Reece v. Mason

• Decision Date: 11 October 2019
• Docket Number: NO. 2018-CA-000222-MR,2018-CA-000222-MR
• Parties: SHEILA REECE APPELLANT v. BENNIS MASON APPELLEE
• Court: Kentucky Court of Appeals

SHEILA REECE APPELLANT
v.
BENNIS MASON APPELLEE

NO. 2018-CA-000222-MR

Commonwealth of Kentucky Court of Appeals

OCTOBER 11, 2019

NOT TO BE PUBLISHED

APPEAL FROM WHITLEY CIRCUIT COURT
HONORABLE PAUL K. WINCHESTER, JUDGE
ACTION NO. 08-CI-00820

OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, COMBS AND MAZE, JUDGES.

COMBS, JUDGE: This case involves a dissolution of marriage. Appellant, Sheila Mason Reece (Sheila), appeals from an order of Whitley Circuit Court denying her motion to set aside the parties' property settlement agreement. She also seeks to set aside the decree of dissolution itself. The Appellee is Bennis Mason (Bennis). After our review, we affirm.

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We limit our discussion of the record to the issues before us. We refer to the findings of fact, conclusions of law, and judgment, entered on January 24, 2018, by the Whitley Circuit Court for a summary of the relevant procedural events leading up to this appeal:

3. On November 13, 2012, the Petition for Dissolution of Marriage was filed in the McCreary Circuit Court, Civil Action Number 12-CI-00290, and titled Sheila Ann Mason, as the Petitioner, versus Bennis Mason, the Respondent.
4. On November 13, 2012, an Entry of Appearance and Waiver was filed, which was signed by [Bennis] on November 12, 2012.
5. On November 13, 2012, a waiver was filed, which had been signed by [Sheila] waiving her right to Verified Disclosures and right to final hearing.
6. On November 13, 2012, a Property Settlement, Child Support and Child Custody Agreement was filed, signed by the parties on November 12, 2012, which stated that the parties agreed to joint custody of their one minor child Luke Spencer Mason, 12 years old, with no child support paid to either party.
7. On November 13, 2012, [Sheila] filed a Motion to Submit by Deposition.
8. On November 13, 2012, [Sheila] filed . . . [her] Deposition . . . taken on the prior Friday, November 9, 2012. In the Deposition, [Sheila] stated that the parties had one minor child and she set forth other statistical information.
9. On November 14, 2012, a Decree of Dissolution was entered, divorcing the parties, finding that the Property Settlement, Child Support and Child Custody Agreement was conscionable, and ordering them to comply with such.

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10. On October 15, 2013, [Sheila] filed a motion to set aside the parties' Property Settlement Agreement¹, alleging [that Bennis] did not disclose accurate information and thereby frustrated an equitable division of property and debt and/or prevented a fair result in the disposition of this matter.
11. On September 17, 2015, [Sheila] filed a motion to set aside the Settlement Agreement and Divorce², alleging that the divorce of the parties was not valid as the parties had not been separated for 60 days as required by Kentucky statute at the time of their divorce. [Sheila] also alleges the Settlement Agreement is unconscionable and she was forced or coerced by [Bennis] to sign the Settlement Agreement.
12. On March 24, 2016, the McCreary County Circuit Court case, 12-CI-00290, was transferred and consolidated with the [Whitley County] Civil Action Number 08-CI-00820 . . . .
13. According to the record, both [Sheila] and [Bennis] have since remarried.³

On August 24, 2016, Whitley Circuit Court conducted a hearing on Sheila's motion. On January 24, 2018, the trial court entered findings of fact, conclusions of law, and judgment denying Sheila's motion to set aside the parties' settlement agreement and the decree of dissolution as follows:

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1. In the case at hand, it is the burden of the party attempting to set aside a Settlement Agreement to show fraud or some other reason such as unconscionability to set it aside. In this case, the burden has not been met by [Sheila]. There is no sufficient evidence presented to make a finding of coercion or that the Separation Agreement is unconscionable or that it was entered under duress.
2. Furthermore, [Sheila] does not state any grounds sufficient to warrant a complete setting aside of the parties' Decree despite the fact that the 60-day separation period, required by KRS⁴ 403.044, apparently was not met before the parties were divorced.
3. As for [Sheila's] allegation that the Court lacked jurisdiction to enter the Decree because the parties had not been separated for 60 days, that argument has long been waived and further evidence of such is that [Sheila] has since remarried.

On February 5, 2018, Sheila filed a notice of appeal to this Court from that order. She first contends that the circuit court erred in denying her CR 60.02 motion to set aside the decree as void ab initio because it was entered two days after the petition was filed in violation of the 60-day waiting period in KRS 403.044⁵ "even though it was obvious on the face of the record that the parties had a minor child." (Appellant's Brief, p. 16). Sheila contends that the requirement of

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the statute is mandatory and cannot be waived -- although she acknowledges that a case directly on point could not be found.

Sheila draws our attention to the reasoning in two unpublished decisions as well as to Mathews v. Mathews, 731 S.W.2d 832 (Ky. App. 1987), all of which are inapposite. In Mathews, the appellees, Margarette and Floyd Hoskins, were married in 1951. In 1974, Margarette filed a petition for dissolution, which was dismissed by agreed order in 1984. In 1985, Margarette and Floyd filed a motion to reinstate the previously dismissed dissolution action. The circuit court granted the motion, entered a decree dissolving appellees' marriage, and then performed a marriage ceremony for Margarette and Payne Mathews on the same day. Payne died intestate four months later and his children (the appellants) moved to set aside the decree. The only issue on appeal was whether appellants had standing. However, this Court observed that the circuit court had lacked jurisdiction to enter the divorce decree because no petition for dissolution was before it -- only a motion to revive the previously dismissed case.

More directly on point is the case of Clements v. Harris, 89 S.W.3d 403, 404 (Ky. 2002), in which the Supreme Court explained as follows:

Generally, a decree of dissolution of marriage is not subject to review before an appellate court of the Commonwealth. Section 115 of the Kentucky Constitution provides that "the General Assembly may prescribe that there shall be no appeal from that portion of a judgment dissolving a marriage." In 1976, the

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General Assembly enacted KRS 22A.020(3), which provides that "there shall be no review by appeal or by writ of certiorari from that portion of a final judgment, order or decree of a Circuit Court dissolving a marriage." In addition, for well over a century, appellate courts of the Commonwealth have consistently held that a judgment granting a dissolution of marriage is not appealable or subject to appellate jurisdiction.

In Clements, this Court determined that a decree of dissolution could not be disturbed under KRS 22A.020(3) -- even though the circuit court lacked proper jurisdiction due to the husband's failure to meet the 180-day residency requirement. Our Supreme Court granted discretionary review and affirmed, holding that although the circuit court had acted erroneously in finding the husband to be a resident of Kentucky, the decree of dissolution was not void. The Clements Court relied on Elswick v. Elswick, 322 S.W.2d 129 (Ky. 1959).

In Elswick, the wife moved to set aside a divorce judgment entered by Pike Circuit Court on the ground that she had not been served with notice of filing of the Commissioner's report, an omission which deprived her of an opportunity to file exceptions. The wife sought to dismiss the action because her husband failed to meet the residency requirement. Both parties were residents of West Virginia. Depositions were taken with reference to the question, but the Commissioner found that residence was sufficient to confer jurisdiction and recommended that the husband be granted a divorce. The Court held as follows:

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The difficulty is that there is no right of appeal from that portion of a judgment granting a divorce. Nor can there be an appeal from an order overruling a motion to set aside a judgment of divorce (unless perhaps, the motion is on a ground that would make the judgment void).

. . . .

In effect, Barbara is seeking relief from this Court by reason of the procedural irregularity that occurred when the clerk failed to serve notice of the filing of the commissioner's report. This irregularity could not render the judgment void, but merely erroneous, and this Court does not have the authority to review the question of whether the granting of a divorce is erroneous. . . .

Id. at 130-31 (citations omitted).

In the case before us, Sheila filed a verified petition for dissolution in McCreary Circuit Court on November 13, 2012. On the same day, Bennis filed an entry of appearance and waiver. Without question, the circuit court had jurisdiction over the parties and the subject matter. Consistent with Elswick, supra, we conclude that the failure to comply with the waiting period in KRS 403.044 was an irregularity which did not render the decree of dissolution void -- but merely erroneous. Accordingly, we find no error in the circuit court's ruling. In reaching this conclusion, we note a case from one of our sister states, the reasoning of which we find both relevant and persuasive.

In Starr v. Starr, 26 Ohio App. 3d 134, 498 N.E.2d 1092 (1985), the parties elected to proceed with a hearing on the dissolution of their marriage after

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being advised that the thirty-day waiting period in the statute had not been met. The statute, Ohio Rev. Code Ann. § 3105.64 (West 2013), provides in relevant part:

[N]ot less than thirty nor more than ninety days after the

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