CULLEN, Commissioner.
The appeal here under consideration is from an order overruling a motion made to reopen that part of a divorce judgment relating to alimony payments.
On February 7, 1969, the Marshall Circuit Court granted Clyde W. Reed a divorce from his wife, Jean, on the ground of abandonment, but awarded Jean “alimony” in a lump sum of $500,000 payable within three months after judgment (reduced by credits to $390,000), plus $25,000 per year payable for a period of ten and one-half years, the obligation for the latter payments to cease upon Jean’s prior death but to be payable in full, commuted amount on Clyde’s prior death.
On an appeal to this court the judgment was affirmed, except for minor modifications as to the time allowed for payment of the initial sum of $500,000. Reed v. Reed, Ky., 457 S.W.2d 4.
The mandate on this court’s opinion was issued on June 26, 1970. A hearing was scheduled in the circuit court for July 13, 1970, “for the purposes of resolving any questions that may arise out of the mandate of the Court of Appeals of Kentucky as it affects the judgment entered by this Court and any other matters that may be brought before this Court by counsel for either of the parties.” In the meantime, issues arose as to attorney fees and as to interest and penalties on the supersedeas bond, and the hearing was continued to August 7, 1970. On that date the court entered a “Final Order” determining the issues as to attorney fees, interest and penalties; crediting Clyde for payments made on the initial obligation of $500,000; and directing when the remaining payments on that obligation should be made, in accordance with this court’s mandate. The “Final Order” further specified the exact dates on which the $25,000 payments should be made. On the same day a “Supplemental Final Judgment” was entered making provisions for security for payment of the unpaid portion of the initial obligation of $500,000.
Subsequently, by agreement of the parties, Clyde paid before due the remaining portion of the initial obligation of $500,000, and paid the first of the $25,000 payments, and on November 6, 1970, the circuit court entered an “Agreed Order and Satisfaction of Judgment” which recited that the judgment was fully satisfied as to all obligations except the $25,000 payments thereafter coming due. This order contained the following clause:
“This cause is now stricken, settled in full, including satisfaction in full of the judgment, with the exception of said future alimony payments; but this Court retains jurisdiction of the parties and of the subject matter of this action for any and all necessary and proper orders relating to the future alimony payments.”
Although the order is styled “Agreed Order and Satisfaction of Judgment,” the document was not endorsed by the parties or their counsel nor is there anything in the record to indicate that there was any agreement except as to satisfaction of the judgment to the extent of the payments that had been made. For some unex[846]*846plained reason the order was directed to be “entered of record as of August 7, 1970.”
On November 27, 1970, this court handed down its opinion in Colley v. Colley, Ky., 460 S.W.2d 821, restating the principles applicable to property restoration, property division, and alimony in divorce cases. The mandate was issued on that opinion on December 29, 1970.
On January 28, 1971, Clyde Reed filed in the Reed case the motion here in issue, in which he sought to have the judgment reopened as to alimony payments not yet due, for reconsideration in the light of Colley. The circuit court overruled the motion on the ground of lack of power to reopen the judgment entered pursuant to the mandate of this court.
In his motion to reopen the judgment, Clyde referred to the clause in the “Agreed Order and Satisfaction of Judgment” of November 6, 1970, which recited that the court retained jurisdiction “for any and all necessary and proper orders relating to future alimony payments,” and he undertook to interpret this as a reservation by the circuit court of the power to modify the judgment as to future alimony payments. He asserts that under the authority of such cases as Keach v. Keach, 217 Ky. 723, 290 S.W. 708, the trial court by virtue of such reservation had power to reopen the judgment even though the future payments constituted a form of lump-sum alimony.
We do not consider the question of whether the power to modify a divorce judgment as to lump-sum alimony validly can be reserved, because it is our opinion that the trial court had no jurisdiction, procedurally, to insert the purported reservation clause in the November 6 order. There was no such reservation in the original judgment of February 7, 1969. Following the affirmance of that judgment by this court, with respect to the $25,000 payments, the circuit court had no jurisdiction on its own motion to amend the judgment. Caskey v. Nussbaum, 236 Ky. 848, 34 S.W.2d 716; City of Lexington v. Garner, Ky., 329 S.W.2d 54.
The reservation clause cannot be considered to have been inserted by agreement of the parties because the record does not show that there was any such agreement, nor was the so-called “Agreed Order and Satisfaction of Judgment” endorsed as agreed to.
In his motion to reopen, Clyde undertook to invoke CR 60.02 as a further source of power in the circuit court to reopen the judgment. He argues here that the change in the law of alimony and property settlement which he says was made in Colley was such as to warrant relief on the ground set forth in Clause (5) of CR 60.02 of its being “no longer equitable that the judgment should have prospective application.”
We do not consider the situation in the instant case to be one coming within Clause (5) of CR 60.02. In the first place, the judgment here in question has “prospective application” only in a limited sense, in that the only prospective feature consists of a plan for deferred payment of a fixed obligation. In the second place, there is no certainty that the ultimate obligation of Clyde Reed under a judgment based on Colley would be so different from that under the present judgment as to establish the equitable basis contemplated by CR 60.02 for a reopening. It is quite possible that the same result would be achieved through a division of “team-effort” assets as was achieved in the name of alimony. We note that the trial court, in the findings and conclusions on which the original judgment was based, stated that “the Court is acutely aware of the overall contribution which she has made for some twenty years in the keeping of the home, rearing of the children and making herself satisfied with social activities [847]*847that were far less financially demanding than one might expect in her circumstances.” We also note that in the opinion of this court in Reed v. Reed, Ky., 457 S.W.2d 4 at 8, reference was made to the holding in Cooke v. Cooke, Ky., 449 S.W.2d 216
Free access — add to your briefcase to read the full text and ask questions with AI
CULLEN, Commissioner.
The appeal here under consideration is from an order overruling a motion made to reopen that part of a divorce judgment relating to alimony payments.
On February 7, 1969, the Marshall Circuit Court granted Clyde W. Reed a divorce from his wife, Jean, on the ground of abandonment, but awarded Jean “alimony” in a lump sum of $500,000 payable within three months after judgment (reduced by credits to $390,000), plus $25,000 per year payable for a period of ten and one-half years, the obligation for the latter payments to cease upon Jean’s prior death but to be payable in full, commuted amount on Clyde’s prior death.
On an appeal to this court the judgment was affirmed, except for minor modifications as to the time allowed for payment of the initial sum of $500,000. Reed v. Reed, Ky., 457 S.W.2d 4.
The mandate on this court’s opinion was issued on June 26, 1970. A hearing was scheduled in the circuit court for July 13, 1970, “for the purposes of resolving any questions that may arise out of the mandate of the Court of Appeals of Kentucky as it affects the judgment entered by this Court and any other matters that may be brought before this Court by counsel for either of the parties.” In the meantime, issues arose as to attorney fees and as to interest and penalties on the supersedeas bond, and the hearing was continued to August 7, 1970. On that date the court entered a “Final Order” determining the issues as to attorney fees, interest and penalties; crediting Clyde for payments made on the initial obligation of $500,000; and directing when the remaining payments on that obligation should be made, in accordance with this court’s mandate. The “Final Order” further specified the exact dates on which the $25,000 payments should be made. On the same day a “Supplemental Final Judgment” was entered making provisions for security for payment of the unpaid portion of the initial obligation of $500,000.
Subsequently, by agreement of the parties, Clyde paid before due the remaining portion of the initial obligation of $500,000, and paid the first of the $25,000 payments, and on November 6, 1970, the circuit court entered an “Agreed Order and Satisfaction of Judgment” which recited that the judgment was fully satisfied as to all obligations except the $25,000 payments thereafter coming due. This order contained the following clause:
“This cause is now stricken, settled in full, including satisfaction in full of the judgment, with the exception of said future alimony payments; but this Court retains jurisdiction of the parties and of the subject matter of this action for any and all necessary and proper orders relating to the future alimony payments.”
Although the order is styled “Agreed Order and Satisfaction of Judgment,” the document was not endorsed by the parties or their counsel nor is there anything in the record to indicate that there was any agreement except as to satisfaction of the judgment to the extent of the payments that had been made. For some unex[846]*846plained reason the order was directed to be “entered of record as of August 7, 1970.”
On November 27, 1970, this court handed down its opinion in Colley v. Colley, Ky., 460 S.W.2d 821, restating the principles applicable to property restoration, property division, and alimony in divorce cases. The mandate was issued on that opinion on December 29, 1970.
On January 28, 1971, Clyde Reed filed in the Reed case the motion here in issue, in which he sought to have the judgment reopened as to alimony payments not yet due, for reconsideration in the light of Colley. The circuit court overruled the motion on the ground of lack of power to reopen the judgment entered pursuant to the mandate of this court.
In his motion to reopen the judgment, Clyde referred to the clause in the “Agreed Order and Satisfaction of Judgment” of November 6, 1970, which recited that the court retained jurisdiction “for any and all necessary and proper orders relating to future alimony payments,” and he undertook to interpret this as a reservation by the circuit court of the power to modify the judgment as to future alimony payments. He asserts that under the authority of such cases as Keach v. Keach, 217 Ky. 723, 290 S.W. 708, the trial court by virtue of such reservation had power to reopen the judgment even though the future payments constituted a form of lump-sum alimony.
We do not consider the question of whether the power to modify a divorce judgment as to lump-sum alimony validly can be reserved, because it is our opinion that the trial court had no jurisdiction, procedurally, to insert the purported reservation clause in the November 6 order. There was no such reservation in the original judgment of February 7, 1969. Following the affirmance of that judgment by this court, with respect to the $25,000 payments, the circuit court had no jurisdiction on its own motion to amend the judgment. Caskey v. Nussbaum, 236 Ky. 848, 34 S.W.2d 716; City of Lexington v. Garner, Ky., 329 S.W.2d 54.
The reservation clause cannot be considered to have been inserted by agreement of the parties because the record does not show that there was any such agreement, nor was the so-called “Agreed Order and Satisfaction of Judgment” endorsed as agreed to.
In his motion to reopen, Clyde undertook to invoke CR 60.02 as a further source of power in the circuit court to reopen the judgment. He argues here that the change in the law of alimony and property settlement which he says was made in Colley was such as to warrant relief on the ground set forth in Clause (5) of CR 60.02 of its being “no longer equitable that the judgment should have prospective application.”
We do not consider the situation in the instant case to be one coming within Clause (5) of CR 60.02. In the first place, the judgment here in question has “prospective application” only in a limited sense, in that the only prospective feature consists of a plan for deferred payment of a fixed obligation. In the second place, there is no certainty that the ultimate obligation of Clyde Reed under a judgment based on Colley would be so different from that under the present judgment as to establish the equitable basis contemplated by CR 60.02 for a reopening. It is quite possible that the same result would be achieved through a division of “team-effort” assets as was achieved in the name of alimony. We note that the trial court, in the findings and conclusions on which the original judgment was based, stated that “the Court is acutely aware of the overall contribution which she has made for some twenty years in the keeping of the home, rearing of the children and making herself satisfied with social activities [847]*847that were far less financially demanding than one might expect in her circumstances.” We also note that in the opinion of this court in Reed v. Reed, Ky., 457 S.W.2d 4 at 8, reference was made to the holding in Cooke v. Cooke, Ky., 449 S.W.2d 216, that where “property has been accumulated in the course and by virtue of the joint efforts of husband and wife as a marital unit, one carrying out his responsibilities and the other carrying out hers * * * upon dissolution of the marriage, the trial court should be free to weigh it up and determine when, whether and how it is to be cut off and separated out,” and the opinion said: “Here it appears that the same reasoning should apply.” The opinion further said: “Although Jean worked little in the various business ventures she ran the home at such a minimum expense, commensurate with the family income and wealth, that we cannot say she did not assist in creating that wealth.” So it appears that the concept of Colley with respect to division of “team-effort” property was in substance applied in the Reed judgment. This was recognized in the opinion in Colley when reference was made to the Reed case as one in which this court accepted an award to the wife of a fraction of less than one-third “of the jointly acquired estate.”
It is true that a change in the law was recognized as a basis for reopening a judgment as to its prospective application, in National Electric Service Corp. v. District 50, UMW, Ky., 279 S.W.2d 808. However, in that case the change in the law definitely removed the basis for the judgment, and the judgment was one of continuing prospective application in that it regulated future situations.
It is our opinion that a reopening of a judgment, as to its prospective application, on the ground of a change in the law, should be done only in aggravated cases where there are strong equities. Cf. City-County Planning Commission v. Fayette County Fiscal Court, Ky., 449 S.W.2d 766; 46 Am.Jur.2d, Judgments, Sec. 768, p. 930. We do not consider the present case to be such a one.
The judgment is affirmed.
All concur except OSBORNE, J., who dissents.