DAVID MORGAN MILLER v. MARY MURPHY MILLER
Annotate this Case
Download PDF
RENDERED: MAY 12, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-002251-MR
DAVID MORGAN MILLER
v.
APPELLANT
APPEAL FROM MORGAN CIRCUIT COURT
HONORABLE KRISTI GOSSETT, JUDGE
ACTION NO. 00-CI-00168
MARY MURPHY MILLER
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: GUIDUGLI AND TAYLOR, JUDGES; EMBERTON, SENIOR JUDGE.1
EMBERTON, SENIOR JUDGE:
David Miller appeals from the property-
division aspects of the decree dissolving his marriage to
appellee Mary Murphy Miller alleging that the trial judge erred
in: 1) determining the amount of marital equity in the parties’
Corvette motor vehicle; 2) relying upon incompetent opinion
evidence in concluding that the fair market value of the marital
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
residence was $123,000; 3) failing to award certain pieces of
furniture and other household items to either party; and 4)
adopting the domestic relations commissioner’s findings of fact
and conclusions of law.
We affirm.
On July 18, 2002, the domestic relations commissioner
for the Morgan Circuit Court filed detailed findings and
conclusions regarding division of the parties’ property.
Mary
Miller filed exceptions to the report alleging that the
estimated amount of a home equity loan against the marital real
estate had been left blank; that David continued to borrow
against the residence, and thus additional testimony as to the
amount of that debt was required; and that an Oldsmobile Bravada
referenced in the report was no longer part of the marital
estate since it had been given to the parties’ son.
David also
filed exceptions but cited no specific objection to the report.
On November 20, 2002, the circuit judge remanded the
case to the commissioner for “further findings regarding the
assets and liabilities of the parties.”
David filed a motion on
February 20, 2003, asking the court to award him certain nonmarital property and to set the matter for a final hearing.
On
March 7, 2003, in compliance with the circuit court’s order
remanding the case to the DRC, the family court judge, who had
taken office in January 2003, ordered that a transcript of all
proceedings be filed within 45 days.
-2-
In April 2003, David filed
a motion for an order requiring each party to file an inventory
of all marital and non-marital property.
He also submitted an
offer to purchase the marital realty for the sum of $160,000.
On May 7, 2003, the family court judge entered an
order confirming the report of the DRC predicated upon the
following findings:
1. A pretrial conference regarding this
matter was held on January 3, 2001 and
the Court calendar indicates that
appraisals were to be filed.
2. An appraisal was filed and a five (5)
hour final hearing held before the
Commissioner on June 18, 2001.
3. The Commissioner’s Recommendations were
entered July 18, 2002.
4. Respondent [David] filed Exceptions to
the Recommendations that simply stated
that Respondent excepted in general to
the Recommendations. Likewise Petitioner
filed Exceptions to the Recommendations
stating that the Recommendations failed
to specify the balance of a particular
loan assigned to Petitioner as her sole
responsibility, and further stating that
a vehicle that the Commissioner
designated as marital property no longer
was in the possession of the parties
because it had been given away to the
parties’ son.
5. The hearing on the exceptions was held
November 20, 2002 at which time Honorable
Samuel Long referred the matter back to
the Commissioner for further findings.
The order does not specify what
additional findings were needed.
6. The matter was in fact never taken up
again before the Commissioner, rather a
motion was heard by this Court (Family
Court being established January 6, 2003)
on March 3, 2003 regarding Respondent’s
-3-
request for final hearing, among other
things.
7. This court then assigned the matter for a
hearing on May 7, 2003. The order
further required the parties to secure a
transcript of all proceedings previously
held in this case and to file said
transcripts within forty-five (45) days
of entry of the order. Said order was
entered March 7, 2003.
8. More than forty-five (45) days have now
lapsed since entry of the Order, the
transcripts have not been filed, and
counsel informed the Court that the
transcripts were not in fact even yet
ready.
9. Respondent has now requested the Court to
order the parties to file an inventory of
marital and non marital personal property
including household goods and furniture,
and further requested permission to enter
the premises for purposes of an appraisal
and an inventory. All this despite the
fact that the parties have had years to
conduct discovery and despite the fact
that an appraisal was previously filed
regarding personal property and a five
(5) hour final hearing held nearly two
(2) years ago.2
David’s subsequent CR 59 motion resulted in an August
20, 2003, order amending the previous decision of the family
court judge.
Among the amended findings pertinent to this
appeal were findings fixing the fair market value of the marital
real property at $123,000, setting the amount of debt against
the property as well as determining the amount of Mary’s nonmarital interest therein, valuing the 1969 Corvette at $16,500
2
Emphasis added.
-4-
and awarding various items of personalty to each party.
Again,
both parties filed motions to amend the final order although
Mary withdrew her motion prior to a ruling.
The family judge’s
overruling of David’s motion precipitated this appeal.
As a preliminary matter, we agree with appellee that
David’s failure to identify in his prehearing statement issues
concerning the marital equity in the Corvette and the failure to
assign certain property to either party removes them from our
consideration.
The penalty for a failure to comply with CR
76.03 was recently addressed by this Court in Sallee v. Sallee,3
and we are convinced that application of the rationale set out
in that case precludes review of the issues omitted from David’s
prehearing statement:
CR 76.03(4)(h) provides that within twenty
days of filing a notice of appeal, an
appellant must file a prehearing statement
setting out a "brief statement of the facts
and issues proposed to be raised on appeal,
including jurisdictional challenges[.]" CR
76.03(8) specifically provides that 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."
* * *
However, the sole issue addressed in
appellant's two-page appellate brief is
"whether or not the Trial Court abused its
discretion in awarding the Appellee
maintenance." Since that issue was not
raised either in the prehearing statement or
3
Sallee v. Sallee, 142 S.W.3d 697, 698 (Ky.App. 2004).
-5-
by timely motion seeking permission to
submit the issue for "good cause shown," CR
76.03(8), this matter is not properly before
this court for review.
We, therefore, confine our discussion to the issues properly
designated: the proper valuation of the marital residence and
the propriety of the family court’s adoption of the
recommendations of the DRC.
David argues that there was no competent evidence upon
which the $123,000 valuation could be based because the
appraiser founded his opinion on an inaccurate assessment of the
property’s square footage.
Although Mary’s appraiser testified
that he measured the square footage to be 3,000 square feet,
David, who failed to call an appraiser as an expert witness
subject to cross-examination at trial, testified that the
residence measures 4,600 square feet and should be valued at
$160,000.
Mary’s appraiser also testified that the property was
in poor condition and offered comparable sales to support his
opinion that the fair market value of the property was $123,000.
On this state of the evidence, we find no basis for concluding
that the testimony of Mary’s expert was in any way incompetent,
thus providing ample support for the ultimate valuation of the
residence.
In our view, David’s argument essentially boils down
to a complaint that the trial court accepted the valuation
provided by Mary’s expert rather than his own.
-6-
Because the
value placed on the residence falls with the range of estimates
provided by the testimony, the decision of the trial court may
not be set aside as clearly erroneous.4
Finally, we find no error in the adoption of the
recommendations of the DRC.
As previously noted, the family
judge amended those recommendations and in no way abdicated her
fact-finding responsibilities.
It is clear that a trial judge
has discretion to utilize the recommendations of a DRC as it
sees fit.5
No abuse of that discretion has been demonstrated in
this case.
Accordingly, the judgment of the Morgan Family Court
is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
James T. Harris
Lexington, Kentucky
Barbara Anderson
Lexington, Kentucky
4
Calloway v. Calloway, 832 S.W.2d 890 (Ky.App. 1992).
5
Id. at 893.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
