Views from the Bench – A Judge’s Duty to Publish Findings of Fact By Retired Judge Stan Billingsley

A  JUDGE’S  DUTY TO PUBLISH  FINDINGS OF FACT.

 

By Judge Stan Billingsley (Ret.)

 

When a litigant obtains a judgement from the court, they sometimes find that the court has failed to support its ruling with references to relevant law.  If the litigant has reason to question the ruling of the Court on an issue then they can file a Motion for a Finding of Fact.

 

A typical situation is where the judge has made a ruling which really doesn’t explain or support the ruling with law.  The litigant of course has the right to appeal the decision, but the appellate  court may quickly dismiss the appeal if the record does not reveal a basis for a claim of improper finding by the court.

 

The litigant who questions the trial court’s finding may avoid an early dismissal by moving the trial court for a Findings of Fact.  Further the litigant may avoid years of appeal procedures if they timely file a Motion for A Finding of Fact.  The litigant by filing such a motion makes the trial court disclose the legal arguments.

 

Any ruling that  fails to explain the law supporting the ruling, cries out for the litigant to consider moving the trial judge to demand that the trial court go back and explain the basis for its  incomplete ruling.

 

If the litigant has troubling issues unanswered, then they should move the court issue a Finding of Fact. This must be done before a formal appeal is filed.  The Motion for a Finding of Fact is much easier to prepare then a formal appeal.  The resolution of the Finding of Fact motion may take a month or two, and a formal appeal can take two or three years.

 

CR 52.04:

 

The basic rules regarding Findings of Fact are found in the Civil Rules of Procedure  under Chapter 52.

 

Kentucky Rules of Civil Procedure (CR) Rule  52.04

 

Failure to make finding on essential issue of fact; necessity for request

Currentness

 

“A final judgment shall not be reversed or remanded because of the failure of the trial court to make a finding of fact on an issue essential to the judgment unless such failure is brought to the attention of the trial court by a written request for a finding on that issue or by a motion pursuant to Rule 52.02.”

 

(Current with amendments received through May 1, 2017)

 

 

CR 52.01:

 

Kentucky Rules of Civil Procedure (CR) Rule 52.01

 

CR 52.01 WHEN REQUIRED; EFFECT

Currentness

 

“In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and render an appropriate judgment; and in granting or refusing temporary injunctions or permanent injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its action.

 

Requests for findings are not necessary for purposes of review except as provided in Rule 52.04.

 

Findings of fact, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a commissioner, to the extent that the court adopts them, shall be considered as the findings of the court. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact and conclusions of law appear therein.

 

(Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41.02.)”

Credits

HISTORY: Amended by Order 2012-10, eff. 1-1-13; prior amendments eff. 3-1-74, eff. 4-1-63; adopted eff. 7-1-53   Rules Civ. Proc., Rule 52.01, KY ST RCP Rule 52.01

Current with amendments received through May 1, 2017

 

 

CR 52.02  – TIME  FOR FILING A MOTION FOR A FINDING OF FACT

CR 52.02 Amendment

Currentness

 

Not later than 10 days after entry of judgment the court of its own initiative, or on the motion of a party made not later than 10 days after entry of judgment, may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.

Credits

HISTORY: Amended eff. 4-1-63; adopted eff. 7-1-53

Rules Civ. Proc., Rule 52.02, KY ST RCP Rule 52.02

Current with amendments received through May 1, 2017

 

 

 CASE LAW RE: FINDING OF FACT

Anderson v. Johnson, Ky S. Ct.,

Specific Findings of Fact

No. 2010-SC-000646-DGE

 

“The Supreme Court declined to follow Hollon v. Hollon, 623 S.W.2d 898 (Ky. 1981).  Because it misstates what the statutes require and does not adequately address the effect of CR 52 in its entirety, Hollon is overruled.

When the court omits a finding essential to the judgment, CR 52.04 requires a litigant to make a written request or motion to include a fact completing a judgment.

Although CR 52 embodies a burden on the court and the litigant, the court bears the broader burden because it has an express duty to make necessary findings of fact and conclusions of law.

CR 52.01 creates a general duty for the Trial Court to find facts and CR 52.04 applies only after the court has complied with its general duty.

In the case at bar, the court’s order included no findings of fact to support the conclusion   , a violation of CR 52.01.  CR 52.04 is not involved here because the court made no findings, rather than good-faith but incomplete findings.

Prior decisions have indicated that Trial Courts do not need to make specific findings of fact and separate conclusions of law on modification motions.  When a motion results in a hearing dealing with substantive matters, findings of fact are required before a conclusion of law can be made. “.

“…This case is remanded to the Franklin Circuit Family Court to make specific findings of fact and separate conclusions of law consistent with this opinion, followed by an appropriate judgment.”