Terry Arthur Giese v. Elizabeth Giese (Hamilton)

• Court: Court of Appeals of Kentucky
• Decided: October 8, 2020
• Docket: 2019 CA 000795
• Status: Unknown

Opinion

RENDERED: OCTOBER 9, 2020; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals

NO. 2019-CA-0795-MR

TERRY ARTHUR GIESE APPELLANT

APPEAL FROM FLOYD CIRCUIT COURT v. HONORABLE DWIGHT S. MARSHALL, JUDGE ACTION NO. 11-CI-00932

ELIZABETH GIESE (HAMILTON) APPELLEE

OPINION REVERSING AND REMANDING

** ** ** ** **

BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.

LAMBERT, JUDGE: Terry Giese brings the present appeal from the April 29,

2019 order of the Floyd Circuit Court denying his motion to alter, amend, or vacate

its March 28, 2019 order and judgment. After review, we reverse the court’s

orders and remand the matter to Floyd Circuit Court. The parties, Terry and Elizabeth Giese (now Hamilton), were

divorced in Tennessee in 2006. In the divorce decree, the Tennessee court ordered

Terry to pay Elizabeth “alimony in futuro”1 (spousal maintenance) and to maintain

a $200,000.00 life insurance policy, naming Elizabeth as the beneficiary.

Subsequently, both parties moved to Kentucky, and in 2011, Terry registered the

Tennessee judgment with the Floyd Circuit Court.

In 2012, Terry filed a motion to modify his spousal support with the

Floyd Circuit Court. Initially, the Floyd Circuit Court held the motion in abeyance

due to pending litigation in Tennessee. However, the Tennessee court dismissed

the pending litigation because Elizabeth failed to appear for a hearing. It also

determined that any remaining issues could be addressed by the Floyd Circuit

Court. After conducting a hearing, the Floyd Circuit Court denied Terry’s motion

for modification by written order a few days later. Terry then appealed.

In a published opinion, Giese v. Giese, 529 S.W.3d 791 (Ky. App.

2017), we held that the Floyd Circuit Court lacked subject matter jurisdiction over

the issue of spousal maintenance and therefore could not modify the Tennessee

order. However, we also held that it was within the Floyd Circuit Court’s

1 “Alimony in futuro” is defined by the Tennessee legislature as “periodic alimony . . . a payment of support and maintenance on a long term basis or until death or remarriage of the recipient.” Tennessee Code Annotated (Tenn. Code Ann.) § 36-5-121(f)(1).

-2- jurisdiction to enforce the Tennessee order. Thus, the order of the Floyd Circuit

Court was reversed and the matter remanded with the following instruction:

[T]ransfer [the matter] to the original Tennessee court. However, the Floyd Circuit Court shall maintain this case as it has the authority and duty to enforce the Tennessee court’s spousal maintenance order.

Id. at 794. While the aforementioned appeal was pending, Elizabeth filed a motion

to hold Terry in contempt for failure to pay spousal maintenance; however, the

Floyd Circuit Court did not rule on this motion until after the case was remanded.

On remand, Terry filed a motion in the Tennessee court to modify his

spousal maintenance. At the same time, the Floyd Circuit Court decided to

schedule a hearing on Elizabeth’s contempt motion. Terry then filed a motion to

transfer the matter to Tennessee and objected to any action on Elizabeth’s

contempt motion until the motion for modification had been resolved in Tennessee.

However, the Floyd Circuit Court denied his motion and overruled his objection.

Terry appealed and filed motions with the Kentucky Court of Appeals for

extraordinary and intermediate relief. While these issues were pending, the Floyd

Circuit Court entered an order stating it was retaining jurisdiction over the

enforcement issue but that it transferred the modification issue to Tennessee. As a

result, Terry filed a motion to dismiss his appeal. Additionally, the remaining

motions in the Court of Appeals were later denied.

-3- The Floyd Circuit Court interpreted our denial of Terry’s motions for

intermediate and extraordinary relief as approval to move forward with a hearing

on Elizabeth’s motion for contempt. Before the hearing commenced, Terry again

objected and requested the Floyd Circuit Court wait until the Tennessee court ruled

on his motion to modify. Terry also brought to the Floyd Circuit Court’s attention

that the Tennessee court refused to act until the Floyd Circuit Court transferred

jurisdiction. The Floyd Circuit Court overruled Terry’s objection and proceeded

with the contempt hearing.

During the contempt hearing, Terry attempted to introduce evidence

of his inability to pay the spousal maintenance ordered in Tennessee. However, it

does not appear the Floyd Circuit Court believed Terry’s testimony was relevant to

the contempt proceeding. In its judgment and order, the Floyd Circuit Court

stated:

The Court finds that [Terry] has testified to his decline in income since the entry of the decreed [sic] in Tennessee. However, this Court finds that the decline in the Respondent’s income is more relevant for the Tennessee Court for modification of the decree in Tennessee.

The Floyd Circuit Court also found Terry had failed to make required spousal

maintenance payments, and ordered him to pay $100,500.00 in arrears and obtain a

$200,000.00 life insurance policy with Elizabeth as the beneficiary. Terry filed a

-4- motion to alter, amend, or vacate the aforementioned order, which the Floyd

Circuit Court denied. This appeal followed.

Elizabeth has not filed a brief. In Roberts v. Bucci, 218 S.W.3d 395,

396 (Ky. App. 2007), we explained:

[W]here an appellee does not file a brief, CR[2] 76.12(8)(c) provides three alternative avenues of action for an appellate court—all essentially punitive to the appellee:

If the appellee’s brief has not been filed within the time allowed, the court may: (i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse the judgment if appellant’s brief reasonably appears to sustain such action; or (iii) regard the appellee’s failure as a confession of error and reverse the judgment without considering the merits of the case.

The decision as to how to proceed in imposing such penalties is a matter committed to our discretion.

(Citation omitted.) We note this is not the first time Elizabeth has failed to appear

in a court proceeding. Whether she acted on her own or under the advice of

counsel, we cannot condone this type of blasé behavior because it often leads to

further delay in the judicial process. After careful review of the record, we elect to

exercise our discretion to reverse the trial court’s judgment because Terry’s brief

reasonably appears to sustain such action. CR 76.12(8)(c)(ii).

2 Kentucky Rules of Civil Procedure.

-5- Terry filed multiple motions to modify spousal maintenance in

Tennessee and Kentucky. He informed the Floyd Circuit Court on several

occasions that he intended to argue in Tennessee that his most recent motion for

modification relates back to the earlier motions. Nevertheless, the Floyd Circuit

Court’s order requires Terry to pay arrearages and maintain a life insurance policy

that might be subject to change depending on the decision of the Tennessee court.

Regardless, the Floyd Circuit Court’s order presumes Terry’s argument will fail.

We will not digress into a discussion regarding the likelihood of Terry’s success;

that is for the Tennessee court to decide.

As a final point, we note this case has been procedurally muddled by

jurisdictional questions. We remind the trial court that KRS3 407.5320 provides a

method by which courts from this state may communicate with its sister states to

resolve questions like those presented in this case. Perhaps this matter would have

been more efficiently resolved had the court utilized this statute, particularly

following Terry’s first appeal.

The Floyd Circuit Court’s March 28, 2019 and April 29, 2019 orders

are hereby reversed, and the case is remanded to the Floyd Circuit Court. We

instruct the Floyd Circuit Court to hold any further motions for contempt or

enforcement in abeyance until the Tennessee court resolves Terry’s motion for

3 Kentucky Revised Statutes.

-6- modification of spousal maintenance and to communicate with the Tennessee court

as necessary pursuant to KRS 407.5320.

ALL CONCUR.

BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE

Diana L. Skaggs Elizabeth M. Howell Louisville, Kentucky

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