JOANN THOMAS V. BILL RAYMOND THOMAS
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RENDERED: MARCH 20, 2008
TO BE PUBLISHED
,Sixprsmp Courf of
2006-SC-000526-DG
JOANN THOMAS
V.
UA
,
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NUMBER 2004-CA-001997
CALLOWAY CIRCUIT COURT NO. 99-CI-000183
BILL RAYMOND THOMAS
APPELLEE
OPINION OF THE COURT BY JUSTICE NOBLE
AFFIRMING
Appellant raises two claims of error: (1) that the Court of Appeals erred in
affirming the trial court's decision not to grant a hearing on evidence arising
subsequent to the Domestic Relations Commissioner's oral ruling ; and (2) that
the Court of Appeals improperly applied the facts and holdings of Dubick v.
Dubick, 653 S .W.2d 652 (Ky.App. 1983) .
1. Background
This matter involves a divorce action between Joann and Bill Thomas that
was initiated in the Calloway Circuit Court in 1999. The Domestic Relations
Commissioner (DRC) took the matter under consideration for final hearing on
April 27, 2000. At the hearing's close, the DRC issued his ruling from the bench
and directed Appellant's attorney to draft an Order. That Order was never
drafted by Appellant's attorney and neither party brought this fact to the court's
attention.
No action was taken to finalize the divorce until the new attorney for
Appellant entered an appearance more than four years later. At that time,
Appellant requested a new hearing with respect to all issues due to the four year
delay and the ensuing change in financial circumstances during that time . The
DRC entered his original recommendation on June 10, 2004, specifically
recommending that no further hearings be held . The Calloway Circuit Court
affirmed the DRC's recommendations by Order entered September 1, 2004.
After hearing Exceptions filed by Appellant, the court rendered a decision on
June 30, 2006 stating that either party could have requested written findings at
an earlier date, but failed to do so .
II. Analysis
The ultimate issue is what effect KRS 454 .350 has on the validity of the
filing of the DRC's recommendations more than ninety days subsequent to the
conclusion of the evidentiary hearing .
That statute, in its entirety is as follows :
454.350 . Time within which judge, commissioner or hearing officer
must issue judgment or report certification of reason
when delay occurs.
(1) Every circuit and district judge shall, when at all possible, issue
a written judgment or order in all civil actions which have been
submitted for final adjudication within ninety days from the date the
action was taken under submission .
(2) 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 .
(3) Every circuit and district judge shall at the end of every month
certify in writing to the Chief Justice of the Supreme Court all cases
which have been submitted for final adjudication for longer than
ninety (90) days and have not been adjudicated and certify in
writing to the Chief Justice of the Supreme Court the reason for the
delay .
(4) Any district or circuit judge who knowingly violates any of the
provisions of this section shall be subject to removal by the judicial
retirement and removal commission .
This statute mandates a specific duty that is relevant here : A
commissioner shall submit findings and recommendations necessary for an order
or judgment within ninety days of the hearing . Here, the DRC delivered his ruling
orally, but did not follow through to see that it was reduced to writing, the form in
which it had to be in order to send it to the circuit court for final adjudication .
Appellant argues that the mandatory language of the statute thus voids the oral
ruling, and another hearing must be held, which will coincidentally allow
introduction of new evidence . However, at least as to valuation, there would be
no change because the DRC was constrained to value the property as of the
date of the divorce, which presumably he did . The benefit to Appellant would be
the ability to introduce new equitable issues as to the circumstances of the
parties, which could result in a different division of the marital property.
However, in Dubick this Court stated that even if there is a violation of
KRS 454.350, any resulting late judgment or report "is not void because of
tardiness ." 653 S .W .2d at 655. The scenario in that case had a similar pattern to
this except that the DRC there was considering a question of child support and
maintenance modification, and the delay was a shorter period of 263 days .
In
Dubick as here, the Appellant argued that the DRC's findings were void. Still,
Appellant claims that the Court of Appeals incorrectly applied Dubick to the
current case. This Court disagrees . The primary difference between this case
and Dubick is the amount of time that lapsed between the decision and the entry
of the order.
Clearly, the four years that passed in this case is a substantially longer
period of time. However, in Dubick, the Court of Appeals adopted the rationale of
a Tennessee case which stated that "`if the Legislature had intended for the
judgment to be void when rendered by a Trial Judge more than sixty days after
the hearing of the cause without a jury it would have said so in specific words."'
653 S.W.2d at 654 (quoting Schaffer v. Richard , 306 S.W.2d 340, 343
(Tenn .Ct.App. 1956)) . Likewise, if the Kentucky legislature had intended that
result, it would be contained in the statute, especially given that they took the
time to craft a consequence for non-compliance in KRS 454.350(4) . That section
clearly provides a possible remedy against a judge who fails to enter a final
adjudication in a timely manner, absent written reasons for the delay. This Court
is sympathetic to the issues this delay has presented, and acknowledges that a
change in debt and assets likely occurred . However, it is clear that Appellant has
suffered no actual damage as she will receive whatever assets under the DRC's
findings she would have received four years ago, and she knew what those
assets and debts would be due the oral findings given at the original hearing in
2000. Ruling otherwise here could encourage parties to purposely delay
submitting orders, hoping they could force another hearing (and possibly a better
result) at a later time .
Regardless, it is clear that all parties bear some responsibility for the delay
in this case . The fact that the DRC failed to enter his findings for four years is
certainly poor practice, and it is clearly the DRC who has the statutory
responsibility to get the recommendations to the judge . Furthermore, though this
Court recognizes that DRC's and trial judges are frequently burdened with
caseloads so heavy that keeping track of every single one seems daunting, and
that reliance on attorneys to draft proposed orders and take responsibility to see
that their cases are moving through the system is necessary to decrease this
burden, the ultimate responsibility for a case assigned to any particular DRC or
judge resides with that judge . However, the judge does not get to this point until
cases have been submitted for final adjudication ; after the hearing, the DRC is
responsible for seeing that the recommendation is submitted to the judge .
Although not mentioned by the parties, this Court is also concerned that
this case went unresolved for this length of time apparently in violation of CR
77 .02(2), which provides that "at least once each year trial courts shall review all
pending actions on their dockets . Notice shall be given to each attorney of
record of every case in which no pretrial step has been taken within the last year,
that the case will be dismissed in thirty days for want of prosecution except for
good cause shown . . ." This duty is usually delegated in part to the Circuit Clerk
to notify the trial court as to which cases should be placed on a show cause
docket.
Clearly, no show cause order was ever issued, which could have
alerted the parties that the order of the DRC's findings had never been
submitted .
The attorneys and parties are accountable as well . This Court has found
that an attorney who is instructed by the trial court to draft and submit an order,
and who fails to do so, may be charged with violating SCR 3.130-1 .3, which
provides that "A lawyer shall act with reasonable diligence and promptness in
representing a client ." Bucklew v. Kentucky Bar Ass'n , 136 S .W .3d 427, 428 (Ky.
2004). Additionally, communication between Appellant and her attorney and/or
with the opposing party would have likely revealed that the order had never been
entered, or reminded her attorney that it had not been drafted .
Appellant also had another remedy for the delay that she did not use . As
the Court stated in Dubick, "If a party is faced with a recalcitrant commissioner he
can seek a mandate of his superior, the trial court, or else ask that the order of
reference be set aside." 653 S .W.2d at 655. Obviously, any such relief would be
in the sound discretion of the trial court and would need to be timely made .
There are many actions that could have been taken by various parties
involved that would have prevented the scenario this Court is now faced with .
However, the relief Appellant is asking for-to have the findings of the DRC set
aside and a new hearing held-is simply unavailable to her under KRS 454.350
and this Court's holding in Dubick.
1111. Conclusion
For the reasons set forth herein, the Opinion of the Kentucky Court of
Appeals and the judgment of the trial court are affirmed .
Abramson, Cunningham, Schroder and Scott, JJ., concur. Lambert, C.J.,
concurs in result only. Minton, J ., not sitting.
COUNSEL FOR APPELLANT :
Dennis Jack Lortie
627 Broad Street
Murray, Kentucky 42071
COUNSEL FOR APPELLEE:
Stephen Deemis Vidmer
309-A N . 4t" Street
Murray, Kentucky 42071
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