Opinion
NO. 2013-CA-001802-ME
08-15-2014
CHARLES SCHINDLER APPELLANT v. CARLIE SIMONE SCHINDLER (NOW AMBROSE) APPELLEE
BRIEFS FOR APPELLANT: Crystal L. Osborne Kate L. Green Lexington, Kentucky BRIEF FOR APPELLEE: Michael Davidson Nam H. Nguyen Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT FAMILY COURT DIVISION
HONORABLE TIMOTHY NEIL PHILPOT, JUDGE
ACTION NO. 07-D-00369
OPINION
AFFIRMING
BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES. TAYLOR, JUDGE: Charles Schindler brings this appeal from an October 3, 2013, Amended Domestic Violence Order of the Fayette Circuit Court, Family Court Division. We affirm.
On May 22, 2007, Carlie Simone Schindler (now Ambrose) filed a Domestic Violence Petition alleging that Charles threatened to harm her and their biological child. Carlie further alleged that Charles threatened to kidnap the child, and that he had physically abused her in the past. The family court issued an Emergency Protective Order (EPO) against Charles on May 22, 2007. Thereafter, on May 31, 2007, a Domestic Violence Order (DVO) was entered and was effective for some 35 days, until July 6, 2007.
Carlie then filed a motion to amend or extend the DVO on July 12, 2007. Some seven days later, on July 19, 2007, an Amended DVO was entered; it was effective until July 19, 2008. Since that time, the family court has issued several Amended DVOs. The most recent DVO as amended was entered October 3, 2013. Charles filed the instant direct appeal from the October 3, 2013, Amended DVO.
Charles argues that the family court erred by rendering the July 19, 2007, Amended DVO. Charles believes that the family court did not have jurisdiction to enter the July 19, 2007, Amended DVO because the original May 31, 2007, DVO expired by its own terms on July 6, 2007, and Carlie's motion to amend the DVO was filed on July 12, 2007, some six days after the DVO expired.
This case is a direct appeal of the October 3, 2013, Amended DVO albeit a challenge to an earlier order. In our opinion, this appeal is not the proper action to attack the validity of the July 19, 2007, Amended DVO. Since Charles failed to directly appeal from the July 19, 2007, Amended DVO, the appropriate method to challenge the validity of the July 19, 2007, Amended DVO is by filing a Kentucky Rules of Civil Procedure (CR) 60.02 motion. CR 60.02 is the proper procedure to collaterally attack an order entered some six years earlier. See Soileau v. Bowman, 382 S.W.3d 888 (Ky. App. 2012). There being no legal basis presented to overturn the October 3, 2013, order, we must affirm.
This issue of the validity of the July 19, 2007, Amended Domestic Violence Order (DVO) could possibly be rendered moot by the filing of a new petition for DVO by Carlie Simone Schindler (now Ambrose).
For the foregoing reasons, the Amended Domestic Violence Order of the Fayette Circuit Court, Family Court Division, is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Crystal L. Osborne
Kate L. Green
Lexington, Kentucky
BRIEF FOR APPELLEE: Michael Davidson
Nam H. Nguyen
Lexington, Kentucky