Reed v. Reed

DISSENTING OPINION BY JUDGE OSBORNE

OSBORNE, Judge

(dissenting).

In my opinion the majority opinion in this case is defective in so many respects that I will have to deal with them in separate numbered paragraphs.

I

The majority opinion in effect finds that that portion of the judgment which reserved the right to reopen was not agreed to by the parties and that the circuit judge on his own motion amended the judgment. The problem with this position is that the record does not bear out the majority opinion. At a hearing before the court prior to the drafting of the judgment the following colloquy took place between the attorneys and the judge:

“Mr. Lovett: . . . and she will also give to Mr. Reed a complete release of all claims which she has against him arising out of this action except the $25,000.00 alimony payments for the future ....
Judge: The attorneys for both parties have agreed to this method of settlement and that the attorneys for the defendant will be responsible for the drafting of a formal order and judgment in compliance with the agreement; and it will be submitted to the Court at the earliest possible time after approval by the attor*848neys for both sides and will be signed and entered as of this date.
Mr. Lovett: That will be satisfactory with the defendant.
Mr. Reed: That will be satisfactory with the plaintiff.” (Emphasis added).

It will be noted from the above that the court directed the attorneys not to submit the drafts until “after approval by the attorneys.” I believe this court can do nothing but assume that the drafts were so approved. Attorneys for appellee do not deny that they approved the drafts. They carefully skirt this issue by saying that the order was not an agreed order because neither the parties nor their attorneys signed the order so entered. For this court to now sua sponte say that the trial court injected this clause into the order on its own motion is not supported by the record.

II

In my opinion appellee did not properly attack the reservation of jurisdiction in the trial court. Certainly, she does not deny that she received a copy of the order upon its entry. CR 52.02 provides:

“Not later than 10 days after entry of judgment the court of its own initiative or on the motion of a party may amend its findings or make additional findings and may amend the judgment accordingly.”

Appellee upon receiving a copy of the order certainly had an obligation to move the court to strike this language if she had not agreed to it. We have previously held that where a jury returns a verdict patently defective on its face the party must immediately move that the jury be recommitted for correction of the verdict. See Stucker v. Bibble, Ky., 442 S.W.2d 578; Commonwealth, Department of Highways v. Bauman, Ky., 468 S.W.2d 315. It is my opinion the same rule should apply here. Even if Mrs. Reed’s attorneys did not agree to the- insertion of this matter in the order they had an affirmative obligation to move to strike it in the circuit court and could not wait until the matter got to this court and raise it for the first time.

III

If I understand the majority opinion, the court is saying that since there is no certainty that the ultimate obligation of Clyde Reed under a judgment based on Colley would be different from the present judgment his claim does not have sufficient equity to permit reopening under CR 60.02. Under this type of reasoning, we could “guess” 90% of those who appeal to this court out. We have in the last several months remanded a large number of cases to be considered under Colley where there was no guarantee that the ultimate result would be different. See Goff v. Goff, Ky., 481 S.W.2d 80, rendered May 26, 1972; Noel v. Noel, Ky., 481 S.W.2d 46, rendered May 12, 1972; Petersen v. Petersen, Ky., 479 S.W.2d 892, rendered April 28, 1972; Coleman v. Coleman, Ky., 479 S.W.2d 602, rendered March 31, 1972; Dahlenburg v. Dahlenburg, Ky., 479 S.W.2d 606, rendered March 31, 1972; Moore v. Moore, Ky., 477 S.W.2d 792, rendered March 3, 1972; Clark v. Clark, Ky., 471 S.W.2d 740, rendered October 8, 1971; Howard v. Howard, Ky., 469 S.W.2d 353, rendered June 29, 1971.

IV

The trial court designated the award to Mrs. Reed as alimony. The divorce was granted to Mr. Reed. Under Colley, Mrs. Reed could have received nothing unless this court found that she should have been awarded the divorce. I assume the basis of the court’s ruling is that this court is considering the award to be not alimony but jointly acquired property or marital property. If this be the case, the court is still in error for the original Reed case was tried under the old Heustis rule under which we were awarding a percentage of the marital property without regard to the respective contribution of the parties to the accumulation of the property. If this proceeding should be remanded to the trial court as Mr. Reed now requests, the hearing would have to be conducted under *849Chapter 182 of the Acts of 1972 as Section 26(3), (4) of that Act provides:

“(3) This Act applies to all proceedings commenced after its effective date for the modification of a judgment or order entered prior to the effective date of this Act.
(4) In any action or proceeding in which an appeal was pending or a new trial was ordered prior to the effective date of this Act, the law in effect at the time of the order sustaining the appeal or the new trial governs the appeal, the new trial, and any subsequent trial or appeal.”

If the proceedings are controlled by Chapter 182, the results could be considerably different from those incorporated in the original judgment as the trial court would be bound to consider the wife’s contribution to the accumulation of the estate.

V

When Mrs. Reed filed her suit, she requested that the court award her alimony. The trial court, when entering the judgment, made an award of alimony. Appeal was taken to this court and we affirmed this award of alimony. The case went back to the circuit court. It modified its judgment in accordance with the mandate of this court and reserved the right to modify future alimony payments. Motion was made before the circuit court to modify alimony payments. The circuit court denied that motion because it was of the opinion it did not have jurisdiction. Appeal was taken to this court to review the actions of the circuit court in respect to alimony payments. The majority opinion of this court affirms the action of the circuit court and recites as its reason for doing so that the payments were never alimony at all. I would suggest to the majority they should cite as authority for their action today “Alice in Wonderland.”

For the foregoing reasons, I respectfully dissent.