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Court of Appeals of Kentucky.


NO. 2010–CA–001455–MR

Decided: November 23, 2011

BEFORE:  ACREE, CAPERTON AND VANMETER, JUDGES. BRIEF FOR APPELLANT:  Ephraim W. Helton Danville, Kentucky BRIEF FOR APPELLEE:  Jonathan R. Baker Stanford, Kentucky



Appellant Johnnie Conley appeals the Lincoln Circuit Court's May 7, 2010 order finding Johnnie failed to satisfy his $30,000.00 obligation to his former wife, appellee Carla Conley, as required by the parties' separation agreement.   Following a careful review of the record, we affirm.

I. Facts and Procedure

In 1994, Johnnie and Carla sought to dissolve their marriage.   On May 3, 1994, the parties entered into a separation agreement, which was subsequently incorporated into the circuit court's findings of fact, conclusions of law, and judgment dated July 8, 1994, granting their divorce.   Under the terms of the separation agreement, Johnnie received the house and farm jointly owned by the parties and, in exchange, Johnnie agreed to pay Carla $30,000.00.   Specifically, the separation agreement provided:

[Johnnie] hereby agrees to pay [Carla] the sum of $30,000.00 as soon as practicable after this Agreement is approved by the Lincoln Circuit Court in a final decree of dissolution of marriage.   This $30,000.00 represents [Carla's] interest in marital property owned by the parties which shall belong solely to [Johnnie] pursuant to the terms of this Agreement.  [Carla] shall not be entitled to any further money from Johnnie for her interest in the marital property received by [Johnnie].

On July 13, 1994, Carla executed a deed conveying her interest in the marital homestead to Johnnie.

Shortly after the divorce, Johnnie and Carla resumed living together and continued to do so for the next fourteen years.   During this time, the parties resided together as a family with their two children born during the marriage;  together they conceived two additional children after the divorce, but during the period of their cohabitation.

In May 2009, Johnnie and Carla separated yet again.   Thereafter, on April 1, 2010, Carla filed a motion to enforce the May 3, 1994 separation agreement, claiming Johnnie failed to pay her the agreed upon $30,000.00.   At the hearing on her motion, Carla testified that Johnnie was the sole income provider for the family, as she was a stay-at-home mom caring for their children.   Carla explained that, during the marriage, Johnnie would give her a check each month to pay bills, cover household expenses such as food and gas, and provide clothing and necessary items for their children.   Carla testified this practice continued after the divorce – during the period of cohabitation – until 2008.

Johnnie disagreed with Carla.   Johnnie testified he gave Carla a monthly check not to cover household expenses but as payment toward his obligation under the separation agreement.   In support, Johnnie submitted copies of checks evidencing money he provided to Carla from 2000 to 2008 totaling $42,160.00, and his check register for the years 1995 – 1996 evidencing checks he wrote to Carla totaling $32,777.00.   In the “for” line of most of the checks, Johnnie wrote the word “payment”.   Johnnie explained he made additional payments to Carla during the period of cohabitation, but he was unable to secure proof of those checks.   Johnnie also claimed, and Carla conceded, that he paid some of the bills directly out of his checking account.

At the conclusion of the hearing, the circuit court ruled from the bench that Johnnie had not satisfied his $30,000.00 obligation pursuant to the separation agreement, as his monthly payments to Carla were for day-to-day expenditures.   On May 7, 2010, the court entered an order confirming its ruling.

Johnnie filed a timely motion pursuant to Kentucky Rules of Civil Procedure (CR) 59.05 to alter, amend, or vacate the circuit court's May 7, 2010 order on the grounds that Carla's motion to enforce the separation agreement was filed outside the fifteen-year statute of limitations and the circuit court's factual finding that Johnnie's monthly payments to Carla were for day-to-day expenditures was clearly erroneous.   Concurrently, the parties filed an agreed order to transfer this matter from Lincoln Circuit Court, Division I, to Lincoln Circuit Court, Division III (family court). Double As a result, Johnnie's CR 59.05 motion was heard before the family court on July 2, 2010.   The family court denied Johnnie's motion.   This appeal followed.

II. Analysis

Johnnie first contends the family court erred in denying his CR 59.05 motion because Carla's motion to enforce the separation agreement was filed outside the applicable fifteen-year statute of limitations set forth in KRS 413.090(1).   Carla responds Johnnie waived the statute of limitations defense because he failed to bring it before the circuit court prior to its May 7, 2010 order, instead choosing to raise the defense for the first time in his CR 59.05 motion.   Carla's argument is well-taken.

KRS 413.090(1) “contains a fifteen-year period of limitations for an action on a judgment.”  Whittaker v. Smith, 998 S.W.2d 476, 478 n.2 (Ky.1999).   However, it is axiomatic that “[a] party cannot invoke CR 59.05 to raise arguments and introduce evidence that could and should have been presented during the proceedings before entry of the judgment.”  Hopkins v. Ratliff, 957 S.W.2d 300, 301 (Ky.App.1997).   Johnnie admits in his brief to this Court that it is “abundantly clear from the face of” Carla's motion that it was brought outside the 15–year limitations window.  (Ptr.'s Br. 5).   Yet, despite having adequate notice and ample time to do so, Johnnie failed to raise the statute of limitations defense in response to Carla's motion to enforce the settlement agreement, or any other responsive pleading or motion prior to the circuit court's ruling.   Accordingly, the family court properly disregarded this argument in denying Johnnie's CR 59.05 motion.

Johnnie next contends it was clearly erroneous for the circuit court to conclude his payments to Carla were for day-to-day expenditures and not payments toward his obligation under the separation agreement.   In response, Carla asserts substantial evidence supports the circuit court's factual finding that Johnnie's monthly payments were for household expenses, bills, and care for their children.

This court may “set aside the trial court's findings [of fact] only if those findings are clearly erroneous.”  Moore v. Asente, 110 S.W.3d 336, 353–54 (Ky.2003) (citing CR 52.01).   A factual finding is clearly erroneous if it is not supported by substantial evidence.  Owens–Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).   Substantial evidence “is evidence that a reasonable mind would accept as adequate to support a conclusion and evidence that, when taken alone or in the light of all the evidence ․ has sufficient probative value to induce conviction in the minds of reasonable men.”  Moore, 110 S.W.3d at 354 (footnotes and internal quotation marks omitted).

This case is replete with contradictory and conflicting testimony from Johnnie and Carla.   The one point agreed upon by the parties, however, is that Johnnie gave Carla a monthly check for varying amounts and wrote the word “payment” on the memo line of the majority of those checks.   Yet, as alluded to by the circuit court, the checks do not indicate what the “payment” was for, i.e., household bills and expenditures, or to satisfy Johnnie's obligation to Carla under the terms of the separation agreement.

In considering this issue, the circuit court found Johnnie's claim that his monthly checks to Carla constituted payments toward the $30,000.00 owed lacked credibility.   Particularly, the circuit court reasoned that, if the monthly checks were, in fact, payments toward his obligation under the separation agreement, Johnnie would have stopped making payments once he paid Carla the $30,000.00 owed.   Instead, Johnnie wrote Carla a monthly check for practically the entire time the parties resided together totaling close to $75,000.00.   As the circuit court noted, and we readily repeat, if one owes $30,000.00, one does not pay $75,000.00.   As such, the circuit court found this evidence gave weight to Carla's testimony that, as she did not work outside the home and lacked an independent source of income, Johnnie gave her monthly checks to cover household bills and expenses, and to care for their children.

In determining whether a circuit court's factual findings are clearly erroneous, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  CR 52.01.  “[J]udging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court.”  Moore, 110 S.W.3d at 354.   As such, it was in the circuit court's discretion to believe Carla's testimony to the exclusion of Johnnie's.   As Carla's testimony constitutes substantial evidence in support of the circuit court's finding, we cannot say it was clearly erroneous for the circuit court to rule that the payments from Johnnie to Carla were for day-to-day expenditures, and not payment toward the $30,000.00 obligation owed pursuant to the separation agreement.   See Moore, 110 S.W.3d at 354 (“Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding ․ appellate courts should not disturb trial court findings that are supported by substantial evidence.”).

Finally, Johnnie contends the family court abused its discretion by failing to adequately review the record prior to denying his motion to alter, amend, or vacate the May 7, 2010 judgment.   We disagree.

It is well-settled that a trial court abuses its discretion when its decision is “arbitrary, unreasonable, unfair, or unsupported by sound legal principles.”  Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.2000).   As referenced previously, after the circuit court entered its May 7, 2010 order disposing of this issue, but before reviewing Johnnie's CR 59.05 motion, the parties presented to the circuit court an agreed order to transfer this matter to the family court.   As a result, Johnnie's CR 59.05 motion came on for hearing before the family court, as opposed to the circuit court which heard Johnnie's and Carla's testimony on April 9, 2010.   On this basis alone, Johnnie appears to contend the family court lacked the ability to properly rule on his CR 59.05 motion.   In support of his position, he points to the family court's statement that the circuit court “heard the evidence and I have not.”

The mere fact that the family court judge was not the presiding judge during the original hearing on Carla's enforcement motion does not render the family court incompetent to rule on Johnnie's CR 59.05 motion.   During the hearing before the family court, the family court took a respectable amount of time to review the parties' motions and the record, and demonstrated an understanding of the issues that were being addressed.   Thereafter, both parents had an opportunity to acquaint the family court with the facts and testimony from the April 9, 2010 hearing.   The family court re-stated the circuit court's original ruling, and the parties effectively acknowledged that the family court understood that ruling.   Then the family court entered a well-reasoned opinion justifying denial of Johnnie's CR 59.05 motion.   Accordingly, we discern no abuse of discretion by the family court.

III. Conclusion

For the foregoing reasons, the Lincoln Circuit Court's May 7, 2010 order is affirmed.