Harstad v. Harstad, No. 2007-CA-001211-MR (Ky. App. 6/20/2008)
| Decision Date | 20 June 2008 |
| Docket Number | No. 2007-CA-001211-MR,2007-CA-001211-MR |
| Parties | Michael HARSTAD, Appellant v. Bonnie HARSTAD, Appellee. |
| Court | Kentucky Court of Appeals |
John E. Reynolds Nicholasville, Kentucky, Brief for Appellant.
Bruce E. Smith, Nicholasville, Kentucky, Brief for Appellee.
Before: CAPERTON, KELLER, and WINE, Judges.
In this dissolution action, Michael Harstad has appealed from the judgment of the Jessamine Family Court related to property division and visitation. We affirm.
Michael and Bonnie Harstad were married in St. Louis County, Missouri on June 1, 1974. Three children were born of the marriage, and the youngest, Keith, has not yet reached the age of majority. Michael and Bonnie separated on June 6, 2003, and Michael filed a Petition for Dissolution of Marriage on May 24, 2004. At the time he filed the petition, Michael was a college professor; he now works at a Louisville high school. Bonnie is a musician and music teacher.
This action was initially assigned to Jessamine Circuit Court Judge Hunter Daugherty and, in turn, to then-Domestic Relations Commissioner C. Michael Dixon (the DRC), who heard the proof in this case. Although the record is somewhat unclear, the DRC scheduled a hearing for December 16, 2005. At that time, the parties addressed motions concerning custody, support, and the payment of the mortgage on the marital residence. The DRC's January 3, 2006, report concerning those issues was confirmed by the circuit court in an order entered February 7, 2006.
A final hearing was scheduled for January 6, 2006, on the remaining issues, including the division of marital property.1 The DRC issued a report on January 9, 2006, detailing his findings and recommendations as to the division of real estate, automobiles, and retirement and investment accounts, among other issues. Bonnie filed timely exceptions to the DRC's report, addressing her ability to raise non-marital claims, the assignment of non-marital interests, the DRC's failure to address one of the Schwab accounts, the value of various accounts, the division of credit card debt, and the division of musical instruments and other personalty.2 On January 26, 2006, the circuit court entered a calendar order, in which it granted the decree of dissolution and ordered the parties to submit the decree, including all resolved matters. The unresolved matters would then be referred back to the DRC. The decree was eventually entered on March 27, 2006. That order also confirmed the DRC's report as to custody, support and partial timesharing. The circuit court specifically remanded all other issues that were not resolved by the decree to the DRC for hearing, redetermination, and report.
A trial on the remaining issues was held on January 9, 2007. By that time, the DRC had been sworn in as the new family court judge and was presiding over this action as the judge, rather than as a DRC. Prior to the trial, the parties filed their respective trial disclosure statements pursuant to the discovery schedule. In addition to the property issues, the family court heard testimony concerning the visitation schedule. Bonnie moved the family court to modify Michael's visitation due to a change in circumstances, in that she no longer had any leisure time with Keith. Regarding the visitation issue, the family court found that the parties' situations had changed and that it would be in Keith's best interest to modify visitation. It then entered a new visitation schedule effective January 9, 2007. Michael filed a CR 52.02 motion requesting that the family court make findings of fact on its decision to modify visitation.
On May 23, 2007, the family court entered an order addressing the property issues as well as the previously decided visitation issue. In many instances, the family court indicated that a particular issue had been dealt with at the first hearing and adopted the earlier factual findings as to that issue. After assigning non-marital interests, including assigning Bonnie a non-marital interest in the Corbitt Drive property in the amount of $84,150, the family court split the marital equity equally between Bonnie and Michael. It is from this order that Michael has appealed.
On appeal, Michael argues that 1) he was denied his due process right to a fair hearing; 2) the family court's findings on the amount of equity in the marital home were erroneous; 3) the family court failed to follow KRS 403.190 in dividing the property; 4) the family court erred in finding a gift from Bonnie's father to her in relation to the Corbitt Drive real estate; 5) the family court committed error regarding its award and division of the Mazda and in allocating credit card debt; and 6) the family court erred in modifying visitation. In her brief, Bonnie responds to each of Michael's arguments, and specifically argues that several of his arguments were not preserved for appeal. We shall review each of the six issues in the order as they appear in Michael's brief.
Our standard of review is set forth in Hunter v. Hunter, 127 S.W.3d 656, 659 (Ky. App. 2003):
Under CR 52.01, in an action tried without a jury, See also Greater Cincinnati Marine Service, Inc. v. City of Ludlow, Ky., 602 S.W.2d 427 (1980). A factual finding is not clearly erroneous if it is supported by substantial evidence. Owens-Corning Fiberglas Corp. v. Golightly, Ky., 976 S.W.2d 409, 414 (1998); Uninsured Employers' Fund v. Garland, Ky., 805 S.W.2d 116, 117 (1991). Substantial evidence is evidence, when taken alone or in light of all the evidence, which has sufficient probative value to induce conviction in the mind of a reasonable person. Golightly, 976 S.W.2d at 414; Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 782 (2002). An appellate court, however, reviews legal issues de novo. See, e.g., Carroll v. Meredith, Ky.App., 59 S.W.3d 484, 489 (2001). (Footnote omitted).
With this standard in mind, we shall consider the issues raised in the present action.
For his first argument, Michael contends that his due process right to a fair hearing was violated. He bases this argument on what he described as a disjointed and piecemeal procedural history that took place in this action. Specifically, Michael contends that the family court should have reheard all of the property issues, as it was precluded from relying upon any testimony or evidence from the first hearing in January 2006. Bonnie disagrees with Michael's contentions, arguing that he failed to preserve the issue below for our review or list it as an issue in his prehearing statement, that he agreed to the use of the factual findings from the first hearing as evidence at the second one, and that the case law is not supportive of his argument.
In his prehearing statement, Michael listed the following issues that he would be raising in his appeal:
Michael did not list any issue as to his claimed violation of his due process rights to a fair hearing. Accordingly, we agree with Bonnie that Michael failed to raise this issue before the family court or list it as an issue on his prehearing statement, precluding appellate review.
Before an issue may be raised on appeal, "a trial court must first be given the opportunity to rule on a question for which review is sought." Taxpayer's Action Group of Madison County v. Madison County Board of Elections, 652 S.W.2d 666, 668 (Ky. App. 1983). Failure to do so renders an argument unpreserved for appeal. Hoy v. Kentucky Indus. Revitalization Authority, 907 S.W.2d 766, 769 (Ky. 1995). Furthermore, CR 76.03(8) provides: "A party shall be limited on appeal to issues in the prehearing statement except that when good cause is shown the appellate court may permit additional issues to be submitted upon timely motion." The Supreme Court of Kentucky addressed an appellant's failure to list an issue on his civil prehearing statement in Osborne v. Payne, 31 S.W.3d 911, 916 (Ky. 2000):
We must also note that Payne has failed to preserve properly his claim against the diocese. Civil Rule 76.03(8), provides that a party shall be limited on appeal to the issues in the prehearing statement before the Court of Appeals. Here, the civil appeal prehearing statement contained no issue regarding the diocese. The argument sections of the brief of Payne in the Court of Appeals referred only to the ruling of the circuit court regarding the conduct of Osborne. The failure to argue before the Court of Appeals that summary judgment was improper as to the diocese is tantamount to a waiver. Cf. Hall v. Kolb, Ky., 374 S.W.2d 854 (1964). Any part of a judgment appealed from that is not briefed is affirmed as being confessed. Cf. Stansbury v. Smith, Ky., 424 S.W.2d 571 (1968).
Despite our holding that Michael failed to preserve this issue, our review of the videotaped records reveals that the parties extensively discussed this issue on several occasions below, including on the morning of the January 2007 hearing. At that time, the parties indicated that they agreed that the testimony from the January 2006 hearing (with a few exceptions, including the amounts of the respective investment accounts) would stand, and that the family court could rely on the...
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