We want to thank our friends at EZ Law for featuring one of our successful Court of Appeals cases on their blog. Here, we represented the Husband in securing his portion of his ex-Wife’s pension account, which she had failed to disclose during the course of their divorce action in 2005 (we did not represent him in 2005). At Schaffner Family Law, we enjoy assisting our clients in securing their financial rights – even if it turns out to be many years after the decree was entered.

Kelly v. Kelly, No. 2018-CA-001282-MR (Ky. App. 2019)
Civ. R. 60.02
KRS 403.250(1)
Marital Property: disclosure, retirement benefits
Property Settlement Agreement
Dated: August 9, 2019
Not to be Published
Affirming
The Court found no abuse of discretion in the trial court’s decision to reopen the decree dissolving the parties’ marriage and awarding one-half of W’s retirement pension to H. In 2005, the parties entered into a property settlement agreement, and a decree of dissolution incorporating the terms of that agreement was entered on the same date. In late 2017, after becoming aware that W had retired and was receiving retirement pension benefits from the Kentucky Retirement System, H filed a motion to reopen the decree seeking an equitable share of that pension on the grounds the pension plan was not addressed in the parties’ agreement. The trial court entered detailed findings of fact and conclusions of law supporting its decision to award H a share of W’s pension based on Civ. R. 60.02(f) principles.
W filed an appeal challenging the authority of the trial court to reopen the 2005 decree. Specifically, W argued that H did not cite Civ. R. 60.02 in his motion. However, the Court found H reopened the decree pursuant to KRS 403.250(1) (stating “[t]he provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state”). In Fry v. Kersey, 833 S.W.2d 392 (Ky. App. 1992), the Court interpreted this language to mean that “[t]he law of this state relating to the reopening of decrees is found in Civ. R. 60.02. Under the residual clause of that rule, a judgment may be set aside for ‘reason[s] of an extraordinary nature justifying relief.’” Id. at 394. Fry directed a circuit court to analyze the motion under the principles of Civ. R. 60.02 and that is how the trial court proceeded here.
Further, the Court found no merit in W’s contention that it was not clear how the trial court concluded that the decree should be reopened. The Court stated it was convinced that W’s arguments concerning fraud were a “red herring,” and further wrote that it was clear from a reading of the trial court’s opinion that its decision was based upon Civ. R. 60.02(f). The criteria for the proper application of subsection (f) were thoroughly examined and explained by the Court in Snodgrass v. Snodgrass, 297 S.W.3d 878, 884 (Ky. App. 2009) (explaining a successful movant must present to the court a “reason of an extraordinary nature justifying relief.” Civ. R. 60.02(f).
“What constitutes a reason of extraordinary nature is left to judicial construction.” Commonwealth v. Spaulding, 991 S.W.2d 651, 655 (Ky. 1999). Judicial construction must incorporate consideration of three specific factors. The first is that relief under subsection (f) of Civ. R. 60.02 will not be available unless “none of that rule’s [other] specific provisions applies.” Alliant Hospitals, Inc. v. Benham, 105 S.W.3d 473, 478 (Ky. App. 2003), citing Spaulding at 655 (“CR 60.02(f) is a catch-all provision that encompasses those grounds, which would justify relief pursuant to writ of coram nobis, that are not otherwise set forth in the rule.”). After determining that CR 60.02(a)-(e) do not apply, courts must consider two more factors: “(1) whether the moving party had a fair opportunity to present his claim at the trial on the merits, and (2) whether the granting of CR 60.02(f) relief would be inequitable to other parties.” Bethlehem, supra; Fortney v. Mahan, 302 S.W.2d 842 (Ky. 1957)).
Applying these factors to this case, the Court determined that the trial court did not abuse its discretion in reopening the decree under Civ. R. 60.02(f). Relying upon Fortney v. Mahan, the trial court directed its analysis to whether H had a fair opportunity to present his claim concerning W’s pension and whether granting him relief would be inequitable to W. The trial court specifically found that W was aware of her pension and failed to disclose it pursuant to the agreement and that H was unaware of the existence of W’s pension. Therefore, the trial court found H did not have a fair opportunity to present this issue in the original litigation and that it was not inequitable for H to share in W’s pension, as she had benefited from her equal share in H’s pension for many years. Finally, the trial court found that because W failed to disclose her pension and H was not aware of it, it had not been awarded to either party under the agreement.