RENDERED: MARCH 26, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2019-CA-1371-MR

CRISTINA ARCE APPELLANT

APPEAL FROM HARDIN CIRCUIT COURT

v. HONORABLE M. BRENT HALL, JUDGE

ACTION NO. 06-CI-00182

JAVIER ARCE, M.D. APPELLEE

OPINION

VACATING AND REMANDING

**   **  **

BEFORE: DIXON, KRAMER, AND MCNEILL, JUDGES.

KRAMER, JUDGE: Cristina Arce appeals the Hardin Family Court’s dismissal of 

an enforcement action she asserted against her former husband, Javier Arce, 

associated with the dissolution of their marriage. Upon review, we vacate and 

remand.
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Divorce proceedings began between Javier and Cristina in Hardin 

Family Court on or about February 2, 2006. The proceedings lasted approximately 

two years, culminating in the dissolution of the marriage and, pertinent to this 

appeal, two orders (i.e., an order of June 25, 2008; and an agreed order of October 

7, 2008) dividing their substantial assets. On June 18, 2019, Cristina filed a 

motion with the family court, along with an accompanying affidavit, asking the 

family court to enforce its orders of June 25, 2008, and October 7, 2008. 

Specifically, she set forth the following requests for relief:

1. To require the Petitioner, Javier J. Arce, to pay 

Respondent, Cristina Mier Arce, certain sums of money 

that are owed to her as part of the parties’ divorce

proceedings, specifically:

a. To award Respondent 1⁄2 of the funds 

removed by Petitioner, totaling $59,000, 

from the Fidelity Investment Account . . .

prior to the division of the account funds 

between the parties, namely $29,500;

b. To require Petitioner to comply with this 

Court’s order entered on or about 10/9/2008 

awarding Respondent the sum of $82,815.50 

to equalize the division of property and 

$2,500 representing Respondent’s interest in 

property received by Petitioner’s mother; 

and

c. To award Respondent the appreciation of 

the value of the amounts due to growth of 

the stock market and inflation; or in the 

alternative, to award Respondent interest on 

the sums due her from the date obligations 
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were due at a rate of 12% per annum 

compounded annually.

2. To award Respondent 5% of the real estate rental 

income for the years 2009-2018 in the approximate sum 

of $25,887.45.

3. To award Respondent 1⁄2 of any rent monies received 

from the marital properties for the years 2006, 2007, and 

2008, giving Petitioner credit for any real estate taxes 

paid.

4. To require Petitioner to reimburse Respondent the 

sum of $32,770.31 representing the amount owed to 

Respondent from the sale of the real estate located at 

6613 SW 81 Terrace, Gainesville, Florida.

5. To order Petitioner to reimburse Respondent the sum 

of $26,000 for attorney/consultant fees paid by 

Respondent to Carl Christianson, Eugene Mosely, and 

Phyllis Lonneman.

6. To require Petitioner to reimburse Respondent the 

sum of $2,621.50 representing 1⁄2 of the funds expended 

on Mariana’s[1]car insurance.

On August 7, 2019, Javier filed a response to Cristina’s motion and 

moved to dismiss. In full, his response and motion stated:

Comes the Petitioner, by Counsel, and moves the Court 

to dismiss this action and to direct the parties to proceed 

in regular Circuit Court.

In support of said Motion, counsel states that these 

parties were divorced by Decree of Dissolution dated 

June 25th, 2008. In that decree, the Court ordered that 

certain properties were to be sold and certain moneys 

 

1 Mariana is one of the parties’ children.
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were to be divided. In the ten plus years since the entry 

of the Decree the parties have continued to operate as a 

partnership co-mingling money and buying additional 

properties. Because the parties are not married, their 

actions since the divorce would constitute a partnership 

and is not a continuation of the divorce case. This action 

should be heard in the regular Circuit Court division of 

the Hardin Circuit Court and not Family Court.

The family court considered Javier’s motion at a hearing on August 

13, 2019. The hearing lasted approximately seven minutes, primarily consisting of 

arguments from the parties’ respective counsel. The relevant substance of the 

hearing was as follows:

JAVIER’S COUNSEL: I just wanted to get on the 

record, I think this is the improper court, uh, to hear this 

dispute, uh, because these people have been divorced 

going on ten years. We’re talking about properties they 

have purchased together since the divorce. Um, 

there’s—

COURT: That’s a general partnership.

JAVIER’S COUNSEL: It’s a partnership. That’s, that’s 

my point is that this is a general partnership dissolution 

matter, not a divorce matter. Um, so, I just. I, I don’t, I 

mean, I like being in front of you, but I just, uh—

COURT: [Inaudible]

JAVIER’S COUNSEL: Since I’m here right now. 

[Laughter]

COURT: [Laughter] Yeah, heck yeah.
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JAVIER’S COUNSEL: But I just, I don’t think this is 

the proper jurisdiction to, to hear this. Now, there was 

one issue involved—

COURT: Now, this is property and monies that had been 

generated in the last decade that weren’t— 

JAVIER’S COUNSEL: Now, some of the property was 

owned by them during the divorce, and what they did 

following the divorce, they just continued to own them 

jointly, and they’ve had accounts jointly. And they have, 

over the past ten years, made money, spent money from 

those properties. And, so, you had ordered them sold on 

most properties, uh, but they chose a different path after 

they were here in front of you. Uh, they did it jointly and 

together, and so I think it constitutes a partnership. 

CRISTINA’S COUNSEL: Your order, on October the 

ninth, 2008, which was an agreed order that you signed, 

said the parties could jointly own the real estate 

properties, and they, she, my client, could manage the 

properties collecting rent and paying bills and debts 

associated with the properties. They could be sold by 

any, at any time by agreement of the parties, or they 

could continue on. They had to agree on something and 

they never did. There was, and they did not commingle, 

they kept their money separate, so it’s our position this is 

a post-judgment, basically, to go ahead and divide 

accounts. The, uh, they’ve got property that’s listed for 

sale now. They have trouble agreeing on the amounts 

listed for. This is set for a hearing on the twelfth of 

September.

COURT: Right.

JAVIER’S COUNSEL: Which is why I brought the 

motion today.

CRISTINA’S COUNSEL: There has been three years 

now, more than that, actually, that they’ve had the 
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opportunity to bring up this partnership stuff and they’ve 

only brought it up at this time.

. . .

JAVIER’S COUNSEL: The bottom line is that they still 

have property that they have bought together since the 

divorce. That’s part of the property. 

CRISTINA’S COUNSEL: They’ve kept separate.

JAVIER’S COUNSEL: How was it kept separate?

COURT: What do you mean, kept separate?

CRISTINA’S COUNSEL: The accounts were kept 

separate.

JAVIER’S COUNSEL: Well, they’re both on the 

accounts.

CRISTINA’S COUNSEL: Uh, that’s not my 

understanding. There was [sic] two bank accounts.

JAVIER’S COUNSEL: Okay. It’s still a partnership, I 

think.

JAVIER: No, both, both accounts are in both names.

JAVIER’S COUNSEL: Yeah, that’s what I’m saying.

COURT: Both accounts in both names? 

JAVIER: Right.

COURT: Okay. Well then, it’s a partnership.

JAVIER’S COUNSEL: Yeah.
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CRISTINA’S COUNSEL: I thought you said separate 

accounts?

CRISTINA: They, we both are on the same accounts, 

but those accounts, we’ve always had it, in the divorce.

COURT: This, since you’re divorced, you can co-own 

property, but you co-own it as partners, not as husband 

and wife. It’s a general partnership at that point. I mean, 

it’s just as if, and any property you bought after the 

marriage is a general partnership that you all have. It’s 

not, unless you’ve done a dual sole proprietorship with 

a—

JAVIER’S COUNSEL: No, they haven’t.

COURT: —with a venture agreement, you know, 

that’s—

CRISTINA’S COUNSEL: But needless to say, why are 

we waiting three weeks before our hearing—

JAVIER’S COUNSEL: Well, I’ll tell you why. I’ll tell 

you why. Because the other attorney that was involved, 

he quit. Everything stopped. I mean, everything 

stopped. We didn’t do anything on this case for over a 

year. So I thought maybe they’d just gone home. And 

uh, so, when I—

CRISTINA’S COUNSEL: We’ve been going back and 

forth.

JAVIER’S COUNSEL: Well, I know we have. We were 

trying to get property sold, but that’s—

COURT: Well, I hope you can get it sold because, you 

know, because it sounds like everybody’s got more 

important things to do than deal with property. This is a 

general partnership at this point. Because when you’re 

no longer husband and wife, you become general partners 
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on all property ownership unless you’ve done a 

corporation or an LLC or something like that. If you 

haven’t, then you don’t have, I’m trying to think of that, 

a joint venture agreement. Unless you got a joint venture 

agreement between two other entities, which evidently 

you don’t, it’s a general partnership. It’s, it’s just as if 

you were never married on the property that you bought 

after the divorce. And Judge Howard and Judge Easton 

deal with that all the time. Judge Howard’s first case out 

of the gate was a commingling of assets between people 

that were living together and were never married. It’s a 

general partnership. Uh.

JAVIER’S COUNSEL: I remember that case.

COURT: Yeah. So, it’s, it’s a general partnership.

JAVIER’S COUNSEL: Okay. Thank you.

COURT: You need to go to regular circuit court and 

we’ll remand the September hearing date.

(Emphasis supplied.)

On August 27, 2019, the family court then granted Javier’s motion to 

dismiss. The entirety of its order was as follows:

This matter having come before the Court on Petitioner’s 

Motion and the Court being duly advised;

IT IS HEREBY ORDERED AND ADJUDGED that the 

current matter before the Court is hereby dismissed and 

the parties are directed to address these issues in Hardin 

Circuit Court.

Cristina now appeals, and her arguments are two-fold. First, she 

contends the family court erroneously determined it lacked “subject matter 
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jurisdiction” to resolve her motion to enforce its judgment. Second, Cristina 

argues that because she merely sought to enforce the family court’s prior orders 

relating to the property distribution terms of her divorce decree with Javier, the 

family court likewise retained “particular case” jurisdiction to resolve her motion.

Javier, on the other hand, believes the family court achieved the 

proper result. He argues in his brief that during the several years between the date 

of the family court’s most recent order (i.e., October 7, 2008) and the date of 

Cristina’s motion (i.e., June 18, 2019), he and Cristina “modified their agreed order 

when they jointly created and carried out a joint venture from 2009 to present,” and 

that their “modification removed this class of case from domestic law into a new 

class of case where the family court has no jurisdiction.” In support of his 

position, he cites as evidence roughly thirty pages of documents which he failed to 

produce below but appended to his appellate brief. Because these documents are 

not in the record below, we have not considered them or any arguments in Javier’s 

brief regarding them. They are not properly before this Court. See Barnard v. 

Stone, 933 S.W.2d 394, 396 (Ky. 1996) (explaining a court of review cannot 

consider evidence that was not adduced below).

With that said, we begin with Cristina’s argument that the family 

court erroneously determined it lacked “subject matter jurisdiction.” We disagree 

that this is a proper or complete interpretation of what occurred below. Subject 
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matter jurisdiction involves a court’s authority to resolve the kind of case identified 

by the litigants. See Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky. 

1994). There is no question that the Hardin Family Court had the authority to 

resolve the kind of case implicated in Cristina’s motion – namely, one involving 

what Cristina characterized as the equitable distribution of property stemming from 

the dissolution of her marriage with Javier. See KRS2 23A.100(1)(e).

3

Moreover, to the extent that Cristina merely sought to enforce the 

property distribution terms of her divorce decree with Javier, the family court 

retained particular case jurisdiction to resolve her motion.

4

 This is because the 

terms of a separation agreement incorporated into a divorce decree are enforceable 

by all the remedies available for the enforcement of a judgment. KRS 403.180(5). 

And, the family court had continuing jurisdiction to enforce the terms of its

judgments or decrees. Penrod v. Penrod, 489 S.W.2d 524 (Ky. 1972).

 

2 Kentucky Revised Statute.

3 KRS 23A.100(1)(e) provides, “As a division of Circuit Court with general jurisdiction pursuant 

to Section 112(6) of the Constitution of Kentucky, a family court division of Circuit Court shall 

retain jurisdiction in the following cases: . . . (e) Equitable distribution of property in dissolution 

cases[.]”

4

In general, “particular-case jurisdiction” is the right, authority, and power of a tribunal to hear 

and determine a specific case within that class of cases over which a court has subject matter 

jurisdiction. See, e.g., T.C. v. M.E., 603 S.W.3d 663, 681 (Ky. App. 2020) (“Particular case 

jurisdiction generally requires the existence of specific so-called ‘jurisdictional facts’ . . . defined 

as [a] fact that must exist for a court to properly exercise its jurisdiction over a case, party, or 

thing.” (internal quotation marks and citation omitted)).
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That aside, the issue presented in this matter does not involve the 

family court’s subject matter jurisdiction. Nor, for that matter, does it involve 

whether the family court generally retains continuing jurisdiction to enforce its 

judgments. The dispositive issue the family court adjudicated – and the sole issue 

Javier raised in his motion to dismiss – was whether a change of circumstances 

(i.e., a post-divorce business partnership between Javier and Cristina) discontinued

their divorce case. And, considering both the substance of his motion and what his 

counsel argued at the August 13, 2019 hearing, Javier’s argument regarding his 

purported change in circumstances with Cristina could objectively be taken at least 

three different ways, namely due to changed circumstances: (1) the specific relief 

Cristina sought through enforcing the 2008 orders was outside the scope of those 

orders; (2) the 2008 orders had become moot and therefore unenforceable;

5 or (3) 

due to laches, waiver, or estoppel, it was no longer equitable to enforce the 2008 

orders. 

In any event, however, there are problems with all of these premises. 

First, there is a reason why we have omitted any analysis of the family court’s 

2008 orders from this opinion: Any such analysis would be a fruitless endeavor 

 

5

See, e.g., Medical Vision Group, P.S.C. v. Philpot, 261 S.W.3d 485, 491 (Ky. 2008) (explaining 

courts are required to dismiss “when a change in circumstance renders that court unable to grant 

meaningful relief to either party.”)
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because we can only guess that Javier’s argument related to the scope of the family 

court’s 2008 orders. Neither Javier nor the family court addressed any aspect of 

those orders or even the specifics of Cristina’s enforcement motion.

Second, assuming the family court believed that the existence of a 

partnership between Javier and Cristina rendered its 2008 orders moot or that it 

was no longer equitable to enforce those orders, evidence was required to justify 

those conclusions.6 Here, no such evidence was adduced. There are only the brief, 

unclear, and unsworn statements Javier and Cristina provided during the sevenminute hearing, set forth above; the arguments of counsel indicating, as 

emphasized, that “part of” or “some of the property” relative to the parties’ divorce 

decree may have been affected by the parties’ post-divorce conduct;7and the thirty 

or so pages of purported partnership documents that Javier has appended to his 

appellate brief – documents we cannot consider because Javier failed to produce 

those documents below. Barnard, 933 S.W.2d at 396.

 

6 As to how a partnership is proven, KRS 362.175 defines a partnership as “an association of two 

(2) or more persons to carry on as co-owners a business for profit.” See also Denison v. 

McCann, 303 Ky. 195, 197 S.W.2d 248, 249 (1946) (discussing elements of laches); Greathouse 

v. Shreve, 891 S.W.2d 387, 390 (Ky. 1995) (discussing waiver); Fluke Corp. v. LeMaster, 306 

S.W.3d 55, 62 (Ky. 2010) (discussing equitable estoppel).

7

See Miller v. Commonwealth, 283 S.W.3d 690, 695 (Ky. 2009) (“[T]he arguments of counsel 

are not evidence[.]”).
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It is not the prerogative of this Court to make arguments or otherwise 

practice a case for the litigants. It is not our prerogative to affirm an unsupported 

judgment. We are also not inclined to guess at the basis of the family court’s 

judgment; in that vein,

[w]e remind the [family] court that it speaks only through 

written orders entered upon the official record. See 

Midland Guardian Acceptance Corp. of Cincinnati, Ohio 

v. Britt, 439 S.W.2d 313 (Ky. 1968); Com. v. Wilson, 280 

Ky. 61, 132 S.W.2d 522 (1939). Thus, any findings of 

fact and conclusions of law made orally by the [family] 

court at an evidentiary hearing cannot be considered by 

this Court on appeal unless specifically incorporated into 

a written and properly entered order.

Kindred Nursing Centers Ltd. Partnership v. Sloan, 329 S.W.3d 347, 349 (Ky. 

App. 2010).

Accordingly, we express no opinion regarding the merits of this 

appeal as there is no basis for us to decide the matter. Instead, we VACATE and 

REMAND for proceedings not inconsistent with this opinion.

ALL CONCUR.

BRIEF FOR APPELLANT:

Lyn Taylor Long

Elizabethtown, Kentucky

BRIEF FOR APPELLEE:

Barry Birdwhistell

Elizabethtown, Kentucky