Opinion
NO. 2014-CA-000121-ME
05-01-2015
NICOLE MOORE APPELLANT v. EDWARD MOORE APPELLEE
BRIEF FOR APPELLANT: Christy H. Shircliff Louisville, Kentucky BRIEF FOR APPELLEE: Dawn Logsdon Johnson Radcliff, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE M. BRENT HALL, JUDGE
ACTION NO. 13-CI-00101
OPINION
AFFIRMING
BEFORE: CLAYTON, JONES AND D. LAMBERT, JUDGES. JONES, JUDGE: This appeal concerns orders rendered by the Hardin Circuit Court Family Division with respect to child custody. After having thoroughly reviewed the record and for the reasons explained below, we AFFIRM.
I. BACKGROUND
Nicole Moore and Edward Moore were married on April 27, 2003, in Killeen, Texas. They have one child, J.M., who was born in 2006. The Moore family relocated to Kentucky in July 2011 after Edward, an active duty military serviceman, was reassigned to Ft. Knox.
Nicole and Edward separated on April 17, 2012. On January 18, 2013, Edward filed a formal petition for dissolution of marriage with the Hardin Family Court. As part of the dissolution proceedings, the parties reached an agreement regarding J.M.'s custody, which was entered into the record on May 29, 2013. Pursuant to the terms of the agreement, "the parties shall have joint, shared custody of their minor child with each having equal parenting time." This agreement was incorporated by reference into the final decree of dissolution entered by the family court on August 26, 2013.
On September 24, 2013, Edward filed a motion with the family court asking it to modify the parties' parenting time by designating him the primary residential parent. Edward filed a supporting affidavit indicating that he was requesting the change because he had just recently learned that the military was transferring him to Virginia in late October 2013 after he completed a training course. Edward averred that the move to Virginia was unexpected, but would put him into a "stabilized" position meaning that he would not be reassigned or deployed during the next four years after which he planned to retire from the military. Edward's motion was noticed for October 1, 2013.
Nicole's counsel had moved to withdraw from the case on September 18, 2013, and her motion was granted on September 24, 2013, the same day Edward filed his motion seeking modification. Nicole did not appear on October 1, 2013, when the family court called Edward's motion. Instead of deciding the motion that day, the family court set it for a formal hearing on November 8, 2013.
Nicole obtained counsel sometime in the early part of November 2013. Through counsel, Nicole then moved the family court to postpone the November 8, 2013, hearing to allow more time for her new counsel to prepare for the hearing. The family court denied Nicole's motion and the hearing proceeded as scheduled on November 8, 2013, with both parties and counsel present.
At the conclusion of the November 8, 2013, hearing, the family court issued a bench ruling granting Edward's motion. A written order memorializing the oral ruling was entered on November 14, 2013. The court then issued Findings of Fact, Conclusions of Law, and Order on December 6, 2013.
On November 18, 2013, Nicole filed a Motion to Alter, Amend, or Vacate the November 8, 2013, bench ruling pursuant to Kentucky Rule of Civil Procedure (CR) 59. Nicole's motion was based on the family court's refusal to grant her a continuance, its failure to interview J.M., and on changes in her circumstances since the hearing (secured employment, obtained a marriage license, received corrected school attendance records for J.M., and obtained phone and text messages allegedly refuting Edward's testimony). On November 22, 2013, Nicole filed a brief in support of her motion. On November 27, 2013, the family court entered an order denying Nicole's motion.
On December 4, 2013, citing "material changes" in her circumstances, Nicole filed a CR 60.02(f) motion asking the family court to reconsider its November 8, 2013, verbal order from the bench. The family court denied this motion by order entered December 19, 2013.
On January 21, 2014, Nicole filed a notice of appeal. As stated in the notice of appeal:
Notice is given that NICOLE MOORE, Appellant and Respondent herein, hereby appeals to the Kentucky Court of Appeals from the Orders entered by Judge M. Brent Hall of the Hardin Circuit Court, Family Division IV, on December 19, 2013, denying her Motion to Reconsider the December 6, 2013 Findings of Fact, Conclusions of Law and Order (verbally issued on November 8, 2013) and on December 6, 2013 denying her Motion to Alter, Amend, or Vacate the December 6, 2013 Findings of Fact, Conclusions of Law and Order (verbally issued on November 8, 2013).
II. ANALYSIS
First, we must address Edward's argument that we lack jurisdiction to consider any part of this appeal because Nicole's notice of appeal was not filed timely.
By virtue of CR 73.02(1)(a), "the notice of appeal shall be filed within 30 days after the notation of service of the judgment or order." The timely filing of a notice of appeal is subject to strict compliance, and a party's failure to timely file the notice deprives this Court of jurisdiction. See City of Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). A motion timely filed under CR 50.02, CR 52.02, or CR 59 terminates the running of time to file a notice of appeal. See CR 73.02(1)(e). However, this is not the case with motions filed under CR 60.02. Rule 60.02 explicitly states that "a motion filed under this rule does not affect the finality [of the judgment] or suspend its operation."
Nicole filed two post-judgment motions: one pursuant to CR 59 and the other, later motion, pursuant to CR 60.02. The first motion terminated Nicole's time to appeal from the family court's judgment. The family court disposed of the CR 59 motion on November 27, 2013. Any appeal of this order (and the underlying judgment) should have been filed no later than December 27, 2013.
Nicole cannot rely on her December 4, 2013, motion to extend her time to appeal. The Civil Rules plainly indicate that such a motion does not extend the time to appeal the underlying judgment. Thus, Nicole cannot raise, as part of this appeal, any alleged errors with respect to the November 8, 2013, bench ruling (as memorialized in the family court's November 14, 2013, written order), the family court's November 27, 2013, order denying Nicole's CR 59 motion, or the family court's December 6, 2013, order. The only order properly before this Court on appeal is the family court's December 19, 2013, order denying Nicole's CR 60.02 motion.
The confusion in this case is somewhat compounded by the fact that the family court entered two orders dealing with the same subject matter at different times--one order at the conclusion of the hearing and a more detailed order a few weeks later. Certainly, the better practice would have been for the family court to enter a single order. However, as explained above, Nicole did not file a timely appeal from either order.
"The decision as to whether to grant or to deny a motion filed pursuant to the provisions of CR 60.02 lies within the sound discretion of the trial court." Age v. Age, 340 S.W.3d 88, 94 (Ky. App. 2011). The standard of review of an appeal involving a CR 60.02 motion is whether the trial court abused its discretion. Grundy v. Commonwealth, 400 S.W.3d 752, 754 (Ky. App. 2013). The test for abuse of discretion is whether the trial court's decision is arbitrary, unreasonable, unfair, or unsupported by legal principles. Lawson v. Lawson, 290 S.W.3d 691, 694 (Ky. App. 2009).
In denying Nicole's CR 60.02 motion, the family court ruled as follows:
The Respondent believes that this Court's ruling should either be set aside or modified based upon newly discovered evidence, by what she purports as a change in circumstances. The Court does not see any newly discovered evidence, and in fact, sees the Respondent's circumstances as it [sic] was at the time of the hearing. The Respondent has had every opportunity to find a job, arrange adequate transportation, and turn in parent notes prior to the hearing. If the Court allowed parties to relitigate their cases because they did not like the outcome, then there would never be any stability for the child. At the time of the hearing, the Respondent was unemployed, relied on her boyfriend for transportation and was not able to consistently have her child either at school or there on time. The Court still believes that it is in the child's best interests to live with the Petitioner.
Having reviewed the record, we find no abuse of discretion. Nicole could have obtained the attendance records and text messages prior to the hearing, but failed to do so. She did not put forth any evidence to show why such evidence could not have been presented at the original hearing.
Regarding Nicole's other evidence, we agree with the trial court that Nicole's motion did not present evidence of a true "change in circumstances." The trial court's prior ruling was based primarily on Nicole's past conduct and demonstrated ability to parent. She failed to present any evidence to the trial court to show a true change in circumstances. The fact that Nicole recently obtained a job does not equate to a demonstrated ability to maintain stable employment nor does the fact that Nicole's fiancé gifted a used automobile to Nicole equate to a demonstrated ability to maintain adequate transportation. Accordingly, we conclude that the family court acted appropriately in denying Nicole's CR 60.02 motion.
III. CONCLUSION
For the reasons set forth above, we affirm the Hardin Circuit Court-Family Division.
ALL CONCUR. BRIEF FOR APPELLANT: Christy H. Shircliff
Louisville, Kentucky
BRIEF FOR APPELLEE: Dawn Logsdon Johnson
Radcliff, Kentucky