# Opposition Brief — Reed v. Reed > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1768%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1973 - **Citation:** 410 U.S. 931 ## Text 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 ’ aii GD, 5. ok ssia ve dcicecvacsse: ..% ; MI. oi ica cups Sarkes 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 f i : & : TEPER PRIN EM, 1 Ire ; s ; > i ae a a a a be. + REE 2a 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 ne . ? > ss -Se 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 " erwe) Vn Perse " . re _— SP POL SOS TF YO NR nmr I aer verge ns pm © : ELLE RET EE — léa 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1768%3A2. Public record. Not legal advice.