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Jawahir v. Jawahir

Court of Appeals of Kentucky
Feb 4, 2022
No. 2021-CA-0633-ME (Ky. Ct. App. Feb. 4, 2022)

Opinion

2021-CA-0633-ME

02-04-2022

ARNOLD JAWAHIR APPELLANT v. DAGMAR JAWAHIR APPELLEE

BRIEF FOR APPELLANT: Wallace N. Rogers Louisville, Kentucky BRIEF FOR APPELLEE: Douglas E. Miller Radcliff, Kentucky


NOT TO BE PUBLISHED

APPEAL FROM MEADE CIRCUIT COURT HONORABLE KENNETH H. GOFF, II, JUDGE ACTION NO. 18-CI-00340

BRIEF FOR APPELLANT: Wallace N. Rogers Louisville, Kentucky

BRIEF FOR APPELLEE: Douglas E. Miller Radcliff, Kentucky

BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.

OPINION

DIXON, JUDGE

Arnold Jawahir appeals from the findings of fact, conclusions of law, and judgment/decree entered by the Meade Circuit Court on May 13, 2021. After careful review of the briefs, record, and law, we affirm.

FACTS AND PROCEDURAL BACKGROUND

The underlying proceeding is for dissolution of the parties' marriage and attendant orders relating to their children, maintenance, and the allocation of 1 marital property. A hearing was held before a domestic relations commissioner whose recommendations were then accepted, without objection, by the court on May 13, 2021. Arnold timely filed a notice of appeal.

ANALYSIS

The crux of Arnold's appeal is that, through what he alleges is clerk error, he did not receive various orders of the court and, as a result, was deprived notice of the proceedings and prevented from presenting his own evidence. Accordingly, Arnold argues the judgment should be set aside due to excusable neglect and urges this Court to grant him relief pursuant to CR 60.02. Dagmar disputes Arnold's claim of excusable neglect and, moreover, argues that Arnold's claims are not properly before this Court. We agree that Arnold's claims are not ripe for our review.

Kentucky Rules of Civil Procedure.

In his brief, Arnold acknowledges that his claims would customarily be raised via a CR 60.02 motion; however, citing the fact that CR 60.02 motions do not extend the time to take an appeal, Arnold asserts his only viable choice was to file this direct appeal. We disagree. CR 60.02 provides a method for raising claims which cannot be raised in other proceedings. McQueen v. Commonwealth, 948 S.W.2d 415, 416 (Ky. 1997). One of the acknowledged purposes of the rule is to "bring before the court that pronounced judgment errors in matter of fact which . . . the party was prevented from so presenting by duress, fear, or other sufficient cause." Id. (quoting Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky. 1983).

On appeal, the role of the appellate court is to review the decisions of the trial court. See Jones v. Livesay, 551 S.W.3d 47 (Ky. App. 2018). Accordingly, it has long been held that "'[a] new theory of error cannot be raised 2 for the first time on appeal'" and that such claims "will not support a favorable ruling on appeal." Id. at 52 (quoting Springer v. Commonwealth, 998 S.W.2d 439, 446 (Ky. 1999)). Herein, because Arnold has not afforded the circuit court an opportunity to rule upon his claim of excusable neglect, it cannot serve as a basis of reversal on appeal, and we must therefore affirm.

CONCLUSION

Therefore, and for the forgoing reasons, the judgment of the Meade Circuit Court is AFFIRMED.

ALL CONCUR. 3


Summaries of

Jawahir v. Jawahir

Court of Appeals of Kentucky
Feb 4, 2022
No. 2021-CA-0633-ME (Ky. Ct. App. Feb. 4, 2022)
Case details for

Jawahir v. Jawahir

Case Details

Full title:ARNOLD JAWAHIR APPELLANT v. DAGMAR JAWAHIR APPELLEE

Court:Court of Appeals of Kentucky

Date published: Feb 4, 2022

Citations

No. 2021-CA-0633-ME (Ky. Ct. App. Feb. 4, 2022)