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Miranda v. Miranda

Court of Appeals of Kentucky

September 29, 2017

LISA KIMBERLIN MIRANDA APPELLANT
v.
FRANCISCO SAVIO MIRANDA APPELLEE

         APPEALS FROM JEFFERSON CIRCUIT COURT HONORABLE A. CHRISTINE WARD, JUDGE ACTION NO. 12-CI-503266

          BRIEFS FOR APPELLANT: William D. Tingley Louisville, Kentucky

          BRIEFS FOR APPELLEE: Elizabeth M. Howell Louisville, Kentucky

          BEFORE: JONES, J. LAMBERT, AND STUMBO, JUDGES.

          OPINION

          LAMBERT, J., JUDGE.

         Lisa Kimberlin Miranda appeals from separate orders entered by the Jefferson Circuit Court, namely, an order denying Lisa's motion to force the sale of the parties' marital residence (Appeal No. 2015-CA-001483), and an order denying Lisa's motion for a hearing on visitation with the parties' children (Appeal No. 2016-CA-001291). We affirm in Appeal No. 2015-CA-001483 and vacate and remand in Appeal No. 2016-CA-001291.

         Lisa and Francisco Savio Miranda (Franky) were married from 2001 until 2015. They are the parents of three children, now ages 13, 8, and 4 years old. Lisa filed the petition for dissolution of marriage in 2012, but the final decree was not entered until three years later. The children were removed by the Cabinet for Health and Family Services from Lisa's custody in July 2013. Lisa's mother accepted emergency custody at that time, and the children were later placed in foster care until Franky was granted temporary custody of them. Franky's mother assists in his care of the children.

         The facts of the first appeal concern the marital residence. In the parties' settlement agreement, Franky received possession of the parties' home. The agreement called for Franky to pay Lisa $15, 000.00 after he obtained refinancing for the house. Franky had 90 days in which to do that. At the expiration of those 90 days, Lisa filed a motion to compel production of documents regarding Franky's ability to refinance the home.

         The Jefferson Circuit Court held a hearing on the matter and, in an order dated June 18, 2015, granted Franky an additional 30 days in which to obtain appropriate refinancing. After Franky's extended deadline expired, Lisa asked the circuit court to compel the sale. Another hearing was held on July 6, 2016, after which the court took the matter under submission and granted Franky's counsel 10 days to file responsive pleadings.

         Meanwhile, Franky was notified by his bank that a lien had been placed upon the subject property in December 2014 after a default judgment had been entered against Lisa by Capitol One for monies owed in the amount of $1, 366.48. It was Franky's position that the lien explained his frustrated attempts to secure refinancing. Franky sought to have Lisa satisfy the lien and obtain its release so that refinancing could move forward and he could close on the house. Lisa initially ignored the circuit court's order pertaining to the lien, insisting that the house be sold, but she subsequently paid off the lien and signed the authorization for release of the payoff documentation. Franky was able to obtain refinancing, although it took another trip to court to get the Master Commissioner to execute a quitclaim deed (again because Lisa would not cooperate). Franky paid Lisa on September 8, 2015, and she accepted it. On September 25, 2015, Lisa filed a notice of appeal from the order denying her motion to compel the home's sale.

         Lisa argues that the circuit court erred in denying her motion to compel the sale of the home. She maintains that the settlement agreement should have been enforced as written and that the circuit court abused its discretion in its interpretation of the agreement and in granting Franky additional time to comply with the terms. We disagree.

         The standard of review is well settled on this issue: "The terms of a settlement agreement set forth in a decree of dissolution of marriage are enforceable as contract terms. [Kentucky Revised Statutes] KRS 403.180(5). The construction and interpretation of a contract is a matter of law and is reviewed under the de novo standard. Cinelli v. Ward, 997 S.W.2d 474, 476 (Ky. App. 1998)." Money v. Money, 297 S.W.3d 69, 71 (Ky. App. 2009).

We review questions of law de novo. Western Ky. Coca- Cola Bottling Co., Inc. v. Revenue Cabinet, 80 S.W.3d 787, 790 (Ky. App. 2001). However, findings of fact will "not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the [family] court to judge the credibility of the witnesses." CR 52.01; Sherfey v. Sherfey, 74 S.W.3d 777, 782 (Ky. App. 2002). A family court operating as finder of fact has extremely broad discretion with respect to testimony presented, and may choose to believe or disbelieve any part of it. A family court is entitled to make its own decisions regarding the demeanor and truthfulness of witnesses, and a reviewing court is not permitted to substitute its judgment for that of the family court, unless its findings are clearly erroneous. "A factual finding is not clearly erroneous if it is supported by substantial evidence." Sherfey, supra (footnote omitted). Substantial evidence has been conclusively defined by Kentucky courts as that which, when taken alone or in light of all the evidence, has sufficient probative value to induce conviction in the mind of a reasonable person. Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998); Janakakis-Kostun v. Janakakis, 6 S.W.3d 843, 852 (Ky. App. 1999) (citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.1972)).

Bailey v. Bailey, 231 S.W.3d 793, 796 (Ky. App. 2007). "Thus, we review the agreement anew, giving no deference to the trial court." McMullin v. McMullin, 338 S.W.3d ...


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