HOWARD LITTON v. BRENDA LEE LITTON

Reset A A Font size: Print

Court of Appeals of Kentucky.

HOWARD LITTON v. BRENDA LEE LITTON

NO. 2009–CA–002370–MR

Decided: March 09, 2012

BEFORE:  ACREE AND STUMBO, JUDGES;  LAMBERT, Double SENIOR JUDGE. BRIEF FOR APPELLANT:  David J. Porter Paintsville, Kentucky BRIEF FOR APPELLEE:  John T. Chafin Prestonsburg, Kentucky

Howard Litton and Brenda Litton Sadler were married on December 15, 1990.   A decree of dissolution of marriage was entered on August 2, 2007.   Howard appeals from the trial court's order overruling his motion requesting restoration of non-marital property entered November 25, 2009.   We affirm the decision of the Johnson Family Court.

Over the course of this litigation, Howard has filed numerous motions to alter, amend or vacate the orders of the trial court.   The majority of those decisions and motions are not at issue in this appeal.   Howard then filed a motion for a rule arguing that Brenda had vandalized or damaged certain equipment Howard was to retrieve from the former family residence.   The trial court held a hearing on May 7, 2009.   The court's order entered June 4, 2009, found that a farming disk and corn planter were sold to a third party before Howard and Brenda separated.   The trial court then overruled Howard's motion for rule.

On June 12, 2009, Howard filed a motion to alter, amend or vacate that order.   He argued the trial court had been misled as to the farming disk and corn planter.   Howard's attorney then moved to withdraw from representation stating a conflict had developed between the attorney and client.   That request was granted by order entered August 13, 2009.   Howard was provided twenty days to secure new counsel, after which the motion to alter, amend or vacate would stand submitted.   Howard's new attorney filed an entry of appearance on August 26, 2009.

On November 16, 2009, Howard filed a motion for restoration of non-marital property.   That motion was chiefly comprised of a list of 45 items Double Howard claimed to be non-marital property belonging to him or others remaining in Brenda's possession.   On November 25, 2009, the trial court overruled the motion stating it had been “over two (2) years” since the final hearing.   Howard then brought this appeal from that order.

The trial court entered its decree of dissolution on August 2, 2007.   Howard filed a motion to alter, amend or vacate that order within the time specified in Kentucky Civil Rule (CR) 59.05.   He failed to include any reference to the items he now seeks to recover.   The final judgment appears to be complete and does not contemplate further transfers of property from one party to the other.   Moreover, Howard failed to appeal from the final decree or the order overruling his motion to alter, amend or vacate.

In this procedural posture, Howard's only avenue of relief was CR 60.02.   That rule provides for relief from a judgment or order when certain precise conditions are met.

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 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.

CR 60.02.

The grounds allowed by subsections (a) through (c) must be filed within one year of the original judgment.   Howard did not file his request for restoration until over two years beyond the original decree.   He did not allege fraud or that 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 any other reason of an extraordinary nature justifying relief.  Id. Even if he had, the trial court had the discretion to determine that waiting in excess of two years was not a reasonable delay.  “[O]nce the rights of the parties have been finally determined, litigation should end.”   Slone v. R & S Mining, Inc. 74 S.W.3d 259

(Ky.2002).   Howard has had ample opportunity to pursue his claims but the case has now run its course and further litigation should be discontinued.

The trial court did not abuse its discretion when it found that a delay in excess of two years after the final hearing precluded a ruling in his favor.   We discover no error and affirm the determination of the Johnson Family Court.

ALL CONCUR.

LAMBERT, SENIOR JUDGE: