CLIFTON (RALPH C.) VS. CLIFTON (GIBSON) (LINDA CAROL HOLLIN)
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RENDERED: FEBRUARY 20, 2009; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001408-MR
RALPH C. CLIFTON, II
v.
APPELLANT
APPEAL FROM LEE CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JR., JUDGE
ACTION NO. 99-CI-00126
LINDA CAROL HOLLIN CLIFTON (GIBSON)
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CAPERTON, TAYLOR, AND WINE, JUDGES.
CAPERTON, JUDGE: The Appellant, Ralph C. Clifton, II (Ralph), appeals the
June 7, 2006, Order of the Lee Circuit Court, ordering a division of funds between
himself and Appellee, Linda Carol Hollin Clifton (Linda), six years after the filing
of the original divorce decree. Specifically, Clifton asserts that the court erred in
ordering the division of funds without utilizing Kentucky Rules of Civil Procedure
(CR) 60.02. We disagree and affirm.
Ralph and Linda were divorced by the Lee Circuit Court on March 22,
2000. In 1999, Ralph entered into a class action lawsuit against a former
employer, US Corrections Corporation. Ralph asserts that during the divorce,
Linda, as well as her then and current counsel, had full disclosure of the lawsuit.
Linda concedes that during the taking of proof there was discussion of an
Employee Stock Ownership Plan (ESOP) with Ralph’s former employer, US
Corrections Corporation. The plan Linda recalled yielded funds, in the amount of
$15,425.95, which were then deposited into a joint checking account and were
used for marital expenses.
During the divorce, Ralph was asked to sign a property agreement
entitling Linda to one-half of any future settlement that may arise from that
lawsuit, which he declined to do. During that same time, the matter was submitted
to the court for a decision on the division of marital property. Linda asserts that
after the divorce was entered, she learned that an additional ESOP plan distribution
was to be made as a result of the lawsuit. No further action was taken regarding
the future settlement by either party until July 21, 2005.
On July 21, 2005, Linda filed a motion to increase child support, as
well as for a hearing to determine if any funds received by Ralph were marital
property, and if so, for same to be divided accordingly. Thereafter, in August of
2005, the class action suit was settled, and a monetary amount was given to all
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plaintiffs. Linda’s motion was initially set for a hearing on August 24, 2005;
however, the notice of this hearing was forwarded to Ralph’s address in
Beattyville, Kentucky, from which he had moved. Accordingly, on August 24,
2005, the commissioner recommended that the motion be re-noticed.1
The motion apparently was re-noticed for a hearing on September 28,
2005, and notice of same was mailed to Ralph on September 12, 2005, at an
address in Lebanon, which was being used by the Lee County Child Support
Office. Ralph concedes that he received the notice of hearing on September 20,
2005. On September 27, 2005, Ralph filed a motion to continue the hearing for the
purposes of retaining counsel. On September 29, 2005, a docket entry order
denying Ralph’s motion for continuance was entered by the commissioner, and it
was recommended that the funds be subject to division and that Ralph not abate the
assets.2
The commissioner reduced his recommendations to writing on
October 17, 2005. Those recommendations were mailed to Ralph at the same
1
Importantly, on the docket sheet for that date, the commissioner wrote, “[p]assed to be renoticed w/60.02.” Although the commissioner did not identify a specific subsection of Kentucky
Rules of Civil Procedure (CR) 60.02 on the docket, we will assume the court was referencing CR
60.02(f). We make this assumption as the first three subsections - (a), (b), and (c) - can only be
argued within one year after the judgment or order, and as provisions (d) and (e) are inapplicable
to the facts of the matter sub judice.
2
Linda directs this Court’s attention to the fact that although the hearing was on record and was
taped, Ralph failed to designate any portion of the record not stenographically recorded pursuant
to CR 75.01, and accordingly, there is no transcript of the hearing for this Court’s review.
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address at which he received the motion noticing the September 28, 2005, hearing.
Ten days passed, and the commissioner’s report was confirmed by the Lee Circuit
Court on December 5, 2005. No exceptions were filed prior to that time.
Linda then apparently filed a motion to determine how the funds were
to be divided, and notice was again sent to Ralph at the Lebanon address. The
hearing was noticed before the domestic relations commissioner on January 25,
2006, and Ralph did not appear. At that time, the commissioner entered an order
recommending that Ralph pay 50 percent of the funds within 20 days.
Ralph then filed a February 6, 2007, motion to hear exceptions to the
commissioner’s report, asserting several reasons why the motion should be
overturned, and particularly referencing CR 60.02. Specifically, Ralph argued that
the court was without jurisdiction to reopen the judgment as it never invoked CR
60.02 to do so. Moreover, Ralph argued that the court was without authority to
order additional payments to Linda without referencing CR 60.02, as no references
or addendums to that effect were noted in the final divorce degree.
On June 5, 2006, the court overruled Ralph’s motion and instructed
Linda’s counsel to prepare an order in conformity with the court’s ruling to be
presented to the court for entry, which was so entered on June 7, 2006. Thereafter,
on July 7, 2007, Ralph filed his notice of appeal to this court.
Having reviewed the record, we note first that we affirm the decision
of the circuit court to overrule Ralph’s motion for continuance. The law in this
Commonwealth is clear insofar as a trial court is granted broad discretion in
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granting or overruling such motions. Indeed, this Court will not interfere in the
exercise of that discretion absent a clear abuse of that discretion. See Riordan v.
Riordan, 252 S.W.2d 901 (Ky. 1952), and Farris v. Evans, 158 S.W.2d 941 (Ky.
App. 1942).
With respect to the issue of reopening pursuant to CR 60.02, Ralph
cites this court to Fry v. Kersey, 533 S.W.2d 392, 393 (Ky. App. 1992), which
provides, in pertinent part, that “a CR 60.02 motion may be a proper vehicle for
reopening a decree when a party seeks to recover unassigned property in which he
or she had an interest at the time of the decree.” Ralph also cites to Kentucky
Revised Statutes (KRS) 403.250(1), which provides in pertinent part:
The provisions of a dissolution decree as to property
disposition may not be revoked or modified, unless the
court finds the existence of conditions that justify the
reopening of a judgment under the laws of this state.
As Ralph correctly notes, and as this Court set forth in Fry, supra, the
laws of this state pertaining to reopening are set forth in CR 60.02.
Unfortunately, in his brief to this Court, Ralph fails to cite any portion
of the record in support of his position that the trial court did not properly consider
CR 60.02 in reopening the divorce decree and awarding Linda half of the
settlement funds. Certainly, the record designated in this matter indicates that the
commissioner was aware that he was to review these proceedings under CR 60.02,
as evidenced by his August 24, 2005, docket notation.
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Having no record of the proceedings for review, and absent any
citation to the record by Ralph in his brief to this Court, we are required to assume
that the omitted record supports the decision of the trial court. See Commonwealth
v. Thompson, 697 S.W.2d 143 (Ky. 1985). We are confined to a determination of
whether the pleadings supported the judgment, and in this case, we cannot find that
they did not. See Porter v. Harper, 477 S.W.2d 778 (Ky. 1972).
Further, as clearly set forth in CR 76.12(4)(c)(iv), at the beginning of
each argument, a reference to the record must be made indicating whether the issue
was preserved for review and in what manner. Ralph has not done so in this
instance, and accordingly, we cannot find that the trial court was in error in ruling
as it did.
Accordingly, for the foregoing reasons, we affirm the decision of the
Lee Circuit Court, the Honorable William Trude, presiding.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Ralph C. Clifton, II, Pro Se
Magnolia, Kentucky
Thomas K. Hollon
Beattyville, Kentucky
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