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Carroll v. Carroll

Court of Appeals of Kentucky

February 8, 2019

KALI CARROLL APPELLANT
v.
JESSICA CARROLL APPELLEE

          APPEAL FROM HARDIN FAMILY COURT HONORABLE HONORABLE M. BRENT HALL, JUDGE ACTION NO. 14-CI-01790

          BRIEF FOR APPELLANT: Ronald E. Hines Elizabethtown, Kentucky

          BRIEF FOR APPELLEE: Zanda L. Myers Leitchfield, Kentucky

          BEFORE: DIXON, MAZE, AND TAYLOR, JUDGES.

          OPINION

          MAZE, JUDGE

         Kali 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.

         Kali 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 Court.

         The 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 Jessica.

         Subsequently, 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 remaining issues.

         Two days later, in Hardin Family Court, Kali filed a motion pursuant to CR[1] 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.

         The 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).

         CR 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.

         CR 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 ...


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