RENDERED: MAY 21, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1239-MR
TRACIE MASSIE APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 17-CI-00181
DARRELL MASSIE APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: Tracie Massie appeals from the Greenup Circuit Court’s
order allocating assets and debts after the dissolution of her marriage to Darrell
Massie. We affirm.
Tracie and Darrell were married in Greenup, Kentucky, on December
9, 2000. There were no children born of the marriage. The parties resided in a
home owned by Tracie prior to the marriage but which was still mortgaged. Tracie
filed for dissolution on April 18, 2017. She also sought temporary maintenance as well as ownership of the 2014 Chevrolet Cruze. After a hearing, the circuit court
entered an order granting those requests.
The final hearing was not held until December 5, 2018. Meanwhile,
an order was entered on February 8, 2018, dissolving the marriage but reserving all
other issues, including division of property.1 On May 5, 2019, the circuit court
ordered the parties to submit their proposed findings of fact and conclusions of
law. The circuit court entered its findings of fact, conclusions of law, and order on
June 18, 2019. Tracie filed a motion to alter, amend, or vacate (Kentucky Rule of
Civil Procedure (CR) 59.05) on June 28, 2019, which was denied (after a hearing
the previous day) on July 18, 2019. Tracie filed a notice of appeal on August 15,
2019.
We note at the outset that Tracie’s brief is deficient in several aspects;
namely, it fails to include an appendix (CR 76.12(4)(c)(vii)) and fails to include, at
the beginning of each argument, “a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.”
CR 76.12(4)(c)(v). The statement of preservation is important “so that we, the
reviewing Court, can be confident the issue was properly presented to the trial
court and therefore, is appropriate for our consideration. It also has a bearing on
1 See Putnam v. Fanning, 495 S.W.2d 175 (Ky. 1973); accord Goldman v. Eichenholz, 851 S.W.2d 463, 465 (Ky. 1993).
-2- whether we employ the recognized standard of review, or in the case of an
unpreserved error, whether palpable error review is being requested and may be
granted.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010). In this case, we elect to ignore the deficiencies but caution counsel to
avoid similar pitfalls in the future.
Tracie first argues that the circuit court erred in allowing Darrell’s
introduction of evidence during the final hearing when he had not complied with
the ten-day disclosure rule. Tracie concedes that she failed to object to the
evidence and exhibits at the hearing and did not bring her concerns to the circuit
court’s attention until she filed the CR 59.05 motion. “A party cannot invoke CR
59.05 to raise arguments and to introduce evidence that should have been presented
during the proceedings before the entry of the judgment.” Gullion v. Gullion, 163
S.W.3d 888, 893 (Ky. 2005) (footnote omitted). Moreover, the circuit allowed the
parties to file post-hearing evidence, and Tracie failed to take advantage of that
opportunity. We therefore decline to discuss this argument.
-3- Tracie next contends that the circuit court abused its discretion in its
allocation of assets and debts. We begin by stating the standard of reviewing an
order allocating property and resolving other issues between parties dissolving
their marriage. CR 52.01 provides the general framework for the circuit court as
well as review in the Court of Appeals:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (an appellate court may set
aside a lower court’s findings made pursuant to CR 52.01 “only if those findings
are clearly erroneous.”). The Asente Court went on to address substantial
evidence:
“[S]ubstantial evidence” is “[e]vidence 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.” Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its]
-4- reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence. Id. at 354 (footnotes omitted). See also McVicker v. McVicker, 461 S.W.3d 404,
415 (Ky. App. 2015).
In Young v. Young, 314 S.W.3d 306, 308 (Ky. App. 2010), this Court
specifically addressed the standard of review for the classification of property:
A trial court’s ruling regarding the classification of marital property is reviewed de novo as the resolution of such issues is a matter of law. Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky. App. 2008). We review a trial court’s determinations of value and division of marital assets for abuse of discretion. Armstrong v. Armstrong, 34 S.W.3d 83, 87 (Ky. App. 2000) (quoting Duncan v. Duncan, 724 S.W.2d 231, 234-35 (Ky. App. 1987)).
KRS 403.190 provides for the assignment and division of property and provides in
relevant part as follows:
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: MAY 21, 2021; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals
NO. 2019-CA-1239-MR
TRACIE MASSIE APPELLANT
APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE JEFFREY L. PRESTON, JUDGE ACTION NO. 17-CI-00181
DARRELL MASSIE APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND K. THOMPSON, JUDGES.
LAMBERT, JUDGE: Tracie Massie appeals from the Greenup Circuit Court’s
order allocating assets and debts after the dissolution of her marriage to Darrell
Massie. We affirm.
Tracie and Darrell were married in Greenup, Kentucky, on December
9, 2000. There were no children born of the marriage. The parties resided in a
home owned by Tracie prior to the marriage but which was still mortgaged. Tracie
filed for dissolution on April 18, 2017. She also sought temporary maintenance as well as ownership of the 2014 Chevrolet Cruze. After a hearing, the circuit court
entered an order granting those requests.
The final hearing was not held until December 5, 2018. Meanwhile,
an order was entered on February 8, 2018, dissolving the marriage but reserving all
other issues, including division of property.1 On May 5, 2019, the circuit court
ordered the parties to submit their proposed findings of fact and conclusions of
law. The circuit court entered its findings of fact, conclusions of law, and order on
June 18, 2019. Tracie filed a motion to alter, amend, or vacate (Kentucky Rule of
Civil Procedure (CR) 59.05) on June 28, 2019, which was denied (after a hearing
the previous day) on July 18, 2019. Tracie filed a notice of appeal on August 15,
2019.
We note at the outset that Tracie’s brief is deficient in several aspects;
namely, it fails to include an appendix (CR 76.12(4)(c)(vii)) and fails to include, at
the beginning of each argument, “a statement with reference to the record showing
whether the issue was properly preserved for review and, if so, in what manner.”
CR 76.12(4)(c)(v). The statement of preservation is important “so that we, the
reviewing Court, can be confident the issue was properly presented to the trial
court and therefore, is appropriate for our consideration. It also has a bearing on
1 See Putnam v. Fanning, 495 S.W.2d 175 (Ky. 1973); accord Goldman v. Eichenholz, 851 S.W.2d 463, 465 (Ky. 1993).
-2- whether we employ the recognized standard of review, or in the case of an
unpreserved error, whether palpable error review is being requested and may be
granted.” Oakley v. Oakley, 391 S.W.3d 377, 380 (Ky. App. 2012).
“Our options when an appellate advocate fails to abide by the rules
are: (1) to ignore the deficiency and proceed with the review; (2) to strike the brief
or its offending portions, CR 76.12(8)(a); or (3) to review the issues raised in the
brief for manifest injustice only[.]” Hallis v. Hallis, 328 S.W.3d 694, 696 (Ky.
App. 2010). In this case, we elect to ignore the deficiencies but caution counsel to
avoid similar pitfalls in the future.
Tracie first argues that the circuit court erred in allowing Darrell’s
introduction of evidence during the final hearing when he had not complied with
the ten-day disclosure rule. Tracie concedes that she failed to object to the
evidence and exhibits at the hearing and did not bring her concerns to the circuit
court’s attention until she filed the CR 59.05 motion. “A party cannot invoke CR
59.05 to raise arguments and to introduce evidence that should have been presented
during the proceedings before the entry of the judgment.” Gullion v. Gullion, 163
S.W.3d 888, 893 (Ky. 2005) (footnote omitted). Moreover, the circuit allowed the
parties to file post-hearing evidence, and Tracie failed to take advantage of that
opportunity. We therefore decline to discuss this argument.
-3- Tracie next contends that the circuit court abused its discretion in its
allocation of assets and debts. We begin by stating the standard of reviewing an
order allocating property and resolving other issues between parties dissolving
their marriage. CR 52.01 provides the general framework for the circuit court as
well as review in the Court of Appeals:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment[.] . . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
See Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (an appellate court may set
aside a lower court’s findings made pursuant to CR 52.01 “only if those findings
are clearly erroneous.”). The Asente Court went on to address substantial
evidence:
“[S]ubstantial evidence” is “[e]vidence 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.” Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, “due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses” because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, “[m]ere doubt as to the correctness of [a] finding [will] not justify [its]
-4- reversal,” and appellate courts should not disturb trial court findings that are supported by substantial evidence. Id. at 354 (footnotes omitted). See also McVicker v. McVicker, 461 S.W.3d 404,
415 (Ky. App. 2015).
In Young v. Young, 314 S.W.3d 306, 308 (Ky. App. 2010), this Court
specifically addressed the standard of review for the classification of property:
A trial court’s ruling regarding the classification of marital property is reviewed de novo as the resolution of such issues is a matter of law. Heskett v. Heskett, 245 S.W.3d 222, 226 (Ky. App. 2008). We review a trial court’s determinations of value and division of marital assets for abuse of discretion. Armstrong v. Armstrong, 34 S.W.3d 83, 87 (Ky. App. 2000) (quoting Duncan v. Duncan, 724 S.W.2d 231, 234-35 (Ky. App. 1987)).
KRS 403.190 provides for the assignment and division of property and provides in
relevant part as follows:
(1) In a proceeding for dissolution of the marriage or for legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse’s property to him. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors including:
(a) Contribution of each spouse to acquisition of the marital property, including contribution of a spouse as homemaker;
(b) Value of the property set apart to each spouse;
-5- (c) Duration of the marriage; and
(d) Economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children.
KRS 403.190(2)(a) defines “marital property” as “all property acquired by either
spouse subsequent to the marriage except . . . [p]roperty acquired by gift, bequest,
devise, or descent during the marriage and the income derived therefrom unless
there are significant activities of either spouse which contributed to the increase in
value of said property and the income earned therefrom[.]”
Tracie maintains that the circuit court erred in its findings and
conclusions regarding three aspects of the assignment of assets and debts, namely,
Darrell’s pension, the marital home, and the 1955 Chevrolet pickup truck. We
decline to analyze these allegations in detail other than to state that Tracie fails to
make a legitimate argument in her favor on any of the findings other than to
express her dissatisfaction with same. We have examined the record in its entirety
(including the videotaped final hearing and the exhibits submitted by the parties)
and hold that the findings were supported by substantial evidence, and the circuit
court did not abuse its discretion in its determinations of value and division of
marital assets. CR 52.01; KRS 403.190; Asente, 110 S.W.3d at 354.
Accordingly, the order of the Greenup Circuit Court is affirmed.
-6- ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEE:
Charles L. Douglas, Jr. Robert Renfroe Greenup, Kentucky Greenup, Kentucky
-7-