Klinglesmith v. Houchins

• Decision Date: 02 February 2018
• Docket Number: NO. 2017-CA-000231-ME,2017-CA-000231-ME
• Parties: DEBBIE FAYE KLINGLESMITH APPELLANT v. THEODORE CALVIN HOUCHINS, JR. APPELLEE
• Court: Kentucky Court of Appeals

DEBBIE FAYE KLINGLESMITH APPELLANT v. THEODORE CALVIN HOUCHINS, JR. APPELLEE

NO. 2017-CA-000231-ME

Commonwealth of Kentucky Court of Appeals

FEBRUARY 2, 2018

NOT TO BE PUBLISHED

APPEAL FROM HARDIN CIRCUIT COURT

HONORABLE M. BRENT HALL, JUDGE

ACTION NO. 16-CI-01638

OPINION

AFFIRMING

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

LAMBERT, J., JUDGE: Debbie Faye Klinglesmith appeals the Hardin Circuit Court's order denying her motion to proceed in forma pauperis. We affirm.

The factual and procedural history of this case is straightforward. Klinglesmith was married to Theodore Calvin Houchins in May 2016, separated from him two months later, and filed her petition for dissolution of marriage in October of that year. Concomitant with the dissolution petition, Klinglesmith also filed a motion to proceed in forma pauperis¹ and attached her affidavit of indigency to the motion. Kentucky Rule of Civil Procedure (CR) 5.05(4). In an order dated November 2, 2016, the Hardin Circuit Court denied Klinglesmith's motion to proceed as a poor person, stating that Klinglesmith could either pay the filing fee within 45 days or risk dismissal of her petition. Klinglesmith filed a motion to reconsider (CR 59.05), which was denied on December 5, 2016. Klinglesmith's CR 60.02 motion was likewise denied, and her case was dismissed without prejudice on January 30, 2017. Klinglesmith appeals.²

The decision to grant or deny an application to proceed in forma pauperis pursuant to KRS 453.190 is within the sound discretion of the trial court and we may not reverse that decision in the absence of clear error. Kentucky Rule of Civil Procedure (CR) 52.01; Bush by Bush v. O'Daniel, 700 S.W.2d 402, 405 (Ky. 1985).

Edwards v. Van De Rostyne, 245 S.W.3d 797, 799 (Ky. App. 2008).

Although we agree with the appellants that if they are poor persons they have the right to appeal in forma pauperis, we do not agree that their claim is absolute or conditioned merely upon filing a proper affidavit. Adverse parties of record have a right to be notified of the motion and have a right to challenge whether it isappropriate. The trial court must then, as it did in the present case, hold a hearing and make a decision as to whether such relief is appropriate. That decision, like a decision on any other question which is addressed to the sound discretion of the trial court, will not be reviewed de novo, but will only be reversed if clearly erroneous. CR 52.01.

Applying this standard to the present case, the findings of the trial court provide five different reasons why appeal in forma pauperis should be denied here. Although some of these reasons individually appear inadequate, we cannot say that, taken as a whole, the trial court's findings are clearly erroneous. There are enough facts at issue in this respect to make the credibility of the appellants critical. Credibility is an issue that addresses itself to the fact finder.

Therefore, the decision of the trial court overruling the motion to appeal in forma pauperis is affirmed.

Bush by Bush v. O'Daniel, 700 S.W.2d 402, 405 (Ky. 1985) (emphases ours).

In her affidavit of indigency, Klinglesmith made the following disclosures: That she was unemployed; that she received food stamps in the amount of $194.00 per month; that she owned a 1992 Ford pickup truck (book value unknown); and that she was the owner of two pieces of real property, namely, her share of the marital residence and another home which she had inherited but which was still being held in probate. Klinglesmith attested that she was unable to "afford the costs of this proceeding and request[s] that the Court allow [her] to proceed in forma pauperis in this matter."

The Hardin Circuit Court's initial denial of Klinglesmith's motion was based on its review of her affidavit. The circuit court made more specific findings when considering Klinglesmith's CR 59.05 motion:

[Klinglesmith's] preliminary verified disclosure statement listed two pieces of real estate. She did not list valuations for either and it does not appear that either has a mortgage because there was no amount owed listed. She did not place a value on her vehicle and it does not appear as though there is a lien against it. She listed that there were no marital debts. There were no children born of the marriage.

Upon review of the petition for dissolution of marriage, the parties were married on May 13, 2016, and separated shortly thereafter on July 23, 2016. The petition failed to state a usual occupation for the Petitioner, only that she is unemployed. It did not state whether this unemployment is temporary. It did not state that the Petitioner was disabled in any way.

. . . .

The Petitioner has ownership in two separate real estate parcels that does not have a lien against it per her preliminary disclosure statement and her affidavit. Further, she owns a vehicle with no lien on it as well. Also, per her preliminary disclosure statement, she has no debt.

At both times for this Court's consideration, the Petitioner did not request a hearing so this Court could ask questions of the Petitioner so the Court must rely on documents that have been submitted into the record. The Petitioner requested that the matter be submitted directly to the Court.

In Tolson v. Lane, 569 S.W.2d 159 (Ky. 1978), case law requires that the Petitioner must show that there is no one available who might owe a duty or be willing and able to supply the court costs. In this matter, the Respondent appears to be employed and the Petitioner could file a motion for an advancement of court costs but has not attempted to do so.

The Petitioner is not found to be a poor person under the statute. She has real and personal property without liens that could be liquidated and will provide for the costs in this action without denying Petitioner the basic necessities. She has no debts. She does not claim to be disabled, and therefore, is able to work once she seeks out employment. She has a husband who is employed who has a joint obligation to pay

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