Cristina Arce v. Javier Arce, Md.

RENDERED: MARCH 26, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1371-MR
CRISTINA ARCE APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
v. HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 06-CI-00182
JAVIER ARCE, M.D. APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: DIXON, KRAMER, AND MCNEILL, JUDGES.
KRAMER, JUDGE: Cristina Arce appeals the Hardin Family Court’s dismissal of
an enforcement action she asserted against her former husband, Javier Arce,
associated with the dissolution of their marriage. Upon review, we vacate and
remand.
Divorce proceedings began between Javier and Cristina in Hardin
Family Court on or about February 2, 2006. The proceedings lasted approximately
two years, culminating in the dissolution of the marriage and, pertinent to this
appeal, two orders (i.e., an order of June 25, 2008; and an agreed order of October
7, 2008) dividing their substantial assets. On June 18, 2019, Cristina filed a
motion with the family court, along with an accompanying affidavit, asking the
family court to enforce its orders of June 25, 2008, and October 7, 2008.
Specifically, she set forth the following requests for relief:
1. To require the Petitioner, Javier J. Arce, to pay
Respondent, Cristina Mier Arce, certain sums of money
that are owed to her as part of the parties’ divorce
proceedings, specifically:
a. To award Respondent ½ of the funds
removed by Petitioner, totaling $59,000,
from the Fidelity Investment Account . . .
prior to the division of the account funds
between the parties, namely $29,500;
b. To require Petitioner to comply with this
Court’s order entered on or about 10/9/2008
awarding Respondent the sum of $82,815.50
to equalize the division of property and
$2,500 representing Respondent’s interest in
property received by Petitioner’s mother;
and
c. To award Respondent the appreciation of
the value of the amounts due to growth of
the stock market and inflation; or in the
alternative, to award Respondent interest on
the sums due her from the date obligations
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were due at a rate of 12% per annum
compounded annually.
2. To award Respondent 5% of the real estate rental
income for the years 2009-2018 in the approximate sum
of $25,887.45.
3. To award Respondent ½ of any rent monies received
from the marital properties for the years 2006, 2007, and
2008, giving Petitioner credit for any real estate taxes
paid.
4. To require Petitioner to reimburse Respondent the
sum of $32,770.31 representing the amount owed to
Respondent from the sale of the real estate located at
6613 SW 81 Terrace, Gainesville, Florida.
5. To order Petitioner to reimburse Respondent the sum
of $26,000 for attorney/consultant fees paid by
Respondent to Carl Christianson, Eugene Mosely, and
Phyllis Lonneman.
6. To require Petitioner to reimburse Respondent the
sum of $2,621.50 representing ½ of the funds expended
on Mariana’s[1] car insurance.
On August 7, 2019, Javier filed a response to Cristina’s motion and
moved to dismiss. In full, his response and motion stated:
Comes the Petitioner, by Counsel, and moves the Court
to dismiss this action and to direct the parties to proceed
in regular Circuit Court.
In support of said Motion, counsel states that these
parties were divorced by Decree of Dissolution dated
June 25th, 2008. In that decree, the Court ordered that
certain properties were to be sold and certain moneys
1
Mariana is one of the parties’ children.
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were to be divided. In the ten plus years since the entry
of the Decree the parties have continued to operate as a
partnership co-mingling money and buying additional
properties. Because the parties are not married, their
actions since the divorce would constitute a partnership
and is not a continuation of the divorce case. This action
should be heard in the regular Circuit Court division of
the Hardin Circuit Court and not Family Court.
The family court considered Javier’s motion at a hearing on August
13, 2019. The hearing lasted approximately seven minutes, primarily consisting of
arguments from the parties’ respective counsel. The relevant substance of the
hearing was as follows:
JAVIER’S COUNSEL: I just wanted to get on the
record, I think this is the improper court, uh, to hear this
dispute, uh, because these people have been divorced
going on ten years. We’re talking about properties they
have purchased together since the divorce. Um,
there’s—
COURT: That’s a general partnership.
JAVIER’S COUNSEL: It’s a partnership. That’s, that’s
my point is that this is a general partnership dissolution
matter, not a divorce matter. Um, so, I just. I, I don’t, I
mean, I like being in front of you, but I just, uh—
COURT: [Inaudible]
JAVIER’S COUNSEL: Since I’m here right now.
[Laughter]
COURT: [Laughter] Yeah, heck yeah.
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JAVIER’S COUNSEL: But I just, I don’t think this is
the proper jurisdiction to, to hear this. Now, there was
one issue involved—
COURT: Now, this is property and monies that had been
generated in the last decade that weren’t—
JAVIER’S COUNSEL: Now, some of the property was
owned by them during the divorce, and what they did
following the divorce, they just continued to own them
jointly, and they’ve had accounts jointly. And they have,
over the past ten years, made money, spent money from
those properties. And, so, you had ordered them sold on
most properties, uh, but they chose a different path after
they were here in front of you. Uh, they did it jointly and
together, and so I think it constitutes a partnership.
CRISTINA’S COUNSEL: Your order, on October the
ninth, 2008, which was an agreed order that you signed,
said the parties could jointly own the real estate
properties, and they, she, my client, could manage the
properties collecting rent and paying bills and debts
associated with the properties. They could be sold by
any, at any time by agreement of the parties, or they
could continue on. They had to agree on something and
they never did. There was, and they did not commingle,
they kept their money separate, so it’s our position this is
a post-judgment, basically, to go ahead and divide
accounts. The, uh, they’ve got property that’s listed for
sale now. They have trouble agreeing on the amounts
listed for. This is set for a hearing on the twelfth of
September.
COURT: Right.
JAVIER’S COUNSEL: Which is why I brought the
motion today.
CRISTINA’S COUNSEL: There has been three years
now, more than that, actually, that they’ve had the
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opportunity to bring up this partnership stuff and they’ve
only brought it up at this time.
...
JAVIER’S COUNSEL: The bottom line is that they still
have property that they have bought together since the
divorce. That’s part of the property.
CRISTINA’S COUNSEL: They’ve kept separate.
JAVIER’S COUNSEL: How was it kept separate?
COURT: What do you mean, kept separate?
CRISTINA’S COUNSEL: The accounts were kept
separate.
JAVIER’S COUNSEL: Well, they’re both on the
accounts.
CRISTINA’S COUNSEL: Uh, that’s not my
understanding. There was [sic] two bank accounts.
JAVIER’S COUNSEL: Okay. It’s still a partnership, I
think.
JAVIER: No, both, both accounts are in both names.
JAVIER’S COUNSEL: Yeah, that’s what I’m saying.
COURT: Both accounts in both names?
JAVIER: Right.
COURT: Okay. Well then, it’s a partnership.
JAVIER’S COUNSEL: Yeah.
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CRISTINA’S COUNSEL: I thought you said separate
accounts?
CRISTINA: They, we both are on the same accounts,
but those accounts, we’ve always had it, in the divorce.
COURT: This, since you’re divorced, you can co-own
property, but you co-own it as partners, not as husband
and wife. It’s a general partnership at that point. I mean,
it’s just as if, and any property you bought after the
marriage is a general partnership that you all have. It’s
not, unless you’ve done a dual sole proprietorship with
a—
JAVIER’S COUNSEL: No, they haven’t.
COURT: —with a venture agreement, you know,
that’s—
CRISTINA’S COUNSEL: But needless to say, why are
we waiting three weeks before our hearing—
JAVIER’S COUNSEL: Well, I’ll tell you why. I’ll tell
you why. Because the other attorney that was involved,
he quit. Everything stopped. I mean, everything
stopped. We didn’t do anything on this case for over a
year. So I thought maybe they’d just gone home. And
uh, so, when I—
CRISTINA’S COUNSEL: We’ve been going back and
forth.
JAVIER’S COUNSEL: Well, I know we have. We were
trying to get property sold, but that’s—
COURT: Well, I hope you can get it sold because, you
know, because it sounds like everybody’s got more
important things to do than deal with property. This is a
general partnership at this point. Because when you’re
no longer husband and wife, you become general partners
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on all property ownership unless you’ve done a
corporation or an LLC or something like that. If you
haven’t, then you don’t have, I’m trying to think of that,
a joint venture agreement. Unless you got a joint venture
agreement between two other entities, which evidently
you don’t, it’s a general partnership. It’s, it’s just as if
you were never married on the property that you bought
after the divorce. And Judge Howard and Judge Easton
deal with that all the time. Judge Howard’s first case out
of the gate was a commingling of assets between people
that were living together and were never married. It’s a
general partnership. Uh.
JAVIER’S COUNSEL: I remember that case.
COURT: Yeah. So, it’s, it’s a general partnership.
JAVIER’S COUNSEL: Okay. Thank you.
COURT: You need to go to regular circuit court and
we’ll remand the September hearing date.
(Emphasis supplied.)
On August 27, 2019, the family court then granted Javier’s motion to
dismiss. The entirety of its order was as follows:
This matter having come before the Court on Petitioner’s
Motion and the Court being duly advised;
IT IS HEREBY ORDERED AND ADJUDGED that the
current matter before the Court is hereby dismissed and
the parties are directed to address these issues in Hardin
Circuit Court.
Cristina now appeals, and her arguments are two-fold. First, she
contends the family court erroneously determined it lacked “subject matter
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jurisdiction” to resolve her motion to enforce its judgment. Second, Cristina
argues that because she merely sought to enforce the family court’s prior orders
relating to the property distribution terms of her divorce decree with Javier, the
family court likewise retained “particular case” jurisdiction to resolve her motion.
Javier, on the other hand, believes the family court achieved the
proper result. He argues in his brief that during the several years between the date
of the family court’s most recent order (i.e., October 7, 2008) and the date of
Cristina’s motion (i.e., June 18, 2019), he and Cristina “modified their agreed order
when they jointly created and carried out a joint venture from 2009 to present,” and
that their “modification removed this class of case from domestic law into a new
class of case where the family court has no jurisdiction.” In support of his
position, he cites as evidence roughly thirty pages of documents which he failed to
produce below but appended to his appellate brief. Because these documents are
not in the record below, we have not considered them or any arguments in Javier’s
brief regarding them. They are not properly before this Court. See Barnard v.
Stone, 933 S.W.2d 394, 396 (Ky. 1996) (explaining a court of review cannot
consider evidence that was not adduced below).
With that said, we begin with Cristina’s argument that the family
court erroneously determined it lacked “subject matter jurisdiction.” We disagree
that this is a proper or complete interpretation of what occurred below. Subject
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matter jurisdiction involves a court’s authority to resolve the kind of case identified
by the litigants. See Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky.
1994). There is no question that the Hardin Family Court had the authority to
resolve the kind of case implicated in Cristina’s motion – namely, one involving
what Cristina characterized as the equitable distribution of property stemming from
the dissolution of her marriage with Javier. See KRS2 23A.100(1)(e).3
Moreover, to the extent that Cristina merely sought to enforce the
property distribution terms of her divorce decree with Javier, the family court
retained particular case jurisdiction to resolve her motion.4 This is because the
terms of a separation agreement incorporated into a divorce decree are enforceable
by all the remedies available for the enforcement of a judgment. KRS 403.180(5).
And, the family court had continuing jurisdiction to enforce the terms of its
judgments or decrees. Penrod v. Penrod, 489 S.W.2d 524 (Ky. 1972).
2
Kentucky Revised Statute.
3
KRS 23A.100(1)(e) provides, “As a division of Circuit Court with general jurisdiction pursuant
to Section 112(6) of the Constitution of Kentucky, a family court division of Circuit Court shall
retain jurisdiction in the following cases: . . . (e) Equitable distribution of property in dissolution
cases[.]”
4
In general, “particular-case jurisdiction” is the right, authority, and power of a tribunal to hear
and determine a specific case within that class of cases over which a court has subject matter
jurisdiction. See, e.g., T.C. v. M.E., 603 S.W.3d 663, 681 (Ky. App. 2020) (“Particular case
jurisdiction generally requires the existence of specific so-called ‘jurisdictional facts’ . . . defined
as [a] fact that must exist for a court to properly exercise its jurisdiction over a case, party, or
thing.” (internal quotation marks and citation omitted)).
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That aside, the issue presented in this matter does not involve the
family court’s subject matter jurisdiction. Nor, for that matter, does it involve
whether the family court generally retains continuing jurisdiction to enforce its
judgments. The dispositive issue the family court adjudicated – and the sole issue
Javier raised in his motion to dismiss – was whether a change of circumstances
(i.e., a post-divorce business partnership between Javier and Cristina) discontinued
their divorce case. And, considering both the substance of his motion and what his
counsel argued at the August 13, 2019 hearing, Javier’s argument regarding his
purported change in circumstances with Cristina could objectively be taken at least
three different ways, namely due to changed circumstances: (1) the specific relief
Cristina sought through enforcing the 2008 orders was outside the scope of those
orders; (2) the 2008 orders had become moot and therefore unenforceable;5 or (3)
due to laches, waiver, or estoppel, it was no longer equitable to enforce the 2008
orders.
In any event, however, there are problems with all of these premises.
First, there is a reason why we have omitted any analysis of the family court’s
2008 orders from this opinion: Any such analysis would be a fruitless endeavor
5
See, e.g., Medical Vision Group, P.S.C. v. Philpot, 261 S.W.3d 485, 491 (Ky. 2008) (explaining
courts are required to dismiss “when a change in circumstance renders that court unable to grant
meaningful relief to either party.”)
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because we can only guess that Javier’s argument related to the scope of the family
court’s 2008 orders. Neither Javier nor the family court addressed any aspect of
those orders or even the specifics of Cristina’s enforcement motion.
Second, assuming the family court believed that the existence of a
partnership between Javier and Cristina rendered its 2008 orders moot or that it
was no longer equitable to enforce those orders, evidence was required to justify
those conclusions.6 Here, no such evidence was adduced. There are only the brief,
unclear, and unsworn statements Javier and Cristina provided during the seven-
minute hearing, set forth above; the arguments of counsel indicating, as
emphasized, that “part of” or “some of the property” relative to the parties’ divorce
decree may have been affected by the parties’ post-divorce conduct;7 and the thirty
or so pages of purported partnership documents that Javier has appended to his
appellate brief – documents we cannot consider because Javier failed to produce
those documents below. Barnard, 933 S.W.2d at 396.
6
As to how a partnership is proven, KRS 362.175 defines a partnership as “an association of two
(2) or more persons to carry on as co-owners a business for profit.” See also Denison v.
McCann, 303 Ky. 195, 197 S.W.2d 248, 249 (1946) (discussing elements of laches); Greathouse
v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995) (discussing waiver); Fluke Corp. v. LeMaster, 306
S.W.3d 55, 62 (Ky. 2010) (discussing equitable estoppel).
7
See Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (“[T]he arguments of counsel
are not evidence[.]”).
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It is not the prerogative of this Court to make arguments or otherwise
practice a case for the litigants. It is not our prerogative to affirm an unsupported
judgment. We are also not inclined to guess at the basis of the family court’s
judgment; in that vein,
[w]e remind the [family] court that it speaks only through
written orders entered upon the official record. See
Midland Guardian Acceptance Corp. of Cincinnati, Ohio
v. Britt, 439 S.W.2d 313 (Ky. 1968); Com. v. Wilson, 280
Ky. 61, 132 S.W.2d 522 (1939). Thus, any findings of
fact and conclusions of law made orally by the [family]
court at an evidentiary hearing cannot be considered by
this Court on appeal unless specifically incorporated into
a written and properly entered order.
Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky.
App. 2010).
Accordingly, we express no opinion regarding the merits of this
appeal as there is no basis for us to decide the matter. Instead, we VACATE and
REMAND for proceedings not inconsistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Lyn Taylor Long Barry Birdwhistell
Elizabethtown, Kentucky Elizabethtown, Kentucky
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