Opposition Brief — Reed v. Reed

SUPREME COURT OF THE UNITED STATES

October Term, 1972

72-950

CLYDE W. REED - : - - - Petitioner

versas

JEAN MOORE REED - «= + Respondent

On Petition for Certiorari to the

Kentucky Court of Appeals

BRIEF FOR RESPONDENT IN OPPOSITION

WILLIAM E. SCENT

KEITH, SCENT, KIRKHAM & WALTON

317 West 9th Street

Hopkinsville, Kentucky 42240

L. M. TIPTON REED

NEELY, REED AND BRIEN

Lawpart Building

Mayfield, Kentucky 42066

Attorneys for Respondent

WESTERFIELD-BONTE CO., INC., 619 W. KENTUCKY, LOUISVILLE, KY.

INDEX

PAGE

Questions Presented For BNL as ce cnssiecass 1 ’

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Certificate of Service... 11... .. cece eee eee e ees 5 :

Appendix . 6... eee e cece cece eee eee e nese eens la-26a :

Motion to Set Aside Portion of Judgment...... la- 4a

Amended Motion to Set Aside Portion of Judg-

NS 4S ekkee keen ss dee edeee ee she eue cae ee 5a- 6a a

Second Amendment To Motion To Set Aside Por- :

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Petitioner’s Brief in Court of Appeals of Ken- E

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4

CITATIONS

od

’ Cases:

i PAGE

Colley v. Colley, Ky., 460 S. W. 2d 821 (1970)... 2

Lear, Incorporated v. Adkins, 395 U. S. 708, 89

MD. OS, B, BOES-O6, WORST... noo ccc ecees 4

Reed v. Reed, Ky., 484 S. W. 2d 844 (1972)...... 3

Wilson v. Cook, 327 U.S. 474, 66 S. Ct. 663, 668. . 4

Statutes: ;

Kentucky Revised Statute 403.065.............. 1, 3

Kentucky Rules of Civil Procedure:

Se MEG Vera Viekenstabavienega xeseeawesutes 3

Supreme Court Rules:

I a 5 tac id Ay OV kN SA 6 eee Rs SAS RASC LH as 4

SUPREME COURT OF THE UNITED STATES

October Term, 1972

72-950

Cuen W. REED - - 7 7 CO” Petitioner

v.

Jean Moone REED - - - - Respondent

ON PETITION FOR CERTIORARI TO THE

KENTUCKY COURT OF APPEALS

BRIEF FOR RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED FOR REVIEW

1. Did that part of the original divorce judgment

of February 7, 1969, awarding respondent $25,000.00

per year for 10-% years constitute a deprivation of

petitioner’s property by the State without due process

of law in violation of the Fifth and Fourteenth Amend-

ments? (la-4a infra, ‘‘Motion To Set Aside Portion of

Judgment”’.)

2. Does an attempt to justify the award on KRS

403.065 violate the Fifth and Fourteenth Amendment?

(3a, infra.)

E,

Weis ae 3 eee SIEMPRE RENRR RT omen ce hE noon none ctr a

2

STATEMENT OF THE CASE

A divorce judgment requiring (among other things)

the petitioner (husband) to pay respondent (wife) the

sum of $25,000.00 per year for 10-% years was entered

by the Marshall Circuit Court on February 7, 1969

(A. 46 of Petition). The petitioner appealed the judg-

ment to the Kentucky Court of Appeals, where that

part of the trial court’s judgment awarding respon-

dent $25,000.00 per year for 10-% years was affirmed

and rehearing denied on June 26, 1970 (A. 48 of Pe.

tition).

The petitioner, on January 28, 1971, filed a ‘‘Motion

To Set Aside Portion Of Judgment” in the Marshall

Cirenit Court, contending that under an order of the

circuit court dated August 7, 1970, the trial court had

retained jurisdiction to alter, amend or set aside that

portion of the judgment awarding the $25,000.00 an-

nual payments ; that under the opinion of the Kentucky

Court of Appeals in the case styled Colley v. Colley,

460 S. W. 2d 821, the court had “‘repudiated its former

claim of power to judicially repeal KRS 403.060”. (1a-

4a, infra.) The motion further contended that the

February 7, 1969, judgment constituted “. . . a depri-

vation of Clyde’s property by the State without due

process of law in violation of the Fifth and Four-

teenth Amendments . . .”’, and asserted that, “‘An at-

tempt to justify the award on KRS 403.065 would

likewise violate the Fifth and Fourteenth Amend-

ments ...”’ (thid). The petitioner filed two amended

motions in the trial court without further mention of

constitutional provisions (5a-Ta, infra). The trial

court entered an order overruling petitioner’s motion

as amended, but made no ruling (or mention) therein

on the constitutional contentions asserted in petition-

er’s original motion to set aside a portion of the judg-

ment (A. 75-77 of Petition). On appeal of the trial

court’s order, the petitioner filed a “Statement of

Points” (8a, infra) pursuant to Rule 75.04 of the

Kentucky Rules of Civil Procedure.’ It did not in-

clude any constitutional question as a point relied upon

on the appeal.

Petitioner’s brief in the Kentucky Court of Ap-

peals did not raise any constitutional question (9a-

i8a, infra). Nor did his petition for rehearing filed

in that court (19a-26a, infra).

The Kentucky Court of Appeals made no ruling

on any constitutional question in affirming the trial

eourt’s order (A. 78-88 of Petition ; 484 S. W. 2d 844).

The Petition For Certiorari Should be Denied Under Rule

19.1(a), Supreme Court Rules.

The respondent’s Statement of the Case (pp. 2-3,

supra) cites those portions of the record that establish

beyond dispute the fact that no state court has “‘de-

cided a federal question of substance”’ as this Court re-

quires under its Rule 19.1(a) governing the grant or

“CR 75.04 provides, in part: ‘*No assignment of errors is neces-

sary. If the appellant does not designate for inclusion the complete

record and all the proceedings and evidence in the action, he shall

serve with his designation a concise statement of the points on which

he intends to rely on the appeal. . . .”

PP eee @

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4

denial of certiorari. Although petitioner did “mep.

tion’? Due Process and the Fifth and Fourteenth

Amendments in his original motion to set aside a por-

tion of the judgment, the trial court did not decide any

federal question. On appeal from the trial court,

order, the Kentucky Court of Appeals was not asked

by the petitioner to decide any federal question, and

it did not consider or decide any such action.

The petition should be denied under Rule 19.1(a) of

the Supreme Court Rules because of the petitioner's

failure to timely raise a federal question in the Ken-

tueky Court of Appeals. Wilson v. Cook, 327 U.S. 474,

66 S. Ct. 663, 668; Lear, Incorporated v. Adkins, 3%

U. S. 708, 89 S. Ct. 1902, 1913-14, 1916-17.

We respectfully suggest that the petition for cer-

tiorari should be denied.

Respectfully submitted,

WruiuM E. Scext

Kerrn, Scent, Kinxkuam & Wattos

317 West 9th Street

Hopkinsville, Kentucky 42240

L. M. Tretow Reen

Nee.y, Reen & Barren

Lawpart Building

Mayfield, Kentucky 42066

Attorneys for Respondent

5

CERTIFICATE OF SERVICE

I certify that I am a member of the bar of the United

States Supreme Court; that I have entered my appearance

4s counsel for respondent in accordance with the rules; and

that I have served 3 copies of the foregoing Brief For Re-

spondent In Opposition upon Honorable John C. Lovett,

Lovett and Lewis, Post Office Box 165, Benton, Kentucky

42025, said address being within 500 miles from that of the

undersigned, by depositing same in the United States Post

Office at Hopkinsville, Kentucky, first class, postage pre-

paid, on January ..+» 1973 all im accordance with Rule

33(1) of the Rules of the United States Supreme Court.

Dated this 47. day of January, 1973

Wuuias E. Scert

Kerrn, Scert, Kirxeam & Watton

317 West 9th Street

Hopkinsville, Kentucky 42240

la

MARSHALL CIRCUIT COURT

Civil Action No. 2047

Jean Moone Reep 2 - 2 - - = -) -) - Plaintiff

v.

Cuvee W. Resp - > lel Defendant

MOTION TO SET ASIDE PORTION OF JUDGMENT

Comes the defendant and moves the Court to set aside

the following portion of the judgment of this Court en-

tered on February 7, 1969:

“Additionally, defendant shall pay to the plain-

tiff the sum of Twenty-Five Thousand ($25,000.00)

Dollars a year for a period of ten and one-half (10 14)

years, each annual payment to be in a lump sum, the

first of which shall begin one (1) year from the date

of this judgment and continue from year to year on

the same annual date thereafter with the last payment

being for one-half (12) of such annual sum. The

amounts represented by the deferred payments of ali-

mony shall be payable absolutely except that in the

event of the death of the wife during said period of

time, any amounts that would have been due to be

paid if she had lived shall be voided, and no amount

shall be payable to her estate. In the event of the

death of the husband during said ten and one-half year

period of time, his estate shall be liable to pay to the

wife in one lump sum, discounted at the rate of six

(6) per cent per annum, any and all amounts remain-

ing due and unpaid as of the date of the husband’s

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death. It is the intent of the Court that these de

ferred payments of alimony shall qualify under the Ip.

ternal Revenue Laws to be tax deductible to the hug.

band and taxable to the wife.”

In support thereof, defendant states:

1. This motion is filed before the payment of February

7, 1971 is due or payable and is, therefore, timely.

2. This Court has jurisdiction to alter, amend or set

aside the above quoted portion of said judgment. The

Court retained jurisdiction for this purpose in its “Agreed

Order and Satisfaction of Judgment” dated August 7,

1970 which provided:

“This cause is now stricken, settled in full, includ.

ing satisfaction in full of the judgment, with the ex.

ception of said future alimony payments; but this

Court retains jurisdiction of the parties and of the

subject matter of this action for any and all necessary

and proper orders relative to the future alimony pay-

ments”.

3. On November 27, 1970, the Court of Appeals ren-

dered its opinion in Theodore Thelmer Colley v. Helen

Barrs Colley, holding that an award of alimony to the

wife violates KRS 403.060 unless (a) she does not have

sufficient estate of her own and (b) she is sufficiently free

from fault to warrant judicial finding that she is entitled

to a divorce. (A copy of that opinion is attached hereto

for the convenience of the Court). The Court of Appeals’

mandate in that case was handed down on December 29,

1970 and the decision is now final. The Court of Appeals

has thus repudiated its former claim of power to judicially

repeal KRS 403.060.

4. In the instant case, the judicial finding that Jean

was solely at fault has become final. It is manifest from

3a

the record of the August 7, 1970 hearing that she now has

dgufficient estate of her own”. On both grounds the judg-

ment awarding her alimony of $25,000.00 per year is unlaw-

fal and void and should be set aside.

5. The judgment of February 7, 1969 ordering Clyde

to pay Jean $25,000.00 on February 7, 1971, and annually

thereafter for 914 years as “deferred alimony” violates

KRS 403.060, is beyond the statutory power of the Court

to award, and is unconstitutional and void. Said judgment

constitutes a deprivation of Clyde’s property by the State

without due process of law in violation of the Fifth and

Fourteenth Amendments of the Constitution of the United

States.

§. The record shows that on August 7, 1970 Clyde

paid Jean in cash the sum of $513,010.15, all except $47,-

663.85 being tax-free to her. It shows that on the same

day she received unencumbered title to a lot in Murray,

Kentucky valued at not less than $7,200.00. Her estate,

prudently invested, will yield an income of approximately

$35,000.00 per year without consuming the principal.

7. The award of $25,000.00 per year to Jean is not

authorized by the restoration of property statute (KRS

403.065). This statute permits restoration to Jean only

of property which Jean “obtained, directly or indirectly,

from or through” Clyde during the marriage. It is beyond

the statutory power of the Court to “restore” to Jean (by

way of periodic alimony) property greatly in excess of

that which she actually received from Clyde during the

marriage. The courts possess no greater power to judi-

cially rewrite the KRS 403.065 than to judicially repeal

KRS 403.060. The judgment for $25,000.00 per year is un-

lawful and void and beyond the statutory power of the

Court to award and should be set aside. An attempt to

justify the award on KRS 403.065 would likewise violate

the Fifth and Fourteenth Amendments to the U. S. Con-

stitution.

da

8. The $25,000.00 per year award should be set aside

on the further ground that it is manifestly so unfair ang

unjust as to amount to a travesty. To award a guilty wife

$25,000.00 per year alimony when she already has an estate

in excess of one-half million dollars, an annual income of

about $35,000.00 and furs, jewelry and a Lincoln Contip.

ental automobile (all given to her by Clyde before the sep.

aration) is so grossly unfair as to shock the conscience,

Clyde W. Reed

By: John C. Lovett

Lovett & Lewis

Benton, Kentucky 42025

Raymond B. Dycus

Smithland, Kentucky 42081

NOTICE

Take notice that the foregoing MOTION TO SET

ASIDE PORTION OF JUDGMENT will be brought on for

hearing before the Hon. James M. Lassiter, Judge of the

Marshall Circuit Court, at the Courthouse in Benton, Ken-

tucky, on Friday, February 5, 1971, at 9:00 A.M. or as

soon thereafter as counsel can be heard.

John C. Lovett

CERTIFICATE OF SERVICE

I hereby certify that the foregoing MOTION TO SET

ASIDE PORTION OF JUDGMENT and NOTICE were

served upon William E. Scent, Esq., Reed, Scent and Wal-

ton, 621 Broadway, Paducah, Kentucky 42001, and upon

L. M. Tipton Reed, Esq., Neely and Reed, Lawpart Building,

Mayfield, Kentucky 42066, attorneys for Plaintiff, by mail-

ing a true and correct copy thereof to them, by U. S. Mail,

First Class, postage prepaid, on this the 28th day of Jan-

uary, 1971.

5a

AMENDED MOTION TO SET ASIDE PORTION

OF JUDGMENT

Comes defendant and amends and supplements his mo-

tion to set aside portion of judgment, filed herein on Jan-

uary 28, 1971 in the following respects:

1. The defendant further moves the Court to vacate

and set aside so much of the Court’s “Final Order” dated

August 7, 1970, filed August 7, 1970, as reads as follows:

“4, The plaintiff shall have further judgment against

the defendant for the following amounts which shall be due

and payable on the dates shown:

. * oo * * »

(i) Annual alimony in the sum of $25,000.00 pay-

able each year, the next payment being due and pay-

able on the 7th day of February, 1971, and a like

amount being due and payable on the 7th day of Feb-

ruary 1972, 1973, 1974, 1975, 1976, 1977, 1978 and 1979

without interest, and a final payment of $12,500.00 be-

ing due and payable on February 7, 1980, without in-

terest. If any installment is not paid when due six

(6) per cent interest shall be due from date.”

2. Since filing the motion on January 28, 1971, the de-

cision of the Court of Appeals in Colley v. Colley, referred

to in paragraph 3 of said motion, has been published and

is reported in 460 S. W. (2d) 821, advance sheet No. 3.

Clyde W. Reed

By: John C. Lovett

Lovett & Lewis

Benton, Kentucky

Raymond B. Dycus

Smithland, Kentucky

6a

NOTICE

Take notice that the foregoing Motion to Set Aside Por.

tion of Judgment, as amended, will be brought on for hear-

ing before the Honorable James M. Lassiter, Judge of the

Marshall Circuit Court, at the Courthouse in Benton, Kep-

tucky on Friday, February 5, 1971 at 9:00 A.M. or as soon

thereafter as counsel can be heard.

John C. Lovett

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Amended Motion to

Set Aside Portion of Judgment and Notice were served

upon William E. Scent, Esq., Reed, Scent and Walton, 621

Broadway, Paducah, Kentucky 42001, and upon L. M. Tip.

ton Reed, Esq., Neely and Reed, Lawpart Building, May.

field, Kentucky 42066, attorneys for plaintiff, by mailing a

true and correct copy thereof to them, by U. S. Mail, First

Class, postage prepaid, on this the 3rd day of February,

1971.

John C. Lovett

Filed February 4, 1971.

W. J. Brien, Jr., Clerk.

7a

SECOND AMENDMENT TO MOTION TO SET

ASIDE PORTION OF JUDGMENT

For further ground for setting aside the portion of the

judgment herein which has prospective application, de-

fendant states:

1. Said judgment sought to be set aside has prospec-

tive application only, and in view of the decision in Colley

y. Colley, rendered after entry of judgment, and the changes

in circumstances which have occurred subsequent to entry

of the judgment, it is no longer equitable that the judg-

ment should have prospective application and, therefore,

it should be set aside under CR 60.02(5). Moreover, the

reasons cited in the motion are of an extraordinary nature

justifying relief under CR 62.02(6).

Clyde W. Reed

By: John C. Lovett

Lovett & Lewis

Benton, Kentucky 42025

Raymond B. Dycus

Smithland, Kentucky 42081

Attorneys

NOTICE

Piease take notice that the foregoing SECOND

AMENDMENT TO MOTION TO SET ASIDE PORTION

OF JUDGMENT will be submitted to the Hon. James M.

Lassiter, Judge of the Marshal Circuit Court, at his office

in Murray, Kentucky, on Monday, February 22, 1971.

John C. Lovett

Filed February 25, 1971.

W. J. Brien, Jr., Clerk

ac a a

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8a

The points to be relied upon by defendant on his appeal

to the Court of Appeals are as follows:

1. The Chancellor, having retained jurisdiction of the

parties and the subject matter “for any and all necessary

or proper orders relating to future alimony payments”,

possessed jurisdiction to enter an order on defendant's mo.

tion to set aside or modify such award of alimony.

2. The Chancellor had jurisdiction under CR 60.02 to

enter an order setting aside future alimony payments.

This the 25 day of February, 1971.

John C. Lovett

Lovett & Lewis

Benton, Kentucky 42025

Raymond B. Dycus

Smithland, Kentucky 42081

Attorneys

9a

COURT OF APPEALS OF KENTUCKY

File No. W-277-71

Cuve W. Beep - - - - - + Appellant

v.

Jeax Moorr Resp - - - - - = Appellee

BRIEF FOR APPELLANT

STATEMENT OF THE FACTS

This appeal involves only the question of the Chan-

cellor’s jurisdiction to set aside a judgment for prospec-

tive application.

This is the second appeal in this case. The first appeal

was docketed as Civil Action File No. 8-73-69, and the de-

cision of this Court is to be found in Reed v. Reed, Ky.,

457 S. W. 2d 4 (1969).

On the prior appeal, this Court affirmed in part and

reversed in part the Chancellor’s judgment. (The Chan-

cellor’s original judgment is to be found at pages 1-32 of

the Record). The mandate was issued June 26, 1970 and

filed June 27, 1970 (R. 32, 33).

Thereafter, the Chancellor held a hearing to determine

all steps necessary to comply with this mandate. This

hearing was held on August 7, 1970, and a transcript of

the proceedings at that hearing is attached to the record

(R. 61). At this hearing, orders were entered confirming

the satisfaction in full of the judgment, interest, penalties,

ete., up to August 7, 1970, involving payment by Clyde to

Jean of well over $500,000 (R. 54-57, 57-58, 59). Appellant’s

attorneys were instrneted to draft “a formal order and

BOOT 8 ee ae yo ene

10a

judgment in compliance with the agreement” and submit

to the court (Transcript of August 7, 1970 hearing, p. 47).

A draft was submitted. Appellant’s counsel did ng

object. The Chancellor, however, prepared his ow,

“Agreed Order and Satisfaction of Judgment”, dated it as

of August 7, 1970, and filed it November 6, 1970. It is &

be found at pages 62 and 63 of the Record. This order

recites that all payments then due (including the first an.

nual $25,000 alimony) had been fully satisfied. It cop.

tinued : ’

“This cause is now stricken, settled in full, in

cluding satisfaction in full of the judgment, with the

exception of said future alimony payments; but this

Court retains jurisdiction of the parties and of the

subject matter of this action for any and all neces.

sary and proper orders relating to the future alimony

payments” (R. 63). (Emphasis supplied.)

At that time, 9% annual alimony installments of

$25,000 each, remained to be paid, the next payment be

coming due on February 7, 1971.

Three weeks later, this Court handed down its opinion

in Colley v. Colley, Ky., 460 S. W. 2d 821 (1970). The

mandate issued on December 29, 1970. This decision dras-

tically changed the approach to matters of alimony and

restoration of property in divorce cases.

Prior to the due date of the next $25,000 alimony pay-

ment, Appellant moved the Chancellor to vacate and *ci

aside so much of the original judgment as ordered Cly je to

pay $25,000 alimony per year for the next 9% years (BR.

75), and attached a copy of the Colley decision. He

amended the motion after Colley was officially reported

(R. 93-94), and amended it a second time to recite CR

60.02 as additional grounds for the Chancellor’s jurisdic

lla

tion to grant relief (B. 96-97). Briefs were filed and the

matter submitted without oral argument.

On February 23, 1971, the Chancellor entered his “Order

on Motion and Amended Motion on (sic.) Defendant to

Set Aside Portion of Judgment” (RB. 102-105). He held

that he had no “discretionary powers” to grant relief. He

held that not even CR 60.02 gave him “jurisdiction to now

use diseretionary powers to alter or modify that final judg-

ment and decision of the Court of Appeals” (R. 104).

Evidently, he felt only the Court of Appeals possessed

original jurisdiction to modify or amend the judgment he

had entered. He said, “Obviously, a recourse may be had

by appeal from his order to determine whether the Court

of Appeals now desires to amend its own decision and

to make the remaining deferred payments to (sic.) ali-

mony subject to the rule which they later announced in

the Colley decision” (R. 104).

This appeal followed.

The issue is simply one of jurisdiction. Did the Chan-

cellor possess jurisdiction to pass on the merits of the

motion to vacate the judgment as it applied to future ali-

mony installments?

We submit that the Chancellor is vested with juris-

diction to pass on the merits of the motion.

ARGUMENT

L

Having Specifically Retained Jurisdiction to Enter “Any

and All Necessary and Proper Orders Relating to the

Future Alimony Payments”, the Chancellor’s Jurisdic-

tion is Clear.

Unless the quoted portion of the order which the Chan-

cellor prepared and entered on February 23, 1971 is a

nullity, the Chancellor possessed jurisdiction to pass on

the merits of the motion.

12a

“In considering whether jurisdiction exists to mod-

ify an award the situations categorize into two types:

Where the decree itself reserves jurisdiction (whether

based upon an agreement of the parties, or initially

determined by the court), or, where the decree does

not reserve jurisdiction. The first type is clear, such

decree may be modified.” Petrilli ‘Kentucky Family

Law’ (1969), page 414. (Emphasis supplied.) Keach y,

Keach, 217 Ky. 723, 290 S. W. 708 (1927) ; Boehmer vy.

Boehmer, 259 Ky. 69, 82 S. W. 2d 199 (1935) ; Parsons

v. Parsons, 26 Ky. L. Rep. 256, 80 S. W. 1187; Pauley y.

Pauley, 280 Ky. 66, 132 S. W. 2d 512 (1939) ; Staton +.

Staton, 164 Ky. 688, 176 S. W. 21 (1915); Honaker vy.

Honaker, 267 Ky. 129, 101 S. W. 2d 679 (1937) ; Duff v.

Duff, 275 Ky. 367, 121 S. W. 2d 933 (1938) ; Scott y.

Robertson, 212 Ky. 392, 279 S. W. 625 (1926) ; Jones v.

Jones, 216 Ky. 810, 288 S. W. 737 (1926); Turner y.

Ewald, 290 Ky. 833, 162 S. W. 2d 181, 188 (1942).

The rule is stated in Keach v. Keach. supra, as follows:

“The rule in this jurisdiction is that a judgment

for alimony in a lump sum becomes final after adjourn.

ment of the term of court at which it is rendered, and

cannot thereafter be modified unless the court in its

judgment retains the right to do so. Scott v. Robert-

son, 212 Ky. 392, 279 S. W. 625. See, also, 19 C.J.

§616, p. 269. And the same rule prevails where the

payment is made in installments, if the judgment for

alimony is a sum in gross. Jones v. Jones, 216 Ky. 810,

288 S. W. 737.” (Emphasis supplied.)

13a

I.

CR 60.02(5) and (6) Empower the Chancellor to Set Aside

a Judgment Even After Affirmance by the Court of

Appeals.

CR 60.02 provides:

“Qn motion a court may, upon such terms as are

just, relieve a party or his legal representative from

its final judgment, order or proceeding upon the fol-

lowing grounds: . . . (5) the judgment is void, or

has been satisfied, released or discharged, or a prior

judgment upon which it is based has been reversed or

otherwise vacated, or it is no longer equitable that the

judgment should have prospective application; or (6)

any other reason of an extraordinary nature justify-

ing relief.”

This Rule confers on this Court complete power and

jurisdiction to modify or set aside the prior judgment inso-

far as it has prospective application.

This authority exists even though the original judgment

as been affirmed by the Court of Appeals.

In National Electric Service Corp. v. District 50. UMW,

Ky., 279 S. W. 2d 808 (1955), the plaintiff had obtained a

temporary injunction against the union’s picketing. On

appeal, the Court of Appeals affirmed. The injunction was

made permanent. Later, the Supreme Court in another

case issued an opinion that the jurisdiction of the NLRB

in such matters was exclusive. Five months later the union

moved to set aside the injunction under CR 60.02. Relief

was granted by the Chancellor, and the company appealed.

The question involved was: can the Chancellor, after an

injunction is affirmed as the law of the case by the Court

of Appeals, set the injunction aside? The Court of Ap-

peals held that the Chancellor had jurisdiction under CR

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60.02(5) to set it aside “for prospective application”. The

court said:

“However, as we hope our rather long discussion

of the question has demonstrated, neither of these cop.

tentions is an acceptable basis for a decision here and

we must look again to CR 60.02 to determine if the

court had the right to set aside its earlier judgment,

We think he did have the right for two reasons: First,

because subsection 5 of the above quoted rule permits

such action when subsequent events justify relief from

the operation of the judgment. Of this subsection, in

Clay, CR, page 534, it is said:

“*This ground had no counterpart in the Civil

Code. However, it was substantially the basis of

the ancient writ of audita querela. That writ and

this ground are founded upon the right to relief

when one is adversely affected by a judgment be.

cause of some defense, or discharge, or other circum.

stance arising subsequent to its entry.

“‘Relief from the judgment may not only be

granted if it has been satisfied, released or dis-

charged, but also if a prior judgment upon which

it is based has been reversed or otherwise vacated,

or if it would be inequitable to give it further pro-

spective application.’

“The opinion in the Garner case which established

law that had not been applicable in this Commonwealth

prior to its decision, was certainly a circumstance

arising subsequent to the entry of the judgment which

warranted relief and we further believe it would be

snequitable to give further prospective application to a

principle of law which is no longer evidenced by the

opinions of the state courts or the courts of the United

States” (p. 812). (Emphasis supplied.)

lia

In Cawood v. Cawood, Ky., 329 S. W. 2d 569 (1959) a

divorce judgment for the wife, awarding her $21,500 lump

sum, was affirmed on appeal. Nearly a year after the

judgment was entered and had been paid, she filed a mo-

tion under CR 60.02 to increase the lump sum because of

newly discovered evidence (she had developed cancer).

The Chancellor overruled the motion and she appealed.

This Court affirmed on the ground that there was insuf-

ficient newly discovered evidence to warrant changing the

jump sum award. The court added:

“While CR 60.02 authorizes the setting aside of a

judgment ‘if it is no longer equitable that the judg-

ment should have prospective application’, we think

it is clear that this ground relates only to such judg-

ments as remain in whole or in part unenforced, and

thus are capable of having ‘prospective application’

and does not apply to a judgment which has been satis-

fied in full” (p. 571).

Thus, it makes no difference that the original judg-

ment was affirmed on appeal; the Chancellor possesses

power to set it aside under CR 60.02 if it is on longer equi-

table that it have prospective application. This was re-

affirmed in Fortney v. Mahan, Ky., 302 S. W. 2d 842 (1957).

There the circuit court judgment settling an estate was

afirmed by the Court of Appeals. After the mandate is-

sued, Fortney filed a motion under CR 60.02 for relief from

the judgment. As to the jurisdiction of the Chancellor to

grant relief this Court said:

“Direct attacks upon a judgment, as by appeal or

by motion for new trial, are commonly accepted prac-

tice. CR 60.02, in addition, provides the trial court

with extensive power to correct a judgment even after

recourse has been had to the usual methods of attack.

l6a

On motion, the Court is empowered to relieve a party

from a final judgment under certain extraordinary

circumstances and upon such terms as it deems just,

CR 60.02 addresses itself to the sound discretion of

the trial court” (p. 843). (Emphasis supplied.)

CR 60.02(5), according to Clay, codifies the ancient

writ of audita querela. He said, ,

“Relief may also be sought on this ground if a

judgment has been satisfied, released or discharged, or

if a prior judgment upon which it is based has been

reversed or otherwise vacated, or if for some reason

it is no longer equitable that the judgment should have

prospective application. These grounds had no coun-

terpart in the Civil Code. However, they are sub.

stantially the basis of the ancient writ of audita

querela. That writ was founded upon the right to re-

lief when one is adversely affected by a judgment be-

cause of some defense, or discharge, or other circum-

stance arising subsequent to its entry” (Clay, Ken-

tucky Practice, Vol. 7. pp. 227-228). (Emphasis sup-

plied.)

In Taylor v. Mills, Ky., 320 S. W. 2d 111 (1958) this

Court acknowledged that CR 60.02 provided a remedy for

relief from a final judgment in a case which had been before

the Court of Appeals four previous times. It said:

“It is true that CR 60.02 may provide a remedy

for attacking a judgment even after there has been

a final decision with respect thereto by the Court of

Appeals. This was permitted under former Civil

Code of Practice Section 518, which CR 60.02 super-

sedes (citing cases). However, no motion under CR

60.02 was made in the trial court, and we will not

initially entertain such a motion” (p. 113).

lia

And, in Averitte v. Hutchinson, Ky., 420 S. W. 2d 581

(1967) this Court, while it denied relief on plaintiffs CR

60.02 motion, approved the Chancellor’s statement: “That

the court has the right to act in behalf of the plaintiff in

this matter is beyond question . . .” (p. 582).

In Burke v. Burke, Ky., 248 S. W. 2d 716 (1952) an

award of $50.00 per month to the wife had been affirmed

by the Court of Appeals (182 S. W. 2d 786). Five years

later, the husband moved to modify this award. The Chan-

cellor sustained the wife’s demurrer. This Court said that

the Chancellor erred. “. . . we think Mr. Burke’s mo-

tion sect forth sufficient grounds to warrant the granting of

a hearing on his motion” (p. 716).

This Rule provides relief in criminal as well as civil

eases. In Balsley v. Commonwealth, Ky., 428 S. W. 2d 614

(1968), Balsley, arrested for violation of parole from a life

sentence, was surrendered to federal authorities for trial

in Indiana for armed robbery where he was convicted and

given a 10 year sentence. He filed a writ to set aside the

life sentence in Kentucky on the ground that the surrender

of his custody to federal authorities forfeited Kentucky’s

right to enforce completion of his life sentence. This Court,

relying upon CR 60.02(5), set aside the remainder of the

life sentence, saying that CR 60.02(5) preserves the rem-

edies of audita querela which “may be directed against en-

forcement, or further enforcement, of a judgment which

when rendered was just and unimpeachable”. Accord:

Fanelli v. Commonwealth, Ky., 423 S. W. 2d 255 (1968).

;

EES GARNISH SEE ETE ER ESTER A NN aa nae Le

; Y Cae Te ae ee

18a

CONCLUSION

This brief deals only with the Chancellor’s power or

jurisdiction to pass on Appellant’s motion to vacate the

$25,000 per year award insofar as it requires future pay-

ments. It is not addressed to the merits of the motion,

This Court has already declared that it “will not initially

entertain” a motion under CR 60.02 (Taylor v. Mills,

supra.)

We respectfully submit that on both grounds, i.e. the

Chancellor’s express retention of jurisdiction and the

plenary power granted by CR 60.02, the Chancellor pos-

sessed jurisdiction to pass on the merits of defendant's

motion.

Respectfully submitted,

Joun C. Lovett

Lovett & Lewis

Benton, Kentucky 42025

AND

Raymonp B. Dycus

Smithland, Kentucky 42081

Attorneys for Appellant

19a

COURT OF APPEALS OF KENTUCKY

File No. W-277-71

Crvpp W. REeD -— - - - - Appellant

v.

Jean Moore Reep : - - . - Appellee

APPELLANT'S PETITION FOR REHEARING

STATEMENT

Appellant, Clyde W. Reed, petitions the Court for a

rehearing of his appeal on the grounds (1) the Court has

overlooked material facts in the record and has ignored

the express terms of the law applicable to this appeal; (2)

the Court in this case has simply changed the law to fit

what evidently were preconceived ideas of this merits of

this latest controversy between Clyde Reed and Jean

Reed; and (3) the Court for the first time has denied a

litigant hearing on the merits of his claim that “changes

in circumstances” have made it “no longer equitable that

the judgment should have prospective application” (R. 97),

a claim on which Clyde is prepared to offer extensive and

persuasive proof if given the opportunity.

Clyde has no delusions. He knows how difficult it is

to view objectively and impartially new issues between him :

and Jean when old issues have been resolved in such an :

emotional and bitter atmosphere. Believing. however, that ;

“great minds are never shut,” he is confident that this f

Petition will be considered by judges who are not reluctant

to permit the suggestion of appellate court error “to gam- |

bol freely on the cool green pastures of your mind.” é

>

TPN EE tae

RE yn RA i MR rR ana aa

URI ES

20a

ARGUMENT

I

The Court Has Amended CR 60.02(5) so as to

Deny Clyde a Hearing

Clyde moved the trial court to vacate the judgment on

the ground, among others, that changes in circumsiances

have made it “no longer equitable that the judgment have

prospective application” (R. 97). He was prepared to ip.

troduce proof on this allegation—proof of changes in his

and Jean’s financial postures, proof of changes in the par-

ties’ conditions of health, proof of facts which would rep.

der simply unconscionable the requirement that he con-

tinue to pay Jean $25,000 per year for 914 years, and proof

that such requirement offends the most elementary concepts

of justice. The lower Court overruled his motion on juris-

dictional grounds alone. This appeal was addressed only

to the jurisdictional issue. The merits were not briefed.

The Court has held that no matter how unjust or un-

conscionable the future payments, Clyde can have no hear-

ing. No court on earth has jurisdiction to give him a hear-

ing. His future obligations are as inexorable as the sun-

rise!

The Court reached this unusual result by two devices,

First, without prior precedent, it amended CR 60.02(5) to

read “prospective application in an unlimited sense.”

When arose this judicial tendency to construe so elastically

well-settled procedure rules? This Court strictly enforces

its own rules. It dismissed Jean’s original cross-appeal

(claiming in excess of $2 million) simply because she did

not comply with RCA 1.080 which required the timely filing

of a $50.00 cost bond and statement of cross-appeal. It

has dismissed a meritcrious appeal because the record on

appeal was filed 1 day late. But where broad equities are

involved and manifest injustice is about to occur, this

2la

Court amends CR 60.02(5) for the first time to deny Clyde

a hearing.

Second, the Court seems to require an absolute show-

ing of inequity in advance, otherwise no court has juris-

diction to hear proof on the inequity. It says, for example,

that “there is no certainty” that Clyde will prevail, irre-

spective of quality or quantity of his proof that prospective

application of the judgment would be grossly inequitable.

A hearing will produce proof of such “certainty.” It says,

for further example, that “It is quite possible” that Clyde

would not prevail at a hearing on the merits. This is a

statement of the obvious. Is it a valid reason to deny him

a hearing?

The Court assumed that Clyde’s only ground for relief

under CR 60.02(5) was the change in law effected by

Colley v. Colley, Ky., 460 S. W. 2d 821 (1970). It said

(again for the first time) that a subsequent change in the

law would support relief under CR 60.02(5) only in “ag-

gravated cases.” This unprecedented holding ignores the

other valid reasons Clyde had (and was prepared to prove)

for seeking relief under CR 60.02(5).’

I

The Court Has Overlooked Material Facts

in the Record

The dissenting opinion points out the failure of the

majority to consider the fact that the trial court’s “Agreed

Order and Satisfaction of Judgment” was delivered to Ap-

pellee’s counsel, reviewed by them, and unopposed by them.

They never denied agreeing to the “Agreed Order” until

1The appeal in Colley probably was pending in this Court when

Clyde’s ‘‘Petition for Rehearing,’’ strongly urging this Court to

return to the rule of law (as it shortly did in Colley) was overruled.

Thus, Clyde senses that this Court is willing to follow the law in all

cases except his. And, in absence of an evidentiary hearing, how

can the Court know that this is not such an ‘‘aggravated case’’?

EEE ES RITE oh

this appeal was filed. We will not further dwell on this

except to say that if Appellees’ counsel had been displeased

by the trial court's express retention of jurisdiction, they

never expressed such displeasure in the eight month,

which elapsed between their receipt of the “Agreed Order”

in November, 1970, and their response to this appeal.

The most serious misconception of the record involves

the Court's viewing of the $25,000 annual payments »

representing installment payments to Jean of her pro

portionate part of the “team” property.

The Chancellor regarded the payments as support aud

maintenance payments. He said “the Couri feels that the

wife is entitled to lump sum alimony in the amount of Five

Hundred Thousand ($500,000) Dollars.” Thus, the lump

sum alimony (or alimony in gross) was fixed at $500,000

This Court has belatedly and erroneously construed the

original judgment as awarding lump sum alimony of

$765,500, with $500,000 being payable immediately and

the balance payable in $25,000 annual installments. This

is construction by afterthought.

The $25,000 annual payments possess all the character-

istics of support payments. For example:

(a) “Alimony” (ie. support for the wife) ceases with

the wife’s death. However, the wife's entitlement to her

portion of jomfly-accumulated property survives ber. It

passes to her estate. The judgment provides that “in the

event of the death of the wife during said [10% year]

period, any amounts that would have been paid if she had

lived shall be voided.” This termination of the husband's

liability at the wife’s death is inconsistent with “alimony

in gross.”

(b) “Alimony” (support) is income taxable to the wife

and deductible by the husband.* On the other hand, “in-

*If the wife is from her husband, the wife's gross in-

come includes ic payments (whether or not made at

intervals) received by her after the date of the enactment of this

(Footnote continued on following page.)

stallment payments discharging a part of an obligation the

principal sum of which is . « « specified in the decree

_, thalll not be treated as periodic payments” and are

pot income taxable to the wife nor deductible by the hus-

hand. Internal Revenue Code, 1954, as amended, Sec.

Ti(e)(1)." The trial court in the judgment stated,

It is the intent of the Court that the $500,000.00 should

be received by the wife without incurrence of tax lia-

bility thereon, and that the balance of the alimony pay-

ments specified shall meet the requirements of the In-

ternal Revenue Code as to periodic payments and shall

be tax deductible by the husband and taxable to the

wife. (Emphasis supplied.)

The wife's liability for income taxes on the installment

payments ix inconsistent with “Alimony in gross.”

As the dissenting opinion makes clear, both the trial

court and this Court consistently referred to the annual

installments as “alimony” and believed it to be such. To

denominate them now as installment repayments of “team

effort” property smacks of a post hoc rationalization of

rn antecedent opinion.

The Chancellor provided for payment of the commuted

value of unpaid installments on Clyde's prior death. This,

it will be argued, is not generally characteristic of “support

and maintenance.” However, the Chancellor has discretion

to provide that the husband's obligation to “support and

maintain” the wife survives his death and must be paid

24a

out of his estate.” Wides v. Wides, 300 Ky. 344, 188 &. Ww

2d 471, 475 (1945); see also dissenting opinion of Judgy

Shackelford Miller in Desjardins v. Desjardins, 308 F. %

111, 119 (C.A. 6, 1962). Nor is it uncharacteristic of “sup.

port and maintenance” to require the husband to give se

eurity for future support and maintenance payments. The

law expressly provides for it (KRS 403.080). And the fac

that Clyde’s obligation will continue after Jean's remar.

riage doex not evidence that the installments represent ali.

mony in gross. The general rule is that all support and

maintenance payments, in absence of statute or

language in the decree, continue after the wife’s remarriage,

24 Am. Jur. 2d, Divorce and Separation, See. 645, p. 765,

The Court Misconstrued the Chancellor's

Retention of Jurisdiction

The majority writes that the trial court had no “pro

cedural jurisdiction” to insert in the “Agreed Order” «

retention of jurisdiction for subsequent orders relating to

future alimony payments. It bases this conclusion upon

the observation that the original February 7, 1969, judg-

ment contained no such reservation and this judgment was

affirmed on appeal. Here the Court simply overlooks well-

settled law that for good cause shown future support and

maintenance payments may be modified at any time by the

Chancellor, whether or not he expressly reserves jurisdie-

tion. A reservation of such right in the original judgment

would have been superfluous. Can its omission be deter-

minative of Clyde’s plea for a hearing? Similarly, inser-

tion of such reservation in this Court's affirmance of the

February 7, 1969 judgment would have been superfluous.

In such affirmance this Court regarded the $25,000 install-

20a

ments ax “alimony,” Le. support and maintenance.‘ The

express retention of jurisdiction in the “Agreed Or-

der,” an order prepared by the Chancellor himself, simply

made clear that the future $25,000 alimony payments were

not final and irrevocable. (an it now be regarded as a

nullity ?

With all due respect, we submit that the Court has

grossly erred. We reject the suggestions that minds are

fixed, that ne power on earth can change them, that be-

canse of the bitterness of past issues between Clyde and

Jean. the Court has prejudged the merits of all future

ixenexs between them. (Clyde's insistence that he has been

wrongfully denied a hearing which this Court has not hes-

‘tated to grant to all other litigants similarly situated is

not simply a churlish plea.

26a

A famous inscription on Langdell Hall, Harvard Law

School, is relevant:

NON SUB HOMINE SED SUB DEO ET LEGE

Respectfully submitted,

Joux C. Lovett

Lovett anv Lewis

Benton, Kentucky 42025

Rayrmonp B. Dycus

Smithland, Kentucky 42081]

Attorneys for Appellant