RENDERED: JULY 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0302-MR
ANGELA FERNANDEZ APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NOS. 18-CI-00452 AND 10-CI-00993
KELLEY HAMMERS, INDIVIDUALLY; KELLEY HAMMERS, AS EXECUTRIX OF THE ESTATE OF LEO ANTHONY FERNANDEZ; AND THE TEACHERS' RETIREMENT SYSTEM OF THE STATE OF KENTUCKY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: This case comes to us after the Warren Circuit Court
entered summary judgment in response to Angela Fernandez’s action seeking to
enforce provisions of a Tennessee divorce decree entered in the Fourth Circuit Court of Davidson County, Tennessee, in 1988. Following a review of the record
and the arguments of the parties, we affirm.
FACTS
Appellant Angela Fernandez and decedent Leo Fernandez were wed
in Texas in 1961. In the 1970s, they moved their family, which included two
children, to Kentucky when Leo became employed by Western Kentucky
University in Bowling Green. In 1976, Angela moved to Nashville, Tennessee,
and attended law school at the Nashville School of Law while the couple’s
daughter attended a private school in Nashville. Angela and the daughter resided
in a condominium purchased by Leo and Angela in Nashville.
When their daughter finished school, she moved back to Bowling
Green to live with her father, but Angela remained in Nashville, even after
finishing law school. In 1987, the two began discussing divorce, and Angela filed
a divorce action in Davidson County, Tennessee, in 1987. Leo never appeared
before the Davidson Circuit Court, but Angela did. The court issued a decree in
1988 and among the provisions were instructions for Leo to take certain actions.
These included: pay Angela half the proceeds from any sale of property located in
New Mexico; maintain a life insurance policy with Angela as the beneficiary in the
amount of $56,000 payable to her on his death; name Angela as the beneficiary of
an individual retirement account (IRA) Leo owned at the time of the divorce; and
-2- designate Angela as the beneficiary of his retirement account through the Kentucky
Teachers’ Retirement System (KTRS), choosing a particular option which would
reduce the monthly pension to the retiree but provide a payout to a beneficiary at
the retiree’s death.
Both Angela and Leo remarried over the years. Leo remained in
Bowling Green and Angela in Tennessee. In 1998, Leo retired from Western
Kentucky University. In 2017, he passed away. It was only at Leo’s death that it
was discovered by Angela that he had not followed the dictates of the Tennessee
divorce decree entered in 1988. She filed an action in Warren Circuit Court in
2018 seeking to enforce the Tennessee judgment of divorce as it had become
apparent that Leo’s wife, Kelley Hammers, intended not to probate his estate.
Hammers indicated that as the estate did not contain an amount above the marital
exemption, she was intending to dispense with administration of the estate.
The Warren Circuit Court granted the motion for summary judgment
filed by Hammers as representative of the estate, holding that the statute of
limitations in which to enforce the Tennessee judgment had elapsed. Angela filed
a motion to alter, amend, or vacate that order. The Warren Circuit Court entered
an amended order reaffirming its holding concerning the failure to timely pursue
enforcement of the judgment, and additionally held that the Tennessee judgment
was not entitled to full faith and credit as Leo had not had sufficient minimum
-3- contacts with the state of Tennessee such that personal jurisdiction could be
asserted over him. Angela appealed from this amended order. We affirm.
STANDARD OF REVIEW
The proper standard of review when examining whether a trial court
properly addressed a motion for summary judgment is de novo. Cmty. Fin. Servs.
Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).
ANALYSIS
First, we will consider the trial court’s determination that the statute of
limitations prevents enforcement of the Tennessee decree. If we conclude that the
trial court was correct about the matter being out of time, it will not be necessary
for us to determine whether the Tennessee decree should be entitled to full faith
and credit.
Kentucky Revised Statute (KRS) 413.090(1) clearly establishes a
fifteen-year period of limitation to enforce a judgment, including foreign
judgments.
[T]he following actions shall be commenced within fifteen (15) years after the cause of action first accrued:
(1) An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon[.]
-4- This statute is applicable to the present case, leaving only the question
of when the “cause of action first accrued.” The circuit court held that Angela had
a right to maintain a suit for enforcement of the judgment, which required Leo to
take certain actions, at the time of the entry of the divorce decree in 1988. We
agree with this conclusion.
In Wade v. Poma Glass & Specialty Windows, Inc., the Supreme
Court analyzed the meaning of the term execution as it appears in KRS 413.090(1).
394 S.W.3d 886 (Ky. 2012). In so doing, the Court examined various cases
wherein parties had renewed judgments or sought garnishments.
The purpose of the statute of limitations was to save “the right of the judgment creditor for [fifteen] years within which to enforce the collection of his judgment.” In Thierman [v. Wolff, 125 Ky. 832, 102 S.W. 843 (1907)] and Slaughter [v. Mattingly, 155 Ky. 407, 159 S.W. 980 (1913)], the Court did not limit the definition of execution in the statute of limitations to a writ of execution. On the contrary, the Court recognized that by enforcing a judgment after it was rendered through either a writ of execution or an action under Section 439 of the Civil Code, the judgment creditor tolls the statute of limitations. This supports the conclusion that execution should be defined broadly in KRS 413.090(1). We hold that in the fifteen-year statute of limitations for actions on judgments, the term execution is defined as an act of enforcing, carrying out, or putting into effect a judgment.
Id. at 894-95 (footnotes omitted).
Angela took none of the actions referred to in Wade in that she did not
seek specific performance of the actions ordered, she did not petition for a writ, nor
-5- did she attempt to enforce the judgment in any way. Further, she sought no proof
of compliance, nor did she take any action analogous to action required pursuant to
Section 439 of the old Civil Code, referred to above. As the Supreme Court
proclaimed, “We hold that execution means an act of enforcing, carrying out, or
putting into effect the court’s judgment.” Wade, 394 S.W.3d at 895.
KRS 413.090
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RENDERED: JULY 30, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2020-CA-0302-MR
ANGELA FERNANDEZ APPELLANT
APPEAL FROM WARREN CIRCUIT COURT v. HONORABLE STEVE ALAN WILSON, JUDGE ACTION NOS. 18-CI-00452 AND 10-CI-00993
KELLEY HAMMERS, INDIVIDUALLY; KELLEY HAMMERS, AS EXECUTRIX OF THE ESTATE OF LEO ANTHONY FERNANDEZ; AND THE TEACHERS' RETIREMENT SYSTEM OF THE STATE OF KENTUCKY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: CALDWELL, JONES, AND TAYLOR, JUDGES.
CALDWELL, JUDGE: This case comes to us after the Warren Circuit Court
entered summary judgment in response to Angela Fernandez’s action seeking to
enforce provisions of a Tennessee divorce decree entered in the Fourth Circuit Court of Davidson County, Tennessee, in 1988. Following a review of the record
and the arguments of the parties, we affirm.
FACTS
Appellant Angela Fernandez and decedent Leo Fernandez were wed
in Texas in 1961. In the 1970s, they moved their family, which included two
children, to Kentucky when Leo became employed by Western Kentucky
University in Bowling Green. In 1976, Angela moved to Nashville, Tennessee,
and attended law school at the Nashville School of Law while the couple’s
daughter attended a private school in Nashville. Angela and the daughter resided
in a condominium purchased by Leo and Angela in Nashville.
When their daughter finished school, she moved back to Bowling
Green to live with her father, but Angela remained in Nashville, even after
finishing law school. In 1987, the two began discussing divorce, and Angela filed
a divorce action in Davidson County, Tennessee, in 1987. Leo never appeared
before the Davidson Circuit Court, but Angela did. The court issued a decree in
1988 and among the provisions were instructions for Leo to take certain actions.
These included: pay Angela half the proceeds from any sale of property located in
New Mexico; maintain a life insurance policy with Angela as the beneficiary in the
amount of $56,000 payable to her on his death; name Angela as the beneficiary of
an individual retirement account (IRA) Leo owned at the time of the divorce; and
-2- designate Angela as the beneficiary of his retirement account through the Kentucky
Teachers’ Retirement System (KTRS), choosing a particular option which would
reduce the monthly pension to the retiree but provide a payout to a beneficiary at
the retiree’s death.
Both Angela and Leo remarried over the years. Leo remained in
Bowling Green and Angela in Tennessee. In 1998, Leo retired from Western
Kentucky University. In 2017, he passed away. It was only at Leo’s death that it
was discovered by Angela that he had not followed the dictates of the Tennessee
divorce decree entered in 1988. She filed an action in Warren Circuit Court in
2018 seeking to enforce the Tennessee judgment of divorce as it had become
apparent that Leo’s wife, Kelley Hammers, intended not to probate his estate.
Hammers indicated that as the estate did not contain an amount above the marital
exemption, she was intending to dispense with administration of the estate.
The Warren Circuit Court granted the motion for summary judgment
filed by Hammers as representative of the estate, holding that the statute of
limitations in which to enforce the Tennessee judgment had elapsed. Angela filed
a motion to alter, amend, or vacate that order. The Warren Circuit Court entered
an amended order reaffirming its holding concerning the failure to timely pursue
enforcement of the judgment, and additionally held that the Tennessee judgment
was not entitled to full faith and credit as Leo had not had sufficient minimum
-3- contacts with the state of Tennessee such that personal jurisdiction could be
asserted over him. Angela appealed from this amended order. We affirm.
STANDARD OF REVIEW
The proper standard of review when examining whether a trial court
properly addressed a motion for summary judgment is de novo. Cmty. Fin. Servs.
Bank v. Stamper, 586 S.W.3d 737, 741 (Ky. 2019).
ANALYSIS
First, we will consider the trial court’s determination that the statute of
limitations prevents enforcement of the Tennessee decree. If we conclude that the
trial court was correct about the matter being out of time, it will not be necessary
for us to determine whether the Tennessee decree should be entitled to full faith
and credit.
Kentucky Revised Statute (KRS) 413.090(1) clearly establishes a
fifteen-year period of limitation to enforce a judgment, including foreign
judgments.
[T]he following actions shall be commenced within fifteen (15) years after the cause of action first accrued:
(1) An action upon a judgment or decree of any court of this state or of the United States, or of any state or territory thereof, the period to be computed from the date of the last execution thereon[.]
-4- This statute is applicable to the present case, leaving only the question
of when the “cause of action first accrued.” The circuit court held that Angela had
a right to maintain a suit for enforcement of the judgment, which required Leo to
take certain actions, at the time of the entry of the divorce decree in 1988. We
agree with this conclusion.
In Wade v. Poma Glass & Specialty Windows, Inc., the Supreme
Court analyzed the meaning of the term execution as it appears in KRS 413.090(1).
394 S.W.3d 886 (Ky. 2012). In so doing, the Court examined various cases
wherein parties had renewed judgments or sought garnishments.
The purpose of the statute of limitations was to save “the right of the judgment creditor for [fifteen] years within which to enforce the collection of his judgment.” In Thierman [v. Wolff, 125 Ky. 832, 102 S.W. 843 (1907)] and Slaughter [v. Mattingly, 155 Ky. 407, 159 S.W. 980 (1913)], the Court did not limit the definition of execution in the statute of limitations to a writ of execution. On the contrary, the Court recognized that by enforcing a judgment after it was rendered through either a writ of execution or an action under Section 439 of the Civil Code, the judgment creditor tolls the statute of limitations. This supports the conclusion that execution should be defined broadly in KRS 413.090(1). We hold that in the fifteen-year statute of limitations for actions on judgments, the term execution is defined as an act of enforcing, carrying out, or putting into effect a judgment.
Id. at 894-95 (footnotes omitted).
Angela took none of the actions referred to in Wade in that she did not
seek specific performance of the actions ordered, she did not petition for a writ, nor
-5- did she attempt to enforce the judgment in any way. Further, she sought no proof
of compliance, nor did she take any action analogous to action required pursuant to
Section 439 of the old Civil Code, referred to above. As the Supreme Court
proclaimed, “We hold that execution means an act of enforcing, carrying out, or
putting into effect the court’s judgment.” Wade, 394 S.W.3d at 895.
KRS 413.090(1) bars recovery after fifteen years if a judgment is not
enforced in any way. We hold that Angela wholly failed to attempt to enforce the
divorce decree within the statutory period and is now barred from enforcing it as
against Leo’s estate or KTRS.
Angela argues that the earliest she could have sought enforcement of
the order is at Leo’s death, but that is simply not so. The Davidson Circuit Court
ordered that Leo take certain actions in relation to marital assets over which he had
control, like his KTRS account. It did not order that Angela be the party to inherit
the proceeds of the accounts, but that Leo name her as the beneficiary. Such belies
Angela’s argument that her cause of action did not accrue until Leo passed.
Angela also forwards an equitable argument, stating that it would be
unjust for the estate to escape the dictates of the divorce decree. However, where
the law provides a remedy, equitable remedies cannot be relied upon.
KRS 413.090(1) establishes a fifteen-year period after the cause first accrues in which an action upon a judgment or decree of any court of this Commonwealth may be brought. Given, therefore, that law has addressed
-6- the running of time in concerns such as these, equitable relief through laches and estoppel would not be available.
Heisley v. Heisley, 676 S.W.2d 477, 477 (Ky. App. 1984).
It was the failure to enforce the decree at any time after its entry in
1988 that has created this situation, something squarely within the control of
Angela. We affirm the circuit court’s conclusion that the statute of limitations in
KRS 413.090(1) requires this result.
We find Satterfield v. Satterfield, to be supportive of our
determination, rather than supportive of the outcome Angela insists. 608 S.W.3d
171 (Ky. App. 2020). In that matter, the wife sought entry of a qualified domestic
relations order (QDRO) upon the commencement of the husband’s retirement,
some twenty years after the entry of the decree, when she did not begin receiving a
portion thereof as ordered in the decree. The wife then brought an action to have a
QDRO entered as the husband had failed to do so as ordered in the decree. The
wife took action as soon as she became aware that the husband had not fulfilled his
obligations under the decree. In the present case, Angela knew, or should have
known, that Leo had retired from his position and was receiving pension benefits
in 1998, well within the fifteen-year statute of limitations.
In the present case, however, Angela’s dilatory actions vitiate any
equitable considerations, and it was Leo who failed to comply with the decree, not
his estate, or his beneficiary.
-7- Akers also ruled that as between innocent parties “he must suffer, who by his acts or laches, has made a loss possible.” Akers also cited Louisville Asphalt Company v. Cobb, 310 Ky. 126, 220 S.W.2d 110 (1949), which stated that “. . . equity aids one who has been vigilant and will refuse relief to one who has been dilatory . . . or who has slept on his rights.”
Tile House, Inc. v. Cumberland Fed. Sav. Bank, 942 S.W.2d 904, 906 (Ky. 1997),
as amended (Apr. 25, 1997) (citing Akers v. Cushman Const. Co., Inc., 487 S.W.2d
60 (Ky. 1972)).
Angela had every opportunity over the many years since the entry of
the decree to ensure Leo’s compliance therewith, but chose inaction. The
Davidson Circuit Court ordered Leo to select a payout selection for his retirement
benefit from Western Kentucky University which would leave a remainder at his
death and ordered that Angela be the beneficiary of that retirement plan. The
payout selection ordered reduced Leo’s lifetime monthly benefit, so that there
would be a remainder for Angela to receive. Thus, Angela should have taken some
action to ensure that Leo had complied with the Davidson Circuit Court decree as
to his retirement payout selection. She would have been aware of the general time
of Leo’s retirement, given her knowledge of his age. Regardless, she wholly failed
to take any action to secure her rights under the decree and the statute of
limitations must be upheld.
-8- Having found that this action is barred by the statute of limitations, it
is unnecessary for us to determine the question of whether the Davidson Circuit
Court had personal jurisdiction over Leo such as that the decree was entitled to full
faith and credit. We affirm.
JONES, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES KELLEY HAMMERS AND THE ESTATE OF Joyce A. Merritt LEO ANTHONY FERNANDEZ: Stephanie Tew Campbell Lexington, Kentucky James R. Laramore Bowling Green, Kentucky
BRIEF FOR APPELLEE THE TEACHERS’ RETIREMENT SYSTEM OF THE STATE OF KENTUCKY:
Tamela A. Biggs Frankfort, Kentucky
-9-