Gary Dwayne Doepel v. Christy Mason Doepel ( 2022 )

RENDERED: AUGUST 19, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0567-MR
GARY DWAYNE DOEPEL APPELLANT
APPEAL FROM TODD CIRCUIT COURT
v. HONORABLE JOE W. HENDRICKS, JR., JUDGE
ACTION NO. 19-CI-00125
CHRISTY MASON DOEPEL APPELLEE
OPINION
AFFIRMING
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BEFORE: TAYLOR, K. THOMPSON, AND L. THOMPSON, JUDGES.
THOMPSON, L., JUDGE: Gary Dwayne Doepel appeals from the entry of a
default judgment dissolving his marriage to Christy Mason Doepel. The default
judgment also split the marital assets between the parties. Appellant argues that
the court should have set aside the default judgment. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
The parties were married on December 30, 1991, and Appellee filed a
petition for dissolution of marriage on October 17, 2019. Multiple attempts were
made to serve a summons upon Appellant; however, those attempts failed.
Appellant was finally served in October of 2020. Appellant claims he never
received this summons, but there is a proof of service document in the record that
service was completed by a sheriff’s deputy.
On January 19, 2021, Appellee moved for default judgment. With the
motion, she also tendered an affidavit detailing her desired property division.
Essentially, each party was to keep all financial accounts solely in his or her name,
each party was to be responsible for the debts each had in his or her own name,
each party was to receive an automobile, each party was to retain the personal
property he or she already had in his or her possession, and the marital real
property was to be sold and the proceeds used to satisfy the debts on those
properties. Any proceeds left from the sale of the real property were to be given to
Appellant.
That same day, the trial court granted the motion for default judgment
and split the marital assets the way Appellee requested.
On March 19, 2021, Appellant filed a motion to set aside the default
judgment. Appellant argued that he did not receive the summons, did not receive
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the motion for default judgment, and did not receive the order granting the motion.
Counsel for Appellant claimed that he discovered the dissolution action and default
judgment by accident while reviewing CourtNet.
On April 21, 2021, the trial court held a hearing on the motion to set
aside the default judgment. The court heard arguments from counsel, but neither
party called any witnesses. In addition, Appellant provided no affidavit regarding
his allegation that he was not served the summons and provided no evidence that
the marital asset distribution was inequitable. At the conclusion of the hearing, the
trial court entered an order denying the motion to set aside. This appeal followed.
ANALYSIS
Although default judgments are not favored, a trial
court is vested with broad discretion when considering
motions to set them aside, and an appellate court will not
overturn the trial court’s decision absent a showing that
the trial court abused its discretion. A party seeking to
have a default judgment set aside must show good cause;
i.e., the moving party must show “(1) a valid excuse for
the default; (2) a meritorious defense to the claim; and
(3) absence of prejudice to the non-defaulting party.”
PNC Bank, N.A. v. Citizens Bank of N. Kentucky, Inc., 139 S.W.3d 527, 530-31
(Ky. App. 2003) (footnotes and citations omitted). “All three elements must be
present to set aside a default judgment.” S.R. Blanton Development, Inc. v. Inv’rs
Realty and Management Co., Inc., 819 S.W.2d 727, 729 (Ky. App. 1991).
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We believe the trial court did not err when it denied Appellant’s
motion to set aside the default judgment. The trial court considered the above
factors on the record and stated that Appellant failed to meet them. We agree.
Appellant argues that he was not served with the dissolution
summons; however, he filed no affidavit disputing the sheriff’s deputy’s proof of
service and there was no request for him to testify at the hearing. Evidence must
“be clear and convincing in order to overcome the record of a properly served
summons.” Nicholson v. Thomas, 277 Ky. 760, 127 S.W.2d 155, 156 (1939).
Without providing some evidence, the trial court had no choice but to believe the
proof of service. In addition, Appellant provided no evidence that the marital
property division was inequitable. He provided no financial documents, affidavits,
or testimony to support a conclusion that he should be entitled to additional marital
property. Finally, Appellee was tasked with selling the marital real property and,
at the time of the hearing, was engaged in doing so. The trial court felt that
vacating the default judgment would prejudice Appellee by disrupting her ongoing
efforts to sell the real property.
CONCLUSION
Based on the foregoing, we affirm the judgment of the Todd Circuit
Court. Appellant provided no evidence to support his arguments that he did not
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receive the civil summons and that the division of marital property was inequitable.
The default judgment was proper and we affirm.
THOMPSON, K., JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE
OPINION.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Travis B. Lock Jason Kelly Petrie
Bowling Green, Kentucky Elkton, Kentucky
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