Opinion
NO. 2016-CA-000819-MR
11-09-2017
DONNA LYNN VANOVER (NOW MAXWELL) APPELLANT v. ESTATE OF DARRELL RAY VANOVER; DONALD LEE VANOVER IN HIS CAPACITY AS THE CO-EXECUTOR OF THE ESTATE OF DARRELL RAY VANOVER; AND ZELLA FAYE MILLS IN HER CAPACITY AS THE CO-EXECUTOR OF THE ESTATE OF DARRELL RAY VANOVER APPELLEES
BRIEF AND ORAL ARGUMENT FOR APPELLANT: David Bridgeman Whitley City, Kentucky BRIEF AND ORAL ARGUMENT FOR APPELLEES: Tim Lavender Whitley City, Kentucky
NOT TO BE PUBLISHED APPEAL FROM MCCREARY CIRCUIT COURT
HON. DANIEL BALLOU, JUDGE
ACTION NO. 01-CI-00339 OPINION
AFFIRMING
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BEFORE: KRAMER, CHIEF JUDGE; CLAYTON AND TAYLOR, JUDGES. TAYLOR, JUDGE: Donna Lynn Vanover (now Maxwell) brings this appeal from a May 24, 2016, order of the McCreary Circuit Court denying her motion to revive a dissolution action. We affirm.
Donna and Darrell Ray Vanover were married on November 17, 1989. Some twelve years later, on October 17, 2001, Darrell filed a petition for dissolution of marriage. Donna filed a response on December 18, 2001. Both parties eventually filed financial and property disclosure statements. On September 30, 2002, the circuit court rendered a Limited Decree of Dissolution of Marriage (Limited Decree). The Limited Decree disposed of child custody and ordered Darrell to pay monthly child support; however, it specifically reserved property division and debt issues for future adjudication.
Over the next several years, the parties vigorously litigated issues related to child visitation and child support. Yet, it appears that neither party nor the court revisited any issues related to property distribution and debt allocation. Darrell ultimately passed away on December 28, 2015. Shortly thereafter, on January 13, 2016, Donald Lee Vanover and Zella Faye Mills were appointed co-executors of Darrell's estate (the Estate) by order of the McCreary District Court.
Thereafter, in the dissolution action, Donna filed a Notice to Revive Action and Substitution of Co-Executors of Darrell's Estate on April 19, 2016. Donna requested the circuit court to restore the parties' respective nonmarital property and to equitably divide the marital property between Darrell and herself. The Estate filed a response and asserted the affirmative defense of laches. The Estate argued that Donna's delay of nearly fourteen years in seeking a property division was unreasonable and resulted in prejudice.
By order entered May 24, 2016, the circuit court concluded that laches barred Donna's motion:
The co-executors in their response raised the affirmative defense of laches. Their position is that the parties herein were divorced by a Limited Decree of Dissolution of Marriage on September 30, 2002, which reserved property division issues, and that respondent unreasonably delayed the finalization of this matter as to marital property only to come forward after the untimely death of the petitioner.
. . . .
The respondent's claims that she feared petitioner and was too intimidated to finalize this case are not credible. It appears from the record that respondent vigorously litigated issues of child support, custody, and visitation but resisted and refused to appear at any hearing or file and documents having to do with finalizing marital property issues.
The Court finds that the delay in filing respondent's motions is unreasonable making these motions unfair. Granting her motions would result in the estate of the respondent being at a distinct, unwarranted, and unfair disadvantage. The Court finds that arriving at a fair and accurate restoration of non-marital property and an equitable division of marital property would be virtually impossible with the passage of time and the death of Mr. Vanover. The parties have lived separate lives without having resolved these property rights issues for a period approaching fourteen (14) years without asking this Court to intervene and respondent's motion to do so now is barred by the doctrine of laches.
THEREFORE, it is ORDERED that the respondent's motions are overruled, her attempt to reopen and revive this action are denied, and this matter be, and it is hereby, dismissed with prejudice. Each party shall retain ownership of such items of personal property as are in their respective possession. Any property titled
in their joint names shall be owned by them as joint tenants. Property titled in either of their individual names shall be the sole property of that person.May 24, 2016, Order Dismissing at 1-3. This appeal follows:
Donna raises a singular issue for our review - whether the circuit court erred by invoking the equitable doctrine of laches. For the reasons hereinafter delineated, we conclude that the circuit court committed no error.
The doctrine of laches is generally an equitable doctrine that bars a claim where a party engages in unreasonable delay that is prejudicial. Wigginton v. Com., 760 S.W.2d 885 (Ky. App. 1988). More specifically, our Supreme Court has recognized:
'Laches' in its general definition is laxness; an unreasonable delay in asserting a right. In its legal significance, it is not merely delay, but delay that results in injury or works a disadvantage to the adverse party. Thus there are two elements to be considered. As to what is unreasonable delay is a question always dependent on the facts in the particular case. Where the resulting harm or disadvantage is great, a relative brief period of delay may constitute a defense while a similar period under other circumstances may not. What is the equity of the case is the controlling question. Courts of chancery will not become active except on the call of conscience, good faith, and reasonable diligence. The doctrine of laches is, in part, based on the injustice that might or will result from the enforcement of a neglected right.Plaza Condominium Assoc., Inc. v. Wellington Corp., 920 S.W.2d 51, 54 (Ky. 1996) (quoting Denison v. McCann, 303 Ky. 195, 197 S.W.2d 248, 249 (1946)).
In the case sub judice, Darrell filed the dissolution petition on October 17, 2001, and the Limited Decree was entered on September 30, 2002. Almost fourteen years lapsed before Donna sought to have the issue of marital and nonmarital property adjudicated. Donna's proffered reason for the near fourteen-year delay was that she had "always been scared about settling the marital property issues because I have no doubt that he would have hurt me, or even kill me." Donna's Affidavit at 2. Yet, the circuit court did not find such reason credible and observed that Donna aggressively litigated child visitation and support issues during that time. And, most importantly, the circuit court also found that significant prejudice was caused by Donna's unreasonable delay. In support thereof, the circuit court identified the span of nearly fourteen years and the death of Darrell as being prejudicial to the Estate. See 27A Am. Jur.2d Equity §149 (2017). Additionally, we see no impediment to applying the equitable doctrine of laches in a divorce proceeding to bar the division or distribution of property under the unique circumstances of this case. Upon the whole, we are unable to conclude that the circuit court abused its discretion by invoking the doctrine of laches.
Although not raised as an issue in the appeal, we believe that the circuit court correctly followed Kentucky law as to the current status of the real property owned by the parties. It is well-established that a decree of dissolution operates as a matter of law to terminate a tenancy by the entirety and the corresponding right of survivorship; consequently, the former spouses hold the real property as tenants in common after entry of their divorce decree. Nelson v. Mahurin, 994 S.W.2d 10 (Ky. App. 1998). And, as to property titled in the name of only one spouse, such property is the sole property of that spouse, absent any timely division of said property in the dissolution action. --------
We view any remaining contentions of error as moot or without merit.
For the foregoing reasons, the Order of the McCreary Circuit Court is affirmed.
ALL CONCUR. BRIEF AND ORAL ARGUMENT
FOR APPELLANT: David Bridgeman
Whitley City, Kentucky BRIEF AND ORAL ARGUMENT
FOR APPELLEES: Tim Lavender
Whitley City, Kentucky