APPEAL FROM JEFFERSON FAMILY COURT HONORABLE PAULA SHERLOCK, JUDGE ACTION NO. 00-FC-005672
The opinion of the court was delivered by: Clayton, Judge
RENDERED: JANUARY 4, 2013; 10:00 A.M.
AFFIRMING ** ** ** ** ** BEFORE: CLAYTON, COMBS AND THOMPSON, JUDGES.
Anthony Hughes appeals an order of the Jefferson Family Court denying his Kentucky Rules of Civil Procedure (CR) 60.02 motion to terminate his support obligation for the child, R.L.H. We concur with the family court that the motion was not filed within a reasonable time period as required under the rule and, thus, we affirm the decision.
On July 25, 2000, Anthony filed for dissolution of his marriage to Tina Hughes. Two months later, but before dissolution was granted, Anthony submitted DNA for himself and R.L.H. to determine if he was her biological father. Anthony did not inform the court that testing was ongoing, nor did he put paternity into question at the dissolution hearing.
The dissolution of marriage decree was entered on December 11, 2000, naming four minor children of the marriage, R.L.H. being the youngest born on January 6, 1997. The order required Anthony to pay a total of $863.46 per month child support. The decree was entered while Anthony was serving on active duty with the United States Navy.
In April 2001, Anthony learned that R.L.H. was not his biological child. The results were then sent certified mail to Tina. Tina testified that in 2003 or 2004 she informed R.L.H. that Anthony was not her biological father. Anthony's biological children also testified that they were aware Anthony was not R.L.H.'s biological father.
Despite having knowledge that only three of the four children were biologically his, Anthony continued to pay the total amount set forth in the child support order and visited the children approximately one time per year. Anthony continued to pay child support. The youngest of Anthony's biological children was emancipated in 2010.
Because Anthony's salary has continued to grow substantially during the course of his naval career, and Tina was a full-time student, working part-time, and receiving state assistance, on January 19, 2011, the Cabinet for Heath and Family Services (hereinafter the "Cabinet") filed a motion to intervene, establish, enforce and/or modify child support on behalf of Tina. In response, on June 8, 2011, Anthony filed a CR 60.02 motion to modify the child support order, moving to terminate the child support order averring that three of the four children were emancipated and the fourth was not his biological child.
The family court denied Anthony's CR 60.02 motion, finding that Anthony's CR 60.02 motion was not filed within a reasonable time and, therefore, he was estopped from seeking relief from his obligation. Additionally, in response to the Cabinet's motion to increase the child support, which was based on Anthony's increase in income of more than 15 percent, the family court ordered that the child support amount increase from $863.64 to $1,009 per month until R.L.H. reaches the age of majority.*fn1
Appellate review of the denial of a CR 60.02 motion is based upon an abuse of discretion standard. S.J.L.S. v. T.L.S., 265 S.W.3d 804, 829 (Ky. App. 2008). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). Moreover, an appellate court should affirm the trial court unless there has been an abuse of discretion resulting in a "flagrant miscarriage of justice." Gross v. Commonwealth, 648 S.W.2d 853, 858 (Ky. 1983).
When a motion is made under CR 60.02, a court has the authority, under certain terms, to relieve a party from a court's final judgment, order, or proceeding. In general, the grounds include mistake, newly discovered evidence, perjury or falsified evidence, fraud affecting the proceedings, a void judgment, or any other reason of an extraordinary nature justifying relief. Additionally, a motion must be made within one year ...