RENDERED: OCTOBER 8, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1273-MR
JAMES T. KNUCKLES, II APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
v. HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 18-CI-00865
ASHLEY KNUCKLES APPELLEE
OPINION
REVERSING AND
REMANDING
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BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
COMBS, JUDGE: In this divorce action, James T. Knuckles, II, appeals an order
of the Laurel Family Court entered on September 25, 2020, that denied his motion
to alter, amend, or vacate orders entered on March 23, 2020, and May 7, 2020.
After our review, we reverse and remand.
James Knuckles and Ashley J. Knuckles married in January 2011.
They have two minor children. Following a temporary custody hearing conducted
in October 2019, the matter was set for a final hearing to be held in December
2019.
When the parties appeared with counsel for the December 2019, final
hearing, Ashley’s attorney indicated that he could not stay as he had other
obligations in another court room. The court dissolved the parties’ marriage
through a bifurcated decree, and a hearing was rescheduled for January 2020 to
address the remaining issues of child custody, timesharing, and property division.
However, Ashley’s counsel failed to appear for the rescheduled final hearing. The
circuit court again rescheduled the hearing and specifically barred a further
continuance.
At the request of Ashley’s counsel, James’s attorney agreed to yet
another continuance of one week. Consequently, the hearing was rescheduled for
February 2020.
Once again, Ashley’s counsel failed to appear for the rescheduled
hearing. James’s counsel resisted a further continuance and reported that Ashley
had not filed the required final disclosure statement. Counsel indicated that Ashley
had filed nothing whatsoever since her answer. The family court ordered the
parties to submit written depositions and proposed orders by February 18, 2020.
James timely filed his written deposition and a proposed order, but
Ashley filed nothing. Fourteen (14) days later, on March 3, 2020, the family court
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entered a final order that was based on James’s proposed order. The court left in
place the children’s equal timesharing schedule; set James’s child support
obligation; and distributed the parties’ property and debt. James was awarded a
mobile home, his truck, a bank account, and the household and personal property
in his possession -- including a collection of Snap-On Tools. He was ordered to
pay the outstanding debt. Ashley was awarded her vehicle, her bank account, and
the household and personal property in her possession.
On March 10, 2020, Ashley tendered a proposed final order. She did
not file a written deposition. The family court adopted this proposed order, and
another final order was entered on March 11, 2020. James was now ordered to pay
to Ashley $6,000.00 to equalize the distribution of personal property. The majority
of the discrepancy in property value appeared to be based upon the value of
James’s Snap-On Tool collection, which was now valued by the court at $10,000.
On March 23, 2020, the court entered an order vacating both the order
of March 3, 2020, and the order of March 11, 2020. The parties were ordered to
tender new proposed final orders within twenty (20) days. James timely filed his
proposed order. This proposed order contained the same provisions as the order
entered on March 3, 2020.
Ashley’s proposed order was not filed within the time allotted by the
court. However, it was filed on April 16, 2020, and contained the same provisions
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as the order entered on March 11, 2020. Ashley’s written deposition was filed
simultaneously.
The court’s new final order was filed on May 7, 2020. It was based
entirely upon Ashley’s proposed order.
On May 15, 2020, James filed a motion to alter, amend, or vacate the
orders of March 23 and May 7. He also filed a motion to strike Ashley’s written
deposition as it had been filed out of time. James argued that the family court
erred by vacating its first final order of March 3, 2020, and that the valuation and
distribution of property provided in the order of May 7, 2020, was not supported
by the evidence.
On July 15, 2020, a new final order was entered. This was the same
as the orders entered on March 11, 2020, and May 7, 2020, that were based upon
Ashley’s proposed orders. On August 12, 2020, James filed a motion for a ruling
on his motion to alter, amend, or vacate. Additionally, he filed a motion to alter,
amend, or vacate the order entered on July 15, 2020.
The order of the family court denying James’s initial motion to alter,
amend, or vacate was entered on September 25, 2020. Additionally, the order of
July 15, 2020, was vacated as the court regarded it as having been “inadvertently
entered a second time.” This appeal followed.
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James contends that the family court erred by vacating the order
entered March 3, 2020 -- the first final order -- because Ashley never filed a
motion to vacate, alter, or amend it. He also argues that the valuation and
distribution of property provided by the order of May 7, 2020, was not supported
by the evidence.
We need not address the merits of this appeal. Ashley has filed no
brief, and we conclude that this matter is appropriate for disposition pursuant to the
provisions of CR 76.12(8)(c). This rule of appellate procedure provides as
follows:
If the appellee’s brief has not been filed within the time
allowed, the court may: (i) accept the appellant’s
statement of the facts and issues as correct; (ii) reverse
the judgment if appellant’s brief reasonably appears to
sustain such action; or (iii) regard the appellee’s failure
as a confession of error and reverse the judgment without
considering the merits of the case.
CR 76.12(8)(c).
Based on these options provided by the rule, we elect to regard
Ashley’s failure to file a brief as a confession of error. Having reviewed the record
before us, and in accordance with the provisions of CR 76.12(8)(c)(iii), we reverse
the family court’s order of September 25, 2020, denying James’s motion to alter,
amend, or vacate. Our reversal of the court’s order is based solely on the omission
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of appellee to file an appellate brief in this appeal rather than upon any error by the
Laurel Circuit Court.
As a result of our holding, we summarize its effects as follows:
(1) we vacate the order of March 23, 2020 (which had
vacated orders of March 2, 2020, and March 11, 2020);
(2) we vacate the order of May 7, 2020.
We note that the trial court properly vacated its order of July 15, 2020, as
duplicative when it denied James’s motion to alter, amend, or vacate its order of
September 25, 2020. We reverse only as to its denial of the motion to alter,
amend, or vacate the orders of March 23, 2020, and May 7, 2020.
We remand this matter to the Laurel Circuit Court for reinstatement of
its original order of March 3, 2020, the relief requested by James, or for entry of a
new final order in its discretion.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Jennifer Caudill Bundy
London, Kentucky
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