOR JUDGE, COURT OF APPEALS
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Rodney S. Justice
Ashland, Kentucky
Gordon J. Dill
Ashland, Kentucky
15
Carole did not file a reply brief or otherwise respond to the question of
the timeliness of the notice of appeal raised in James’s brief nor has she
filed a motion seeking permission to file a belated appeal
16
See also Fox v. House, 912 S.W.2d 450, 451 (Ky. App. 1995).
-8-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
