Estate of Mills v. Mills

Citation473 S.W.3d 94
Decision Date02 July 2015
Docket NumberNO. 2013–CA–001384–DG,2013–CA–001384–DG
Parties The Estate of Luther Royce Mills, Appellant v. Shirley Mills, Appellee
CourtCourt of Appeals of Kentucky

BRIEF FOR APPELLANT: J. Russell Lloyd, Louisville, Kentucky.

BRIEF FOR APPELLEE: Allen McKee Dodd, Jacob W. Crouse, Louisville, Kentucky.

BEFORE: CLAYTON, D. LAMBERT, AND J. LAMBERT, JUDGES.

OPINION

J. LAMBERT, JUDGE:

The Estate of Luther Royce Mills (Luther's estate) appeals from the Jefferson Circuit Court's September 13, 2012, order holding that Shirley Mills and Luther Royce Mills were married at the time of Luther's death in October 2011. After Luther's Last Will and Testament was submitted for probate, Shirley asked the trial court to rule on the issue of whether she and Luther were married at the time of his death. Both the trial court and the Jefferson Circuit Court ruled that the parties were still in fact married. After careful review, we affirm the ruling of the Jefferson Circuit Court.

On December 30, 1991, Luther and Shirley were married. It was their second marriage to each other. The parties subsequently separated on July 31, 1993. On April 18, 1994, the parties appeared with counsel to try their dissolution of marriage action. On April 25, 1994, the Jefferson Circuit Court, Division One entered its findings of fact, conclusions of law, and decree. The decree divided the parties' property, addressed their obligations, and dissolved the parties' marriage.

On April 27, 1994, Luther moved the court to clarify and set aside its final order. In his motion, Luther asked that he be restored his 1989 truck and that his obligation to Shirley be reduced by $9,000.00. He did not ask that the decree, insofar as it dissolved the marriage, be set aside.

On May 5, 1994, Shirley asked the trial court to grant her a new trial "as to the issue of the amount, division, and allocation of the marital value added to the residence located at 11921 Poplarwood Drive ... and as to the issue of maintenance." Shirley also asked that she be awarded the 1989 truck and the $5,000.00 coin collection. Shirley did not ask that the decree, insofar as it dissolved the marriage, be set aside.

On September 22, 1994, the trial court granted the parties a new trial. The order specifically stated, "After reading the briefs, IT IS HEREBY ORDERED: (1) The Decree and Order of April 25, 1994, is set aside and the parties are granted a new trial. (2) The case is set for trial on November 7, 1994 at 2:00 p.m." Neither party ever appeared for said subsequent trial, and no further substantive orders were issued by the trial court.

Following the entry of the decree, Luther and Shirley continued their rocky relationship. There is no dispute that, from time to time, Luther and Shirley cohabitated. Some years, Luther and Shirley filed tax returns as "married" (Tax Years 2006 and 2007). Some years, Luther and Shirley filed tax returns as "single" (Tax Years 2001, 2008, 2009, and 2010). The parties continued to return to court, however. On January 15, 2009, the parties appeared on a Domestic Violence Petition brought by Shirley. When the question of the April 25, 1994, decree came up, Judge Jerry J. Bowles, after reviewing the pleadings, stated that Shirley and Luther might be divorced. The record reflects that the following exchange occurred at the DVO hearing:

Luther Mills's Attorney: "Judge, I have not had a chance to review the file in its totality ... I can't advise the Court of whether it's final, or if anything has occurred after that, I don't know, I don't want to make any misrepresentations to the Court."
Judge Jerry Bowles: "This looks like a decree of dissolution in '93. It shows it was entered in the Court on April 25, 1994 ... okay ... you (Ms. Mills) may want to contact a lawyer and have them look into if there was proper service or any basis for the decree not to be entered, otherwise it does appear to be a valid decree entered by Judge Potter on April 25, 1994.

On October 22, 2011, Luther died. On April 30, 2012, Shirley filed her motion asking the Jefferson District Court, Probate Division to determine whether she and Luther were married at the time of his death. On June 18, 2012, the trial court conducted a brief hearing on Shirley's motion and the objections of Luther's Estate. On September 13, 2012, the trial court entered its final and appealable order in this matter. That order held that the decree of dissolution entered on April 25, 1994 by the Jefferson Circuit Court, Division One, did not dissolve the marriage of Luther and Shirley. For that reason, the trial court held that the marriage of Luther and Shirley was still valid at the time of Luther's death. The court cited to Droste v. Droste, 138 Ky. 53, 127 S.W. 506, 508 (1910), for the proposition that " a judgment for divorce may be set aside during the term at which it was rendered upon motion made by either of the parties after due notice to the other, provided the condition of the parties has not changed[.]" The court reasoned that since neither party had remarried as of the entry of the September 22, 1994, order, the order of the Jefferson Circuit Court, Division One, setting aside the decree of dissolution was appropriate and valid. On October 10, 2012, the trial court entered an order denying Luther's Estate's motion to vacate.

On November 9, 2012, Luther's Estate filed its notice of appeal to the Jefferson Circuit Court. On July 12, 2013, the Jefferson Circuit Court entered its opinion and order. It held that 1) the proper standard of review was clear error, and 2) the trial court did not commit clear error in finding that Luther and Shirley were married in 2011. Luther's Estate now appeals to this Court.

On appeal, Luther's Estate argues that the standard of review is de novo, not clearly erroneous. Further, it argues that Luther and Shirley were not married at the time of Luther's death.

A review of the record indicates that the Jefferson Circuit Court articulated the proper standard of review for reviewing findings of fact and the standard for reviewing questions of law. We agree that the ultimate conclusion as to whether Luther and Shirley were married at the time of Luther's death is a legal question, and thus a de novo review is appropriate. See Revenue Cabinet v. Comcast Cablevision of the South, 147 S.W.3d 743, 747 (Ky.App.2003). See also Smith v. Smith, 235 S.W.3d 1, 6 (Ky.App.2006).

Luther's Estate contends that on April 25, 1994, the Jefferson Circuit Court entered a decree dissolving the parties' marriage and that such decree was final and cannot be reviewed. Our State Constitution directs that there shall be no review "... from that portion of a judgment dissolving a marriage." Ky. Const. § 115. Luther's Estate argues that the General Assembly has also spoken on this issue. Once a Decree is entered dissolving a marriage, the parties to that marriage are authorized to marry again. Kentucky Revised Statutes (KRS) 403.010. Luther's Estate points out that when reviewing the issue, Former Supreme Court of Kentucky Justice Keller and Hon. Louise E. Graham both concluded that the Constitution and General Assembly prohibit review of the dissolution of a marriage. 15 Ky. Prac. Domestic Relations L. Sec. 8:8.

Luther's Estate further contends that the modern reported cases are unanimous in holding that an order granting a new trial does not set aside an actual dissolution of marriage. Clements v. Harris, 89 S.W.3d 403, 404 (Ky.2002) (citing Whitney v. Whitney, 7 Bush 520, 70 Ky. 520 (1870) ; Irwin v. Irwin, 105 Ky. 632, 49 S.W. 432 (1899); DeSimone v. DeSimone, 388 S.W.2d 591 (Ky.1965) ; and Drake v. Drake, 809 S.W.2d 710 (Ky.App.1991) ). Luther's Estate argues that the district court's reliance on Droste was in error...

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