Whisman v. Whisman, No. 2007-CA-002534-MR (Ky. App. 9/18/2009)
| Decision Date | 18 September 2009 |
| Docket Number | No. 2007-CA-002534-MR.,2007-CA-002534-MR. |
| Parties | Debbie WHISMAN Appellant v. Frank WHISMAN and Allene Whisman; Gloria Everidge; Joyce Blair; James Adkins; Heather Caldwell; and Steve Gilbert Appellees |
| Court | Kentucky Court of Appeals |
Appeal from Wolfe Circuit Court, Honorable Frank Allen Fletcher, Judge, Action No. 06-CI-00128.
Richard Kenniston, Jackson, Kentucky, Briefs for Appellant.
Melissa C. Howard, Jackson, Kentucky, Brief for Appellee, Frank Whisman.
No Brief Filed for Appellees, Allene Whisman, Gloria, Everidge, Joyce Blair, James, Adkins, Heather Caldwell, and Steve Gilbert.
Before: CLAYTON, KELLER, and LAMBERT, Judges.
Not to be Published
In this partition action, appellant, Debbie Whisman (Debbie), appeals from two orders of the Wolfe Circuit Court entered November 14, 2007, confirming the master commissioner's sale of real estate, including a manufactured home, to appellee, Steve Gilbert (Steve), and distributing proceeds from that sale to appellees, Frank Whisman (Frank), Allene Whisman (Allene), Gloria Everidge (Gloria), Joyce Blair (Joyce), James Adkins (James), and Heather Caldwell (Heather). Because we find that the trial court had jurisdiction to hear and determine this matter in controversy, but that Frank did not have standing to bring this action, we affirm in part and reverse in part with directions to enter an order denying Frank any portion of the proceeds.
Frank and Debbie were still married but had a pending divorce proceeding when Frank filed a complaint in Wolfe Circuit Court on July 3, 2006. Frank asked that the real estate located in Wolfe County, Kentucky, be sold, with the proceeds distributed to himself and Allene.1 Frank amended his complaint on November 20, 2006, to add additional owners of the property, Gloria, Joyce, James, and Heather, who collectively owned 25 percent of the total property, with Allene owning the remainder.2
On December 6, 2006, Debbie filed a motion to intervene in this action, claiming that the property previously owned by Debbie and conveyed to Allene was nonmarital and was being litigated in the pending divorce action with Frank.3 The court verbally granted Debbie's motion to intervene during a hearing on January 4, 2007. Frank subsequently moved to sell the property, Debbie filed a motion to consolidate this action with the ongoing divorce litigation, and Frank moved for the dismissal of Debbie as a party based on her prior conveyance of the property to Allene. On May 10, 2007, the court denied Frank's motion to dismiss Debbie as a party, ordered that the issue of marital versus nonmarital property be referred to the master commissioner for further review, denied Debbie's motion to consolidate, ordered that the property be sold by the master commissioner, and ordered that the proceeds be divided according to the proportionate interests of the owners with any amounts to Frank, Allene or Debbie to be placed in escrow pending further orders from the court and a determination of their interests in the property. The order of sale of the property was entered May 30, 2007.
On June 1, 2007, Debbie moved to have the order of sale set aside based on her continued assertions that Frank had no marital interest in any portion of the property conveyed to Allene and that the status of the property as nonmarital was still being litigated in the divorce action between Debbie and Frank. The court denied Debbie's motion and ordered that the property be sold as scheduled. The property was sold on July 28, 2007, to Steve.
Following the sale of the property, Debbie filed a third-party complaint against Steve for wrongful eviction from the manufactured home (the trailer) situated on the property and a motion for temporary restraining order or injunction against Steve requesting that Debbie be given access to the trailer and her personal possessions located therein. Debbie subsequently filed objections to the master commissioner's report of sale, sought to have the sale set aside or a declaration that the property sold did not include the trailer located thereon, and that Frank be denied any distribution of the proceeds of the sale of the property. Without ruling on any of Debbie's pending motions, the court entered an order on October 1, 2007, confirming the master commissioner's report of sale, awarding Frank attorney fees and costs, and distributing the proceeds of the sale proportionately among all the owners with Frank and Allene equally sharing a 75 percent interest in the property. The court further found that Debbie, having deeded her interest in the property to Allene, was no longer an owner in the subject real estate and was not awarded a share of the proceeds.
On November 8, 2007, with the divorce case apparently still ongoing, the court held a hearing and found that the trailer was permanently affixed to the property and was sold to the highest bidder at the master commissioner's sale. The order confirming the court's findings on that issue was entered November 14, 2007. By a separate order entered November 14, 2007, the court again determined that Debbie was no longer an owner in the subject property, having previously deeded her interest to Allene, and ordered that 25 percent of the proceeds be distributed to Gloria, Joyce, James, and Heather, with Frank and Allene receiving an equal share in the remaining 75 percent of the proceeds. Debbie brings her appeal from both of these orders entered by the court on November 14, 2007.
Debbie contends on appeal that Frank was not entitled to share in the proceeds from the sale of the property, having only an inchoate expectant interest in the property contingent upon Debbie preceding him in death. Debbie further argues that the trailer was not permanently affixed to the property and was therefore not sold along with the property at the master commissioner's sale.
Frank counters that Debbie waived the issues argued in her brief by failing to raise them in the prehearing statement, that he was properly awarded a dower interest in the property, and that the court did not err in ruling that the trailer was permanently affixed to the property.
We first address Frank's argument that Debbie waived her issues by failing to raise them in her prehearing statement. In reviewing Debbie's prehearing statement, we find that Debbie summarized her issues sufficiently to bring them within appellate review. Kentucky Rules of Civil Procedure (CR) 76.03(8); see also Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 196-97 (Ky. 1994).
We next address Debbie's argument that the court improperly found that the trailer was permanently affixed to and sold with the property at the master commissioner's sale. Because this was a factual determination based on the evidence presented, the court's finding will not be overturned unless clearly erroneous. Cherry v. Cherry, 634 S.W.2d 423 (Ky. 1982); CR. 52.01. A finding of fact is not clearly erroneous if it is based on substantial evidence "that a reasonable mind would accept as adequate to support a conclusion[.]" Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citing Black's Law Dictionary 580 (7th ed. 1999); Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky. 1972)) (additional citations omitted).
Debbie contends that the trailer was not a part of the land because there was no certificate of title in the record nor had an affidavit affixing the trailer to the property been recorded with the county clerk. The status of the trailer in this case as a "manufactured home" falling within the definition of Kentucky Revised Statutes (KRS) 186.650 is not in dispute. The only question is whether the trailer was affixed to the property and passed with the commissioner's sale or is the personal property of Debbie.
Debbie relies on PHHMortg. Services v. Higgason, 345 B.R. 584, 587-588 (E.D.Ky. 2006) for the proposition that since KRS 186A.297(1)4 was not complied with by surrendering the certificate of title to the county clerk and filing an affidavit of conversion to real estate to same, the trailer did not become permanently affixed to the land so as to pass with the sale of the property. Frank counters that Debbie's reliance on KRS 186A.297 is misplaced since the statute was not effective until after Debbie acquired both the property and the trailer. As we have nothing in the record to indicate when Debbie acquired either the trailer or the property in dispute, we cannot make a determination of whether KRS 186A.297 is applicable.
However, Debbie's reliance on PHH Mortg. is misplaced. Both that decision and our court's earlier decisions in Hiers v. Bank One, West Virginia, Williamson, NA, 946 S.W.2d 196 (Ky. App. 1996), dealt with perfection of security interests in a manufactured home as against other creditors. Although both are somewhat analogous to the present issue, and thus somewhat instructive, neither decides this particular issue.
Hiers, which was decided prior to the enactment of KRS 186A.297, was concerned with whether the permanent attachment of a manufactured home to a property owned by another, would defeat a prior perfected lien on that same manufactured home. Id. This Court found that, under the statutes then in effect, a notation on the certificate of title was the exclusive method for perfecting a security interest "regardless of whether the disputed [trailer] in the instant action was permanently affixed to the real estate[.]" Id. at 198.
PHH Mortg., 345 B.R. 584, which was decided after our legislature's enactment of KRS 186A.297, also dealt with the perfection of a security interest, albeit in a bankruptcy proceeding. The primary question was whether the bankruptcy trustee could avoid perfection of the manufactured home for PHH's failure to record a security interest on the certificate of title. Id. at 586. As in the instant case, there was no certificate of title ever issued to the manufactured home in...
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