Opinion
NO. 2015-CA-000419-MR
05-19-2017
KARL DEXTER STELLY APPELLANT v. LOUISE JOY STELLY APPELLEE
BRIEFS FOR APPELLANT: J. Russell Lloyd Louisville, Kentucky BRIEF FOR APPELLEE: Gary A. Tabler Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ELEANORE GARBER, JUDGE
ACTION NO. 11-CI-503466 OPINION
AFFIRMING BEFORE: J. LAMBERT, NICKELL, AND STUMBO, JUDGES. NICKELL, JUDGE: Karl Dexter Stelly has appealed from an order of the Jefferson Circuit Court, Family Division, finding him in contempt for failure to comply with the terms of a Property Settlement Agreement ("PSA") incorporated into a Decree of Dissolution terminating his marriage to Louise Joy Stelly. Following a careful review, we affirm.
Karl and Louise were married in 1978 and the union produced three children, all of whom have reached the age of majority. The pair separated in 2004 but it was not until October of 2011 that Karl petitioned for dissolution of the marriage. On May 31, 2012, due to a disability, Karl took early retirement from his long-term employment as a pilot for United Parcel Service ("UPS"). On March 17, 2014, the parties entered into a PSA which, pertinent to this appeal, divided Karl's UPS retirement accounts. Specifically, the parties agreed Louise would receive a total of $387,296 from two separate accounts, a 401(k) and a Defined Contribution Money Purchase Pension Plan ("MPPP"). The parties further agreed to "cooperate to evenly divide the UPS Retirement Plan and associated supplemental income plans, to the extent that such is or will be available, through a Qualified Domestic Relations Order ["QDRO"]."
The PSA was incorporated into the decree dissolving the parties' marriage entered on March 28, 2014. Less than six weeks later, Louise moved the trial court to hold Karl in contempt for failing to pay one-half of his monthly retirement pay over to her. She averred Karl refused to directly pay her the amounts due, as he insisted payment would be forthcoming only upon entry of a QDRO applying to that account. A hearing was scheduled for August 11, 2014. In the meantime, Karl tendered two QDROs for the trial court's signature effectuating the transfer to Louise of $387,296 from the 401(k) and MPPP as specified in the PSA. No request for a QDRO related to the UPS Retirement Plan appears in the record. Karl made no written response to Louise's contempt motion.
At the hearing, counsel for both parties presented their respective positions as to the appropriate division of Karl's retirement accounts and the meaning of the parties' PSA. Although both Louise and Karl appeared at the hearing, only Louise made very brief substantive statements. At the conclusion of the hearing, the trial court ordered both parties to submit memoranda of law explaining and supporting their relative positions. Upon receipt and review of these documents, the trial court entered an order on December 10, 2014, finding Karl in contempt for discontinuing payments to Louise prior to the entry of a QDRO in direct violation of the PSA. Karl's subsequent motion to alter, amend or vacate was denied and this appeal followed.
With leave of court, Karl was permitted to "appear" and participate telephonically.
Before this Court, Karl raises three allegations of error in seeking reversal. He first argues he was not in violation of any valid court order and it was thus improper to find him in contempt. Second, Karl contends Louise failed to carry her burden of proof. Finally, he alleges the trial court improperly directed division of an early retirement subsidy. For the reasons that follow, we are unconvinced Karl is entitled to the relief sought.
In contravention of CR 76.12(4)(c)(v), Karl does not state how he preserved any of his arguments in the trial court. We have reviewed the record and find no mention by Karl of any of the grounds presented before us. This failure is fatal to his arguments on appeal.
Kentucky Rules of Civil Procedure. --------
It has long been this Court's view that specific grounds not raised before the trial court, but raised for the first time on appeal will not support a favorable ruling on appeal. Most simply put, "[a] new theory of error cannot be raised for the first time on appeal." Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999) (discussing specifically a directed verdict issue); see, e.g., Harrison v. Leach, 323 S.W.3d 702, 708-09 (Ky. 2010); Ten Broeck Dupont, Inc. v. Brooks, 283 S.W.3d 705, 734 (Ky. 2009) ("More importantly, this precise argument was never made in the trial court. An appellate court 'is without authority to review issues not raised in or decided by the trial court.'") (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989)); Combs v. Knott County Fiscal Court, 283 Ky. 456, 141 S.W.2d 859, 860 (1940) ("[A]ppellant is precluded from raising that question on appeal because it was not raised or relied upon in the court below. It is an unvarying rule that a question not raised or adjudicated in the court below cannot be considered when raised for the first time in this court.").Fischer v. Fischer, 348 S.W.3d 582, 588 (Ky. 2011), as modified (Sept. 20, 2011). "The appellate court reviews for errors, and a nonruling is not reviewable when the issue has not been presented to the trial court for decision." Turner v. Commonwealth, 460 S.W.2d 345, 346 (Ky. 1970); see also Hatton v. Commonwealth, 409 S.W.2d 818, 819-20 (Ky. 1966). "[I]t is the accepted rule that a question of law which is not presented to or passed upon by the trial court cannot be raised here for the first time." Hutchings v. Louisville Trust Co., 276 S.W.2d 461, 466 (Ky. 1955); Benefit Ass'n of Ry. Employees v. Secrest, 239 Ky. 400, 39 S.W.2d 682, 687 (1931). "The underlying principle of the rule is to afford an opportunity to the trial court, before or during the trial or hearing, to rule upon the question raised." Hartsock v. Commonwealth, 382 S.W.2d 861, 864 (Ky. 1964).
Because none of the allegations raised were properly preserved in the trial court, they cannot serve as the basis of reversal on appeal. Therefore, the judgment of the Jefferson Circuit Court, Family Division, is AFFIRMED.
ALL CONCUR. BRIEFS FOR APPELLANT: J. Russell Lloyd
Louisville, Kentucky BRIEF FOR APPELLEE: Gary A. Tabler
Louisville, Kentucky