MITCHELL ANDREW WILLIAMS v. TERESA ANN MILLS WILLIAMS
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RENDERED: OCTOBER 25, 2002; 10:00 a.m.
ORDERED NOT PUBLISHED BY KENTUCKY SUPREME COURT: JANUARY 14, 2004
(2003-SC-000054-DG)
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
2001-CA-000761-MR
AND
2001-CA-000862-MR
MITCHELL ANDREW WILLIAMS
APPELLANT/CROSS-APPELLEE
APPEALS FROM BELL CIRCUIT COURT
HONORABLE JAMES L. BOWLING, JR., JUDGE
ACTION NO. 97-CI-00488
v.
TERESA ANN MILLS WILLIAMS
APPELLEE/CROSS-APPELLANT
OPINION AND ORDER
(1) REVERSING IN PART, VACATING, AND REMANDING CROSS-APPEAL
(2) GRANTING MOTION TO DISMISS DIRECT APPEAL
** ** ** ** **
BEFORE:
COMBS, McANULTY AND SCHRODER, JUDGES.
McANULTY, JUDGE: Mitchell Andrew Williams appeals from the
amended findings of fact, conclusions of law, and decree of
dissolution of marriage entered by the Bell Circuit Court with
respect to the granting of joint child custody and the division
of property.
Teresa Ann Mills Williams has filed a cross-appeal
challenging the circuit court’s jurisdictional authority to amend
the court’s initial judgment and a motion to dismiss the direct
appeal.
We hold that the trial court did not have subject matter
jurisdiction to amend its judgment and therefore reverse in part,
vacate, and remand with directions with respect to the cross-
appeal.
Given our decision on the cross-appeal, we also grant
the motion to dismiss the direct appeal.
The parties were married in September 1992 and
separated in November 1997.
September 1996.
They had one child, Cameron, born in
Teresa filed a Petition for Dissolution of
Marriage in November 1997, and requested, inter alia, temporary
and permanent custody of the parties’ minor son.
Following their
separation, Cameron lived primarily with Teresa, but he also
spent considerable time with Mitchell, who continued to reside in
the family home.
On February 2, 1999, Teresa filed a motion for
temporary orders that included a request for an award of
temporary joint child custody with Teresa serving as primary
residential custodian and payment of child support by Mitchell.
On February 17, 1999, the trial court entered an order vesting
temporary custody of Cameron with Teresa, but later vacated the
order upon motion of Mitchell.
Following a hearing, on March 31,
1999, the trial court awarded the parties temporary joint custody
with Teresa serving as primary residential custodian and Mitchell
receiving visitation privileges.
Under the order, Mitchell was
awarded temporary possession of the family residence and was
ordered to pay the monthly mortgage payments.
After conducting extensive discovery, including
numerous depositions, the parties filed briefs concerning child
custody and property distribution.
custody of their son.
Both parties sought sole
Teresa proposed that she receive
approximately $24,058 as her share of marital property, while
Mitchell proposed Teresa receive $5,433.
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On January 5, 2001, the
trial court entered its findings of fact, conclusions of law, and
decree of dissolution that, inter alia, granted Teresa sole
custody of Cameron and awarded her a total of $16,349.59 as her
equal share of the marital property.
On January 16, 2001, Mitchell filed a motion entitled
Motion to Alter, Amend or Vacate that referred to CR 59.01 and
did not elaborate on the grounds for the motion.
On January 25,
2001, Mitchell filed a Memorandum in Support of his Motion to
Alter, Amend or Vacate, which discussed his objections to, inter
alia, the custody award and the trial court’s assessment of his
nonmarital contribution to the marital residence.
On January 29,
2001, Teresa filed a response to the Motion to Alter, Amend or
Vacate, which challenged the timeliness of the motion based on
Ligon Specialized Hauler, Inc. v. Smith, Ky. App., 691 S.W.2d 902
(1985).
On January 31, 2001, the trial court issued an order
allowing the parties 10 days to file simultaneous briefs on
Mitchell’s residential property division complaint and stating it
would reconsider the custody issue.
Teresa filed a brief on
February 9, 2001, and Mitchell did not file a brief.
On March 22, 2001, the trial court entered an order
stating it would exercise its discretion to amend its original
findings of fact and conclusions of law under CR 59 and the
authority of Carpenter v. Evans, Ky., 363 S.W.2d 108 (1962).
The
court also stated it had misunderstood the law related to joint
custody and would reconsider that issue and subsequently issue
additional factual findings.
On March 22, 2001, the trial court
entered an Amended Findings of Fact, Conclusions of Law, and
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Decree of Dissolution of Marriage that changed the award of child
custody from sole custody to joint custody after considering the
factors set forth in KRS 403.270(2) and the best interest of the
child.
On April 6, 2001, Mitchell filed a notice of appeal from
the order on Motion to Alter, Amend or Vacate and the Amended
Findings of Fact, Conclusions of Law, and Decree of Dissolution.
On April 23, 2001, Teresa filed a notice of cross-appeal in the
circuit court and a motion to dismiss the appeal for lack of
subject matter jurisdiction in this Court, which was temporarily
denied subject to reconsideration in the main appeal.
Given the dispositive nature of the issue, we will
address Teresa’s cross-appeal first.
She contends the trial
court erred in holding it had authority to amend its judgment.
More specifically, Teresa argues that the trial court lacked
subject matter jurisdiction to enter its amended findings of fact
and conclusions of law because Mitchell’s post-judgment motion
was inadequate.
Relying on Ligon Specialized Hauler, Inc.,
supra, Teresa asserts that Mitchell’s failure to state the basis
for his Motion to Alter, Amend or Vacate within the ten-day
period prescribed by CR 59.02 rendered it inadequate, and thus,
was untimely for purposes of extending the subject matter
jurisdiction of the trial court after entry of its judgment.
On
the other hand, Mitchell counters that his motion was filed under
CR 59.05 and that Ligon is not applicable.
Although the trial
court’s ultimate decision whether to grant or deny relief from a
judgment is reviewed for abuse of discretion, the issue of the
trial court’s jurisdiction or authority to entertain such relief
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is a legal question subject to de novo review.
See Spinar v.
South Dakota Bd. Of Regents, 796 F.2d 1060 (8th Cir. 1986).
As a general proposition, a trial court lacks subject
matter jurisdiction to alter its final judgment unless it is
reinvested with jurisdiction pursuant to an applicable Rule of
Procedure.
See, e.g., Commonwealth v. Gross, Ky., 936 S.W.2d 85
(1996)(rejecting view that KRS 439.265 creates “continuing
jurisdiction” for trial court modification of sentence outside
rules of procedure); Ohio River Pipeline Corp. v. Landrum, Ky.
App., 580 S.W.2d 713, 718 (1979)(court loses control of its
judgment ten days after date of entry unless authorized motion is
made or court action taken within that time).
But see Potter v.
Eli Lilly & Co., Ky., 926 S.W.2d 449 (1996)(recognizing inherent
authority of courts to modify judgment beyond prescribed time
limits due to fraud on the court).
Either a motion for a new
trial brought pursuant to CR 59.01 or a motion to alter, amend or
vacate a judgment brought pursuant to CR 59.05 “shall be served
not later than 10 days after entry of the final judgment.”
CR 59.02 and CR 59.05.
See
A trial court has no jurisdiction to
grant a new trial or amend its judgment if the motion is
untimely.
See, e.g., Ford Motor Credit Co. v. Swarens, Ky., 447
S.W.2d 53 (1969)(involving CR 59.05 motion); Kentucky Farm Bureau
Ins. Co. v. Gearhart, Ky. App., 853 S.W.2d 907, 910
(1993)(involving CR 59.05 motion).
The ten-day time limits for
CR 59.01 and CR 59.05 are jurisdictional and cannot be extended
by the trial court.
See CR 6.02; Arnett v. Kennard, Ky., 580
S.W.2d 495 (1979); Hertz Corp. v. Alamo Rent-A-Car, Inc., 16 F.3d
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1126 (11th Cir. 1994).
In addition, a notice of appeal must be
filed within 30 days after the date of notation of service of the
judgment and filing within this time limit is mandatory.
See
Excel Energy, Inc. v. Commonwealth Institutional Securities,
Inc., Ky., 37 S.W.3d 713 (2000); CR 73.02 (1)(a) and (e).
However, the running of the time for appeal is tolled or
suspended by the filing of a timely motion under CR 59 until the
trial court rules on the motion.
CR 73.02 (1)(e); Johnson v.
Smith, Ky., 885 S.W.2d 944 (1994); Moore v. Mack Trucks, Inc.,
Ky. App., 40 S.W.3d 888 (2001).
In the current case, the original judgment was entered
with a notation of service on January 5, 2001, and the Motion to
Alter, Amend or Vacate was filed and served on January 16, 2001,
which was within the ten-day time limit for purposes of the civil
rules because January 15 fell on a legal holiday (Martin Luther
King day).
See CR 6.01.
The motion stated in full:
Comes now the Respondent, Mitchell
Andrew Williams, by counsel and pursuant to
CR 59.01 MOVES this Court to alter, amend or
vacate the Findings of Fact, Conclusions of
Law and Decree of Dissolution of Marriage, as
well as Order Sealing Record entered herein
on January 5, 2001. In support hereof, the
Respondent separately files a Memorandum
herein.
WHEREFORE, an Order consistent
herewith is respectfully requested.
On January 25, 2001, Mitchell filed and served a seven-page
memorandum in support of his Motion to Alter, Amend or Vacate.
Teresa objected to the motion as untimely both orally at a
hearing held January 29, 2001, and in a written document filed
the same day.
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On March 22, 2001, the trial court entered an order
rejecting Teresa’s objection.
The court accepted the proposition
that it had no discretion to entertain a motion under CR 59.01
when the moving party fails to identify the grounds for the
motion, but the court stated it had discretion under CR 59 to
reverse earlier findings of fact and conclusions of law and to
enter new ones in a case tried without a jury “where the dictates
of justice require,” citing Carpenter v. Evans, supra.
We believe the trial court’s reliance on Carpenter is
misplaced.
In that case, the court held that CR 59.07 is a broad
and sweeping grant of power that allows a trial court to grant a
new trial or enter new findings, conclusions and judgment where
the dictates of justice require in an action tried without a
jury.
Id. at 109-10.
The area of dispute in that case, however,
concerned whether a trial court could issue new findings of fact
and conclusions of law or was limited to merely ordering a new
trial.
The court stated: “[t]he question presented on this
appeal is whether the trial court, where a timely motion was
filed under CR 52.02, CR 59.01, and CR 59.07, has the authority
to reverse earlier findings and conclusions and enter new
findings and conclusions and judgment.”
Id. at 109 (emphasis
added).
In Carpenter, there was no question the motion was
timely.
In our situation, Teresa challenges the authority of the
court to entertain the motion as an initial matter rather than
the type of action it may take.
Carpenter is distinguishable and
does not resolve the issue in this appeal as to the timeliness of
Mitchell’s motion.
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Teresa asserts that Ligon Specialized Hauler, Inc. v.
Smith, supra is the controlling precedent supporting her
position.
In Ligon, the appellant filed a “bare motion” for a
new trial within 10 days of the judgment but failed to submit
supporting grounds and affidavits until three weeks later.
The
court held that although the civil rules did not expressly
require that supporting documents be filed at any given time, the
implication from CR 59.03 is that a party must satisfy the tenday time limits for those documents as well as the motion itself.
It stated:
If a motion for a new trial is not
timely served or filed, the trial court has
no discretion to consider a tardy motion or
to grant subsequent new trial relief. The
plain purpose of the appellate time limits
and CR 6 is to fix a definite time when
judgments become final and free from attack.
We think the plain purpose of CR 59.02 would
stand defeated if we allow appellant to toll
its provisions by filing a timely but
unexplained CR 59.01 motion, while submitting
grounds and affidavits to the court at its
leisure. Accordingly, Ligon’s allegations of
juror misconduct were not timely raised at
trial and are not preserved for our review.
691 S.W.2d at 904 (citations omitted).
Mitchell states that he “does not dispute that a motion
for new trial filed pursuant to CR 59.01 and CR 59.02, not only
must be filed no later than 10 days, but also must set forth
sufficient grounds in support thereof.”
He maintains that Ligon
only applies to CR 59.01 motions and has not been extended to
motions to alter, amend or vacate under CR 59.05.
Mitchell
further postulates that his motion was filed pursuant to CR
59.05.
Unfortunately, the text of the motion itself is confusing
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and contradictory on this question.
It specifically cites to CR
59.01, but also includes language reminiscent of CR 59.05 by
asking the court to “alter, amend or vacate” the original
judgment.
Given the fact that the motion specifically cites CR
59.01, did not refer to CR 59.05, and a trial court may modify
its factual findings and conclusions of law pursuant to CR 59.01,
treating it as a CR 59.01 motion would be the most logical
approach. Under this scenario, the motion would be considered
untimely under the authority of the Ligon opinion.
Nevertheless, even if the motion is treated as a CR
59.05 motion, the trial court did not have jurisdiction to
consider it.
CR 7.02(1) states:
An application to the court for an
order shall be by motion which, unless made
during a hearing or trial, shall be made in
writing, shall state with particularity the
grounds therefor, and shall set forth the
relief or order sought. The requirement of
writing is fulfilled if the motion is stated
in a written notice of the hearing of the
motion. (Emphasis added).
Since there is little Kentucky case law construing this
rule, we will look to federal law dealing with the similar Fed.
R. Civ. P. 7(b)(1) on which the Kentucky rule was based.
See,
e.g., Sexton v. Bates, Ky. App., 41 S.W.3d 452, 456 (2001);
Morrow v. Brown, Todd & Heyburn, Ky., 957 S.W.2d 722 (1997).
The federal courts have utilized a somewhat flexible
approach by applying a “reasonable specification” standard to the
particularity requirement.
See 5 Charles Alan Wright & Arthur R.
Miller, Federal Practices and Procedure § 1192 (2nd ed. 1990).
The purpose of the particularity requirement of Fed. R. Civ. P. 7
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is to afford notice of the grounds for and relief sought to both
the court and the opposing party so the opponent will have an
opportunity to respond and the court will have enough information
to consider the motion.
See Registration Control Systems, Inc.
v. Compusystems, Inc., 922 F.2d 805, 807 (Fed. Cir. 1990); Cf.
Tennessee Products & Chemical Corp. v. Miller, Ky., 282 S.W.2d
52, 53 (1955)(particularity requirement of CR 7.02 is not a mere
technical form requirement but is designed to apprise the trial
court of the specific basis upon which the party casts his
request for a ruling).
One procedural authority has stated that
the courts consider whether any party is prejudiced by the lack
of particularity and whether the court can comprehend the basis
for the motion and deal with it fairly.
See 5 Charles Allen
Wright and Arthur R. Miller, Federal Practice and Procedure §
1192, at 42.
In the current case, Mitchell’s motion fails to state
any reason or grounds whatsoever for the motion.
It provides no
notice to either the court or Teresa which of the several issues
addressed in the original judgment were being opposed or the
basis for any objection.
Consequently, even if the motion were
treated as one falling within CR 59.05, it did not satisfy even a
reasonable specification standard for the particularity
requirements of CR 7.02.
In addition, Mitchell’s filing and acceptance by the
trial court of his subsequent memorandum in support of the motion
did not serve to cure the defect.
In Martinez v. Trainor, 556
F.2d 818, 820 (7th Cir. 1977), the court succinctly explained the
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reasons for not allowing an untimely supplemental brief or
memorandum that provides the reasons for an otherwise
nonconforming motion to satisfy the particularity requirement of
the civil rules.
First, amendments are not allowed unless they
consist of an elaboration of a ground already
set out in the original motion. Secondly, if
a party could file a skeleton motion and
later fill it in, the purpose of the time
limitation would be defeated.
See also Talano v. Northwestern Medical Faculty Foundation, Inc.,
273 F.3d 757, 761 (7th Cir. 2001)(finding motion asking the court
to reconsider its judgment for “several reasons” and because the
district court “misapplied fundamental principles, failed to
apply other well-recognized principles, and is in conflict with
precedent of the Seventh Circuit construing Illinois state
contract law” was not sufficiently specific and later memorandum
in support of motion did not satisfy rule); Riley v. Northwestern
Bell Telephone Co., 1 F.3d 725 (8th Cir. 1993)(memorandum of law
in support of bare bones motion filed outside of ten-day time
period did not cure defect of otherwise timely motion).
Mitchell
indicated in the motion that he was filing a supporting
memorandum but in fact he did not file the memorandum until
January 25, 2001, 15 days after entry of the original judgment
and outside the ten-day time limit for either a CR 59.01 or CR
59.05 motion.
While documents filed contemporaneously with or
accompanying a summary motion that provide the basis for the
motion would satisfy the particularity requirement of CR 7.02,
“an empty motion cannot reserve time to file an explanation after
the ten days allowed by Rule 59(b).”
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Lac Du Flambeau Indians v.
State of Wisconsin, 957 F.2d 515, 517 (7th Cir. 1992).
Mitchell’s bare bones motion did not satisfy CR 7.02 and the
memorandum in support of the motion filed outside the ten-day
limitations period did not serve to cure that defect or satisfy
the particularity requirement.
As a result, Mitchell’s January 16, 2001 Motion to
Alter, Amend or Vacate was untimely and the trial court erred in
holding that it had subject matter jurisdiction to modify its
original findings of fact, conclusions of law, and dissolution of
marriage.
In effect, the amended judgment is a nullity because
the trial court could not extend its jurisdiction to give it
authority to issue a new judgment.
Since Mitchell’s motion did
not toll the time for taking the appeal on the original judgment,
this Court is without appellate authority to review the merits of
the original January 5, 2001 judgment or the March 22, 2001
judgment.
Consequently, the motion to dismiss the direct appeal
of the amended findings of fact, conclusions of law, and
dissolution of marriage will be granted.
See, e.g., Smith v.
Evans, 853 F.2d 155 (3rd Cir. 1988); Spinar, supra.
Although we lack appellate jurisdiction over the direct
appeal, we do have appellate jurisdiction to review the trial
court’s ruling on the Motion to Alter, Amend or Vacate and the
validity of the amended judgment as part of the timely crossappeal of the March 22, 2001 amended judgment.1
1
See, e.g.,
We note that while the issue of the trial court’s subject
matter jurisdiction was specifically raised in the cross-appeal,
subject matter jurisdiction is a threshold issue that cannot be
created or waived by the parties and can be raised at any time,
even for the first time on appeal, by either party or the court.
(continued...)
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Kentucky Farm Bureau Ins. Co. v. Gearhart, supra; Commonwealth v.
Gross, supra.
Having concluded that the trial court erred in
holding that Mitchell’s Motion to Alter, Amend or Vacate was
timely and it had subject matter jurisdiction to modify the
original judgment, we reverse its January 31, 2001 order finding
the motion timely and vacate its March 22, 2001 amended findings
of fact, conclusions of law and dissolution of marriage.
We
further hold that the January 5, 2001 findings of fact,
conclusions of law and dissolution of marriage should be
reinstated.2
For the forgoing reasons, we reverse the January 31,
2001 order of the Bell Circuit Court on cross-appeal, vacate the
March 22, 2001 amended findings of fact, conclusions of law, and
dissolution of marriage, and remand to the Bell Circuit Court for
entry of an order reinstating the original January 5, 2001
judgment.
It is further ORDERED that the motion to dismiss the
direct appeal is hereby GRANTED.
ALL CONCUR.
ENTERED: October 25, 2002
/s/William E. McAnulty, Jr.
JUDGE, COURT OF APPEALS
1
(...continued)
CR 12.08; Privett v. Clendenin, Ky., 52 S.W.3d 530, 532 (2001);
Gullett v. Gullett, Ky. App., 992 S.W.2d 866, 868-69 (1999).
2
Even though the original judgment granting sole custody to
Teresa must be reinstated, we note that the trial court retains
jurisdiction and discretion over the extent of visitation to
grant Mitchell.
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BRIEF FOR APPELLANT/CROSSAPPELLEE:
BRIEF FOR APPELLEE/CROSSAPPELLANT:
Jane R. Butcher
Williamsburg, Kentucky
Bill Meader
Hyden, Kentucky
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