Opinion
NO. 2019-CA-000609-MR
03-20-2020
DAVID WAYNE PENNINGTON APPELLANT v. KATHY GAY CASTEEL APPELLEE
BRIEF FOR APPELLANT: David Wayne Pennington, pro se London, Kentucky BRIEF FOR APPELLEE: Kelly Kirby Ridings London, Kentucky
NOT TO BE PUBLISHED APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE STEPHEN M. JONES, JUDGE
ACTION NO. 17-CI-00607 OPINION AND ORDER
DISMISSING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. KRAMER, JUDGE: David Wayne Pennington appeals from an amended decree of dissolution of marriage. We dismiss because Pennington failed to timely appeal from the initial decree; the amended decree did not afford him a new opportunity to do so because it only corrected an insubstantial clerical error.
In July 2017, Casteel filed a petition for dissolution of her marriage to Pennington. Both parties were represented by counsel, and the only contested issues were achieving a just distribution of assets. In July 2018, the family court issued findings of fact, conclusions of law, and a decree of dissolution of marriage which in relevant part awarded a Ford Escape to Casteel and the debt thereon to Pennington.
The decree had a later-discovered clerical error and mistakenly listed the parties' year of marriage as 2004 instead of 2006. In November 2018—several months after the time for filing an appeal from the July final decree had expired—Pennington filed a two-sentence motion pursuant to Kentucky Rule of Civil Procedure (CR) 60.02 seeking only to amend the decree to change the date of the parties' marriage to May 4, 2006, i.e., to correct a clerical mistake. The following month, the family court correctly construed the motion as a motion pursuant to CR 60.01, which permits a clerical mistake to be "corrected by the court at any time." A CR 60.02 motion, on the other hand, cannot be used to correct clerical errors. See, e.g., Bard v. Commonwealth, 359 S.W.3d 1, 7 (Ky. 2011), as modified (Mar. 16, 2012), as corrected (May 15, 2012). Thus, the family court was correct in construing Pennington's motion as one under CR 60.01 and in issuing an order correcting the date of marriage to 2006 pursuant to that rule.
Based on the foregoing, this appeal is patently untimely because a motion to correct a clerical error does not toll the time for filing an appeal. United Tobacco Warehouse, Inc. v. Southern States Frankfort Co-op., Inc., 737 S.W.2d 708, 709-10 (Ky. App. 1987). Accordingly, an order correcting a clerical error under CR 60.01 does not provide a fresh opportunity to appeal.
Even though the December 2018 order gave Pennington all the relief he sought, i.e., correction of a clerical error regarding the year of the marriage, he nonetheless soon filed a two-sentence motion to vacate. This motion did not cite any authority or even designate under which rule(s) of civil procedure it was brought. Instead, the motion only generically asked the family court to vacate the CR 60.01 order because it "is contrary to the [unspecified] law and [unspecified] facts of the matter."
Over Casteel's understandably vehement objection to this baseless and legally flawed motion, in March 2019 the family court surprisingly granted Pennington's motion. The family court issued a one-sentence order vacating the December 2018 CR 60.01 order. The family court's March 2019 order is utterly devoid of explanation, analysis or a citation to any authority. In short, the face of the record contains nothing to help us understand why the family court granted Pennington's facially frivolous motion to vacate the CR 60.01 order. The family court also contemporaneously issued an amended decree of dissolution of marriage, but that amended decree only differed from the original decree in its recitation of the date Pennington and Casteel were married. In essence, the amended decree was redundant to the relief given via the CR 60.01 order. Pennington thereafter filed this pro se appeal.
Indeed, the amended decree is such a carbon copy of the initial decree that it repeats the same typographical error by again stating the parties "where [sic] married on May 4, 2006 . . . ." --------
As we construe Pennington's brief, he believes the Laurel Family Court erred by awarding Casteel the Ford Escape. However, before an appellate court may examine the merits of any appeal, it must ensure it has jurisdiction. See, e.g., Wilson v. Russell, 162 S.W.3d 911, 913 (Ky. 2005). CR 73.02(1)(a) requires an appeal to be filed within thirty days after the notation of service of the judgment. A failure to file a timely notice of appeal is a jurisdictional defect which cannot be remedied and thus results in automatic dismissal. See, e.g., Nunley v. Neuling, 530 S.W.3d 476, 479 (Ky. App. 2017). Dismissal in those circumstances is required because "[w]ithout the properly filed notice of appeal, the appellate court lacks jurisdiction to consider the matter." Cabinet for Health and Family Services v. H.C., 581 S.W.3d 580, 583 (Ky. 2019).
Pennington failed to appeal from the initial decree, and nothing substantive to the initial decree, e.g., a grant of a CR 60.02 motion that changed the initial decree substantively, has occurred subsequently. The CR 60.01 order was not a proper basis for appeal as it only corrected a clerical error. The March 2019 order vacating the CR 60.01 order was not a proper basis for appeal as it also addressed no substantive issues. Even the curious amended decree is not a proper basis for appeal as it only again corrected the date of the parties' marriage, i.e., it corrected a clerical mistake.
Our Supreme Court has made plain that only an amended judgment which contains "substantive changes—as opposed to merely correcting clerical errors" will restart the thirty-day window for filing an appeal. Cumberland Valley Contractors, Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 648 (Ky. 2007). Therefore, an amended judgment (or decree in this instance) which makes no substantive changes does not provide a new opportunity to appeal.
To put it in plain English, absolutely nothing regarding the initial divorce decree has occurred which afforded Pennington a new basis to appeal more than thirty days after its entry. To rule otherwise would permit parties to regain their already-expired appellate rights by successfully persuading a trial court to correct an insignificant, non-substantive error, which creates a procedural legal charade. This we will not condone, and the law does not allow.
Because this appeal was filed well after the deadline for appealing from the original decree, which always remained the operative substantive judgment, it is untimely and must be dismissed.
For the foregoing reasons, it is ORDERED that Appeal No. 2019-CA-000609-MR is DISMISSED as having been untimely filed.
ALL CONCUR. ENTERED: March 20, 2020
/s/_________
JUDGE, COURT OF APPEALS BRIEF FOR APPELLANT: David Wayne Pennington, pro se
London, Kentucky BRIEF FOR APPELLEE: Kelly Kirby Ridings
London, Kentucky