Brian Weihe v. Leann Weihe ( 2023 )

RENDERED: AUGUST 18, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0668-MR
BRIAN WEIHE APPELLANT
APPEAL FROM JEFFERSON FAMLY COURT
v. HONORABLE LAUREN ADAMS OGDEN, JUDGE
ACTION NO. 21-CI-502915
LEANN WEIHE APPELLEE
OPINION
AFFIRMING
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BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.
ECKERLE, JUDGE: Brian Weihe (Husband) appeals from a default judgment and
decree of the Jefferson Family Court dissolving his marriage to Leann Weihe
(Wife). He argues that the Family Court abused its discretion by denying his
motion to set aside a default judgment equally dividing the equity in the marital
residence. We conclude that these issues are not properly preserved, and that
Husband failed to show manifest injustice resulted from the denial of the motion to
set aside the default judgment or the division of the marital property. Hence, we
affirm.
The parties were married in 1995 and separated in 2010. However,
Wife did not file a petition for dissolution of the marriage until September 20,
2021. Husband was served with the petition but failed to file a response. Wife
then filed a motion for default judgment, and the Family Court scheduled a hearing
on April 13, 2022.
Wife appeared at the hearing with her counsel. Husband did not
appear, but his counsel was present. The primary issue concerned the division of
the marital equity in the residence located at 5402 Pearce Way in Crestwood,
Kentucky.
The Family Court entered its findings of fact, conclusions of law,
default judgment, and decree of dissolution on April 14, 2022. The Court’s
findings reflect the evidence showing that the residence has a fair market value of
$206,281.00, with a current mortgage balance of $67,000.00. Based on these
amounts, the Family Court found that the residence has marital equity of
$139,281.00 and awarded half to Wife. Thus, the Court entered a common-law
judgment to Wife in the amount of $69,640.50 and awarded the residence to
Husband. The Court also directed Husband to refinance the mortgage in his sole
name within 60 days.
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Thereafter, Husband filed a motion to alter, amend, or vacate the
judgment. CR1 59.05. Husband’s motion stated that Wife had not lived at or
contributed to the residence in more than a decade. Husband’s counsel also
asserted that Husband had negotiated an agreement with Wife’s former counsel
over the division of any marital equity. Consequently, Husband maintained that
the Family Court’s division of marital assets was manifestly unfair, and the default
judgment should be set aside. In the alternative, Husband requested more specific
findings pursuant to CR 52.04.
The Family Court entered its Order denying the motions on May 11,
2022. The Court again noted that Husband was served with the petition but failed
to file a response. The Court also noted that Husband received notice of the
default hearing. Husband failed to respond to the notice, file a pre-hearing
compliance, or appear in court. The Court also pointed out that Husband’s counsel
appeared but had not filed an entry of appearance. Consequently, the Family Court
concluded that Husband failed to set forth any grounds to set aside the default
judgment. This appeal followed.
“Although default judgments are not favored, a trial court is vested
with broad discretion when considering motions to set them aside, and an appellate
1
Kentucky Rules of Civil Procedure.
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court will not overturn the trial court’s decision absent a showing that the trial
court abused its discretion.” Key v. Mariner Fin., LLC, 617 S.W.3d 819, 822-23
(Ky. App. 2020) (quoting PNC Bank, N.A. v. Citizens Bank of Northern Kentucky,
Inc., 139 S.W.3d 527, 530 (Ky. App. 2003)). “The test for abuse of discretion is
whether the trial judge’s decision was arbitrary, unreasonable, unfair, or
unsupported by sound legal principles.” Goodyear Tire and Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000). More specifically, a court abuses the
discretion afforded it when “(1) its decision rests on an error of law . . . or a clearly
erroneous factual finding, or (2) its decision . . . cannot be located within the range
of permissible decisions.” Miller v. Eldridge, 146 S.W.3d 909, 915 n.11 (Ky.
2004) (cleaned up).
CR 55.01 permits a trial court to grant a default judgment against a
party who has failed to appear or file a responsive pleading in an action after being
served. “In a default judgment situation, the defaulting party admits only such
allegations on the pleadings as are necessary to obtain the particular relief sought
by the complaint.” Howard v. Fountain, 749 S.W.2d 690, 692 (Ky. App. 1988).
But even when default judgment is appropriate, CR 55.01 requires a hearing at
which the moving party must prove the amount of damages. Deskins v. Estep, 314
S.W.3d 300, 304 (Ky. App. 2010). The trial court must make specific findings
required by CR 52.01 prior to rendering a judgment. Id.-4-
In this case, the Family Court held an evidentiary hearing to determine
the marital interest in the residence. The Court also made findings as required by
CR 52.01. Husband argues that the proof was insufficient to show that Wife was
entitled to half of the equity in the residence. He also contends that the Family
Court should have held the hearing in abeyance when his counsel appeared.
As an initial matter, we note that Husband’s brief does not identify
where or how in the record the latter issue was preserved for review. Likewise,
apart from one case cited only in the Statement of Points and Authority, Husband’s
brief does not include any citations to applicable cases, statutes, or rules. RAP2
32(A)(4) specifically requires each argument to include “ample references to the
specific location in the record and citations of authority pertinent to each issue of
law and which shall contain at the beginning of the argument a statement with
reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” We also note that Husband’s CR 59.05 motion
did not assert that he was entitled to an abeyance of the default hearing.
In the absence of any adequate statement of preservation, our review
is limited to the palpable error standard of CR 61.02. See Ford v. Commonwealth,
628 S.W.3d 147, 155 (Ky. 2021). Here, the record is clear that Husband had notice
2
Kentucky Rules of Appellate Procedure.
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of the hearing scheduled for April 13, 2022. Counsel alleges that the hearing was
rescheduled from 3:30 p.m. to 3:00 p.m. without his knowledge. In addition to the
lack of preservation, counsel did not provide an affidavit or any other proof
supporting this claim. The Family Court’s order denying Husband’s CR 59.05
motion further states, “The Court’s weekly docket sheet erroneously listed the
hearing time as 3:30 p.m., but the parties were advised in advance that the
scheduled time was in fact 3:00 p.m.” Husband’s counsel does not allege that this
recitation is erroneous. Moreover, counsel does not allege that he would have
introduced additional evidence if he had been able to appear earlier. Husband
makes absolutely no showing of any manifest injustice resulting from the alleged
error.
Husband also asserts that the parties had reached an agreement to
divide the marital residence. However, there is no proof in the record that the
parties reached a meeting of minds on any such agreement. Husband’s counsel
merely alleged that he “contacted [Wife’s] counsel and advised counsel of the
parties [sic] earlier agreement and [the] fact that [Wife] had not contributed to the
marital residence in over a decade and the parties discussed how to refi [sic] the
residence and remove [Wife’s] name from the mortgage.” Such general
allegations are insufficient to show the existence of an enforceable settlement
agreement.
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Finally, Husband alleges that the Family Court’s equal division of the
equity in the marital residence amounts to unjust enrichment of Wife.3 All
property acquired during the course of the marriage up to the date of dissolution is
presumed to be marital. KRS4 403.190(3). Although the parties were separated for
an unusually long time, the residence retained its marital character. For the same
reason, any contributions to the marital equity made during the period of separation
are presumed to be made with marital funds unless otherwise shown. Id.KRS 403.190(1) grants discretion to divide this marital equity in “just
proportions,” accounting for the contribution of each spouse. But the Family
Court’s determination of what constitutes a just division will not be disturbed
absent an abuse of that discretion. Hempel v. Hempel, 380 S.W.3d 549, 553 (Ky.
App. 2012). Husband makes no showing of abuse of discretion, much less than the
manifest injustice required for our review here. Therefore, we find no basis to
disturb the Family Court’s judgment.
Accordingly, we affirm the judgment and decree of the Jefferson
Family Court.
3
As previously noted, Husband’s brief only lists a single case citation in its Statement of Points
and Authorities. That case, Collins v. Kentucky Lottery Corp., 399 S.W.3d 449, 455 (Ky. App.
2012), sets out the elements that a party must meet to prevail on a claim of unjust enrichment.
However, the text of Husband’s brief does not address these elements or discuss how Husband
provided proof meeting those elements.
4
Kentucky Revised Statutes.
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ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Mark Hyatt Gaston Allison S. Russell
Louisville, Kentucky Louisville, Kentucky
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