DEBORAH M. TAYLOR v. ROBERT LEE TAYLOR; MONTICELLO BANKING COMPANY; AND JOHN PAUL JONES II
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RENDERED:
NOVEMBER 17, 2006; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-002271-MR
DEBORAH M. TAYLOR
v.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 04-CI-00378
ROBERT LEE TAYLOR; MONTICELLO
BANKING COMPANY; AND
JOHN PAUL JONES II
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
ABRAMSON, GUIDUGLI, AND VANMETER, JUDGES.
GUIDUGLI, JUDGE:
Deborah M. Taylor has appealed from rulings of
the Wayne Circuit Court that vacated a decree of dissolution of
marriage and judgment, and set aside an order of contempt
against her husband, Robert Lee Taylor, due to lack of proper
service.
Deborah argues that the circuit court erred in so
ruling, as Robert was properly served pursuant to CR 5.02.
affirm.
We
Robert and Deborah were married in Montgomery County
on June 2, 1980.
They separated on October 9, 2004, and Robert
filed a Petition for Dissolution of Marriage two days later.
Both parties filed domestic violence petitions against the
other, which were eventually dismissed when a temporary
restraining order was entered.
During their marriage, Robert
and Deborah amassed a sizeable marital estate, including a
residence and four businesses (three grocery stores and a
gas/convenient store).
At the same time, they incurred a large
amount of debt related to these properties.
Monticello Banking
Company, which held mortgages and notes on the properties in a
combined amount of $1.4 million, eventually intervened in this
action and filed separate foreclosure actions in order to
protect its interests.
By March 2005, Robert stopped appearing in court.
the end of the month, his attorney moved to withdraw.
At
This
motion was granted on April 12, 2005, and Robert was provided
twenty days to retain new counsel.
In the order, the circuit
court also indicated that Robert’s whereabouts were unknown and
that his copy of the order would be sent to his brother.
However, the clerk’s certificate does not indicate that Robert
was served with a copy of the order at his brother’s address.
The action proceeded without any further appearances by Robert
or new counsel.
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On July 6, 2005, the circuit court entered its
Findings of Fact, Conclusions of Law, Decree of Dissolution and
Judgment, dividing the marital assets and debts between both
Robert and Deborah.
According to the judgment, as drafted by
Deborah’s counsel, Robert was awarded $4.8 million in marital
assets as well as marital debts in the amount of $661,809.99.
Deborah was awarded $1.5 million in assets and almost $1.3
million in debts.
To correct this disparity, the circuit court
ordered Robert to pay Deborah the amount of $1.95 million in
maintenance over twenty years, which amounted to $8,125 per
month.
The payments were to begin in July 2005.
The order
provided that Robert would be subject to the contempt powers of
the court and appropriate sanctions if the payments were not
timely made.
On August 9, 2005, Deborah moved the circuit court to
hold Robert in contempt and to issue an arrest warrant for his
failure to pay the July and August maintenance payments as well
as for failing to make any payments on the debts assigned to
him.
The circuit court granted the motion on August 15 and
issued an order for Robert’s arrest.
Robert was arrested
pursuant to this order on August 22, 2005.
Once he had been arrested, Robert retained counsel and
three days later filed motions to alter, amend, or vacate the
order of contempt and to vacate the decree, stating that he was
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not notified of the time frame to retain a new attorney or of
any subsequent court dates.
In an affidavit attached to the
motion to vacate, Robert indicated that before the April hearing
date on his former attorney’s motion to withdraw, he told his
attorney “I could no longer face my wife nor fight with her and
that she could have everything.”
He did not think he would need
another attorney because he thought his wife would be awarded
the entire marital estate, including both the assets and the
debts.
He also indicated that he did not see a copy of the
order granting his attorney’s motion to withdraw until after he
had been arrested.
Robert’s brother, Billy Taylor, also
provided an affidavit in which he stated that never received a
copy of the April 12, 2005, order for his brother.
The circuit
court held a hearing on this matter on September 6, 2005, during
which Robert testified that after discussing the motion to
withdraw with his attorney, he received no further court
documents until the time of his arrest.
He also stated that he
had a post office box in Bronston, Kentucky, where he received
mail.
He had previously received his mail at the Monticello
Shop Wise until he was ordered to leave that business in
February 2005.
On September 7, 2005, the circuit court entered an
order granting Robert’s motions, thereby setting aside the
contempt and arrest orders and vacating the decree:
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This matter coming before the Court
upon the motion of Petitioner Robert Lee
Taylor to set aside the Order of Contempt
entered in this action on August 15, 2005,
and the Decree of Dissolution of marriage
entered herein on July 6, 2005, and the
Court having reviewed the pleadings and
heard arguments of counsel, and the Court
determining that various pleadings were not
served upon Petitioner at his last known
address, and the Court being further
convinced that the brother of Petitioner was
not served with a copy of the Order allowing
counsel to withdraw and granting the
Petitioner 20 days to obtain additional
counsel, and the testimony being that the
Petitioner has not received mail at 412 N.
Main Street, Monticello KY 42633 since
February 2005, and the Court reaching the
conclusion that proper service under Rule
5.02 was not made following the entry of the
Order allowing counsel to withdraw and
subsequent Motions and Orders, it is hereby
ORDERED as follows:
1. That the Order of Contempt and Order
of Arrest entered August 15, 2005 in this
action is hereby set aside, vacated and held
for naught.
2. That the Findings of Fact,
Conclusions of Law, and Decree of
Dissolution of Marriage entered in this
action on July 6, 2005, are hereby vacated
and set aside and held for naught.
3. That the Wayne County Jail shall no
longer hold the Petitioner, Robert Taylor,
on the Contempt charge following receipt of
a copy of this Order.
Deborah then filed a motion to alter, amend or vacate
the September 7th order, pointing out that the orders were all
served on Robert at his last known addresses in compliance with
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CR 5.02.
Furthermore, she asserted that Robert could not be
permitted to disappear for five months, and then have everything
set aside.
The circuit court denied Deborah’s motion in an
order entered October 4, 2005, more specifically setting out the
facts supporting its earlier order:
1. On April 5, 2005, this Court’s
docket entry reflected the following:
“Court sustained the motion filed by Hon.
Jesse M. Stockton, Jr., requesting that he
be allowed to withdraw as counsel of record
for the petitioner. Notice of Mr.
Stockton’s withdrawal as counsel to be sent
to petitioner’s brother due to the fact that
the petitioner’s whereabouts are unknown.
The petitioner shall have 20 days from the
date herein in which to retain new counsel.”
2. This Court finds that Hon. Jesse M.
Stockton, Jr., tendered an Order allowing
him to withdraw as counsel for the
petitioner and allowing the petitioner 20
days to obtain new counsel. That Order was
entered April 12, 2005. The Order did not
include in the distribution the name and
address of the brother of the petitioner.
3. This Court finds that further orders
including an order submitting this action
for final orders and a Decree of Dissolution
of Marriage and Judgment included in the
distribution two (2) addresses for Robert,
namely, 412 North Main Street, Monticello,
Kentucky 42633, and Old Route 90, Loop 2,
Waitsboro Road, Apartment 1, Bronston,
Kentucky 42518. Another address for Robert
was listed as Route 2, Box 4225, Monticello,
Kentucky 42633.
4. This Court finds that testimony was
adduced at the September 6, 2005, hearing
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from Billy Ray Taylor,1 the brother of
Robert, that his address was 1077 North Main
Street, Monticello, Kentucky 42633. Billy
testified he had moved, but did not give his
new mailing address. Billy testified that
he had never received any notices in this
action.
5. Robert testified that he had never
received any notices since Hon. Jesse M.
Stockton, Jr., withdrew as his attorney of
record. He testified that he had not been
present at 412 North Main Street,
Monticello, Kentucky 42633, or the location
of the Shop Wise business since February 7,
2005, when this Court ordered him out of
this business. He stated that his son,
Robert Taylor, Jr., is managing that
business, but that he had never received any
notices or mail pertaining to this action
from his son.
Robert additionally testified that he
has lived on Old 90, Loop 2, Apartment 1,
Bronston, Kentucky 42518 since October 2004.
He testified that he has a post office box,
which he listed as P. O. Box 195, Bronston,
Kentucky 42518.
From the above prefatory remarks, it is
obvious that the last known address of
Robert was Old 90, Loop 2, Apartment 1,
Bronston, Kentucky 42518, however, the
record is completely devoid of any evidence
indicating that Robert received his mail at
this above address.
CR 5.022 states in pertinent part that
service of notices upon a party “shall be
made by delivering a copy to him or by
mailing it to him at his last known address
or, if no address is shown, by leaving it
1
Hereinafter referred to as “Billy.”
2
Rules of Civil Procedure.
(Footnote 3 in original.)
(Footnote 4 in original).
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with the clerk of the court”.
added).
(Emphasis
Applying the ratio decendi derived from
the discussion herein, it is evident from
the testimony heard by this Court that
Robert did not receive the notices at his
last known address. Simply stated, there
was no evidence that Robert received any
legal notices at the place where he lived
and resided. If he had received legal
notices at the place where he last resided,
it is incumbent for Deborah to establish
that fact. Consequently, the motion to
alter, amend or vacate the September 7,
2005, Order is hereby OVERRULED.
This is a final and appealable Order,
and there is no just cause or reason for
delay.
This appeal followed.
Deborah makes three arguments in her brief:
1) that
Robert was properly served with notice of the decree and
contempt order; 2) that the circuit court incorrectly
interpreted and applied CR 5.02; and 3) that the circuit court
improperly granted Robert’s motions when he failed to monitor
the proceedings.
On the other hand, Robert argues that he did
not receive notice of the April 12, 2005, order allowing his
attorney to withdraw and granting him time to retain new
counsel.
He also argues that the circuit court did not abuse
its discretion in setting aside the decree and order pursuant to
CR 60.02.
We have distilled Deborah’s three arguments into two,
namely whether Robert was properly noticed and whether the
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circuit court abused its discretion in its rulings.
We shall
address each issue in turn.
A) NOTICE
Deborah maintains that Robert was properly served with
notice following the withdrawal of his attorney, and that the
circuit court improperly interpreted and applied CR 5.02 in
determining that he was not properly served.
She states that
the circuit court relied in error on its finding that Robert
never received legal notices, when CR 5.02 does not require
proof of actual receipt of notice, but only that it was mailed.
On the other hand, Robert points out that for service by mail to
be sufficient, the address must be correct, and he had never (or
no longer) received mail at the addresses listed on the various
court documents.
The Kentucky Rules of Civil Procedure set forth the
proper method for providing service when service is required
under the Rules:
“Service upon the attorney or upon a party
shall be made by delivering a copy to him or by mailing it to
him at his last known address. . . .
complete upon mailing.”
CR 5.02.
Service by mail is
In Benson v. Benson, 291
S.W.2d 27 (Ky. 1956), the former Court of Appeals examined CR
5.02 shortly after the adoption of the Rules of Civil Procedure
in 1953.
The Benson court relied upon the statement of the law
on notice contained in Mrs. W.R. Klappert M & S. Warehouse v.
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Muehlenkamp, 256 Ky. 506, 76 S.W.2d 597 (1934):
“The opinion
held, where notice by mail is authorized under a statute and the
statute was duly complied with in respect to posting the notice,
the validity of the service was not affected by a failure to
receive the notice.”
Benson, 291 S.W.2d at 29.
However, the
same result is not reached in cases where notice is improperly
posted:
“A notice mailed to an incorrect address and not
received by the addressee is not in compliance with CR 5.02.”
McAtee v. Wigland of Louisville, 457 S.W.2d 265, 265 (Ky. 1970).
Even in cases where notice is properly made, the Benson court
held that “appellant is not without a remedy, provided he can
establish any of the grounds enumerated in CR 60.02 for voiding
the order entered[.]”
291 S.W.2d at 30.
In the present case, we must agree with the circuit
court that Robert was not properly served pursuant to CR 5.02
following the entry of the April 12, 2005, order allowing his
counsel to withdraw.
Robert was not served with a copy of the
order by the clerk, as evidenced by the certificate of service
attached to the order, nor was Robert’s brother sent a copy of
the order pursuant to the circuit court’s docket order entered
at motion hour.
While subsequent motions and orders, including
the decree, were apparently served on Robert at various
addresses, including the Monticello Shop Wise address and his
residence, he was not at served at his post office box in
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Bronston, Kentucky, where he actually received his mail.
Furthermore, Robert’s brother stated in his affidavit that he
did not receive a copy of the April 12, 2005, order for Robert
at his address.
Based upon the record before us, it appears that
Robert was not properly served with notice following the
withdrawal of his attorney in April 2005.
He was not served at
the proper last known address as required by CR 5.02, and has
testified that he never received any court filings or orders
until after his arrest.
Therefore, the circuit court correctly
held that Robert was not properly served, and we perceive no
error in this ruling.
B) CR 60.02
The second issue in this appeal concerns the propriety
of the circuit court’s decision to vacate the decree and the
orders of contempt and arrest.
Deborah relies upon the former
Court of Appeals’ decision in Mussman v. Pepples, 243 Ky. 674,
49 S.W.2d 592 (1932), for its holdings that “a party is
chargeable with notice of what the court does” and that “[a]
judgment will not be set aside on account of mistake or neglect
of parties or their counsel.”
Id. at 593.
She argues that
Robert should not be permitted to ignore the proceedings, and
then have them set aside outside of the deadlines for seeking
relief.
Robert argues that the circuit court did not abuse its
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discretion in setting aside the prior rulings, based upon the
huge amount of maintenance he was ordered to pay pursuant to the
decree, coupled with his inability to present his case due to
lack of notice.
Although no rule was cited in the motion, Robert
sought to vacate the decree and orders pursuant to CR 60.02,
which provides relief from a judgment upon six grounds:
“(a)
mistake, inadvertence, surprise or excusable neglect; (b) newly
discovered evidence . . .; (c) perjury or falsified evidence;
(d) fraud affecting the proceedings . . .; (e) the judgment is
void . . .; or (f) any other reason of an extraordinary nature
justifying relief.”
In Fortney v. Mahan, 302 S.W.2d 842, 843
(Ky. 1957), the former Court of Appeals addressed a trial
court’s power under CR 60.02:
CR 60.02 in addition provides the trial
court with extensive power to correct a
judgment even after recourse has been had to
the usual methods of attack. On motion, the
court is empowered to relieve a party from a
final judgment under certain extraordinary
circumstances and upon such terms as it
deems just. CR 60.02 addresses itself to
the sound discretion of the trial court.
The Fortney court then identified two factors for a trial court
to consider when exercising its discretion:
“whether the movant
had a fair opportunity to present his claim at the trial on the
merits and whether the granting of the relief sought would be
inequitable to other parties.”
Id.
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Finally, regarding the
level of appellate review afforded to such rulings, the Fortney
court stated that a trial court’s exercise of discretion can
only be disturbed if it is abused.
Id.
See also Kurtsinger v.
Board of Trustees of Kentucky Retirement Systems, 90 S.W.3d 454
(Ky. 2002); Bethlehem Minerals Co. v. Church and Mullins Corp.,
887 S.W.2d 327 (Ky. 1994).
Applying the law to the facts of this case, we hold
that the circuit court did not abuse its discretion in granting
Robert relief under CR 60.02(f) from both the decree and the
orders holding him in contempt and for his arrest.
The
situation that resulted in this case (the decree required Robert
to pay Deborah maintenance in the amount of $8,125 per month for
20 years) along with Robert’s lack of notice certainly is of an
extraordinary nature so as to justify relief.
Robert’s somewhat
naïve assumption that Deborah would receive both the assets of
the marital estate, as well as its debts, was obviously not
reflected in the decree as drafted by Deborah’s attorney and
entered by the circuit court.
Instead, Robert was left with a
considerable amount of debt as well as $1.95 million to pay in
maintenance over the next twenty years.
As to whether the
granting of relief would be inequitable to other parties, in
this case such a result would not be inequitable to Deborah
because she will still have the opportunity to present her case
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and to obtain a fair and equitable distribution from the marital
estate.
Despite this holding, we recognize that Musselman,
relied upon by Deborah, holds parties accountable for notice of
what a court does, whether or not that party is present when, or
has no actual knowledge that, an order is entered.
However,
based upon the facts of this specific case, we hold that the
circuit court did not abuse its discretion in vacating the
decree and the subsequent orders relating to Robert’s contempt
and arrest.
Furthermore, the circuit court did not abuse its
discretion in denying Deborah’s motion to alter, amend or vacate
its previous order.
For the foregoing reasons, the judgment of the Wayne
Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
Stephen E. Neal
Mt. Sterling, Kentucky
BRIEF FOR APPELLEE, ROBERT LEE
TAYLOR:
David M. Cross
Albany, Kentucky
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