Preview:

RENDERED: March 24, 2000; 2:00 p.m. NOT TO BE PUBLISHED

C ommonwealth O f K entucky C ourt O f A ppeals
NO. 1999-CA-000622-MR

TERRY LAYNE SUTTON

APPELLANT

v.

APPEAL FROM FRANKLIN CIRCUIT COURT HONORABLE ROGER CRITTENDEN, JUDGE ACTION NO. 94-CI-01908

BARBARA BUCHHOLZ SUTTON

APPELLEE

OPINION AFFIRMING IN PART, REVERSING IN PART, AND REMANDING ** ** ** ** ** BEFORE: BARBER, JOHNSON, AND SCHRODER, JUDGES. This is an appeal from a post-decree order

SCHRODER, JUDGE:

distributing the proceeds from the sale of various marital property and awarding attorney fees. Appellant argues that he

was entitled to interest on his share of the proceeds, additional attorney fees, his out-of-pocket costs in enforcing the original judgment and defending appellee's frivolous appeal, and half of the original value of certain personal property. We agree that

appellant is entitled to half of the 1996 value of the contents of the parties' lockbox and interest thereon. and remand on that issue. Hence, we reverse

As to the other issues, we affirm.

Appellant, Terry Sutton, and appellee, Barbara Sutton, were married in 1987. In December of 1994, Barbara filed for Because Barbara failed to comply

dissolution of the marriage.

with a pre-trial discovery order and failed to respond to subsequent show cause orders, the court entered a default judgment in favor of Terry on May 24, 1996. That order dissolved

the parties' marriage, awarded each party their nonmarital property, and divided certain marital personal property, including the contents of a lockbox. The court ordered the

contents of the lockbox, at that time valued at $10,396.00, to be divided between the parties or sold and the proceeds evenly divided between the parties. As to the marital residence (a

farm), the court ordered as follows: The farm located at 625 Indian Gap Road in Franklin County, Kentucky is hereby restored to the Petitioner as her nonmarital property. The Petitioner's non-marital interest in the property is $34,500.00. The increase in value, if any in the farm having been as the result of joint effort on the part of the parties, the Respondent's marital interest in said farm shall equal fifty percent of the value of the farm over and above the Petitioner's non-marital interest utilizing the Brandenburg formula, which interest shall constitute a lien against the property. The order also awarded Terry attorney fees and costs as a result of Barbara's failure to appear and comply with the various court orders, after which the court awarded Terry $5,850.78 in said attorney fees and costs. On August 30, 1996, Barbara filed a CR

60.02 motion for relief from the default judgment, claiming that she had been under psychiatric care and had been hospitalized for severe clinical depression, which prevented her from

-2-

participating in her case and responding to the court orders. Due to the filing of the CR 60.02 motion, the court then ordered the judgment of May 24 to be stayed. Following the denial of the

CR 60.02 motion, Terry moved the court to sell the marital residence to enforce the lien contained in the judgment of May 24. The court apparently denied the motion at that time,

although we could not find that order in the record and the citation to the record referred to in appellant's brief is incorrect. On November 8, 1996, Barbara filed an appeal to this The court

Court from the denial of her CR 60.02 motion.

thereafter denied Barbara's motion for a supersedeas bond to stay the May 24 judgment. In 1997, while the matter was on appeal to

this Court, Terry filed various motions seeking to compel Barbara's compliance with the judgment of May 24, 1996. On

March 3, 1998, this Court affirmed the trial court's denial of the CR 60.02 motion. residence to be sold. The court then allowed the marital An order of sale of the marital residence

was entered on April 10, 1998 indicating that Barbara had purchased the house for $105,000. Terry filed a motion for

distribution of the sale proceeds and for attorney fees and costs. On September 4, 1998, the court then ordered that the

sale proceeds, minus expenses of the sale, be deposited in an interest bearing account. On January 15, 1999, the court finally

ordered distribution of the proceeds of the sale of the house and distribution of other remaining property. In this order, the

court did not award Terry interest on his portion of the proceeds; however, the court did order that all of the interest

-3-

that had accrued on the funds be paid to Terry's attorney.

(The

record does not reveal the amount of interest which had accrued.) A total amount of $39,379.12 was awarded to Terry in this order. From this order, Terry now appeals. Terry first argues that the trial court erred when it ordered the contents of the parties' lockbox to be sold and the proceeds divided evenly. Terry maintains that the court had

already so ordered the contents to be divided in the May 24, 1996 order wherein the contents were valued at $10,396.00. According

to Terry, the contents of the lockbox have depreciated in value since the 1996 order and, thus, he is now entitled to one-half of the $10,396.00 amount, plus interest, since it is Barbara's fault that the contents were not divided immediately after the 1996 order. The trial court is vested with wide discretion in the Johnson v. Johnson, Ky. App., 564

division of marital property. S.W.2d 221 (1978).

The contents of the lockbox were specifically

valued at $10,396.00 in the 1996 order and Terry made various attempts to enforce this portion of the judgment by moving the court to order Barbara to produce the lockbox key, which she never did. As there was no supersedeas bond, Terry was entitled Accordingly, we believe the

to collect on this judgment in 1996.

trial court abused its discretion in the 1999 order by effectively awarding Terry less than the amount he was entitled to in the 1996 order for the same property. We believe Terry was

entitled to $5,198.00, unless the sale of the lockbox contents brought more than the 1996 value, in which case he is entitled to

-4-

one-half of that amount.

We also agree that Terry is entitled to

interest on the $5,198.00 under KRS 360.040. Terry next argues that under KRS 360.040, he is entitled to interest on other property awarded him in the 1996 judgment, the proceeds of which were not distributed until the 1999 judgment. In particular, Terry claims that he is entitled

to interest on his interest in the whole life insurance policy, the proceeds from the sale of the marital residence, and the proceeds from the sale of the parties' livestock. When Terry was

awarded this property in the 1996 judgment, his interest was not reduced to a liquidated amount. Unlike the contents of the

lockbox, there were no valuations of the livestock, the whole life policy, or the marital residence. In fact, in the 1996

judgment, Terry was only awarded a lien on the marital real property and only after its sale was its value determined. Thus,

even though Terry was entitled to collect on his interest in this property in 1996 because no supersedeas bond was granted, absent speculation, there was no judgment amount on which to base an award of interest. Terry next argues that the trial court erred in refusing to award him additional attorney fees in the 1999 order. Terry was awarded $5,850.78 in attorney fees in 1996 and was awarded the interest on the proceeds from the sale of the marital residence as attorney fees in 1999. Terry contends that the

court should have awarded him additional attorney fees because of Barbara's refusal to comply with court orders throughout the pendency of the action and because he had to defend against her

-5-

frivolous CR 60.02 motion and appeal thereof.

However, we note

that Terry did not name his attorney as a party to this appeal. Thus, the issue was not preserved for our review. Davis, Ky. App., 775 S.W.2d 942 (1989). Terry's final argument is that the trial court erred when it failed to reimburse him for his out-of-pocket costs attributable to Barbara's noncompliance with court orders and the defense of the frivolous appeal of the denial of the CR 60.02 motion. As stated above, the court did award Terry a certain See Davis v.

amount of his attorney fees and costs because of Barbara's conduct. However, Terry sought reimbursement for other costs

such as sheriff's fees, commissioner's fees, depositions, and the cost to retrieve, blood type, and transport livestock. The

allocation of costs to defend or maintain a domestic action is entirely within the discretion of the trial court. Wilhoit v. Wilhoit, Ky., 521 S.W.2d 512 (1975). KRS 403.220;

We cannot say

the trial court abused its discretion in failing to award Terry the above-stated costs. For the reasons stated above, the judgment of the Franklin Circuit Court is affirmed in part and reversed in part and the matter is remanded for further proceedings consistent with this opinion. BARBER, JUDGE, CONCURS. JOHNSON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE OPINION. JOHNSON, JUDGE, CONCURRING IN RESULT: I concur with the result reached by the Majority Opinion, but choose to state my

-6-

reasons by separate opinion.

As to the issue of attorney's fees,

I do not believe the attorney is a necessary party to this appeal. In Knott v. Crown Colony Farm, Inc., Ky., 865 S.W.2d

326, 331 (1993), our Supreme Court stated "[a]bsent an award of fees to an attorney by judgment in his or her favor (thus allowing the attorney enforcement of the award by execution), there is no reason for requiring the attorney to be named on appeal as a necessary party." attorney's fee. Here, Terry is responsible for his

However, I would affirm the amount awarded as

attorney's fees as being within the sound discretion of the trial court. Poe v. Poe, Ky.App., 711 S.W.2d 849, 852 (1986).

BRIEF FOR APPELLANT: Steven G. Bolton Frankfort, Kentucky

BRIEF FOR APPELLEE: Michael L. Judy David J. Guarnieri Frankfort, Kentucky

-7-



Download 1999-ca-000622.pdf

Kentucky Law