Nicholas Martin v. Kimberly D. Martin

RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1347-MR
NICHOLAS MARTIN APPELLANT
APPEAL FROM CLARK CIRCUIT COURT
v. HONORABLE NORA J. SHEPHERD, JUDGE
ACTION NO. 15-CI-00490
KIMBERLY D. MARTIN APPELLEE
OPINION
AFFIRMING
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BEFORE: GOODWINE, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Nicholas Martin appeals from an order of the Clark
Circuit Court which denied his Kentucky Rules of Civil Procedure (CR) 60.02
motion seeking to vacate a divorce decree. Appellant argues that the trial court
made errors in evaluating the evidence, made erroneous findings of fact, and made
errors in interpreting statutory law. We find that the trial court did not err in
denying Appellant’s CR 60.02 motion and affirm.
FACTS AND PROCEDURAL HISTORY
Appellant and Kimberly Martin were married on April 2, 2011. No
children were born from the marriage. The parties separated around October 10,
2015, and Appellee filed a petition for dissolution of marriage around a month
later. A trial was held on November 14, 2018. The trial court entered an extensive
decree of dissolution on October 24, 2019, which set forth which party was to get
what marital property. It also awarded each party his or her nonmarital property.
No appeal was taken from this judgment. On August 10, 2020, Appellant filed the
underlying CR 60.02 motion. The motion attacked the findings and legal
conclusions the court made in the divorce decree. A hearing was held on
September 15, 2020, and on September 30, 2020, the trial court entered an order
denying the motion. This appeal followed.
ANALYSIS
As stated above, Appellant is appealing the denial of his CR 60.02
motion. CR 60.02 states:
On motion a court may, upon such terms as are just,
relieve a party or his legal representative from its final
judgment, order, or proceeding upon the following
grounds: (a) mistake, inadvertence, surprise or excusable
neglect; (b) newly discovered evidence which by due
diligence could not have been discovered in time to move
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for a new trial under Rule 59.02; (c) perjury or falsified
evidence; (d) fraud affecting the proceedings, other than
perjury or falsified evidence; (e) the judgment is void, or
has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the
judgment should have prospective application; or (f) any
other reason of an extraordinary nature justifying relief.
The motion shall be made within a reasonable time, and
on grounds (a), (b), and (c) not more than one year after
the judgment, order, or proceeding was entered or taken.
A motion under this rule does not affect the finality of a
judgment or suspend its operation.
Specifically, Appellant alleged errors concerning CR 60.02(a), (c) and (d).
Our standard of review of a trial court’s denial of a
CR 60.02 motion is whether the trial court abused its
discretion. The test for abuse of discretion is whether the
trial court’s decision was “arbitrary, unreasonable, unfair,
or unsupported by sound legal principles.”
. . . The decision as to whether to grant or to deny a
motion filed pursuant to the provisions of CR 60.02 lies
within the sound discretion of the trial court. The rule
provides that a court may grant relief from its final
judgment or order upon various grounds. Moreover, the
law favors the finality of judgments. Therefore, relief
may be granted under CR 60.02 only with extreme
caution and only under the most unusual and compelling
circumstances.
Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011) (citations omitted).
CR 60.02 “is designed to provide relief where the
reasons for the relief are of an extraordinary nature.” A
very substantial showing is required to merit relief under
its provisions. Moreover, one of the chief factors guiding
the granting of CR 60.02 relief is the moving party’s
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ability to present his claim prior to the entry of the order
sought to be set aside.
U.S. Bank, NA v. Hasty, 232 S.W.3d 536, 541-42 (Ky. App. 2007) (citations
omitted).
In those instances where grounds . . . for relief under a
60.02 motion are such that they were known or could
have been ascertained by the exercise of due diligence
prior to the entry of the questioned judgment, then relief
cannot be granted from the judgment under a 60.02
proceeding. Relief afforded by a 60.02 proceeding is
extraordinary in nature and should be related to those
instances where the matters do not appear on the face of
the record, were not available by appeal or otherwise, and
were discovered after rendition of the judgment without
fault of the party seeking relief.
Bd. of Trustees of Policemen’s & Firemen’s Ret. Fund of City of Lexington v.
Nuckolls, 507 S.W.2d 183, 186 (Ky. 1974).
Here, all the issues raised by Appellant concern the trial court’s
findings of fact, conclusions of law, division of assets, and the weighing of the
evidence. These are all issues that should have been raised on direct appeal. After
the decree of dissolution was entered, Appellant should have appealed from that
decree within 30 days pursuant to CR 73.02.
CONCLUSION
CR 60.02 was not the proper avenue to appeal the issues raised by
Appellant. He should have appealed the divorce decree directly to this court back
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in 2019. The trial court did not abuse its discretion in denying the CR 60.02
motion.
We also note that we are unable to review this appeal on the merits for
another reason. Appellant did not appeal the divorce decree and did not designate
the recording of the divorce trial as part of the record on appeal. This means that
the recording of the trial is not in the record before us and we are unable to fully
review the evidence and testimony presented at the trial. Appellant is responsible
for ensuring the complete record is before this Court. Gambrel v. Gambrel, 501
S.W.3d 900, 902 (Ky. App. 2016). The failure to make sure a recording of the
divorce trial was part of the record also prohibits us from reversing the trial court’s
judgment on appeal.
Based on the foregoing, we affirm.
GOODWINE, JUDGE, CONCURS.
THOMPSON, K., JUDGE, CONCURS AND FILES SEPARATE
OPINION.
THOMPSON, K., JUDGE, CONCURRING: I agree with the
majority Opinion that Nicholas Martin was not entitled to relief pursuant to
Kentucky Rules of Civil Procedure (CR) 60.02 as a work-around to an untimely
appeal.
I write separately to clarify that while the majority opinion repeatedly
uses the term “divorce decree” as shorthand for the decree of dissolution which
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both dissolved the marriage and divided the marital property, the majority opinion
should not be interpreted as implying that the dissolution of the marriage itself is
subject to review on direct appeal or otherwise. As explained in Clements v.
Harris, 89 S.W.3d 403, 404 (Ky. 2002):
Generally, a decree of dissolution of marriage is not
subject to review before an appellate court of the
Commonwealth. Section 115 of the Kentucky
Constitution provides that “the General Assembly may
prescribe that there shall be no appeal from that portion
of a judgment dissolving a marriage.” In 1976, the
General Assembly enacted KRS 22A.020(3), which
provides that “there shall be no review by appeal or by
writ of certiorari from that portion of a final judgment,
order or decree of a Circuit Court dissolving a marriage.”
In addition, for well over a century, appellate courts of
the Commonwealth have consistently held that a
judgment granting a dissolution of marriage is not
appealable or subject to appellate jurisdiction. Whitney v.
Whitney, 70 Ky. (7 Bush) 520 (1870); Irwin v. Irwin, 105
Ky. 632, 49 S.W. 432 (1899); DeSimone v. DeSimone,
Ky., 388 S.W.2d 591 (1965); Drake v. Drake, Ky.App.,
809 S.W.2d 710 (1991).
But see Age v. Age, 340 S.W.3d 88, 93 (Ky.App. 2011) (explaining an exception
exists to allow the appeal of a judgment of dissolution when it is void).
While it is clear from the briefs and attachments that Nicholas’s CR
60.02 motion concerned his attempt to challenge the property classification and
division, rather than the dissolution of the marriage, future readers of this opinion
do not have the benefit of such materials and require a cogent explanation instead.
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Therefore, I concurred to clarify this matter so as to prevent future
misinterpretations of this decision.
Accordingly, I concur.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Nicholas Martin, pro se David M. Ward
Winchester, Kentucky Winchester, Kentucky
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