FROM HARDIN FAMILY COURT HONORABLE HONORABLE M. BRENT HALL,
JUDGE ACTION NO. 14-CI-01790
FOR APPELLANT: Ronald E. Hines Elizabethtown, Kentucky
FOR APPELLEE: Zanda L. Myers Leitchfield, Kentucky
BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES.
Carroll (Kali) appeals from an order by the Hardin Family
Court denying her motion to set aside a prior custody order.
We agree with the family court that the motion was not
brought within a reasonable time and was therefore
procedurally barred as untimely. Hence, we affirm.
and Jessica Carroll (Jessica) were married in Cook County,
Illinois, on March 20, 2014. At the time of the marriage,
Kali was already pregnant with S.J.C. The child was born on
August 30, 2014. On October 24, 2014, Jessica filed a
petition for joint custody, alongside Kali, in Hardin Family
petition stated that the biological father was unknown, and
both parties swore to that fact in separate depositions. A
warning order attorney was appointed to attempt service on
the unknown and unidentified father. In her response, Kali
stated that she was waiving her rights to seek separate
representation by counsel, as well as her superior right to
sole custody of S.J.C. On March 10, 2015, the family court
entered an order granting joint custody of S.J.C. to Kali and
the parties' relationship deteriorated. On July 10, 2017,
Jessica filed a petition for dissolution of the marriage in
the Grayson Circuit Court. The parties agreed to all aspects
of the dissolution except for child custody, parenting time,
and child support. On December 14, 2017, the Grayson Circuit
Court entered a limited Decree of Dissolution which reserved
those issues for later adjudication. On February 6, 2018,
Jessica made a motion for a final hearing as to those
days later, in Hardin Family Court, Kali filed a motion
pursuant to CR 60.02(d) to set aside the order of March
10, 2015, granting joint custody. Kali's motion and
affidavit alleged that both parties lied in the petition and
their depositions that the identity of the father was
unknown. Contrary to her prior assertions, Kali alleged that
she did not knowingly and voluntarily waive her right to
separate counsel. The Hardin Family Court denied Kali's
motion as untimely, and this appeal followed.
sole issue on appeal is whether Kali's CR 60.02 motion is
procedurally barred as untimely. We review the family
court's denial of a CR 60.02 motion for abuse of
discretion. Foley v. Commonwealth, 425 S.W.3d 880,
886 (Ky. 2014). "The test for abuse of discretion is
whether the trial judge's decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal
principles." Goodyear Tire & Rubber Co. v.
Thompson, 11 S.W.3d 575, 581 (Ky. 2000) (citation
omitted). We will affirm the lower court's decision on
appeal unless there is found a "flagrant miscarriage of
justice[.]" Gross v. Commonwealth, 648 S.W.2d
853, 858 (Ky. 1983).
60.02 provides, in relevant part:
On motion a court may, upon such terms as are just, relieve a
party or his legal representative from its final judgment,
order, or proceeding upon the following grounds: . . . (c)
perjury or falsified evidence; [or] (d) fraud affecting the
proceedings, other than perjury or falsified evidence . . .
[.] The motion shall be made within a reasonable time, and on
grounds (a), (b), and (c) not more than one year after the
judgment, order, or proceeding was entered or taken.
60.02 is designed to provide relief where the reasons for the
relief are of an extraordinary nature. Ray v.
Commonwealth, 633 S.W.2d 71, 73 (Ky. App. 1982). In
addition, the person seeking relief must do so within a
reasonable time. Id. Moreover, because the law
favors the finality of judgments, the rule "requires a
very substantial showing to merit relief under its
provisions." Ringo v. Commonwealth, 455 S.W.2d
49, 50 (Ky. 1970). Therefore, relief may be granted under CR
60.02 only where a clear showing of ...